¶22 (concurring/dissenting) — I concur in the result reached by the majority but solely on the basis of harmless error. I agree with the dissent that article I, section 22 of our state constitution does not permit the State to suggest the defendant has tailored his testimony when exercising his trial] rights. This is not proper impeachment. Dissent at 545-46.1 share without reservation the dissent’s observation that “ ‘[p]rosecutorial comment suggesting that a defendant tailored his testimony inverts [a defendant’s fair trial] rights, permitting the prosecutor to punish the defendant for exercising that which the Constitution guarantees.’ ” Id. at 544 (first alteration in original) (quoting State v. Daniels, 182 N.J. 80, 98, 861 A.2d 808 (2004)). I agree with the majority’s result, however, because I believe the impermissible cross-examination that occurred here was harmless error. I write separately to express that view and to offer some thoughts on the question of why article I, section 22 is more protective in this context than its federal counterpart.
Article I, Section 22
¶23 The majority correctly invokes State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), in order to determine whether article I, section 22 should be interpreted independently of the Sixth Amendment to the United States Con*539stitution. Majority at 528-29.9 Having concluded the provision should be interpreted independently, the majority then entirely abandons Gunwall in considering the meaning of article I, section 22 in this context. But the Gunwall factors are more than simply a key to unlock the door of independent state analysis. They remain relevant as interpretative guides, providing a framework for a principled constitutional analysis of the provision at issue. See Gunwall, 106 Wn.2d at 62-63;10 see generally Hugh D. Spitzer, New Life for the “Criteria Tests” in State Constitutional Jurisprudence: “Gunwall Is Dead — Long Live Gunwall/,” 37 Rutgers L.J. 1169 (2006).
¶24 The wisdom of employing the Gunwall factors as interpretive guides in determining the scope of state constitutional protections is evident in what the majority’s analysis lacks. After concluding article I, section 22 should be interpreted independently from the Sixth Amendment, the majority simply endorses Justice Ginsburg’s dissent in Portuondo v. Agard, 529 U.S. 61,120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000), as to the scope of that right. Majority at 535-36. Of course, Portuondo dealt solely with the protections offered by the Sixth Amendment. Such a truncated analysis makes it hard to divine for what reason and to what end article I, section 22 is more protective than the Sixth Amendment.
*540¶25 I would resolve this question by returning to the relevant Gunwall criteria. First and foremost, I believe an examination of our common law history and preexisting state law demonstrates that article I, section 22 does not allow the State to broadly suggest a defendant is tailoring his testimony based on the exercise of his right to attend trial and hear the witnesses against him. Unlike other states, Washington has never required a defendant to present his testimony prior to other witnesses. See Portuondo, 529 U.S. at 66 (citing 3 John Henry Wigmore, A Treatise on the System of Evidence in Trials at Common Law §§ 1841, 1869 (1904); Ky. Stat., ch. 45, § 1646 (1899); Tenn. Code Ann., ch. 4, § 5601 (1896)). We have declined to build into our trial process the inference that a defendant will tailor his testimony if given the opportunity to testify after other witnesses. Instead, we have announced time and again a deep respect for the rights of the accused. See, e.g., State v. Robinson, 138 Wn.2d 753, 758-59, 982 P.2d 590 (1999) (explaining the defendant’s right to testify at trial is expressly protected in our state constitution and is fundamental); State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010) (noting that a “defendant’s right to an opportunity to be heard in his defense, including the rights to examine witnesses against him and to offer testimony, is basic in our system of jurisprudence”); State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996) (observing that a defendant’s right against self-incrimination includes the right not to testify at trial).
¶26 We have not demeaned these rights by allowing an inference that the only way to secure the defendant’s truthful testimony is to require him to testify before any other witness. Thus, our state common law history and preexisting state law support a reading of article I, section 22 that rejects the unfettered suggestion of tailoring by the prosecution.11
*541¶27 This conclusion becomes redoubtable when one considers the difficulty of drawing meaningful constitutional lines in this area. The prosecution’s suggestion of tailoring applies regardless of whether the defendant’s testimony “open[s] the door.” Majority at 536.12 Even when the defendant does not testify, his defense is still open to accusations of tailoring insofar as the defendant is able to review all of the evidence against him and observe witnesses at trial in preparing his defense. The majority does not suggest a principled basis to limit the inference of tailoring to cross-examination of the defendant, even setting aside for a moment the question of whether this would, in turn, burden a defendant’s right to testify. A moment’s reflection on what the inference of tailoring suggests makes clear that there is no practical, let alone constitutionally meaningful, limit to the door the majority believes was opened in this case. I wholly agree with Justice Sanders’s well-reasoned conclusion that article I, section 22 is incompatible with inferences of tailoring based on the defendant’s exercise of his trial rights.
