(dissenting) — The majority would send Clark Elmore to the executioner’s table notwithstanding effective denial of his constitutional right to counsel at a critical *312stage in the penalty phase proceeding. Without notice to or argument from counsel, and without even a conscious decision from the trial judge, a tape player was placed in the jury room enabling the jury to repeatedly replay a tape of Elmore’s confession, redacted to exclude his expressions of remorse. This error of constitutional significance requires reversal of Elmore’s death sentence and a new penalty phase trial to ensure fairness to the condemned man.
The Sixth Amendment to the United States Constitution guarantees “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” U.S. Const, amend. VI. This portion of the Sixth Amendment is binding upon the states through the due process clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733 (1963). Our state constitution similarly provides “[i]n criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel . . . .” Wash. Const, art. I, § 22 (amend. 10). A criminal defendant’s right to counsel guaranteed by the federal and state constitutions is not merely a simple right to have counsel appointed but is a substantive right to meaningful representation. See Evitts v. Lucey, 469 U.S. 387, 395, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985) (“Because the right to counsel is so fundamental to a fair trial, the Constitution cannot tolerate trials in which counsel, though present in name, is unable to assist the defendant to obtain a fair decision on the merits.”); Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (“The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ‘ample opportunity to meet the case of the prosecution’ to which they are entitled.”) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 276, 63 S. Ct. 236, 87 L. Ed. 268, 143 A.L.R. 435 (1942)); Avery v. Alabama, 308 U.S. 444, 445, 60 S. Ct. 321, 84 L. Ed. 377 (1940).
We have upheld the Sixth Amendment right to counsel *313at any stage of proceedings where there is a possibility of prejudice to the defendant. Garrison v. Rhay, 75 Wn.2d 98, 102, 449 P.2d 92 (1968) (“The constitutional right to have the assistance of counsel arises at any critical stage of the proceedings, and a critical stage is one in which there is a possibility that a defendant is or would be prejudiced in the defense of his case.”); see also Hamilton v. Alabama, 368 U.S. 52, 53, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961) (right to counsel attaches at any “critical stage in a criminal proceeding”). This means critical aspects of the proceeding must be conducted in the presence of defense counsel, with notice and opportunity for full participation on behalf of his client. Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981) (holding Sixth Amendment right to counsel was violated when defense counsel was not notified in advance about the nature of a psychiatric examination).
The decision to deliver a tape playback machine to the jury room is critically important because it allows special emphasis to be placed on the taped evidence by unlimited repetition, unlike listening to evidence in open court which is not repeated, not taken to the jury room, and which must be remembered to be considered. See State v. Frazier, 99 Wn.2d 180, 190, 661 P.2d 126 (1983) (“[T]rial court judges should continue to be aware of the potential for overemphasizing the importance of such [tape-recorded] evidence.”). Delivery of a tape player to the jury room was especially critical in this case because the tape of Elmore’s confession was redacted to omit a portion in which he expressed remorse for the crime.28 The defense initially objected to this redaction, Clerk’s Papers (CP) at 202, but *314subsequently relented on the understanding that Detective Gitts would testify in open court to the redacted portion of the confession. Verbatim Report of Proceedings (RP) (Mar. 6, 1996) at 2214-15, RP (Mar. 7, 1996) at 2392. But had defense counsel been notified that the jury would be allowed to repeatedly play the redacted version of the tape in the jury room, the defense would have had good reason to object to the redaction and/or placing the tape player in the jury room. CP at 103, 105 (affidavits of defense counsel, swearing they were not informed a tape player was placed in the jury room).29 Therefore denial of the opportunity for counsel to be heard on the issue of the tape player was denial of Elmore’s right to counsel. Cf. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) (holding statute permitting judge to deny counsel opportunity for closing argument violated criminal defendant’s constitutional right'to counsel).
The potentially undue emphasis a jury might give the redacted tape under the circumstances of this case must be a factor gravely considered by the trial court based upon the best available advocacy of both parties, as the jury may consider “any relevant factors” in its deliberation on the death penalty and its decision to spare the life of the accused is necessarily subjective. RCW 10.95.070. The defendant’s remorse for the crime is certainly a factor the jury may consider in favor of leniency. State v. Benn, 120 Wn.2d 631, 691, 845 P.2d 289 (1993) (“remorse or confession of a crime by the defendant may be viewed by prosecutors or juries as significant mitigation”); see also State v. Saga*315stegui, 135 Wn.2d 67, 96, 954 P.2d 1311 (1998) (affirming death sentence stating, “[The defendant’s] own admission to the jury reveals that he is totally without remorse. Indeed, his attitude has not changed since the time of trial.”); State v. Lord, 117 Wn.2d 829, 907, 822 P.2d 177 (1991) (“[The defendant] showed no remorse for any of his crimes. There was sufficient evidence for a rational trier of fact to find that leniency was not merited.”), denial of habeas corpus rev’d sub nom. Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999).
