But, we have an 11-1 hung jury on first degree murder. The transcript does not reveal that the trial court informed the attorneys of the fourth note. The transcript again reveals no communication of the contents of this note by the court to defense counsel nor any response to this note by the court to the jury. The record simply reveals the jury reached a verdict that morning, and the jurors were then polled and excused. Defendant claims that he was denied a fair trial when he was denied the right to be present and participate in formulating a response to the jury's fourth note.
Jury deliberations are a critical stage of trial and involve substantial rights.
A defendant has a right to appear and participate in person and by counsel at all proceedings affecting his substantial rights, so that he knows what is being done, can make objections and take such action as he deems best to secure his rights and for his protection and defense. We find that, in the instant case, the trial court's failure to inform defendant of the note deprived him of his constitutional right to be present at and to participate in a critical stage of trial. We must therefore determine whether defendant suffered any prejudice from the court's failure to inform him of the note. When a defendant is deprived of his constitutional rights to be present at and to participate for his protection in a critical stage of trial, the burden is on the State to prove beyond a reasonable doubt that the error was harmless. Defendant contends that in failing to inquire whether the jury member was feeling well enough to deliberate, the ill juror likely believed the deliberations would continue until a verdict was reached and was thus compelled to chose between his convictions and his health.