Circuit Judge, specially concurring:
I write separately because, although I agree with much of the majority opinion, I disagree with the resolution of two issues: the constitutionality of the prosecutor’s closing argument at Hall’s trial (part 4 B); and Hall’s right to presence at his trial (part 7).
I
The majority concludes that the prosecutor’s closing argument, in which he expressed his personal opinion that there existed “no mitigation in this particular case,” did not deny Hall a fundamentally fair trial. See Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). I agree completely with this conclusion. I have some doubt, however, as to the majority’s statement that “it is of critical importance that a prosecutor not play on the passions of the jury with a person’s life at stake.” In many cases in which the prosecutor seeks the death penalty, simply reciting the facts of the crime is enough to incite the “passions” of the jury. I therefore seriously doubt that this analysis, although supported by Hance v. Zant, 696 F.2d 940 (11th Cir.1983), is the proper method to resolve these types of cases. Of course, the opinion in Hance is binding on this panel, and I do not fault the majority’s reliance on Hance. I write separately on this issue because it will soon be before the court en banc, at which time we will ad*780dress this issue anew. (The “closing argument” issue is presented in several of the cases slated for en banc consideration in June.)
II
I also disagree in part with the majority’s resolution of Hall’s contention that he was not present at all stages of his trial. First, I believe this claim may be barred, at least in part, by a procedural default. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Ford v. Strickland, 696 F.2d 804, 816 (11th Cir. 1983) (en banc), cert. denied, — U.S. -, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983). Hall did not raise this claim on his direct appeal, and the Florida court stated, in resolving Hall’s appeal from his Rule 3.850 proceeding:
The majority of issues raised in the motion to vacate were raised on appeal. Most of the remaining issues could have been raised there. They are, therefore, not matters which will support a collateral attack. Adams v. State, 380 So.2d 423 (Fla.1980); Sullivan v. State, 372 So.2d 938 (Fla.1979). Several of the points raised, however, merit discussion.
Hall claims that he was not present during some of the jury selection and that his absence abrogated his fundamental constitutional rights. Francis v. State, 413 So.2d 1175 (Fla.1982). The trial court found Francis distinguishable from the instant case. We agree. Hall was not present at the roll call of prospective jurors or at the general qualification of prospective jurors. He was, however, present at all critical stages of the proceedings and available to consult with his counsel.
Hall v. State, 420 So.2d 872, 873 (Fla.1982). The Florida court did not address any of the other six absences cited by Hall. Although this court will address issues passed on by a state court despite a procedural default, see Grizzell v. Wainwright, 692 F.2d 722, 725 (11th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 2129, 77 L.Ed.2d 1307 (1983), I somewhat doubt that the Florida court may fairly be said to have passed on any of the seven absences raised except the absence at the jury selection/introductory remarks. In addition, the meaning of the statement that some issues “merit discussion,” 420 So.2d at 873, is unclear. As we have stated, “[wjhere the state court decision relies on both a procedural default and a lack of merit, the situation is unclear.” Dobbert v. Strickland, 718 F.2d 1518, 1524 (11th Cir.1983). I will nevertheless address the merits because the majority has done so.
In discussing Hall’s right to be present at his trial, the majority reads Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), modified, 706 F.2d 311 (1983), to “hold that a defendant may not waive his presence at any critical stages of his trial”; however, they also indicate that the record requires further development to determine “whether Hall knowingly and willingly waived his right to be present.” 1 I agree that the relevant initial inquiry is whether Hall was absent during stages of his trial that constituted “critical stages,” in the sense that critical stages are “all stages of trial when his absence might frustrate the fairness of the proceedings.” United States v. Stratton, 649 F.2d 1066, 1080 (5th Cir. 1981) (footnote omitted); see also Proffitt, 685 F.2d at 1256 (using similar language). I do not, however, read Proffitt to hold that the defendant cannot waive his presence at a critical stage (if that is the intended meaning of the majority’s opinion). Although the panel in Proffitt initially reached that conclusion, see 685 F.2d at 1257-58, on rehearing the panel stated that “[w]e need *781not decide the issue of whether presence at a capital trial ever is waivable, however, for here, even if we assume that the right to presence in a capital case may be waived, no knowing and voluntary and, therefore, no effective waiver was made.” 706 F.2d at 312 (footnote omitted) (emphasis added). Of course, we must consider whether the panel’s original conclusion that the defendant cannot waive his presence was correct; but I believe, upon examining the governing case law, that the panel probably reached the wrong result in their initial opinion.
