dissenting.
{¶ 164} I continue to believe that “allowing the alternate jurors to be present during jury deliberations violate[s] the sanctity of the jury process.” State v. Murphy (2001), 91 Ohio St.3d 516, 564, 747 N.E.2d 765 (Pfeifer, J., dissenting), citing United States v. Virginia Erection Corp. (C.A.4, 1964), 335 F.2d 868, 872; see, also, Koch v. Rist (2000), 89 Ohio St.3d 250, 252, 730 N.E.2d 963, and State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 144 (Pfeifer, J., concurring in part and dissenting in part).
{¶ 165} As the majority states, the presence of alternate jurors during deliberations also violates Crim.R. 24(F). Unlike the majority, I do not believe we are constrained by the plain-error standard set forth in United States v. Olano (1993), 507 U.S. 725, 741, 113 S.Ct. 1770, 123 L.Ed.2d 508. Olano was decided based on the United States Supreme Court’s analysis of the federal analogue to Crim.R. 24(F). We are free to analyze Crim.R. 24(F) independently.
{¶ 166} Like the civil trial in Koch, this case “involves extraordinary misconduct where a stranger to the jury entered the jury room and remained there throughout the entire deliberative process.” Koch, 89 Ohio St.3d at 251, 730 N.E.2d 963. The four factors we identified in Koch (the presence of a stranger to the jury, the duration of the presence, the possibility of nonverbal communication, and the difficulty of determining whether the jury was prejudiced) are present in this case, but the stakes are higher, since this case involves a sentence of death. Id. at 252, 730 N.E.2d 963.
Ron O’Brien, Franklin County Prosecuting Attorney, Joyce Anderson and Scott M. Forehand, Assistant Prosecuting Attorneys, for appellee. W. Joseph Edwards and Brian J. Rigg, for appellant.{¶ 167} I am unwilling to consider “errors that call into question the integrity of the jury’s deliberations” harmless or subject them to plain-error analysis. See Olano, 507 U.S. at 743, 113 S.Ct. 1770, 123 L.Ed.2d 508 (Stevens, J., dissenting). The jury in a death-penalty case must be free from any perception that its fairness and integrity have been compromised. Here it is clear that nonjurors were allowed into the jury deliberations during both the guilt phase and the penalty phase. Their presence violated the sanctity of the jury’s deliberations and therefore tainted the entire trial.
{¶ 168} Accordingly, I would reverse and remand for a new trial. I dissent.