¶1concurring specially.
¶2I concur in the majority’s result. I have two concerns, however, regarding the majority’s analysis of the jury communication issue.
¶4As the majority tells us, during deliberations the jury sent three different notes to the trial judge, and in each case the judge used written responses to answer the jury’s questions. The majority determines that this practice was obvious error, to be considered by this court on review even though no objection was raised below. NDRCrimP 52(b). As the majority points out in at least two of these three instances the trial judge inquired of defense counsel, who was present, whether counsel wanted the defendant personally present while they considered the jury question and decided what response should be made. Each time he was asked, the defense counsel waived his client’s right to be present, thereby inviting what this court has determined to be obvious error. Compare State v. Zimmerman, 524 N.W.2d 111 (N.D.1994) (in which there is no indication that the trial judge inquired regarding the defendant’s presence).
¶5Courts have consistently ruled that when error is invited, not even obvious error permits reversal. United States v. Fulford, 980 F.2d 1110, 1116 (7th Cir.1992) (trial judge did not commit reversible error by allowing evidence of lack of cooperation, when defendant had testified concerning his “cooperation” with the police); United States v. Muskovsky, 863 F.2d 1319, 1329 (7th Cir.1988) (erroneous jury instruction based on defendant’s requested jury instruction was not error); United States v. Feroni, 655 F.2d 707, 712 (6th Cir.1981) (government witness made a prejudicial statement, trial court offered an immediate cautionary instruction and defense counsel declined); United States v. Grosso, 358 F.2d 154, 158 (3rd Cir.1966) (in the absence of both defendant and his counsel, and without notice, trial judge responded to an unrecorded note from the jury without calling the jury into the courtroom; defense counsel, when he was later advised of these facts by the trial court, failed to object). Despite this consistent doctrine, the majority analyzes the events in this case to determine if the alleged error was harmless beyond a reasonable doubt. I believe the better approach is simply to say, as the Third, Sixth, and Seventh Circuits have, that when error is invited, not even obvious error permits reversal.
¶6I would not be concerned, given the majority’s conclusion of harmless error, except that the majority’s analysis leaves open the possibility that in a future case a lawyer may waive his client’s presence at some stage of a criminal proceeding, and this court will decide that the “error” was not harmless beyond a reasonable doubt. The result will be a reversal of a criminal conviction based upon an invited error. Such a result may encourage attorneys who zealously represent their clients (as they are bound to do by our Rules of Professional Conduct), to invite such error puiposely.
¶7II. Personal Presence Versus Jury in Courtroom
¶8My second concern is that the majority has lumped together the analysis of two different rights, which may lead to confusion in the future. The first is defendant’s right to appear' in person, a right which we have said is of constitutional magnitude. State v. Smuda, 419 N.W.2d 166, 168 (N.D.1988). The second is defendant’s right to have all responses to jury questions be given to the jurors in the courtroom, a right which is purely statutory (and seems rather pointless, so long as the defendant’s right to be present at any conference regarding the question and the answer is properly protected). NDCC § 29-22-05 (1991). Because one right is constitutional and the other is statutory, different standards should be applied in determining whether an error regarding those rights is a basis for reversal.