In this assault case, the court held that although the trial court erred by instructing prospective jurors outside of the presence of defense counsel, the error was harmless beyond a reasonable doubt. During jury selection the trial court called a recess. While waiting for jury selection to resume and while defense counsel was outside of the courtroom, the trial court gave an instruction to the prospective juror pool. The instruction informed the jurors that they would decide the case based on evidence presented in the courtroom and the law as provided by the trial court. The trial court further informed the jurors that they were not to search for legal definitions on the Internet or do any research on their own. The trial court admonished the jurors that they were not investigators and reiterated that they should not resort to any investigation on their own, legal or otherwise. The defendant was found guilty and appealed, arguing that the trial court committed structural error in violation of the sixth amendment by giving instructions to potential jurors while defense counsel was absent from the courtroom. The State conceded error but argued the error was not structural. The court agreed. It noted that voir dire did not continue during defense counsel’s absence. Instead, the trial court instructed the potential jurors to abstain from site visits or independent research. Neither the court nor the State questioned prospective jurors.

The court went on to conclude that the State had proved that the error was harmless beyond a reasonable doubt, noting in part that the trial court gave the jury similar instructions at different times during trial while counsel was present without objection.

Two judges filed concurring opinions. One concurring judge noted that the trial court violated the defendant’s sixth amendment rights by speaking to the jury pool outside the presence of defense counsel and stated: “The court should not have done so, and no trial court should do this again.”