Harmless Error
¶28 Although I agree with the dissent that article I, section 22 provides more protection against accusations of tailoring than the majority is willing to recognize, I do not agree that the error here was harmful.
The State bears the burden of showing a constitutional error was harmless. We find a constitutional error harmless only if *542convinced beyond a reasonable doubt any reasonable jury would reach the same result absent the error and where the untainted evidence is so overwhelming it necessarily leads to a finding of guilt.
Easter, 130 Wn.2d at 242 (citation omitted). Under this standard, the error in this case was harmless. The untainted evidence overwhelmingly implicated Martin in this crime. Samples of his DNA (deoxyribonucleic acid) found in the stolen van were consistent with a lengthy period of contact, undermining Martin’s defense that he happened briefly upon the abandoned van while vehicle prowling. Verbatim Report of Proceedings (VRP) (Dec. 7, 2007) at 162. A police sketch of the victim’s assailant based on details provided by the victim looked similar to a picture of the defendant taken shortly before the crime was committed. 2 VRP (Dec. 4, 2007) at 35-37, 100, 111-12; Exs. 28, 36, 66. Thus, while there was evidence that the victim initially identified a different suspect, significant physical evidence and testimony implicated Martin. And this evidence was untainted by the State’s improper suggestion that Martin had tailored his testimony. I therefore concur in the result to affirm Martin’s conviction.
CONCLUSION
¶29 Article I, section 22 offers greater protection than its federal counterpart in this context. The scope of that protection may be determined by looking to our own state’s common law history and preexisting state law. Respect for the rights of the accused under article I, section 22 should compel this court to hold that accusations of tailoring based on the defendant’s exercise of his trial rights are improper. Because the constitutional error here was harmless, however, I concur in the majority’s result.
Chambers and Fairhurst, JJ., concur with Stephens, J.I do note that the majority’s discussion of the textual differences between the Sixth Amendment and article I, section 22 — namely that article I, section 22 contains more explicitly stated rights than the Sixth Amendment — should be read with caution. It could give rise to the belief that more text equals more rights or conversely that less text connotes fewer rights. Majority at 529-31. We must be careful not to attach undue significance to mere differences in syntax and verbiage between our state constitution and the federal constitution. It is often the case in constitutional drafting that there are various ways to convey the same meaning. The text must be understood in its historical context.
In Gunwall we noted that the nonexclusive criteria are useful not only in determining whether an independent analysis is warranted, but also in “helping to insure that if this court does use independent state constitutional grounds in a given situation, it will consider these criteria to the end that our decision will be made for well founded legal reasons and not by merely substituting our notion of justice for that of duly elected legislative bodies or the United States Supreme Court.” Gunwall, 106 Wn.2d at 62-63.
I agree with the dissent that there is no constitutional bar to impeaching a testifying defendant on cross-examination, but proper impeachment cannot be *541based on the mere exercise of constitutional trial rights. Dissent at 544-47. Moreover, on this record, the majority’s distinction between generic and specific inferences of tailoring is difficult to maintain, as the prosecutor’s cross-examination went well beyond Martin’s specific testimony concerning the time the shop closed; it implicated generally his ability to receive discovery, attend trial, and hear the witnesses. See Verbatim Report of Proceedings (Dec. 11, 2007) at 74-75, 79.
See Wash. Supreme Court Oral Argument, State v. Martin, No. 83709-1 (Oct. 21, 2010), at 35 min., 16 sec. — 37 min., 13 sec., video recording by TVW, Washington State’s Public Affairs Network, available at http://www. tvw.org (State’s acknowledgment that the use of a negative inference does not depend on the defendant opening the door to impeachment, and acknowledging that no distinction should be drawn between whether the negative inferences arise during cross-examination versus during closing argument).