The argument that a defendant cannot waive his right to be present at a capital trial draws its primary authority from three Supreme Court cases decided around the turn of the century. See Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). In Proffitt, the panel originally concluded that “the only precedents directly ruling on the issue [hold] that the right to presence in capital cases is so fundamental that the defendant cannot waive it.” After reviewing the three cases, however, I have come to the conclusion that they do not hold that presence at a capital trial is not waivable as a matter of constitutional law, but that any such indication is merely dicta. Furthermore, subsequent Supreme Court cases— both by holding and by dicta — seem to me to discredit the earlier statements. Having boldly stated this proposition, I believe a review of the cases is in order.
In Hopt, the defendant was found guilty of first degree murder and sentenced to death. At trial, the defendant challenged six jurors on the basis of bias. Under the then-current Utah procedure, other jurors were appointed “to try the challenge,” (to determine whether the six were biased) and proceeded to do so out of the presence of the defendant. 4 S.Ct. at 203. Although defendant Hopt failed to enter an objection at trial, he contended, both in an intermediate appeal and before the Supreme Court, that his conviction was invalid because the hearing on the issue of bias was not held in his presence. Faced with the argument that Hopt had waived his right to be present, the Court held that “it was not within the power of the accused or his counsel to dispense with the statutory requirement [under the Utah criminal code] as to his personal presence at the trial.” Id. at 204. Although the Court also cited the due process clause, a close reading of the decision demonstrates that the due process analysis was not the basis of the Court’s decision on waiver; thus, the opinion does not support the proposition that the defendant, as a matter of constitutional law, may not waive his presence at trial. The Court stated:
The argument [in support of waiver] necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view as well of the relations which the accused holds to the public as of the end of human punishment. The natural life, says Blackstone, “cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow creatures merely upon their own authority.” 1 Bl.Comm. 133. The public has an interest in his life and liberty. Neither can lawfully be taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life and liberty cannot be dispensed with, or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiration or atonement of the offense committed, but the prevention of future offenses of the same kind. 4 Bl.Comm. 11. Such being the relation which the citizen holds to the public, and the object of punishment for public wrongs, the legislature had deemed it essential to the protection of one whose life or liberty is involved in a *782prosecution for felony that he shall be personally present at the trial; that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without so present [sic], such deprivation would be without that due process of law required by the constitution.
Id. 4 S.Ct. at 204-05.
Thus, in Hopt, the Court held that the Utah statute, under the teachings of Blackstone, was not one for the protection of the accused but for the protection of the public. From this, the Court reasoned that it was not for the accused to waive the benefit of the statute, basing its holding as to waiver on late nineteenth century concepts of natural/common law (not on the due process clause). Having disposed of the waiver issue on those grounds, there was no need for the Court to address any constitutional limitations on waiver. I think that the fair reading of the opinion is that the Court did not do so, but, in any event, statements on that subject would have been dicta. The Court’s constitutional holding was that the statute was of such importance that the failure to follow it would amount to a deprivation of due process. Significantly, the case does not rest on the Sixth Amendment right to confront witnesses, which was not then “applicable” to the states, see Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965) (incorporating confrontation clause); and it seems to me that the claim that the state violated due process by failing to follow its own statutes or the common law is both not present in this case and discredited somewhat by later decisions. See discussion infra. To reiterate, I do not read Hopt as unequivocally stating that the defendant may never waive his presence at a capital trial: I read Hopt as stating that defendant could not waive his right under the Utah statute and that the failure of the state to follow that statute violated due process. Later decisions of the Court, see infra, support this interpretation.
In Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), another death case, the Court again discussed the issue. In Lewis, the prosecutor and the defendant were required to make their preemptory challenges independently — in other words, without knowledge on the part of either as to what challenges had been made by the other. The defendant complained of the method and preserved the error. In reversing the defendant’s conviction, the Court stated, in dicta:
A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner. While this rule has at times, and in the cases of misdemeanors, been somewhat relaxed, yet in felonies it is not in the power of the prisoner, either by himself or by his counsel, to waive the right to be personally present during the trial.
13 S.Ct. at 137. In support of this statement, the Court cited common law cases and discussed Hopt. The Court went on to state, a few pages later in the opinion, that “all rules of practice must necessarily be adapted to secure the rights of the accused; that is, where there is no statute, the practice must not conflict with or abridge the right as it exists at common law.” Id. at 139. Thus, a reading of Lewis yields, to me, two conclusions. First, the Court did not have before it in that case the issue of whether the defendant may waive his right to presence: Lewis had properly objected and had no intention of waiving his right. Second, the Court relied largely, if not exclusively, on common law principles in reversing Lewis’ conviction. Indeed, in Lewis (a United States criminal conviction) the Court did not mention or cite any provision of the Constitution. Thus, in my view, Lewis does not support the proposition that presence at a capital trial is nonwaivable. (Indeed, the panel in Proffitt apparently did not rely on Lewis.)
