dissenting.
I dissent. The Majority’s invocation of the doctrine of waiver is simply not warranted in the circumstances before us. Rather than resort to a harsh application of waiver principles, this Court should have addressed the merits of Durden’s contention that the trial court erred in failing to provide additional arguments on the supplemental instructions.
I note at the outset that the impetus for the supplementary instructions given by the trial court was the State’s failure to object to the absence of a final instruction on Durden’s potential culpability as an accomplice. The final instructions given by the court asked the jury to assess Durden’s culpability only in terms of his role as a principal. During final argument, Durden’s attorney stressed to the jury that its assessment of his client’s role in the charged offense was limited to the question whether he had committed all elements of the crime charged, as the State had alleged in the charging instrument.
Apparently mindful of the limitations imposed on its evaluation of the evidence, the jury, after three and one-half hours of deliberation, sent the following question to the trial judge:
“In defining breaking are we restricted to considering one individual or can it be construed as being in conjunction with someone else?”
The jury’s inquiry prompted the court to give a supplementary instruction on Dur-den’s potential culpability as an accomplice. Shortly after the instruction was given, the jury returned its guilty verdict.
As the Majority has held, the fact that the supplementary instruction was given did not constitute reversible error. Guffey v. State (1979), Ind., 386 N.E.2d 692, 698. As explained in Guffey, the trial judge’s right to communicate with the jury in open court during their deliberations provides the justification for supplementary instructions. This is true notwithstanding the fact neither IC 1971, 35-1-35-1 (Burns 1979 Repl.) nor Ind. Rules of Procedure, Criminal Rule 8 “contemplate” supplemental instructions. Guffey v. State, supra at 699.
Similarly, our rules and statutes in no way “contemplate” additional or supplementary final arguments. Both the State and the defendant are, of course, granted the right to present a final argument to a jury, wherein they are permitted to comment upon the evidence as it relates to the court’s instructions. IC 1971, 35-1-35-1, supra; Shelby v. State (1972), 258 Ind. 439, 281 N.E.2d 885, 887. Whether a party might be entitled to a second final argument in the wake of a supplementary final instruction is a question which — at least heretofore — had never been addressed by the Courts of this state.
Consequently, it was without statutory authority or case precedent to guide him that Durden’s attorney confronted the trial court’s proposal to give a supplementary instruction to the jury during its deliberation. One of Durden’s objections to the supplementary instruction was the following:
*286“Secondly, this denies counsel the right to comment to the jury upon instructions as was previously granted during final argument.”
Durden’s objection was obviously predicated on the belief that — as IC 1971, 35-1-35-1, supra indicates — a party is entitled to only one opportunity to present final argument.
If, after his objection was overruled, Dur-den’s attorney did entertain a notion to specifically request an unprecedented opportunity to make a second final argument to the jury, that avenue was abruptly foreclosed by the trial court. The court ordered:
“State now submits as an additional instruction to be read to the jury, Instruction 19A to which defendant objects to said instruction. Defendant submits its additional instruction 19B to which State offers no objection. The court now orders both additional Instructions read to the jury along with the original instructions and without further comment by either parties.” (Emphasis added.).
In the face of the court’s unequivocal pronouncement, a motion by Durden’s attorney for a second final argument would have been a futile act.
The Majority holds, however, that the failure of Durden’s attorney to make that specific motion constitutes a waiver of Dur-den’s right to complain that he was denied his right to present a meaningful final argument. As authority for its conclusion, the Majority relies on 15 A.L.R.2d 490, together with decisions rendered by the Arkansas Supreme Court in 1949 and 1912. Por various reasons, I am unable to join in the Majority’s reliance on these authorities and its consequent invocation of the doctrine of waiver.
My unwillingness to join in the Majority’s refusal to reach the merits of Durden’s argument is based in large part on the circumstances which surround the supposed “waiver.” The State’s neglect created the awkward situation whereby — subsequent to Durden’s final argument — Durden was exposed to imprisonment on a second basis. The consequences of the State’s oversight was that Durden’s attorney was suddenly required to dispute the propriety of a seldom implemented vehicle — the supplementary instruction. I cannot say that in these circumstances, this Court should refuse to address Durden’s contention because his attorney failed to act in accordance with 1912 and 1949 Arkansas decisions or the materials contained in a two-page 1951 A.L.R. annotation. Such a harsh standard is particularly offensive in light of the fact that “supplementary” final arguments are neither contemplated in Indiana statutes or court rules nor established in case precedent.
My disagreement with the Majority’s refusal to address the merits of Durden’s argument is also prompted by the trial court’s pronouncement that neither party would be permitted to make additional comment upon the supplementary instructions. The Majority emphasizes that notwithstanding the fact that a motion for additional argument would have been a futile act, the motion was still necessary for the purpose of establishing a record for appeal. It cannot be doubted that but one claim would lie as a basis for that motion — that the supplementary instruction necessitates additional argument in order to effectively protect the right to present a meaningful final argument. That very proposition has in fact been argued by Durden at every appropriate stage of the proceedings before us. We need not be soothsayers to recognize the basis for the allegation of error which Dur-den requests this Court to address. The purpose and spirit of the rule has been satisfied; there is no valid reason for this Court to depart from the long-standing preference of the Courts of this State to dispose of cases on their merits. Williams v. State (1969), 253 Ind. 316, 253 N.E.2d 242, 243; West v. Indiana Insurance Co. (1969), 253 Ind. 1, 247 N.E.2d 90, 97; Cunningham v. Hiles (1979), Ind.App., 395 N.E.2d 851, 854.
The question which the Majority has refused to address does not involve a technical defect of inconsequential impact. Rather, the issue raised by Durden strikes at the *287very heart of fair trial guarantees — the right to effective representation of counsel. The right to present a meaningful final argument to the jury is guaranteed to defendants by the 6th and 14th Amendments to the United States Constitution. Herring v. New York (1975), 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593. In Herring, the Supreme Court described the significant role final argument plays in a criminal proceeding:
“It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.
“The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.”
422 U.S. at 862, 95 S.Ct. at 2555.
Here, Durden had been informed prior to his final argument — consistent with the procedure outlined in Criminal Rule 8(B) — 1 that the jury would only be asked to assess his culpability as a principal. Thus, Durden did not attack or discredit that testimony which merely placed him at the scene of the crime. In fact, he demurred to that testimony. There was no reason for him to do otherwise in light of what he was led to believe would be the only theory of culpability.
However, the demurrer which was so justified in light of the final instructions proved fatal when the trial court submitted the supplemental instruction, because the facts to which Durden had demurred provided the basis for culpability under the supplemental instruction. Furthermore, not only did the supplemental instruction totally emasculate the theory of defense upon which Durden had predicated his final argument but it also presented a theory of culpability which Durden was not allowed to address.
As Justice Pivarnik stated in Brannum v. State (1977), Ind., 366 N.E.2d 1180, 1185:
“(I)n order for the criminal justice system to survive, our courts must be forums in which all parties can receive a fair and impartial trial.”
A fair trial includes the opportunity to present a meaningful final argument on the law and evidence. Durden was denied that opportunity.2
I dissent.
. Criminal Rule 8(B) provides in pertinent part:
“(B) The court shall indicate on all instructions, in advance of the argument, those that are to be given and those refused. After the court has indicated the instructions to be given, each party shall have a reasonable opportunity to examine such instructions . (Emphasis added.).
. While the question raised by Durden might arguably be reached by this Court on the basis of the fundamental error doctrine (see Kleinrichert v. State (1973), 260 Ind. 537, 297 N.E.2d 822), it would not be necessary, as explained in the text, to invoke that doctrine here.