dissenting.
I respectfully dissent.
In general, a trial court has a duty to answer proper jury questions. As the Supreme Court in Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946) noted: “When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.”
Almost half the states have adopted statutes or rules which expressly govern the appropriate disposition of a jury’s request for additional instructions. See, e.g., Ariz.R.Crim.P. 22.3; Ark.Stat Ann. § 43-2139 (1977); Cal.Penal Code § 1138 (West 1970); Fla.R.Crim.P. 3.410; Idaho Code § 19-2204 (1948); Ind.Code Ann. § 34-1-21-6 (Burns 1973); Iowa R.Crim.P. 18(5)(g); Ky.Rev.Stat. § 29.304 (1971); La.Code Crim.Pro.Ann. art. 808 (West 1967); Me.Rev.Stat. tit. 14, § 1106 (1965); Minn R.Crim.P. 26.-03(19); N.Y.Crim.Proc. Law § 310.20(1) (McKinney 1971); N.D.Cent.Code § 29-22-05 (1974); Okla.Stat. tit. 22, § 894 (1958); Or.Rev.Stat. § 17.325 (1973); S.D.Compiled Laws Ann. § 23A-25-8 (Spec.Supp.1978); Tex.Crim.Pro.Code Ann. art. 36.27 (1966); Utah Code Ann. § 77-32-3 (1978); Wash.Sup.Ct.Crim.R. 6.15; Wis.Stat.Ann. § 805.-13 (West 1976). In the majority of those jurisdictions, it is mandatory that a trial judge answer a proper jury question.
Adoption of ABA, Standards for Criminal Justice, Standard 15-4.3(a)(2d ed. 1982), would clarify the issue raised here. That standard states:
“If the jury, after retiring for deliberation, desires to be informed on any point of law, they shall be conducted to the courtroom. The court shall give appropriate additional instructions in response to the jury’s request unless:
(i) the jury may be adequately informed by directing their attention to some portion of the original instructions;
(ii) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or
(iii) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.”
The majority view assumes that all persons understand all words in the same way. That is, the majority concludes that, since it understands the difference between “knowing or believing” and “having a suspicion of,” the members of the jury here understood that distinction as well. That analysis begs the question: the jury did experience difficulty in analyzing those terms, otherwise it would not have posed the question. To respond, as the trial court did here, by saying that the answer is contained in the instructions as a whole, is tantamount to no answer at all.
Furthermore, the presence of a defendant and his counsel at this stage of the proceedings is required. As our Supreme Court stated in Nieto v. People, 160 Colo. 179, 415 P.2d 531 (1966), this requirement: “Is imbedded in the constitution of both this state and nation”. Consequently, the trial court did err in proceeding without counsel or defendant, and thus, the result reached here can be justified only by applying the standard set out in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 *514L.Ed.2d 705 (1967) concerning harmless error beyond a reasonable doubt. In Chapman, Justice Black, writing for the majority, concluded that the purpose of a harmless error analysis is to “block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.”
However, applying the Chapman standard to the circumstances in this case, I cannot agree with the majority’s conclusion, that reversal is not required. The trial court here failed to assist the jury in its deliberations concerning a material element of the charge — mens rea; thus, its actions had significantly more than a “little likelihood” of changing the result of the trial.
Because the jury’s unanswered question here evidenced a serious misapprehension of the law, its verdict was improper. It may well have convicted defendant of the crime changed premised upon a finding that he merely suspected the tools in question were stolen. “Proof that ascends no higher than the level of suspicion, surmise or conjecture has no substance in our system of jurisprudence, whether the problem considered be criminal or civil.” Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959).
The purpose of jury instructions is to advise a jury fully and clearly of the law applicable to all elements of the charge. If the jury is not adequately instructed, it cannot perform its function. Here, the jury was prevented from performing its duty and the defendant was prejudiced as a result. Accordingly, I would reverse the conviction and order a new trial.