Finally, in 1912, the Supreme Court decided the case of Diaz v. United States, 32 S.Ct. 250. Diaz, although it involved a homicide, was not a capital case. Id. at 251. Diaz objected that he was wrongly *783convicted because the trial proceeded in part in his absence. The Court noted that the record demonstrated that he was present during all of the trial except for two occasions. On these instances,
[i]n the latter part of the trial, he voluntarily absented himself, and sent to the court a message expressly consenting that the trial proceed in his absence, which was done. On these occasions two witnesses for the government were both examined and cross-examined. No complaint grounded upon his absence was made in the trial court or in the Supreme Court of the Philippines; and the objection now made is that he did not voluntarily waive his right to be present, if he could waive it, but that it could not be waived, and that the court was therefore without power to proceed in his absence.
Id. at 253. In resolving this claim, the Court first decided that, under Philippine law (the case was an appeal from the Philippines), the defendant could waive his right to be present. The Court then addressed the effect of section 5 of the Philippine Civil Government Act, which was substantially equivalent to the Sixth Amendment. In holding that the Civil Government Act did not bar waiver, the Court made the following statement:
And with like accord they have regarded an accused in custody and one who is charged with a capital offense as incapable of waiving the right; the one because his presence or absence is not within his own control; and the other because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction. But, where the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absenced himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver____
Id. at 254. In discussing Hopt and Lewis, the Court stated:
In each [case] the accused was in custody, charged with a capital-offense, and was sentenced to death. In the first [Hopt ], a part of the trial was had in his absence notwithstanding the territorial statute [that] declared that he “must be personally present.” He did not object at the time, and it subsequently was claimed that, by his silence, he had consented to what was done. But this court held otherwise [see quote above]. In the second case [Lewis], “the prisoner was not brought face to face with the jury until after the challenges had been made and selected jurors were brought into the box to be sworn,” and he excepted at the time to the mode in which the challenges were required to be made.
Id. at 255. A review of Diaz leads me to, primarily, one conclusion. Diaz was not a capital case, and, therefore, any indication by the Court in Diaz that the defendant cannot waive his presence in such a case is dicta (or perhaps in the nature of an exception to the holding). (I include here the long quotes from Diaz because, in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), discussed infra, the Court implied that the Diaz principles of waiver apply in all cases, not only non-capital cases.)
As is apparent from the Court’s opinion in Diaz, Lewis did not address the issue of waiver; and, as I have discussed above, I do not believe that Hopt stands for the proposition for which the court in Proffitt originally cited it. Thus, the three cases are of limited value on the troublesome issue. I believe that my reading of the three cases discussed above is supported by their interpretation in subsequent Supreme Court decisions. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (not a capital case); Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (a capital case); Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915) (a capital case); Howard v. Kentucky, 200 U.S. 164, 26 S.Ct. 189, 50 L.Ed. 421 (1906).
*784In Frank, the Court was faced with the contention that Frank’s absence from certain portions of his trial violated the due process clause under the rule stated in Hopt v. Utah. In discussing Hopt, the Court made the following statement:
the court [in Hopf\ had under review a conviction in a territorial court after a trial subject to local code of criminal procedure, which declared: “If the indictment is for a felony, the defendant must be personally present at the trial.” The judgment was reversed because of the action of the trial court in permitting certain challenges to jurors, based upon the ground of bias, to be tried out of the presence of the court, the defendant, and his counsel. The ground of the decision of this court was the violation of the plain mandate of the local statute; and the power of the accused or his counsel to dispense with the requirement as to his personal presence was denied on the ground that his life could not be lawfully taken except in the mode prescribed by law. No other question was involved.
