specially concurring in part; dissenting in part.
I concur with the majority that defendant is entitled to a new trial, but not for the reason stated. I reject the majority’s analysis of the suppression issue and would agree with the trial court that defendant’s statements are admissible.1 A new trial is required, however, because the trial judge committed reversible error by communicating with the jury in defendant’s absence.
The suppression issue, as framed by defendant in this court, reflects the way the issue was litigated at trial; i.e., whether defendant’s statements were made after a knowing, intelligent and voluntary waiver of his Miranda rights.2 Defendant did not argue in the trial court that he had asserted *379a right to have an attorney present during questioning.3 There, as here, he only argued that the police had not scrupulously honored his desire to remain silent.
The trial court found that Detective Schultz’s inquiry, “Other than this, how have things been going?” was neither interrogation nor its functional equivalent,4 see State v. Fitzgerald, 60 Or App 466, 471, 653 P2d 1289 (1982), and that defendant’s question, “Do I have a right to know what I’m being charged with?” and his exclamation, “I didn’t steal anything!” after being informed that he was being charged with rape, sodomy and burglary, were “volunteered.” The court also found that “there were no threats, duress or coercion,” that “the advisement of rights was made adequately and properly” and that defendant’s free will was not “overcome.”
The court specifically rejected the application of Edwards v. Arizona, stating:
“I find in this case that Edwards v. Arizona is inopposite [sic] in that the defendant himself did the initiating. And, therefore, the statements made, since he was properly and adquately advised of his rights and understood his circumstances, the statements will be admissible at his trial.”
The court concluded:
“So, one, I find Mr. Barmon understood his rights; and, two, effectively waived those rights and gave up those rights when he made responses to Detective Schultz. * * *”
I agree with the conclusion of the trial court.
The majority assumes that defendant asserted his right to have an attorney present during interrogation and applies Edwards v. Arizona, 451 US 477, 101 S Ct 1886, 68 L Ed 2d 378 (1981), and Oregon v. Bradshaw, 462 US 1039, 103 S Ct 2830, 77 L Ed 2d 405 (1983), in its analysis. The majority blurs the distinction between the right to remain silent and the right to have an attorney present, which is material to an analysis of waiver. Edwards noted that this distinction was made in Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L *380Ed 2d 694 (1966); see also Michigan v. Mosley, 423 US 96, 96 S Ct 321, 46 L Ed 2d 313 (1975).
When an accused, after advice of rights, asserts his right to remain silent, he indicates that he chooses to make his own decisions. However, when he requests consultation with an attorney or to have an attorney present, he indicates his need for assistance in deciding whether to make a statement or answer questions. The interdiction of Edwards is based on that precise distinction. The Edwards court said:
“We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to interrogation by the authorities until counsel has been made available.” 451 US 485.
Edwards discussed further procedures the police must follow when an accused requests the presence of an attorney. Those procedures are irrelevant to the issue defendant poses here.
Defendant’s attorney called the police and told them that defendant would appear but would not make a statement. Neither the attorney nor defendant requested the attorney’s presence at any subsequent questioning. The issue then is whether, having asserted his right to remain silent, defendant later waived that right.5
Even when an accused initially tells the police that he wishes to remain silent, the police may later determine if he wishes to waive the right previously asserted. Edwards v. Arizona, supra, 451 US at 484; Michigan v. Mosley, supra, 423 US 102-04; State v. Jackson, 60 Or App 681, 685, 655 P2d 592 (1982) rev den 294 Or 792 (1983). Nothing in Edwards prevents the police, after advising a defendant of his Miranda rights, from then asking him if he waives his rights and is willing to talk.
The question whether a suspect has waived his right to remain silent is uniquely one of fact. It usually must and *381should be left to the judgment of the trial court that has had the benefit of hearing the evidence and assessing the weight and credibility of testimony. See State v. Broadsword, 65 Or App 672, 677, 672 P2d 366 (1983). The totality of the circumstances here convinces me that the trial court’s conclusion on the suppression question was correct, and I would uphold it.
Nonetheless, defendant is entitled to a new trial, because he correctly assigns as error the trial judge’s impermissible communications with the jury. The jury commenced its deliberations in the early evening hours. Defendant and his counsel went to a nearby restaurant after informing the judge of their destination and that they would be able to return to the courtroom on short notice. On three separate occasions during the course of their deliberations, the jury sent written questions to the judge.6 On each occasion the judge gave a written answer. The questions asked and the answers given were:
“(1) If he is found guilty of rape - can he be found guilty of the lesser degree of sodomy? On Count II & III - or does that apply only if lesser degree I?
“Answer: Yes
“(2) Can we find lesser degree of sexual abuse on Count II and III only (Sodomy). Please explain.
“Answer: You may make a finding on any one or more of each of the counts regarding a lesser offense in other words each count is independent of the other.
“(3) If we find him not guilty on Counts #2 and #3 in the first degree, do we have to vote on the lesser degree?
“Answer: No.”
Neither defendant nor his counsel was present when the questions were asked and the answers given. No attempt was made to contact them. Defendant’s counsel became aware *382of the possibility of jury communications only after returning from the restaurant. His associate observed a court employe give a note to the judge, who read it partially aloud, and then said, “No,” wrote something on a piece of paper and handed it to the employe. The associate brought this to the attention of defendant’s counsel, who suspected that it might have been a jury communication. That fact was not confirmed, however, until after the verdict was returned. At the hearing on defendant’s motion for a new trial, the judge acknowledged his error.'He concluded, however, that it was not prejudicial.
