¶1 concurring separately in part.
¶2 {¶ 53} The fourth assignment of error presents a particularly difficult problem. The jury on this capital case could not consider a death sentence because a death sentence had been rejected in an earlier trial. The jury began deliberations on a Friday afternoon and deliberated for over three hours before recessing until the following Monday.
¶3 {¶ 54} On Monday morning, one of the jurors complained of heart palpitations and asked to be excused from further involvement. Counsel for both parties were advised of the situation and expressed no disagreement with the juror’s being excused. Counsel were more concerned about the content of a chargfe that was to be given to the jury in response to a jury question from the preceding Friday. Counsel for the defense did not express disagreement with the juror’s being excused either to counsel for the state of Ohio or to the judge who was handling the case that day for the original trial judge.
¶4 {¶ 55} Later, the trial judge handling the case that day announced in open court that the alternate was to be seated and had the oath administered to the alternate in open court with counsel for the parties and the defendant present. Shortly thereafter, the judge instructed the jury to begin its deliberations over, since the alternate had not participated in the first three hours of deliberations. Neither counsel nor the appellant objected to this procedure.
¶5 {¶ 56} Crim.R. 24(G)(2) states:
Capital cases. The procedure designated in division (F)(1) of this rule shall be the same in capital cases, except that any alternate juror shall continue to serve if more than one deliberation is required. If an alternate juror replaces *312 a regular juror after a guilty verdict, the court shall instruct the alternate juror that the juror is bound by that verdict. No alternate juror shall be substituted during any deliberation. Any alternate juror shall be discharged after the trial jury retires to consider the penalty.
¶6 {¶ 57} Because deliberations began anew, both counsel and the trial judge could have interpreted this case as a situation where the juror was not substituted during deliberations. No one discussed Crim.R. 24(G)(2) at the time of the substitution.
¶7 {¶ 58} The better procedure would have been to dismiss the juror with heart palpitations in open court with counsel present and with the defendant present. Other options could have been considered by all, including allowing a jury of 11 to conclude the case and declaring a mistrial. Excusing the juror from the judge’s chambers with no contemporaneous discussion on the record and no requirement for defense counsel to express agreement or disagreement on the record before the juror was excused is not a good way to handle the case.
¶8 {¶ 59} Based on the record before us, we can only infer that counsel and the defendant did not disagree with the fact of the necessity to excuse the juror. Neither did counsel or the defendant express any dissatisfaction with seating the alternate and beginning deliberations anew. Under the circumstances, I cannot view the case as presenting reversible error.