(dissenting).
I disagree with the conclusion of the majority that the record did not establish that the error here was harmless beyond a reasonable doubt. The decision has set forth the totality of what transpired at the rereading of the testimony. It is clearly apparent that nothing was said by the judge or the attorneys which could be construed as prejudicial to defendant in any way.
The opinion states that possible prejudice occurred because the jury was reread damaging testimony without an opportunity to observe the effect of that testimony on the defendant. I find such a position patently untenable. While I realize that the jurors’ observation of testifying witnesses and the defendant may play a role in the evaluation of their credibility, the suggestion that reactions of a defendant upon rehearing testimony read by a court reporter may be of some importance in the jury’s deliberations gives more weight to the acting abilities of a defendant than to the evidence presented.
The jury here was able to observe the defendant at the time the witness’ testimony was originally taken, as well as the defendant’s reaction to that testimony. I cannot agree that prejudicial error was committed when defendant was not present when that testimony was retraced. There is no suggestion that the transcript read to the jury was inaccurate or incomplete in any respect, or that there was anything defendant could have done by being present. In my opinion we exceed the boundaries of reason when we assert that the privilege of presence has constitutional dimensions so broad that its application is mandated even though the presence would be useless or of minimal benefit.
The situation here is not unlike the remand of Bustamante v. Eyman, 456 F.2d 269 (9th Circuit 1972). In the second appeal of that matter, Bustamante v. Cardwell, 497 F.2d 556 (9th Circuit 1974), the court found the replay of jury instructions outside the presence of the defendant to be harmless error. This result was reached because the evidence on remand reflected that the only comments made to the jury by the judge consisted of formalities such as “be seated.” Similarly in this case, all comments made by the court and the attorneys were mere formalities.
Deprivation of a defendant’s constitutional right to be present at every stage of the trial is subject to the rule of harmless error. See United States v. Arriagada, 451 F.2d 487 (4th Circuit 1971), cert. denied, 405 U.S. 1018, 92 S.Ct. 1300, 31 L.Ed.2d 481 (1972).
*505In my opinion the situation here is controlled by Ware v. United States, 376 F.2d 717 (7th Circuit 1967). There, not only was certain testimony reread to the jury after it had been brought back into the courtroom following submission of the case, facts regarding trial evidence were stated by the court in response to the jury’s request. Both counsel were present but the defendant was not, and the record was silent as to any waiver of his presence. In rejecting a constitutional challenge to application of the harmless error rule, the court considered Ware’s suggestion that his presence might have tipped the scales toward acquittal, or that his absence may have raised questions in the minds of the jurors, or that he might have detected some inaccuracy in the proceedings, as “fancifully remote.”
Although acknowledging that the trial court ought to have obtained Ware’s presence before the jury was brought in, the appellate court found no reasonable possibility that his interests were prejudiced by his absence, or that there was per se an impairment of his sixth amendment right to be confronted with the witnesses against him, or a breach of due process under the fifth amendment. Cf. also, United States ex rel. Shapiro v. Jackson, 263 F.2d 282 (2d Circuit 1959), where the testimony of three witnesses read to a retired jury in the absence of the defendant was likewise held to be harmless error.
On the ground of harmless error I would reverse the trial court’s granting of a new trial. At the very least and as an alternative measure, I would, as was done in Bus-tamante v. Eyman, supra, remand this matter to the trial court for an evidentiary hearing and a determination of whether the defendant had knowledge of the proceeding and voluntarily absented himself therefrom. Counsel’s waiver, coupled with the statement: “He’s in my office,” bespeaks a high probability of such knowledge.