Repetition of a tape-recorded confession altered to remove remorse might make the difference between life and death in a system which requires a jury to be unanimous in its decision to impose a death penalty, sparing the life of the accused if only one juror finds the defendant sufficiently remorseful to merit leniency. RCW 10.95.060(4). Indeed the record shows the jury in this case “listened to and discussed” the redacted tape. CF at 108, 110; RE (May 3, 1996) at 15.
Because Elmore’s life was at stake in the proceeding below, the standard of review requires us to give the “utmost solicitousness” to Elmore’s position. State v. Martin, 94 Wn.2d 1, 21, 614 F.2d 164 (1980). Death is indeed different. Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from fife imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”).
Although positioning a tape playback machine in the jury room was clearly a critical stage of proceedings to which the right to counsel attaches, Elmore was denied effective representation of counsel when the jury was simply given access to a tape player without notice to or opportunity for argument from Elmore’s counsel. The *316redacted tape of the confession was admitted into evidence by the prosecution as Exhibit 18 (CP at 575), although the tape player was not admitted into evidence (CP at 575-76) nor was a motion made, much less granted, to allow its use in the jury room. The record is barren of any indication the trial judge even considered whether the jury would be provided a tape player for its unlimited use during deliberations. Nor is there any finding that defense counsel had knowledge the tape player would be sent to the jury room. Rather the bailiff “automatically” took the exhibits and the tape player back to the jury room when the jury was sent to begin deliberation. CP at 106.
Although Elmore forcefully argues the absence of argument by counsel or ruling by the trial judge regarding the tape player resulted in denial of his constitutional right to counsel, Opening Br. of Appellant at 40-66; Reply Br. of Appellant at 3-32, the majority fails to even address this fundamental claim in its opinion. Instead the majority assumes State v. Castellanos, 132 Wn.2d 94, 935 P.2d 1353 (1997), holds tape players are legitimately sent to the jury room as the norm absent court action to the contrary. Majority at 296 (“[0]nce admitted into evidence, an exhibit may be used by the trier of fact in whatever fashion it chooses under CrR 6.15(e).”). But Castellanos says the opposite. In Castellanos, tape recordings of a drug transaction were admitted into evidence without objection and were played in open court. Castellanos, 132 Wn.2d at 96. Then the defendant was given actual notice and opportunity to object to provision of a tape playback machine to the jury — and did in fact object. Id. Based on this proper and reasoned objection the trial court carefully considered the issue, ultimately allowing the jury unrestricted access to the tape player. Id. at 97. This court affirmed “[t]he trial court’s decision to allow the jury unlimited access to the tapes with playback equipment was not an abuse of discretion,” id. at 102 (emphasis added), stating:
tape recorded exhibits may go to the jury and the jury may take such exhibits into the jury room “if, in the sound discre*317tion of the trial court, the exhibits are found to bear directly on the charge and are not unduly prejudicial.”
Id. at 100 (emphasis added and omitted) (quoting State v. Frazier, 99 Wn.2d 180, 189, 661 P.2d 126 (1983)).
The rule in Castellanos is that absent a motion and affirmative ruling by the trial judge, tape players do not go to the jury.
While the result in Castellanos is clearly premised on the trial court’s hearing argument from counsel and exercising its discretion by making an actual overt and conscious decision as to whether the tape player should be allowed in the jury room, here there was no decision, no consideration, and no exercise of discretion which we might review for abuse. The true meaning of Castellanos is implicitly recognized elsewhere in the majority opinion which correctly characterizes Castellanos as holding “the trial court’s decision to allow the jury unlimited access to the tapes with playback equipment was not an abuse of discretion” Majority at 295 (emphasis added).
As Castellanos clearly holds, the trial judge has discretion to allow the jury access to a tape player during deliberation, Castellanos, 132 Wn.2d at 100, Castellanos supports Elmore’s argument that an error occurred when no discretion was exercised. This case presents stronger facts militating against sending the tape player to the jury than those present in Castellanos because in Castellanos the tapes had not been edited. Castellanos, 132 Wn.2d at 102 (“The tapes . . . were contemporaneous recordings of drug transactions.”).
But the exercise of discretion by the trial judge in Castellanos is not the only ground upon which Castellanos must be distinguished from the present case. Because the tapes in Castellanos were contemporaneous tape recordings of drug transactions, they were nontestimonial. Castellanos, 132 Wn.2d at 102 (“The tapes at issue here were not testimonial.”). However, the tapes in the present case were testimonial in nature because they were recordings of a *318confession during which a detective asked questions, eliciting answers from Elmore. See State v. Jennings, 815 S.W.2d 434, 440 (Mo. Ct. App. 1991) (taped confession testimonial), and see Black’s Law Dictionary 1476 (6th ed. 1990) (defining “[tjestimonial” as “[i]n the nature of testimony. Evidence is said to he testimonial when elicited from a witness in contrast to documentary evidence or real evidence.”). But see Yung v. State, 906 P.2d 1028, 1036 (Wyo. 1995) (taped confession nontestimonial).30 This court has never before held that a testimonial exhibit may go to the jury and should not so hold in this case.
