concurring.
I write separately to address an issue that does not receive substantive discussion in the majority opinion: the question of whether it was error for Judge Card to voir dire the juror about her potential exposure to extrajudicial information about Collins's case without Collins being personally present.
As explained in the majority opinion, Collins and his attorney discussed whether Collings wanted to be present at any court proceedings that might be held during jury deliberations. The defense attorney informed Judge Card that Collins had agreed that the attorney could respond to "admin-isterial" matters-apparently, "administrative" and/or "ministerial" matters-without Collins being present, but that Collins wished to be personally present for all other proceedings.
As explained in the majority opinion, Judge Card notified the parties that one of the jurors had potentially been exposed to prejudicial extra-judicial information about the case, and the judge told the parties that he intended to question the juror on this subject. Surprisingly, Collins's attorney declared that Collins did not need to attend this voir dire because it would be an "administer-ial kind of thing." Equally surprisingly, Judge Card concurred in this assessment.
The Alaska Supreme Court's decision in Huff v. State, 598 P.2d 928, 931-32 (Alaska 1979), indicates that a criminal defendant does not need to be present when the trial judge hears from a juror, or questions a juror, about certain emergency matters that affect the juror's ability to continue serving. But this Court's later decision in Coney v. State, 699 P.2d 899, 903 (Alaska App.1985), clarifies that Huff is an exception to the normal rule-the rule that a defendant has the right to be personally present when the trial judge hears from a juror, or questions a juror, regarding their desire and/or ability to continue serving.
It follows that a defendant must also have the right to be present when a trial judge hears from a juror, or questions a juror, regarding matters that would affect the juror's ability to render a fair and legally proper verdict.
This, in itself, does not provide a complete answer to Collins's case, because we have the additional complicating factor that Collins declared that he was willing to waive his right to be present for "administerial" matters. Thus, the remaining issue is whether Judge Card and Collins's defense attorney might reasonably conclude that the matter they were about to engage in-to wit, questioning a juror to see if the juror heard extra-judicial information in a news broadcast that could potentially affect the juror's consideration of the evidence-was administrative or ministerial.
I conclude that this inquiry was substantive, and that it was error for the defense attorney and the trial judge to categorize this inquiry as merely administrative or ministerial.
In Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983), the United States Supreme Court assumed without deciding (based on the State of California's *1165concession of error1) that a defendant has a constitutional right to be present whenever a trial judge and a juror communicate concerning a potential ground for challenging the juror's impartiality.2 Since then, several courts have explicitly adopted this implicit premise of Spain: that a judge-juror communication is administrative or ministerial only when it is "wholly unrelated to the substantive legal or factual issues of the trial", People v. Harris, 76 N.Y.2d 810, 559 N.Y.S.2d 966, 559 N.E.2d 660, 662 (1990)-and that such a communication is substantive if "the trial court's response could influence the jury", Hernandez v. State, 761 N.E.2d 845, 850 (Ind.2002), or if the discussion involves "any fact in controversy or any law applicable to the case", Randolph v. State, 117 Nev. 970, 36 P.3d 424, 437 (2001).
Using these definitions, the trial judge's examination of the juror in Collins's case was substantive, not administrative or ministerial. Accordingly, Collins's conviction must be reversed unless this Court is convinced that the error was harmless beyond a reasonable doubt.
Collins argues that Judge Card examined the juror in a peremptory manner, and that the judge employed leading questions in such a way as to encourage the juror to deny receiving any extra-judicial information. I concede that, when I read the transcript of the voir dire, I believed that it could reasonably be interpreted to support Collins's argument.
However, to better resolve the issue, we directed the Clerk's Office to provide us with a copy of the audio recording of the voir dire. After listening to this audio recording, I concur in the description of the voir dire offered by Judge Stewart in the majority opinion: "Itlhe tone, ... pace, and ... tenor of the interchange between Judge Card and the juror" demonstrate that "the questioning was not coercive and that [the judge] reasonably found that the juror had not been exposed to any extra-judicial information."
For these reasons, I concur in the decision to affirm the judgement of the superior court.
. 464 U.S. at 117 n. 2, 104 S.Ct. at 455 n. 2.
. 464 U.S. at 120-22, 104 S.Ct. at 456-57.