35 S.Ct. at 592 (some emphasis in original; some added). The Court went on to state that:
The distinction between what the common law requires with respect to trial by jury in criminal cases, and what the states may enact without contravening the “due process” clause of the Fourteenth Amendment, is very clearly evidenced by ... opinions written by Mr. Justice Schrass. In the Lewis case, which was a conviction of murder in a circuit court of the United States, the trial practice being regulated by the common law, it was held to be a leading principle, pervading the entire law of criminal procedure, that after indictment nothing should be done in the absence of the prisoner; that the making of challenges is an essential part of the trial, and it was one of the substantial rights of the prisoner to be brought face to face with the jurors at the time the challenges were made; and that in the absence of the statute, this right as it existed at common law must not be abridged. But in the Hallinger [146 U.S. 314, 13 S.Ct. 105, 36 L.Ed. 986 (1892)] case where a state by legislative enactment had permitted one charged with a capital offense to waive a trial by jury and elect to be tried by the court it was held that this method of procedure did not conflict with the Fourteenth Amendment. So in Howard v. Kentucky, 200 U.S. 164, 175, 50 L.Ed. 21, 426, 26 S.Ct.Rep. 189 [191 (1906) ] — a case closely in point upon the question now presented — this court finding, that by the law of the state an occasional absence of the accused from the trial, from which no injury resulted to his substantial rights, was not deemed material error, held that the application of this rule of law did not amount to a denial of due process within the meaning of the Fourteenth Amendment.
Id. 35 S.Ct. at 592-93.
I note that the Frank Court accurately repeated the holding in Howard v. Kentucky, and that in Howard the Court specifically held that the defendant’s presence at a voir dire on the issue of prejudice — the situation in Hopt — was not constitutionally mandated. Furthermore, the Court held that a possible misapplication of a state statute did not violate the due process clause, placing Hopt's validity in- question on that point, also.
In Snyder, the Court expressly noted that Hopt had been distinguished and limited by Frank. 291 U.S. at 106, 54 S.Ct. at 332. (The Court in Snyder held that the defendant need not be present during a jury view of the scene of the crime because that does not constitute a critical stage of the trial.) And, finally, in Illinois v. Allen, the Court stated:
The broad dicta in Hopt v. Utah, supra and Lewis v. United States, 146 U.S. 370 [13 S.Ct. 136, 36 L.Ed. 1011] (1892), that a trial can never continue in the defendant’s absence, have been expressly rejected. Diaz v. United States, 223 U.S. 442 [32 S.Ct. 250, 56 L.Ed. 500] (1912). We accept instead the statement of Mr. Justice Cardozo who, speaking for the *785court in Snyder v. Massachusetts ... said: “no doubt the privilege [of personally confronting witnesses] may be lost by consent or at times even by misconduct.”
397 U.S. at 342-43, 90 S.Ct. at 1060-61. The Court in Illinois v. Allen clearly read Diaz, even though it was not a capital case, as discrediting the broad dicta in the earlier two cases. In addition, the Court in Frank expressly discredited the dicta in those cases and read them as relying primarily on state statutes and the common law. Thus, it seems to me that reliance on Hopt (which seems to be the primary case put forth as support) to argue that the defendant may not waive his presence at a capital trial is unwarranted.
To avoid belaboring the issue any more than I already have, I would conclude that the defendant may waive his presence in a capital trial and that he may do so in any of a variety of ways. First, he may waive his right to presence by misconduct. See Illinois v. Allen. Second, he may waive his right to presence simply by failing to show up for the trial through no fault of the state. Diaz v. United States; see also United States v. Martinez, 604 F.2d 361 (5th Cir.1979), cert. denied, 444 U.S. 1034, 100 S.Ct. 708, 62 L.Ed.2d 671 (1980). Finally, if the defendant is in custody, he may waive his presence under the knowing and voluntary standard enunciated in Proffitt, 706 F.2d at 312. (In Proffitt, the defendant, who was apparently in custody, did not even know of the hearing.) I realize that in the rehearing decision in Proffitt the court interpreted Diaz and Hopt differently than I have in this opinion; however, given the court’s express disclaimer of ruling on whether presence could be waived, I do not believe that that interpretation is binding on this panel.
Abandoning for the moment the rather complex constitutional issues presented by this case, I feel that it is possible to resolve some of the subissues presented by Hall on appeal without a remand to the district judge. First, Hall urges that he was absent during the voir dire and selection of the jury; however, the district court noted that the state court found that he was, in fact, present for most of the proceedings. See Hall v. Wainwright, 565 F.Supp. 1222, 1239 (M.D.Fla.1983). This historical fact is supported by the record, and the district court’s resolution of the issue by relying on the state finding seems to be proper. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The Florida Supreme Court noted, however, that Hall was not present during the “roll call of prospective jurors or at the general qualification of prospective jurors.” Hall v. State, 420 So.2d 872, 873 (Fla.1982). A review of the record indicates that the trial judge made opening remarks to the venire, introduced court personnel, instructed the venire concerning sequestration, and read the indictment. In addition, the judge excused several female veniremembers because they had children younger than age fifteen and excused numerous veniremembers on the basis of hardship or medical necessity. The trial judge also asked questions concerning exposure to pretrial publicity and excused several more jurors. At this point, the defendant entered the courtroom.
