¶26 (dissenting in part) — The critical question in this case is whether defense counsel can stipulate to a status element of a charged crime over the defendant’s objection. This question turns on the allocation of decision-making authority between client and counsel — a question courts have grappled with since Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Any modification of the law in this area must be sensitive to the precedent that has served as a measure of effective assistance of counsel and the foundation of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Unfortunately, the majority does not discuss this precedent. Instead, with minimal analysis, it concludes that a trial court cannot accept counsel’s decision to stipulate to an element of a charged crime when it knows the defendant disagrees.
Stephens, J.*723¶27 I respectfully dissent. The test of when defense counsel’s chosen trial strategy must yield to the defendant’s objection is not, simply, that the defendant’s constitutional rights are directly implicated. Nor does the trial court’s knowledge that the defendant disagrees with his lawyer matter in answering the question of whether client or counsel holds ultimate decision-making authority on a particular issue. Because I agree with the trial court below that Humphries’s counsel had the authority to enter into the stipulation despite Humphries’s objection, I would affirm. While I agree with the majority that Humphries did not knowingly, intelligently, and voluntarily waive his rights in connection with the stipulation, such a waiver was not required.
The Decision at Issue Is One of Trial Strategy for Counsel To Make
¶28 Criminal defendants and their counsel often disagree over trial matters, including what motions to bring, what defense theories to argue, whether to challenge a juror, and whether to call or cross-examine particular witnesses. It is therefore well established that counsel must have some decision-making authority, for “[t]he adversary process could not function effectively if every tactical decision required client approval.” Taylor v. Illinois, 484 U.S. 400, 418, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988). Countless decisions are made throughout trial. Some require extemporaneous decision-making without opportunity to consult with the defendant. And, many require a comprehensive understanding of complex criminal law and procedure “that only trained experts can comprehend their full significance, and an explanation to any but the most sophisticated client would be futile.” ABA Standards for Criminal Justice: Prosecution Function and Defense Function std. 4-5.2 cmt. at 202 (3d ed. 1993). The law thus “afford[s] the attorney a wide latitude and flexibility in his choice of trial psychology and tactics.” State v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 *724(1967); see In re Pers. Restraint of Stenson, 142 Wn.2d 710, 733, 16 P.3d 1 (2001). As the United States Supreme Court succinctly put it, “[T]he lawyer has — and must have — full authority to manage the conduct of the trial.” Taylor, 484 U.S. at 418.
¶29 Decisions by counsel have been given effect as to most trial matters, including scheduling matters, New York v. Hill, 528 U.S. 110, 115, 120 S. Ct. 659, 145 L. Ed. 2d 560 (2000); what arguments to pursue, Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983); what evidentiary objections to raise, Henry v. Mississippi, 379 U.S. 443, 451, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965); and what agreements to make regarding the admission of evidence, Hill, 528 U.S. at 115 (citing United States v. McGill, 11 F.3d 223, 226-27 (1st Cir. 1993)). Courts have also recognized that a defendant must accept counsel’s decision regarding whether to forgo cross-examination, Taylor, 484 U.S. at 418, whether to call certain witnesses, id., whether to request a lesser included offense instruction, State v. Grier, 171 Wn.2d 17, 31-32, 246 P.3d 1260 (2011), whether to admit guilt in the penalty phase, In re Stenson, 142 Wn.2d at 735-36, and whether to present evidence of insanity during the penalty phase of a capital case, State v. Cross, 156 Wn.2d 580, 608, 132 P.3d 80 (2006).
¶30 This is not to say the defendant is kept out of the loop; “[a]n attorney undoubtedly has a duty to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy.” Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (quoting Strickland, 466 U.S. at 688). “That obligation, however, does not require counsel to obtain the defendant’s consent to ‘every tactical decision.’ ” Id. (quoting Taylor, 484 U.S. at 417-18). Nor is counsel “obliged to obtain a written waiver or instructions from the defendant as to each and every turn or direction the accused wants his counsel to take.” Piche, 71 Wn.2d at 590. Rather, “an attorney has authority to manage most aspects of the defense without obtaining his client’s approval.” Nixon, 543 U.S. at 187.
