dissenting:
The majority holds that the ex parte scheduling conference constituted error depriving the defendant of his constitutional right to counsel at a critical stage of the proceedings and that the harmless error doctrine should be applied in this case. Maj. op. at 826, 827. The majority concludes that there is a reasonable probability that the defendant was prejudiced by the deprivation of his right to counsel during the ex parte scheduling conference, maj. op. at 827, 828, and reverses the judgment of conviction.
I disagree and dissent from the majority because I do not believe that the ex parte scheduling conference with the jurors during their deliberations constituted a “critical stage” of the proceedings nor that the rights of the defendant were substantially prejudiced by the absence of counsel. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). I further dissent because I believe that the court of appeals correctly reasoned that the trial court’s “scheduling conference” with the jury during deliberations, in the absence of counsel, did not establish a reasonable probability that the defendant was prejudiced. In my view, Key’s substantive rights were not adversely affected and the trial court’s oversight in failing to have counsel present is harmless error.
I.
The salient facts to the dispositive issues are as follows: A jury trial commenced on December 17, 1990. The jury began its deliberations early on Friday afternoon, December 21, 1990. After approximately three hours of deliberating, the trial judge sua sponte reconvened the jury in the courtroom for the purpose of scheduling further deliberations, without first notifying the defendants, their counsel, or the prosecution. In the absence of all counsel and the defendants, the court sought to accommodate the jurors’ holiday schedules by arranging in advance the next possible day of deliberations.1 The trial- court stated:
[Wjelcome back, ladies and gentlemen of the jury. You haven’t had a whole lot of time to deliberate, about three hours or so, which is not a whole lot of time. We may need you to talk about when you can reschedule your reconvening as a jury. We’ve got the holidays coming up, and I’m not sure if everyone’s available to come back Monday morning or not, so I thought we better take a poll and chat about when we can reappear.
The judge learned that juror Nichting would be leaving town the following morning for a week’s vacation and would not return until December 31. Juror Hurst also informed the judge that she was getting married on January 1, 1991, after which she would be departing for a two-week honeymoon. The judge then suggested that the jury reconvene on December 31, and the jury mutually agreed.
The following exchange occurred on the record before the jury returned its verdict:
JUROR BROWN2: Your Honor, would it be possible for us to continue? I feel we’re fairly close.
THE COURT: We can go for a little while, but not too much longer, because they start locking this building up and we kind of lose access to it. But you certainly may deliberate further.
*831JUROR BROWN: Could we stay till 5:30?
THE COURT: Yes, that’s probably about the fail-safe time, and then we’ll reschedule.
All right. We’ve got the 31st available. You don’t want to do this the day before you get married, anyway, do you?
JUROR HURST: I hope not.3
After further deliberations that day, the jury reached a unanimous verdict.4 The jury found defendant Key guilty of criminal attempt to commit murder in the first degree5 and menacing.6 The jury acquitted defendant Cowans of all charges. The trial judge, in announcing each verdict, asked the jury to confirm if this was the unanimous decision of all the jurors, and the foreperson answered in the affirmative. Defense counsel did not request further polling of the entire jury.
Key appealed his convictions to the court of appeals. Key argued that the actions of the trial court in holding an ex parte scheduling conference with the jury denied him his constitutional right to counsel during a critical stage of the proceedings. He further argued that the trial judge improperly coerced the jury into reaching a verdict in violation of his constitutional right to a fair trial. Key additionally alleged that, when the trial court judge improperly reconvened the jury in the absence of all counsel, the jury was deadlocked7 and that, consequently, the trial court’s errors required automatic reversal of his convictions. Key finally asserted that constitutional error results, even absent a showing of prejudice, when counsel is either totally absent or. prevented from assisting the accused during a critical stage of the proceedings.
