A divided Ohio Supreme Court today threw out the death sentence of a man convicted of killing a Muskingum county sheriff's deputy. In a four-to-three vote, the justices sent the case of Tony Gross back to the trial court for resentencing. The Supreme Court says that alternate jurors should not have have been present in the jury deliberation room during the penalty phase of Gross' trial. Gross was convicted of aggravated murder in the July 1994 death of Lieutenant Mike Lutz. Prosecutors say the Lutz caught Gross trying to break into a Certified gas station in South Zanesville and that Gross then grabbed Lutz's pistol and fired three shots into Lutz's head.