*725¶31 While defense counsel has wide latitude over matters of trial strategy, certain decisions are of such moment that ultimate decision-making authority must reside with the defendant. These decisions are of such a “fundamental nature” and “so crucial to the accused’s fate” that the accused must make them. ABA Standards std. 4-5.2 cmt. at 201. They include whether to be present during trial, Taylor, 484 U.S. at 418 n.24; whether to testify, Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); whether to waive the right to counsel, Faretta v. California, 422 U.S. 806, 834, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); whether to enter a guilty plea, Brookhart v. Janis, 384 U.S. 1, 7-8, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966); whether to agree to an abbreviated prima facie trial, id.-, whether to waive the right to a jury trial, Jones, 463 U.S. at 751; and whether to take an appeal, id. See ABA Standards std. 4-5.2(a); at 199-200 (listing decisions over which the accused has ultimate decision-making authority).
¶32 The decision to stipulate to a status element of a charged offense does not fall within the categories of decision-making that law and tradition have committed to the defendant. While this decision touches on the defendant’s right to require the State prove each element of the crime beyond a reasonable doubt and it waives the right to a jury trial as to the stipulated element, it has never been deemed tantamount to a guilty plea. Indeed, courts have been reluctant to find a guilty plea equivalent under more encompassing factual stipulations. In Nixon, the United States Supreme Court permitted counsel to concede guilt during the guilt phase of a murder trial even though the defendant did not understand or consent to the concession. 543 U.S. at 188-89. The Court found the concession was not tantamount to a guilty plea because “a guilty plea is ‘more than a confession which admits that the accused did various acts,’ it is a ‘stipulation that no proof by the prosecution *726need be advanced.’ ” Id. at 188 (quoting Boykin v. Alabama, 395 U.S. 238, 242 & n.4, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)). For similar reasons, this court held that a stipulated facts trial is not a guilty plea equivalent. In re Det. of Moore, 167 Wn.2d 113, 120-21, 216 P.3d 1015 (2009); State v. Johnson, 104 Wn.2d 338, 342, 705 P.2d 773 (1985). If neither the decision to concede guilt nor the decision to enter a stipulated facts trial constitutes a guilty plea equivalent, then the decision to concede a defendant’s easily proven criminal history certainly does not. The majority does not contend otherwise.
¶33 The majority nevertheless holds that due process requires any decision that implicates a constitutional right must belong to the defendant. Majority at 716. A list of such decisions would surely be long. Under the majority’s reasoning, it appears the defendant must knowingly, intelligently, and voluntarily agree to counsel’s choice of what witnesses to call, what defense theories to present, when to cross-examine a witness, and what jurors to select. All of these decisions impact the rights of the accused to defend his case, to meet the witnesses against him, to compel the attendance of witnesses on his behalf, and to have an impartial jury. Const, art. I, § 22; U.S. Const, amend. VI. By holding that any infringement on the defendant’s constitutional rights necessitates his consent, the majority suggests that many decisions courts have heretofore recognized as within counsel’s authority to make are not in fact solely matters of strategic discretion.
¶34 The majority relies on State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996), but that case does not hold that all constitutional rights require a knowing, intelligent, and voluntary waiver by the defendant. Nor does United States Supreme Court precedent “reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection.” Schneckloth v. Bustamonte, 412 U.S. 218, 235, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Case law requires *727only that “the waiver of a fundamental constitutional right must be made knowingly, voluntarily, and intelligently.” Thomas, 128 Wn.2d at 558 (emphasis added); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) (“ ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights” (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S. Ct. 809, 81 L. Ed. 1177 (1937))); Hodges v. Easton, 106 U.S. 408, 412, 1 S. Ct. 307, 27 L. Ed. 169 (1882). This rule appreciates the fact that almost every trial decision implicates some constitutional right of the accused. For example, “[e]ach and every time a defense attorney declines to cross-examine a witness, the attorney technically waives his client’s sixth amendment right.” Poole v. United States, 832 F.2d 561, 564 (11th Cir. 1987). Counsel’s failure to object to hearsay evidence essentially waives a defendant’s confrontation rights. Watkins v. Kassulke, 90 F.3d 138, 141 (6th Cir. 1996). And, deliberately failing to object to the admission of tainted evidence taken from an unlawful search implicates the Fourth Amendment to the United States Constitution. Henry, 379 U.S. at 451. Despite their constitutional implications, these decisions have been deemed a part of trial strategy for counsel to make.