The court of appeals, in a published decision, affirmed the trial court’s judgment. In its determination, the court of appeals acknowledged that, although the trial court’s actions in conducting this ex parte conference with the jury deprived the defendant of his right to counsel at a critical stage of the proceedings, the error was harmless beyond a reasonable doubt. The court of appeals made this determination based on its review of the record since no evidence existed that the jury was deadlocked, and the scheduling conference spoke specifically to administrative needs and not to the substantive law. The court further found that the trial court did not coerce the jury into reaching a verdict since the jury was not deadlocked, no time limits were placed on the deliberations, and the jury foreperson indicated that the jurors were “fairly close” to reaching a decision. People v. Key, 851 P.2d 228, 230 (Colo. App.1992).
II.
The majority opinion rightly observes that a criminal defendant is entitled to the presence of counsel at all “critical” stages of the proceeding under the Sixth Amendment of the United States Constitution. Maj. op. at 825. See United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984); United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967); People v. Roybal, 618 P.2d 1121, 1126 (Colo.1980). The standard for determining what constitutes a “critical stage” of a criminal proceeding is whether the rights of the defendant could be substantially prejudiced by the absence of counsel at the proceeding. Wade, 388 U.S. at 227, 87 S.Ct. at 1932. The majority concludes that the ex parte scheduling conference with the jurors during their deliberations occurred at a critical stage of the proceedings. Maj. op. at 826. I disagree.
*832In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court offered examples of stages of criminal proceedings that have been held to be “critical”: total absence of counsel throughout the trial, denial of cross-examination, counsel’s conflict of interest, and an inability of counsel to prepare for trial. Id. at 662,104 S.Ct. at 2048. Certain stages of a criminal proceeding are deemed not “critical” because there is only a “minimal risk” that the absence of the defendant’s counsel might derogate from the defendant’s right to a fair trial. Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967) (the taking of handwriting samples from the accused did not constitute a “critical” stage of a criminal proceeding because there was minimal risk that the absence of counsel might derogate from an accused’s right to a fair trial).
The majority opinion expands the “critical stage” of a criminal proceeding to encompass an ex parte scheduling conference with the jury during deliberations. This court, however, has only held that a defendant in a criminal case has a fundamental right under the Colorado Constitution to have counsel present during jury deliberations when the trial judge gives instructions or responds to questions from jurors involving legal issues or the facts of the case. See Leonardo v. People, 728 P.2d 1252, 1257 (Colo.1986); Nieto v. People, 160 Colo. 179, 415 P.2d 531, 533 (1966) (judge restated instruction for jury outside presence of defendant or counsel); People v. Johnson, 802 P.2d 1105 (Colo.App.1990), rev’d on other grounds, 815 P.2d 427 (1991) (where the trial court held a closed hearing with all twelve jury members on possible juror misconduct during jury deliberations, jury deliberations and the return of the verdict constitute critical stages for purposes of the Sixth Amendment); People v. Romero, 767 P.2d 782 (Colo.App.1988) (defendant has a fundamental right to have counsel present when court responds to questions from the jury after it has commenced deliberations).
In People v. Leonardo, 728 P.2d 1252 (Colo.1986), this court noted:
We have not previously decided whether either the United States constitution or the Colorado constitution requires the presence of the defendant when the judge communicates with the jury after deliberations have begun. Also, the United States Supreme Court has not conclusively decided whether this is a critical stage of criminal proceedings so that the presence of the defendant is required.
Id. at 1257 n. 5 (citing Rushen v. Spain, 464 U.S. 114, 117-18 n. 2, 104 S.Ct. 453, 455-56 n. 2, 78 L.Ed.2d 267 (1983)).
I do not believe that an ex parte discussion with the jury concerning “scheduling” matters constitutes a critical stage of the proceeding to trigger the right to representation. It is my opinion further that the “scheduling conference” outside the presence of counsel did not create more than a “minimal risk” to the defendant’s right to a fair trial.
III.
The majority finds that the ex parte conference between the trial judge and the jury during deliberations, in the absence of counsel, did not constitute harmless error. The majority engages in fact-finding to determine that there is ample evidence to create a reasonable probability that the defendant was prejudiced by the deprivation of his right to counsel. Maj. op. at 827. I disagree with the majority’s harmless error analysis since the majority substitutes its own judgment in weighing the substantive evidence and the credibility of the witnesses and therefore usurps the fact-finding province of the jury.
