¶1dissenting.
¶2After the jury and alternates were selected and sworn, the trial court spoke over the telephone with a juror and with the husband of that juror. Upon the basis of the information he received, he immediately discharged the juror. The juror and her husband were not under oath. Defendant and his counsel had no notice of and were not present during this process. Thereafter, the trial court, in open court, made a statement in the record describing what had occurred, and asked counsel, "Does anybody wish to make any record on that?" Defense counsel replied, "No, sir." As a result of the discharge of this juror, an alternate juror was substituted. The alternate advised the court that he was acquainted with the State's witness Dave Stinefield, contrary to the denial of such fact during voir dire. Following a hearing at which both the alternate juror and the witness Stinefield were examined, the prosecution and defense each took the position that it would have challenged the juror had it known of the connection between the two, and each agreed to declaring a mistrial as there were no other alternates available. I would reverse and remand for new trial.
¶3The accused has the right to be present at every stage of the criminal trial A waiver of the right must be voluntary and express. Martin v. State (1984), Ind., 457 N.E.2d 1085. A violation of the right produces a rebuttable presumption of prejudice. McFarland v. State (1979), 271 Ind. 105, 390 N.E.2d 989. A violation of the right occurs when the judge communicates with the jury on matters relating to the substantive rights of the accused. Bruce v. State (1978), 268 Ind. 180, 375 N.E.2d 1042. The discharge of the jury is a stage of the criminal trial at which the right obtains. Jenkins v. State (1986), Ind., 492 N.E.2d 666. I believe the conclusion follows a fortiori that the right to be present obtains when a judge conducts procedures to discharge a single juror as was done in this case. I also believe that the record made by the court is insufficient to rebut the presumption of prejudice, and that counsel's negative reply to the judge's offer to make a further record is insufficient to show a waiver of the right to be present.
¶4I also see an abuse of discretion in the refusal to set aside this submission. The alternate juror, after his selection, approached the witness Stinefield in the workplace and asked him if he knew a Dave Stinefield. The juror testified that when the witness disclosed his true name to be Dave Stinefield, he was "shocked". The juror had admitted acquaintances in the Stinefield family, and those connections motivated him to contact the fellow worker he knew as Stiney, This matter was on his mind, and the revelation of the connection disturbed him.
¶5Stinefield described himself as one with whom everyone at work liked to talk. He remembered talking about the case with fellow workers but not with the juror. Both Stinefield and the juror worked in the same department at the plant but on different shifts. Although neither talked about the alleged crime with one another, it may *429be properly inferred that the subject was being talked around in the plant. Stine-field in addition was one of the persons victimized by appellant under the story of the crimes. I believe there is natural peer pressure in the workplace to sympathize with the plight of fellow workers. The testimony of both Stinefield and the juror that they had not much contact and had not talked together about the case, does not dispel the potential which an acquittal would have to subject the juror to criticism in the workplace.