We now turn to the
merits of DeGroff's claim that the trial court's ex parte juror contacts
cumulatively undermined the integrity of his trial and require reversal of
his conviction.  We agree that they did.
     Ex Parte Communications
     A trial court should not communicate with the jury in the absence of
the defendant.  State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120
(1997); State v. Caliguri, 99 Wn.2d 501, 508, 664 P.2d 466 (1983).  The
appropriate practice for a trial judge is to communicate with a jury only
with all parties present.  State v. Langdon, 42 Wn. App. 715, 717, 713 P.2d
120, review denied, 105 Wn.2d 1013 (1986).  Communications between the
court and the jury in the absence of the defendant violate the defendant's
constitutional right to be present at all stages of the proceedings against
him.  State v. Bourgeois, 82 Wn. App. 314, 324, 917 P.2d 1101 (1996),
rev'd, 133 Wn.2d 389 (1997).  As our Supreme Court aptly put it more than a
century ago:
In the discharge of his official duty the place for the judge is on the
bench.  As to him the law has closed the portals of the jury room and he
may not enter.  The {defendant} was not obliged to follow the judge to the
jury room in order to protect his legal rights, or to see that the jury was
not influenced by the presence of the judge; and the state cannot be
permitted to show what occurred between the judge and the jury at a place
where the judge had no right to be, and in regard to which no official
record could be made.

State v. Wroth, 15 Wash. 621, 623, 47 P. 106 (1896); see also United States
v. Smith, 31 F.3d 469, 471 (7th Cir. 1994) ('{T}he unusual practice of a
judge entering the jury room to speak
privately with jurors is almost certain to run afoul of a defendant's right
to be present during trial proceedings.').
     In this case, we are troubled by each of the trial judge's ex parte
contacts.  We find particularly disconcerting the judge's advice to a juror
regarding the giving of a victim impact statement in a separate criminal
case and the judge's failure to disclose to the parties a juror's knowledge
of an individual in a video DeGroff had presented as part of his defense.
DeGroff maintains that such contacts require automatic reversal.  While we
disagree that reversal is automatic, the record here demonstrates that
reversal is required.
     Our Supreme Court has held that where ex parte contacts occur in the
presence of a third party, those contacts are to be reviewed under a
constitutional harmless error analysis.  Caliguri, 99 Wn.2d at 509.  The
court in that case did not address whether the same test also applied to
private contacts between a judge and juror:
To the extent . . . cases turn on the privacy of the communication between
judge and jury, we reserve judgment.  Where the only persons with knowledge
of what took place are the judge who erred and the jurors affected by the
error, the argument for a conclusive presumption of error has more force.

Caliguri, 99 Wn.2d at 509.  But the United States Supreme Court has
concluded that harmless error analysis applies even to private ex parte
communications:
There is scarcely a lengthy trial in which one or more jurors do not have
occasion to speak to the trial judge about something, whether it relates to
a matter of personal comfort or to some aspect of the trial.  The . . .
conclusion that an unrecorded ex parte communication between trial judge
and juror can never be harmless error ignores these day-to-day realities of
courtroom life and undermines society's interest in the administration of
criminal justice.