The issue here is whether the trial court committed error requiring reversal of the defendant’s conviction in communicating with the jury, regarding scheduling matters, during the jury’s deliberations in the absence of counsel.
A trial judge’s ex parte communication with a jury does not require reversal per se, but reversal is required when prejudice to the defendant is shown that substantially influences the verdict or affects the fairness of the trial proceedings. Chapman v. Cali*833fornia, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 706 (1967); Leonardo, 728 P.2d at 1257; Key v. People, 715 P.2d 319, 323 (Colo.1986); People v. Blalock, 239 Ill.App.3d 830, 180 Ill.Dec. 576, 607 N.E.2d 645, cert. denied, 151 Ill.2d 567, 186 Ill.Dec. 386, 616 N.E.2d 339 (1993). An ex parte communication is deemed prejudicial to the defendant only when the jury’s verdict may have been influenced by the judge’s response. A key question in determining “prejudice” is whether defense counsel’s presence could have had any effect on the communication or deliberative process. Several cases are instructive on this point.
In State v. Dreessen, 305 N.W.2d 438, 439 (Iowa 1981), in response to a note that the jury had been unable to reach a unanimous verdict after four hours of deliberation, the trial court, in the absence of counsel and defendant, stated that the jury needed to deliberate further and try to reach a verdict. The jury returned the next morning to resume deliberations and reached a verdict of guilty. The court found that, since there was no indication that had counsel and defendant been present the trial court would have done or said anything different, the ex parte communication amounted to harmless error and no prejudice arose.
The present case is similar to Truscott v. Chaplin, 403 F.2d 644, 645 (3d Cir.1968), where, after the jury had been deliberating for only an hour and a half, the trial judge sent a message to the jury asking if they were close to a decision without consulting with, and in the absence of, counsel. The Third Circuit found that no reversible error had occurred:
We recognize that there may be times when administrative communications between judge and jury may properly transpire in the absence of counsel, so long as these communications do not contain supplemental instructions relating to the case and are clearly incapable of prejudicing the rights of the parties. In this general category would be communications relating to the jurors’ welfare, comforts and physical needs. Such communications must not directly or indirectly refer to the specifics of the case, must be collateral to the issues under consideration, and must not be capable of affecting the deliberative process in any manner.
In Commonwealth v. Bomber, 463 Pa. 216, 344 A.2d 799, 803 (1975), the trial judge directed the jury, without prior notice to or knowledge of counsel, to continue its deliberations after learning from the jury that they were deadlocked. The court did not consider this communication to be an intrusion into the jury’s deliberations. The court, therefore, found no reversible error. See also United States v. Frazin, 780 F.2d 1461, 1468-71 (9th Cir.), cert. denied, 479 U.S. 844, 107 S.Ct. 158, 93 L.Ed.2d 98 (1986) (ruling that harmless error occurred when the judge made an ex parte communication with a deadlocked jury without notifying counsel because the message to keep deliberating was not coercive.)
In his dissent in Yarsunas v. Boros, 423 Pa. 364, 223 A.2d 696, 698 (1966), Justice Roberts, quoting Kersey Manufacturing Co. v. Rozic, 422 Pa. 564, 222 A.2d 713, 716 (1966), stated:
“The reason for prohibiting a trial judge from communicating with a jury ex parte is to prevent the court from unduly influencing the jury and to afford counsel an opportunity to become aware and to seek to correct any error which might occur. Where there is no showing either that the court’s action may have influenced the jury or that its directions were erroneous, then the reason for the rule dissolves.”
In determining the influence that the “scheduling conference” had upon the jury during its deliberations, I disagree with the majority’s position that reasonable probability exists that the ex parte conference coerced the jury into returning a verdict before the end of the day. Maj. op. at 825, 827. Reversal is not required when the communication between the trial judge and the jurors did not affect Key’s substantial rights.8 While it *834would have been better practice for the trial judge to have conducted the scheduling conference with the jurors in the presence of the prosecutor and defense counsel, even if the trial court did err, such error was harmless under the circumstances. The question, therefore, remains whether the defendant suffered any prejudice by the trial court’s action.
