Appellant, Thomas O. Davlin, appeals a judgment of the Johnson Circuit Court convicting him of rape and sentencing him as an habitual offender to a term of life imprisonment in the Arkansas Department of Correction. As appellant was sentenced to imprisonment for life, this court has jurisdiction of his appeal pursuant to Ark. Sup. Ct. R. l-2(a)(2). We reverse the judgment and remand for a new trial.
Appellant urges four points for reversal of the judgment entered pursuant to the jury’s verdict. Only appellant’s first two assignments of error, which concern a videotape of the victim’s statement to the Clarksville police, merit reversal. The videotaped statement was played to the jury during trial and again during jury deliberations. We note at the outset of our discussion that it is the re-viewing of the videotape that appellant challenges on appeal, not the original viewing of the videotape during the trial.
As his first assignment of error, appellant contends the trial court erred in permitting the jury to view the videotape for a second time during the jury’s deliberations because there was no showing of a conflict, dispute, or confusion among the jurors as required by Ark. Code Ann. § 16-89-125(e) (1987). He claims further that the videotape should not have been shown to the jury a second time because it was never admitted into evidence and section 16-89-125(e) applies only to evidence. As his second assignment of error, appellant contends the trial court erred in denying appellant’s request to be present during the replaying of the tape to the jury.
Section 16-89-125(e) provides as follows:
(e) After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.
First, we dispose of appellant’s argument that the videotape was not evidence. Despite the somewhat confusing assertion that the videotape was admitted “for the record only,” the trial court very clearly ruled that the videotape would be admitted. The videotape was therefore admitted into evidence and could be replayed to the jury pursuant to the requirements of section 16-89-125(e).
In support of his remaining claims concerning the videotape, appellant relies on McKinney v. State,
The proper procedure was not followed in the present case. Section 16-89-125(e) mandates that the jury return to the courtroom and that the information required be given to the jury “upon their being brought into court.” In the present case, the record reveals that the videotape was not replayed in court but in the room where the jury was deliberating. The record also reveals, however, that the trial court and counsel for both parties were present in the jury room while the tape was replayed. Although his counsel was present, appellant was not, and his counsel objected to his absence. The record states that the videotape would be replayed in the jury room just as it was at trial, with certain prejudicial portions deleted. However, the record is silent with respect to what actually occurred in the jury room and therefore does not assure us there was a lack of prejudice in the replaying of the tape.
We recognize that while objecting to appellant’s personal absence, appellant’s counsel specifically agreed to the location of the replaying of the tape. We also recognize that strict compliance with the procedural requirements of section 16-89-125(e) may be waived. See Jackson v. State,
It is arguable that the presence of appellant’s counsel, coupled with an absence of any claim on appeal that prejudice occurred during the replaying of the tape, could provide us with the required assurance that no prejudice occurred. However, such an argument overlooks the underlying premise of appellant’s objection — his personal absence during the representation of the evidence. This court has previously interpreted an earlier yet identical version of section 16-89-125(e) and held that error occurred when the trial judge and counsel for both parties went into the jury room at the jury’s request and instructed the jury; error occurred because the defendant was not present and it was the trial court’s mandatory duty to bring the jury into the courtroom and instruct it there in the presence of the defendant. Durham v. State,
It is a basic principle of both our state’s and our nation’s criminal procedure that a defendant has the right to be present in person and by counsel when a substantial step is taken in his case. Bell v. State,
From the foregoing discussion, it is evident that many errors can occur, and did in fact occur in this case, when a trial court does not comply strictly with the procedural requirements of section 16-89-125(e). In addition, as with the present case, the errors can go beyond the statute and encompass the defendant’s constitutional right to be present when a substantial step is taken in his case. See Bell,
Had the jury returned to the courtroom, there would most likely have been a record of what occurred and the trial court would most likely have been reminded of appellant’s right to be present. The following quotation, which stresses the importance of strict compliance with section 16-89-125(e)’s predecessor, bears repeating here:
The procedure set out in the statute is not difficult to follow and places no burden at all on the trial court or attorneys, and places very little burden on the jury. It simply recognizes that the courtroom, where the trial is being conducted, is the proper place for the giving of all instructions to the jury in open court and where all the jury and anyone else interested, including the defendant, can hear the instructions in the context given. The defendant, as well as the public, is entitled to know what goes on in the courtroom, but they are not entitled to know what goes on in the jury room. We can think of many good reasons why a jury should receive all instructions in the public forum of the courtroom and we can think of no good reason why it should not. To strictly follow the simple procedure as set out in the statute, would avoid such difficulties that have arisen in th[is] . . . case ....
Martin v. State,
The judgment of conviction is reversed and remanded for a new trial.