dissenting.
The court fails to distinguish between its frustration with a trial judge on the one hand, and its independent duty to evaluate the fairness of the defendant’s trial on the other. Its reversal will not otherwise deter the trial judge. Thus, an otherwise fair trial is scuttled without purpose.
Let us look at the fairness of the trial unclouded by the conduct of the trial judge. After the jury was sworn, the court gave a proper reasonable doubt instruction under Rule 18.6(c), Ariz.R.Crim.P. Neither side asked the trial judge to reinstruet the jury on reasonable doubt after the close of the evidence. Neither side objected to the spontaneous and garbled verbal instruction. The written instructions given to the jury to guide it in its deliberations included the correct reasonable doubt instruction. State v. Kinkade, 140 Ariz. 91, 680 P.2d 801 (1984), informs us that Rule 21.3(c), Ariz.R.Crim.P., means that the failure to object is a waiver and that the failure to recharge a jury on reasonable doubt is not fundamental error on facts comparable to those present here.
State v. Jackson, 144 Ariz. 53, 695 P.2d 742 (1985), informs us that even where there is objection, the court must engage in a harmless error analysis. Without looking at the evidence in the case, the court reverses here because the failure to reinstruct was combined with the giving of the “guilty or not guilty” oral instruction. The court says that it cannot say beyond a reasonable doubt that the verdict was unaffected by the words “or not guilty.” I disagree. The evidence in this case was so overwhelming, so adequate, so independent of the words “or not guilty,” that the error was harmless beyond a reasonable doubt.
These facts are from the defendant’s own brief. The defendant and his accomplice forced open the victims’ door and while the accomplice held them, the defendant stabbed them both. The defendant was the employee of the victims. The defendant’s defense was that he was drunk and under the influence of other substances. The defendant told one of the victims that he was sorry, and that he had been “out of it.”
In the face of this evidence, it is hard to imagine any jury being confused by the words “or not guilty.” Even if any juror thought that those words required proof *278beyond a reasonable doubt for a not guilty verdict, the fact remains that the jury returned a verdict of guilty beyond a reasonable doubt. It did not hang. Whatever error was committed did not influence the jury—the overwhelming evidence did.
In State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991), we said that “an Arizona appellate court should not reverse a case on the ground of fundamental error unless its analysis of the entire record permits it to set forth reasons clearly demonstrating that the case falls within our definition of fundamental error.” We there noted that even the failure to give a presumption of innocence instruction is not per se fundamental error.
Article 6, § 27, of the Arizona Constitution provides that “[n]o cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done.” Looking at the overwhelming evidence of guilt in this case, the absence of any significant defense, the giving of the reasonable doubt instruction after the jury was sworn, the failure of counsel to request reinstruction, the failure of counsel to object to the verbal instruction with the words “or not guilty,” and the giving of written instructions at the close of the evidence which included a correct reasonable doubt instruction, it is hard for me to understand how the court concludes that upon the whole case substantial justice has not been done.
The defendant’s trial here was no less fair than other trials at which the trial judge has presided and in which this court affirmed convictions. What has changed is this court’s frustration level. Ante, 173 Ariz. at 275, 276, and 277, 842 P.2d at 1288, 1289, and 1290. See Judge Jacobson’s dissenting opinion below, State v. Johnson, 169 Ariz. 567, 570, 821 P.2d 228, 231 (App.1991). But a reversal here does not promote any legitimate goal. The defendant should not profit from the court’s displeasure with the trial judge, nor should the public suffer from the defendant’s presence on the streets. His trial was fair. The jury found him guilty beyond a reasonable doubt and after examining the record it is hard to imagine any other result. Nor is there any reason to believe that this reversal will change the practice of the trial judge. After all, the reversal in State v. Marquez, 135 Ariz. 316, 660 P.2d 1243 (App.1983), had no such effect.
We live in an age in which our view of the trial is not as rigid as it once was. Our rules, on their face, give the trial judge broad discretion in the conduct of the trial. Rule 19.1(a)(8), Ariz.R.Crim.P., does suggest that the judge will charge the jury after argument, “unless otherwise directed by the court.” Thus, a trial judge could easily conclude that that rule is ample authority to experiment with the order of proceedings. In addition, Rule 21.1, Ariz. R.Crim.P., provides that the law relating to civil instructions applies to criminal actions except as otherwise provided. Rule 51(a), Ariz.R.Civ.P., was recently amended to allow the court at its election to instruct the jury before or after argument or both. And nowhere in Rule 39(b), Ariz.R.Civ.P., which prescribes the order of trial by jury, is there any mention of the charge to the jury.
Thus, I am not persuaded that the trial judge’s failure to orally recharge a jury upon matters that have already been the subject of an earlier oral charge and that will be the subject of a written charge is not within judicial discretion. But if the court thinks otherwise, and it apparently does, then, as an alternative to reversal, it could focus its concern on ways to ensure compliance by the trial judge.1
So we are right back where we started. We reverse a conviction in which the defendant got a fair trial, and the trial judge will likely continue to conduct the order of trial in her way. For all these reasons, I dissent.
. See, e.g., Canon 3(A)(1), Code of Judicial Conduct. ("A judge should be faithful to the law____”). The court could simply enter an order requiring the trial judge to orally instruct the jury on reasonable doubt at the close of the evidence in every criminal case, whether requested to or not.