On rebuttal, Smith contended that the State's "harmless error" argument presumes the retroactive application of Rule 19.3.

The Court granted Smith permission to file a supplemental brief on the issue of harmlessness and specifically requested briefing on the question of the retroactive application of Rule 19.3. We have considered the arguments made in the supplemental brief; however, because of our resolution of the issue pertaining to the trial court's allowing the jury to separate, over Smith's objection, we pretermit any discussion of those arguments.

"In the prosecution of any felony case the trial court in its discretion may permit the jury hearing the case to separate during the pendency of the trial. The court may at any time on its own initiative or on motion of any party require that the jury be sequestered under the charge of a proper officer whenever they leave the jury box or the court may allow them to separate. A motion to separate or sequester shall not be made within the hearing of the jury, and the jury shall not be informed which party, if any, requested separation or sequestration."

Before June 15, 1995, § 12-16-9, had provided, in part, as follows:.

"(a) If the accused and his counsel and also the prosecuting attorney, in any prosecution for a capital felony consent thereto in open court, the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, whether the jury has retired or not. A separation so permitted shall not create a presumption of prejudice to the accused, but on the contrary it shall be prima facie presumed that the accused was not prejudiced by reason of the separation of the jury.

"(b) It shall be improper for the trial court to ask the accused, counsel for the accused or the prosecuting attorney, in the hearing of the jury, whether he or they will consent to a separation of the jury pending the trial.

"(c) It shall be improper for the accused, counsel for the accused or the prosecuting attorney to state to the trial court in the hearing of the jury that he or they consent to a separation of the jury pending the trial.

"(d) In the prosecution of any noncapital felony the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial. . . . "

"(a) Separation of Jurors in Capital Trials.

"(1) In any prosecution for a capital felony, upon the consent in open court of the defendant, defendant's counsel, and the district attorney, the trial court, in its discretion, may permit the jury trying the case to separate during the pendency of the trial, whether the jury has retired or not,

"(2) A separation of the jury so permitted under Rule 19.3 (a) shall create a prima facie presumption that the accused was not prejudiced by reason of the separation.

"(3) All discussions among the parties and the trial court concerning whether there will be a separation shall take place outside the hearing of the jury, and the jury shall not be informed which party, if any, requested or objected to sequestration or separation."