It is this absence during the voir dire proceedings on pretrial publicity that, in my opinion, necessitates a remand to the district court for a finding whether Hall knowingly and voluntarily waived his right to presence. (The absences during other portions of the voir dire do not appear to be critical.) The parties cite only one case, Howard v. Kentucky, 200 U.S. 164, 26 S.Ct. 189, 50 L.Ed. 421 (1906), that addresses the constitutional right to presence at voir dire proceedings. In Howard, the Court held that the defendant’s absence during a hearing conducted by the judge on the issue of bias does not violate the due process clause.2 Id. at 192. The prosecu*786tor had moved to strike the juror on the basis of an affidavit of another juror; the judge held the hearing to determine the veracity of the allegations contained in the affidavit. Arguably, the holding in Howard could be interpreted to govern in this case — presumably supporting a decision that the voir dire was not a critical stage. I think Howard and this case differ in important ways, however.
First, as is clear from the opinion, see supra note 2, the Court in Howard relied to a large degree on the defendant’s acquiescence in the procedure followed. The Court decided Howard before the advent of the knowing and voluntary standard applicable to waiver in this case, see Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); and, in this case, an evidentiary hearing on waiver is necessary to determine whether any waiver was knowing and voluntary. Second, there is a greater possibility that Hall’s absence, as compared to the defendant’s absence in Howard, could have resulted in prejudice. Although the juror excused in Howard appeared to favor the defendant, the defendant presumably could have added little to the hearing on bias — from the case it seems that the defendant had no first hand knowledge of the issue. In this case, however, Hall might have known some of the jurors; perhaps he could have aided his attorney in formulating questions or pointing out possible problems.
Thus, given this record, I agree that a hearing would be helpful on this subissue. I would instruct the trial judge to inquire whether Hall properly waived his right to presence and to explore the possibility that the absence was harmless beyond a reasonable doubt. Although I would be willing to hold harmless some of Hall’s absences without further hearings, see infra, I believe a hearing on harmlessness might be helpful here.
As to Hall’s other claims, it seems to me that United States v. Provenzano, 620 F.2d 985 (3d Cir.1980), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980), and United States v. Gradsky, 434 F.2d 880 (5th Cir.1970), cert. denied, 409 U.S. 894, 93 S.Ct. 203, 34 L.Ed.2d 151 (1972), resolve adversely to Hall his claim that he had thé right to be present at the discussion of various legal motions; it also seems that United States v. Dominguez, 615 F.2d 1093, 1094-96 & n. 4 (5th Cir. 1980), which held that excusal of a juror out of the defendant’s presence under certain circumstances does not violate the defendant’s Rule 43 (of the Federal Rules of Criminal Procedure) right to presence, resolves adversely to Hall his claims that he should have been present both when the jury was dismissed and when alternate jurors were excused. Under Dominguez, it is permissible for the judge to excuse an active member of the jury during trial. See id.3 The defendant’s right to presence guarantees that he will be available to assist in the conduct of his defense — it is not simply a guarantee that he can observe the proceedings. See Gradsky, 434 F.2d at 883. Thus, it seems to me that excusal of alternate jurors and excusal of the jury after trial were not critical stages at which Hall should have been present. In any event, I would hold harmless beyond a reasonable doubt his absence at these events *787of minor importance. See Dominguez, 615 F.2d at 1096 n. 4; Proffitt, 685 F.2d at 1260; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). I am also prepared to hold that marking of an exhibit for identification was not a critical stage or, if it was, that Hall’s absence was harmless beyond a reasonable doubt.
This partially resolves six of Hall’s seven absences; only his claim that he should have been present during the trial judge’s discussion of certain items of evidence with the jury during their deliberations remains. The transcript records the following exchange between the court and jury:
WHEREUPON, JURY RETURNED TO OPEN COURT AT 5:55 P.M., JUNE 22, 1978, AND THE FOLLOWING PROCEEDINGS WERE HAD:
THE COURT: Mrs. Wheeler, I believe you’ve been selected forewoman?
FOREWOMAN: Yes, sir.