Rushen v. Spain, 464 U.S. 114, 117-18, 104 S. Ct. 453, 78 L. Ed. 2d 267
(1983).  Such a conclusion was also suggested in Bourgeois, 133 Wn.2d at
407-08, where the court held that
private ex parte contacts between the judge, bailiff, and jury were
harmless because no affirmative information was communicated.  See also In
re Personal Restraint of Benn, 134 Wn.2d 868, 921, 952 P.2d 116 (1998)
(violation of the right to be present at all critical stages of a criminal
proceeding is subject to constitutional harmless error analysis); State v.
Johnson, 125 Wn. App. 443, 460-61, 105 P.3d 85 (2005) (applying
constitutional harmless error test to private contacts between the jury and
bailiff).
     In light of Rushen and Bourgeois, we apply a constitutional harmless
error test to the ex parte jury contacts in this case.  Under this test,
the defendant must first raise at least the possibility of prejudice before
the State bears the burden to show that the communications complained of
did not contribute to the verdict obtained.  Bourgeois, 133 Wn.2d at 407;
Caliguri, 99 Wn.2d at 509.  Ordinarily, no prejudice results from neutral
communications that convey no information.  Langdon, 42 Wn. App. at 717-18
(court's written response to jury question about an instruction simply
referred the jury back to the previous instruction).  But once the
potential for prejudice is shown, the State bears the burden of showing
that the error was harmless beyond a reasonable doubt.  Bourgeois, 133
Wn.2d at 407.  This is an extremely high burden for the State to meet, for
even '{t}he appearance of bias or prejudice can be as damaging to public
confidence in the administration of justice as would be the actual presence
of bias or prejudice.'  State v. Dugan, 96 Wn. App. 346, 354, 979 P.2d 885
(1999) (quoting State v. Madry, 8 Wn. App. 61, 70, 504 P.2d 1156 (1972)).
And even if we are able to conclude that multiple errors are each harmless,
such errors will require a new trial if the cumulative effect of the errors
seriously impugned the defendant's right to a fair trial.  State v. Greiff,
141 Wn.2d 910, 929, 10 P.3d 390 (2000).
     Although the doughnut and potluck contacts involved neutral
communications, therefore rendering the incidents harmless in isolation,6
the record suggests that they opened a communication line between the jury
and the trial judge.  This is reflected in the trial judge's decision to
meet privately with a juror to discuss that juror's involvement in an
unrelated criminal matter.  The potential prejudice in such a situation is
readily apparent:
Any ex parte meeting or communication between the judge and {a juror} . . .
is pregnant with possibilities for error. . . . {E}ven an experienced trial
judge cannot be certain to avoid all the pitfalls inherent in such an
enterprise.  First, it is difficult to contain, much less to anticipate,
the direction the conversation will take at such a meeting.  Unexpected
questions or comments can generate unintended and misleading impressions of
the judge's subjective personal views which have no place in his
instruction to the jury all the more so when counsel are not present to
challenge the statements.

United States v. U.S. Gypsum Co., 438 U.S. 422, 460, 98 S. Ct. 2864, 57 L.
Ed. 2d 854 (1978).  The judge's discussion with the juror about victim
impact statements and the weight that he affords them, permitted the juror
to infer, however unintended it may have been, the judge's own views on
victim testimony.  The juror's perception of the judge's opinion of victim
impact statements may have influenced that juror's weighing of the
testimony presented at DeGroff's trial.
     We acknowledge that the juror with whom the judge conferred was
excused at DeGroff's request when the juror arrived to court on Monday.
The improper meeting occurred in the afternoon on the preceding Thursday
and there was no trial on Friday.  But while it appears
likely that the juror did not discuss her meeting with the judge with any
of the sitting jurors, we cannot say from this record that she did not do
so.
     As to the undisclosed, undisputed ex parte written communication
between the trial judge and another juror, this too was improper.  One of
the jurors told the judge that he knew an individual present at the party
where K.W. alleged that DeGroff had inappropriately touched her.  Because
this information was never brought to the attention of the parties, there
was no opportunity to pursue the nature of the juror's relationship to the
individual, the individual's interest in the trial, and whether the juror
could remain impartial.  These issues bore directly on whether the juror
should be replaced with an alternate.  Again, we recognize that the jury
ultimately found DeGroff not guilty of molesting K.W. and that the judge
instructed the juror that his knowledge of the individual was not relevant.
But once more, this contact reflects what appears to have been an improper
contacts policy between the judge and jury.
     Although some of the four juror contacts might be harmless in
isolation, we are left with serious doubts about the integrity of DeGroff's
trial.  The contacts here were not isolated and repeated juror contacts
required DeGroff 'to follow the judge to the jury room in order to protect
his legal rights, or to see that the jury was not influenced by the
presence of the judge.'  Wroth, 15 Wash. at 623.  The constitution requires
an ironclad wall between judge and jury.  And while we offer no opinion as
to validity of the comments underlying DeGroff's counsel's bias
allegations, we cannot ignore such allegations when we consider the other
undisputed events that occurred in this case.  The undisputed ex parte
contacts that occurred in this case undermined the integrity and
reliability of the trial to such an extent that we are unable to say beyond
a reasonable doubt that DeGroff was not prejudiced by them.
     We reverse DeGroff's convictions and remand for a new trial.
Additionally, although we do not express an opinion regarding the trial
judge's alleged bias, for the sole purpose of avoiding any appearance of
unfairness, we instruct the Thurston County Superior Court to assign this
case for trial before a different judge.
     A majority of the panel having determined that this opinion will not
be printed in the Washington Appellate Reports, but will be filed for
public record pursuant to RCW 2.06.040, it is so ordered.

                                 QUINN-BRINTNALL, C.J.