The jury, during the ex parte discussions, did not receive additional instructions on the law or receive evidence, either through the rereading of testimony or the reintroduction of exhibits. For example, in People v. Mickle, 54 Cal.3d 140, 284 Cal.Rptr. 511, 814 P.2d 290 (1991), cert. denied, — U.S. -, 112 S.Ct. 1679, 118 L.Ed.2d 396 (1992), the jury sent the court a note shortly after commencing deliberations asking for a “summarized definition of the charges of murder, First Degree, Second Degree.” In the presence of the court clerk and reporter, but without notifying counsel, the court responded: “If you wish to be brought back into court, I will reread the information to you.” The jury did not accept the court’s offer and no further murder instructions were actually given after the jury retired to deliberate. The California Supreme Court stated:
While the preferable practice is to notify counsel of all mid-deliberation jury inquiries, the trial court did not err here. A statutory or constitutional violation occurs only where the court actually provides the jury with instructions or evidence during deliberations without first consulting counsel.
Id. 284 Cal.Rptr. at 528, 814 P.2d at 307.
Another example is Rushen v. Spain, 464 U.S. 114, 121, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983), where the Court held that an ex parte communication between the trial judge and a juror, in which the juror told the judge of her personal acquaintance with a crime that was unrelated to the crimes at issue in the trial, was harmless error. The Court reasoned that the communication was innocuous since the judge and juror did not discuss any fact in controversy or any law applicable to the case.
Here, the conference did not relate to the subject matter of the jury deliberations. Rather, the communication was administrative in nature in that the trial court discussed with the jurors from the bench in the courtroom and on the record the scheduling conflicts of two of the jurors.
What is most disturbing in this case is that the majority reverses the judgment of conviction based on speculation that the jury was feeling pressured to reach a verdict in an effort to complete the trial prior to the holidays. Maj. op. at 827. The majority makes the assumption that the trial judge’s decision to reconvene on December 31 may have compelled the jury to reach a decision before the end of the day without the majority having sufficient evidence to support this contention.
I also do not find that the exchange that took place during the scheduling conference between the trial judge and jury prejudiced the rights of the defendant. The majority opinion offers no indication that, had counsel been present, the trial court would have done or said anything different from what it did do and say. I believe that, even if defense counsel had been present, counsel could not have offered any additional assistance in determining a date since two of the jurors’ schedules severely restricted when deliberations could resume.
After careful review of the record and the case law, I am satisfied that Key was not prejudiced by the absence of counsel during the “scheduling conference.” I find no reversible error. I conclude that, under these circumstances, any error in failing to have counsel present at the scheduling conference during the jury deliberations was not outcome determinative.
In reaching this conclusion, I am persuaded by several factors: the jury was not deadlocked, the judge did not place a time limitation on the deliberations,9 and the judge did *835not communicate that the court would be inconvenienced by extended deliberations and that a verdict should be reached today. The court did not threaten the jurors that if they did not reach a decision by 5:30 p.m. they would have to come back on December 31 to continue deliberating. Rather, in holding the ex parte conference, the judge reconvened the jurors for the express purpose of ensuring that jury deliberations could continue for more than just one day in order to prevent a compromise verdict. The judge was merely trying to coordinate a date for further deliberations that would not interfere with the jurors’ holiday plans. The judge and jurors mutually agreed that deliberations would resume on December 31, 1990. Further, the record does not reveal that any of the jurors felt pressured to immediately arrive at a verdict. On the contrary, at the scheduling conference the jury foreperson reported that the jury was fairly close to reaching a verdict and asked if they could continue deliberating that day in an effort to conclude the trial. Therefore, it cannot be said that the ex parte discussions triggered the guilty verdict.
