¶1concurring.
¶2I agree in all respects with the opinion of the majority. I write separately only to point out a matter not addressed by the majority.
¶3With regard to defendant’s contention that the trial court erred in conducting private, unrecorded bench conferences with prospective jurors, the majority relies in part on our recent opinion in State v. Cole, 331 N.C. 272, 415 S.E.2d 716 (1992). As in this case, the trial court in Coleconducted unrecorded bench conferences with prospective jurors on two days. In Cole, the first instance of unrecorded bench conferences with prospective jurors occurred immediately following the court’s announcement that its first order of business would be to select a grand jury and grand jury foreman. Id. at 274, 415 S.E.2d at 717. Because “defendant’s trial had not commenced at that time,” we concluded that “defendant did not have the right to be present at the conferences.” Id. at 275, 415 S.E.2d at 717. However, we further concluded that the defendant was entitled to a new trial because the trial court had excused other prospective jurors questioned during private, unrecorded bench conferences that were held after the defendant’s case had been called for trial and jury selection had commenced. Id.Thus, in Cole, we made it clear that a defendant has no right to be present during private, unrecorded bench conferences with prospective jurors prior to the commencement of the defendant’s trial.
¶4My review of the record on appeal in this case reveals that defendant’s case was never formally called for trial by the prosecutor; thus, it is unclear whether the trial court’s conferences with prospective jurors on the first day were conducted before or after *78defendant’s trial had commenced. However, here, as in Cole, a second venire was summoned to appear at trial after jury selection had commenced in defendant’s case. As with the first venire, the trial court asked of these prospective jurors whether any of them would have difficulty serving as a juror. Several of these prospective jurors approached the bench and conferred privately with the trial court, out of the hearing of the court reporter, defendant, and defense counsel. At least one prospective juror was then excused by the trial court without explanation. While it is unclear from the record on appeal whether some of the trial court’s earlier, private, unrecorded conferences with prospective jurors occurred before defendant’s case was called for trial or had otherwise commenced, it is quite clear that the trial court deprived defendant of his state constitutional right to presence by engaging in private, unrecorded communications with prospective jurors on the second day of jury selection, well after defendant’s trial had commenced. Because the State has failed to show that the trial court’s error with regard to these latter ex parte communications was harmless beyond a reasonable doubt, defendant is entitled to a new trial.