In what circumstances will the trial judge allow the jury to consider inadmissible material concerning appellant's refusal to take a lie detector test?

In the present case, this court need not look far to determine that the presumption has not been rebutted. Once the trial judge informed counsel that he had given the jury the May 16th jailhouse tape, defense counsel quickly informed the trial judge about the inadmissible portion of the tape. Had counsel been properly notified of the jury's requests before the exhibits were sent into the jury room, it is virtually certain that the inadmissible and highly prejudicial material concerning appellant's reluctance to take a lie detector test would never have reached the jury. In these circumstances, the compelling showing necessary to overcome the presumption of prejudice has not been made. The error is of federal constitutional dimension and cannot be deemed "harmless beyond a reasonable doubt." (Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. at p. 828.) ¹⁶

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[647 P.2d 114]