In light of the above, I also cannot agree with the majority that the error involved in this case is of federal constitutional dimension. I therefore disagree with the majority’s analysis of the issue under the harmless error standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).10 In People v. Thomas, 181 Colo. 317, 509 P.2d 592, 594 (1973), this court determined that none of the defendant’s fundamental rights were affected when the jury, during its deliberations, requested that the court furnish them with the police officers’ report and the judge’s reply, in the absence of counsel, did not add to or detract anything from the evidence. Because the record does not reveal that the ex parte “scheduling conference” prejudiced Key’s rights, no reversible error occurred. See People v. Lovato, 181 Colo. 99, 507 P.2d 860 (1973) (The jury sent a note to the court advising that it appeared to be deadlocked. The court, without notifying counsel and in the absence of counsel, instructed the bailiff to tell the jury to “start all over again and keep working at it.”); People v. Thomas, 181 Colo. 317, 509 P.2d 592 (1973) (discussed supra); Wiseman v. People, 179 Colo. 101, 498 P.2d 930 (1972) (The jury sent the following written inquiry to the judge: “Is the defendant charged with statutory rape only, or with statutory rape and assault?” Over the objection of defense counsel and in the absence of defendant, the judge answered in writing that the charge was statutory rape only.);11 People v. Martinez, 42 Colo.App. 307, 600 P.2d 82 (1979) (The jury, after beginning deliberations, sent a substantive inquiry to the trial judge asking whether the defendant, his confederate, or both had to be armed. The trial judge, who was unable to contact defense counsel, did not commit reversible error by responding with a correct statement of the law that “it does not make any difference.”).
I respectfully dissent.
I am authorized to say that Chief Justice ROVIRA joins in this dissent.. Before the jury began its deliberations, the trial court requested that Key’s attorney provide the court with a place where he could be reached on short notice. Key's attorney informed the trial court that he could be reached in his office which was twelve minutes’ traveling time from the court.
. Juror Brown was the jury foreperson.
. The trial court did not inform either defense counsel or the prosecution of these ex parte communications.
. The record does not designate the period of time between the ex parte meeting and when the jury reached its verdict.
. §§ 18-2-101, 18-3-102, 8B C.R.S. (1986 & 1993 Supp.).
. § 18-3-206, 8B C.R.S. (1986).
. Contrary to the defendant’s assertions and as the court of appeals recognized, the record contains no evidence that the jury was deadlocked when they were called into conference by the trial judge.
. In analyzing this issue, I note that, during voir dire, both the trial court and counsel acknowledged that several jurors expressed concerns about the trial interfering with their Christmas plans. The scheduling conflict discussed during the ex parte conference with the jury was, there*834fore, based on information already elicited during voir dire.
. In Allen v. People, 660 P.2d 896 (Colo.1983), the trial court instructed a deadlocked jury that they had fifteen more minutes to deliberate and that, if no decision was reached within that time, the court would declare a mistrial. Shortly thereafter, the jury returned guilty verdicts on all counts. Id. at 898. This court held that the *835“time fuse” instruction constituted plain error and required reversal. Id. The court noted that the instruction was potentially coercive because it ordered the jury to end its deliberations by returning a verdict or have a mistrial declared.
. The harmless error analysis, invoked in Chapman v. California, has been applied to Sixth Amendment violations, including situations where defense counsel was absent during a critical stage of the trial. United States v. Osterbrook, 891 F.2d 1216, 1218 (6th Cir.1989).
. In Leonardo v. People, 728 P.2d 1252 (Colo. 1986), this court noted that, in People v. Lovato, People v. Thomas, and Wiseman v. People,
the communication between the judge and jury involved matters that, at least arguably, were minor and could not have affected the fundamental rights of the respective defendants. However, to the extent that those cases can be read to support the proposition that a defendant must show prejudice in cases involving communications between the judge and jury concerning instructions in the absence of the defendant and his counsel, we expressly disapprove them.
Leonardo, 728 P.2d at 1257 n. 6 (emphasis added).
My reliance on these cases is merely to show that the communications at issue did not affect the fundamental rights of the respective defendants to constitute reversible error.