The majority argues even if this were constitutional error it was harmless because “there is no indication here the content of the tapes caused such an emotional response in the jury as to overpower reason.” Majority at 296. But what does the majority expect to find, and where would it look? Such is not even a legitimate inquiry because the jury’s consideration of the evidence, and the weight given to it, inheres in the verdict:
The mental processes by which individual jurors reached their respective conclusions, their motives in arriving at their verdicts, the effect the evidence may have had upon the jurors or the weight particular jurors may have given to particular evidence, or the jurors’ intentions and beliefs, are all factors inhering in the jury’s processes in arriving at its verdict, and, therefore, inhere in the verdict itself, and averments concerning them are inadmissible to impeach the verdict.
Cox v. Charles Wright Academy, Inc., 70 Wn.2d 173, 179-80, 422 P.2d 515 (1967) (emphasis added); see also In re Personal Restraint of Lord, 123 Wn.2d 296, 327, 868 P.2d 835 (1994); State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988); State v. Whitney, 96 Wn.2d 578, 580 n.1, 637 P.2d 956 (1981); State v. Crowell, 92 Wn.2d 143, 146, 594 P.2d *319905 (1979). As evidence of jurors’ “emotional response” inheres in the verdict, it cannot by its nature be discerned from the record. The majority’s reliance on a lack of evidence in the record of “emotional response” on the part of the jury is execution by bootstraps.
The majority also argues any error was harmless because the jury heard other evidence of Elmore’s remorse. Majority at 296-97. However in so concluding the majority effectively weighs the evidence, and usurps the function of the jury which is uniquely charged with the task of weighing the evidence presented at the crucial sentencing phase of a death penalty case. RCW 10.95.070. The majority also completely overlooks the presumption, clearly articulated in our case law, that an error of constitutional magnitude is presumed prejudicial. State v. Finch, 137 Wn.2d 792, 859, 975 P.2d 967 (1999), pet. for cert. filed (July 1, 1999); State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980); State v. Burri, 87 Wn.2d 175, 181-82, 550 P.2d 507 (1976) (violation of a defendant’s constitutional right to counsel is presumed prejudicial); State v. Robinson, 38 Wn. App. 871, 876, 691 P.2d 213 (1984). The burden is on the state to demonstrate harmlessness. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). It is all the more difficult to conclude an error was harmless, and all the more difficult to overcome the presumption, given the subjective nature of a jury’s decision to impose the death penalty. Finch, 137 Wn.2d at 863 (“The evidence considered during the special sentencing proceeding is of a more subjective nature dealing with not only the nature of the crimes involved but also with personal history and the character of the Defendant.”).
Violation of Elmore’s constitutional right to counsel could arguably be harmless only if the trial judge could not, as a matter of law, have decided to withhold the tape player from the jury. But the majority does not even claim a decision to withhold the tape player under these facts would have been abuse of the trial court’s discretion.
The failure of the trial court to exercise discretion regard*320ing jury access to the tape player and the consequent effective denial of Elmore’s right to counsel at this crucial stage of proceedings was constitutional error and error which we must assume prejudiced the accused. That presumption of prejudice has not been overcome. The standard of review mandates we not allow another life to be taken in lieu of a new penalty trial where critical decisions are knowingly made by the trial court after benefit of advice and argument by counsel for the accused.
The redacted portion of the tape-recorded interview between Detective Gitts and Elmore (referred to in the transcript of the tape as “Dickey”) contained the following exchange:
GITTS: And your relationship with KRISTY, and such, did you guys tolerate each other, like each other, absolutely hate each other, or you tolerate her, she hates you, or what sort of situation would you call that?
DICKEY: We barely tolerated each other.
GITTS: Okay.
*314DICKEY: Which, again, is probably my fault. After all this was said and done, then I started to realize where I had made a lot of mistakes with KRISTY. ‘Cause the only time I ever talked to KRISTY was to yell at her for something that she didn’t do that she was supposed to do. I didn’t ever spend any time with KRISTY. Maybe this is because of the first time, I felt so guilty about it.
Clerk’s Papers (CP) at 274-75.
Although the prosecutor stated in an affidavit that he told the court “at the conclusion of the arguments on the 11th day of March, 1996” that a tape player would be used during jury deliberations, CP at 82, the record does not reflect such a discussion. Verbatim Report of Proceedings (Mar. 11, 1996) at 2647-48.
The majority states that in Castellanos we cited Yung “with approval.” Majority at 295. However the citation to Yung in Castellanos was clearly intended to highlight the distinction between testimonial and nontestimonial exhibits, not to place our imprimatur on an application of the rule to facts not then before us. Castellanos, Í32 Wn.2d at 100 (discussing the law in other states).