The state argues that, if defense counsel had brought his suspicions to the judge’s attention before the verdict was received, the judge would have had an opportunity to correct his error, or at least to attenuate it significantly, by not receiving the verdict until the jury had been questioned or cautioned appropriately. It further argues that defendant is precluded from raising this error, because the denial of a motion for a new trial is not an appealable ruling when the motion is based on matters of which a party had knowledge during trial. See, e.g., State v. Truxall, 2 Or App 214, 216-17, 467 P2d 643 (1970). I reject that argument. The constitutional and statutory rights in issue here are defendant’s, and there is no evidence that he or his counsel were aware of the judge’s error before the verdict was returned. At best, the record might support a finding that defendant’s counsel suspected some irregularity. Confirmation of that suspicion did not occur, however, until after the verdict was returned. Therefore, there was no waiver of those rights.
The state next argues that defendant was not prejudiced by the error. I likewise reject that argument. The state concedes in its brief that an examination of the jury’s questions and the judge’s answers shows that the jury had some difficulty understanding and applying the instructions. The state also concedes that the judge’s simple “yes” response to the jury’s first question was “probably unclear.” As to the jury’s third question, the state posits:
“Because of its ambiguity, the jury’s third question, on a point different from that addressed in the first two questions, may seem to have more potential for error than the first two; but it is evident that any error would have been to defendant’s benefit, and that the potential error did not materialize. Either the third question asks, ‘Are we required to convict *383defendant of the lesser offense of sexual abuse if we acquit him of sodomy?’ — in which case the court correctly answered, ‘no’ — or the question asks, ‘Do we even have to vote on the lesser offense of sexual abuse if we acquit defendant of sodomy?’ — in which case the court’s negative answer results in defendant’s acquittal on that charge. In either case, there is no prejudice to defendant; but in fact, it seems clear that the jury was asking the former question, inasmuch as they ultimately acquitted defendant of one count of sodomy and found him guity of the lesser offense of sexual abuse on the other.”
I would decline to speculate on what the jury was asking or what influence the judge’s answers might have had on the jury’s deliberations.
The state also argues that defendant is asking for the adoption of a per se rule requiring reversal whenever a judge provides written answers to a jury’s written requests for clarification of its instructions in the absence of defendant and counsel. We rejected a per se rule in State v. White, 55 Or App 729, 639 P2d 1291 (1982), where the trial judge attempted unsuccessfully to contact defense counsel, whose whereabouts were unknown. Thereafter, the judge sent the jury a written instruction that he had given earlier without objection. We said:
“The question is whether the trial court’s failure to comply with ORCP 59D was prejudicial error and therefore grounds for a mistrial. We hold that it was not. The procedure followed by the trial judge because of the record made was reviewable on appeal. The trial judge had no oral communication with the jury. He received a written question, delivered to him by the bailiff. The question was answered by delivering to the jury the written instruction. Following the verdict, the trial judge explained on the record the procedure he had followed. The question and the instruction are part of the record. Although it may have been a technical error to reinstruct the jury in counsels’ absence, it was not a prejudicial error that requires a mistrial.” 55 Or App at 732. (Citations omitted.)
The facts here are distinguishable from White. See also State v. Beeson, 248 Or 411, 434 P2d 460 (1967).
Finally, the state argues that, because the judge made it clear at the hearing on defendant’s motion for a new trial that his error is not likely to recur, reversal is unnecessary. See State v. Gortmaker, 295 Or 505, 668 P2d 354 (1983). Gortmaker *384is distinguishable. The question there was whether defendant’s conviction by a properly constituted trial jury should have been reversed because of an improperly selected grand jury. Unlike in Gortmaker, here the regularity of the trial is in question.
Defendant did not waive his right to be present, nor did he waive his right to have his counsel participate in the decision of how the jury’s questions should be answered, if at all, by the judge. I cannot say that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 US 18, 27, 87 S Ct 824, 17 L Ed 2d 705, reh den 386 US 987 (1967); State v. Stilling, 285 Or 293, 590 P2d 1223 (1979). It is because of this error defendant must be given a new trial, not the alleged error the majority embraces.
Richardson, Warren and Rossman, Judges, join in this specially concurring and dissenting opinion.
The trial court found that defendant’s statement, “I didn’t steal anything,” was admissible. I agree with that conclusion and I understand that the majority does also. See State v. Austin, 1 Or App 556, 557, 465 P2d 256 (1970); United States v. Booth, 669 F2d 1231, 1237 (9th Cir 1981) rev den (1982).
Defendant did not file a written motion to suppress. Rather, the prosecutor made an oral motion for a pretrial Miranda hearing to determine the admissibility of defendant’s statements.
Defendant makes no claim under the Sixth Amendment, or under Article I, section 11, of the Oregon Constitution.
The state assumes that defendant was in custody for Miranda purposes.
Defendant urges that we adopt a per se rule requiring the presence of an attorney at the time of any alleged waiver of a previously asserted right if the police are aware that a person is represented by an attorney. The Supreme Court has specifically rejected that approach. State v. Quinn, 290 Or 383, 398-99, 623 P2d 630 (1981); State v. Haynes, 288 Or 59, 70, 602 P2d 272 (1979), cert den 446 US 945 (1980); State v. Singleton, 288 Or 89, 100, 602 P2d 1059 (1979); State v. Jackson, 60 Or App 681, 655 P2d 592 (1982), rev den 294 Or 792 (1983).
ORCP 59D, formerly ORS 17.325, provides:
“After retirement for deliberation, if the jury requests information on any point of law, the judge may require the officer having them in charge to conduct them into court. Upon the jury being brought into court, the information requested, if given, shall be given either orally or in writing in the presence of, or after notice to, the parties or their counsel.”
This provision has been applied in criminal proceedings. See, e.g., State v. Heintz, 35 Or App 155, 580 P2d 1064 (1978).