THE COURT: I understand you and the rest of the jurors feel you would like to recess at this time and come back in the morning. All right, I think that is a wise decision. I want to again admonish you not to watch or read or listen to any news broadcasts of the trial or any newspaper articles concerning the trial.
All right, Mr. Johnson here will bring you back in the morning when you have finished your breakfast and you can begin your deliberations again at that time. Do any of you have any questions?
FOREWOMAN: We’d like to look at some of the evidence.
THE COURT: All right, do you have the items listed?
FOREWOMAN: I know some of them we wanted to look at, the orange grove, the park, the entrance to the scene of the crime.
THE COURT: Let me say this, you can think about that tonight and make a list of them and give it to Mr. Johnson, and we will make arrangements for you to come into the courtroom tomorrow and look at them.
All right, Court is in recess.
COURT RECESSED FOR THE DAY.
The record does not show whether Hall’s attorney was present during this exchange.
In United States v. Benavides, the former Fifth Circuit held that Rule 43 “affords the defendant the right to be present at all stages of his trial, including presence during communication between court and deliberating jury.” 549 F.2d 392, 393 (5th Cir.1977) (citing Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975)). It may be that the Constitution does not require presence in this situation although Rule 43 does, see supra note 3; however, communications between court and jury are an important stage of the trial, and I would hesitate to hold that stage to be not critical. I nevertheless disagree that this issue should be remanded to the district court. As the Benavides court noted, the “error can be harmless,” 549 F.2d at 393; and, in this case, I think Hall’s absence was harmless.
A comparison of this case with Benavides and Rogers illustrates my conclusion. In Benavides the court’s communication instructed the jury, which could not reach a verdict, to “consider the offense further.” Id. (emphasis added). This phrasing was obviously prejudicial. In Rogers, the court, without consulting the parties, informed the jury (in reply to their inquiry) that he would accept a verdict of guilty with a recommendation of mercy. 422 U.S. at 36-38, 95 S.Ct. at 2093-2094. This also was prejudicial: “[a]t the very least, the court should have reminded the jury that their recommendation would not be binding in any way.” Id. at 40, 95 S.Ct. at 2095.
Neither of these situations nor a situation raising a similar possibility of abuse is present in this case. As the transcript indicates, the judge simply instructed the jury not to read or view anything concerning the trial. He then informed the jury that they could view any items of evidence the next morning; in doing so, he simply followed the applicable Florida law. Florida Rule of Criminal Procedure 3.400 provides:
*788The court may permit the jury, retiring for deliberation, to take to the jury room:
* * * * * *
(d) all things received in evidence other than depositions. If the thing received in evidence is a public record or a private document which, in the opinion of the court, ought not to be taken from the person having it in custody, a copy shall be taken or sent instead of the original.
Thus the jury clearly had the right to view the evidence requested. By delaying the request until the next morning, the judge ensured compliance with Florida Rule 3.410 (to the extent it may apply), which provides:
After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who had them in charge and the court may give them such additional instructions or may order such testimony read to them. Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.
Thus, it is clear that the judge strictly followed the applicable law and that Hall’s absence in this instance was harmless beyond a reasonable doubt.
. The majority presumably concludes that waiver is not permissible except at non-critical stages, when it must be knowing and voluntary; however, that position does not seem to be supported by Proffitt. In addition, this interpretation' — the only one that gives meaning to both statements quoted above — fails to take into account the instruction that the district court determine whether the "absence was at a non-critical stage and, therefore, harmless.” I believe we should be clearer in instructing a district judge concerning further proceedings on remand.
. The Court stated:
But we are unwilling to say that one charged with felony, and being in court, as was the appellant, with counsel at hand ready and competent to advise him of his rights, may not, in advance of the swearing of the jury, *786and before he is placed in jeopardy, consent to a private examination by the court of a juror against whom complaint had been made, for the purpose of ascertaining whether he was qualified to retain his place as one of the jury to try the case. Nor do we think it is affirmatively shown by the record in this case that any injury resulted to the substantial rights of the appellant by Alexander’s dismissal from the jury.
Id. at 192.
. Both Rule 43 of the Federal Rules of Criminal Procedure, which guarantees the defendant the right to presence at all stages of his trial, and the Sixth Amendment were at issue in Dominguez (and several other cited cases). Rule 43 requires presence at stages of the trial when presence would not constitutionally be mandated, see generally 3A Wright, Federal Practice & Procedure § 721 et seq.; therefore, Dominguez supports a holding based either on Rule 43 or the Constitution. (Of course, cases mandating presence under Rule 43 do not necessarily support a constitutional right to presence under similar circumstances.)