¶35 Rather than engaging with the weight of authority against its holding, the majority focuses on cases addressing an entirely different question — when can a court presume the defendant consents to his counsel’s waiver of a constitutional right? For example, the majority dismisses the State’s argument that counsel has the authority to stipulate to material facts as a matter of trial tactics by observing that “[i]n none of [the cases cited by the State] did the defendant expressly object to the stipulation.” Majority at 717. The very focus of the majority’s discussion confuses the question of when an on-the-record colloquy is re*728quired — which is not at issue here9 — with the critical question of whose decision controls. If the decision to stipulate to a status element belongs to counsel, as I believe it does, then it is irrelevant whether Humphries initially objected or later agreed to the stipulation. United States v. Chapman, 593 F.3d 365, 369 (4th Cir. 2010) (noting that “if consultation and consent by the client are not required with regard to these tactical decisions, the client’s expressed disagreement with counsel’s decision cannot somehow convert the matter into one that must be decided by the client”).
¶36 The Constitution does not obligate counsel to accept the client’s decision in every instance. Rather, the opposite is true. The United States Supreme Court has interpreted a defendant’s Sixth Amendment right to assistance of counsel as more encompassing than the mere presence or advice of counsel. Strickland, 466 U.S. at 685. It “envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” Id. In other words, “ ‘the right to counsel is the right to the effective assistance of counsel.’ ” Id. at 686 (emphasis added) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)). In fulfilling the “overarching duty” to advocate for the defendant’s cause, defense counsel must “bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Id. at 688.
¶37 The majority’s decision potentially undermines counsel’s ability to act effectively. This case presents a prime example. The State accused Humphries of first degree unlawful possession of a firearm. Clerk’s Papers (CP) at 9-11. An element of that charge is that Humphries owned, possessed, or controlled a firearm after having been convicted of a serious offense. RCW 9.41.040. Humphries *729maintained his innocence throughout trial; his defense focused on the fact that no weapons or ammunition were found on him or at the scene of the alleged shooting. Verbatim Report of Proceedings (Oct. 13, 2010) at 46-47. Despite this lack of physical evidence, his attorney was concerned the jury would be distracted by Humphries’s criminal history, which included dispositions for first degree robbery, second degree robbery, and attempted second degree robbery. CP at 11. Counsel advised Humphries it would be wise to stipulate to a prior serious offense conviction, which would preclude the State from introducing evidence of his past crimes. Tr. of Proceedings (Oct. 12, 2010) at 5-6. No one — not even Humphries or the majority — questions the wisdom of counsel’s advice. Evidence of Humphries’s past crimes could only prejudice the jury against him. Old Chief v. United States, 519 U.S. 172, 185, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997) (“there can be no question that evidence of the name or nature of the prior offense [necessary to establish a prior qualifying conviction] generally carries a risk of unfair prejudice to the defendant”). The State could easily prove the element of a prior serious offense conviction, as evinced by the criminal history records it presented at Humphries’s subsequent sentencing. Humphries nevertheless refused to stipulate. By holding that counsel could not pursue his trial strategy in the face of Humphries’s expressed disapproval, the majority expands constitutional waiver analysis beyond the class of decisions previously recognized as involving fundamental rights.
¶38 Worse yet, the majority’s holding places trial judges at risk of violating the defendant’s Sixth Amendment rights in an effort to secure a valid waiver. As the United States Supreme Court has explained, the “Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.” Strickland, 466 U.S. at 686. Under the majority’s holding, when a *730defendant objects to counsel’s trial strategy, the trial judge must inquire whether counsel has advised the defendant about the decision, thereby potentially exposing attorney-client confidences and counsel’s trial strategy and intruding on the attorney-client relationship. Thomas, 128 Wn.2d at 557 n.2; In re Pers. Restraint of Lord, 123 Wn.2d 296, 317, 868 P.2d 835 (1994). Intrusions into the attorney-client relationship have been recognized as sufficient grounds for an ineffective assistance of counsel claim. See Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991) (involving a judge’s inquiry into why certain witnesses the defendant wanted to be called were not called by defense counsel).
¶39 It is important to acknowledge that the majority raises valid concerns about the defendant’s authority to make trial decisions when he must suffer the consequences. Some commentators have criticized the division of authority recognized by the United States Supreme Court and formalized in the ABA Standards. See, e.g., Pamela R. Metzger, Fear of Adversariness: Using Gideon to Restrict Defendant’s Invocation of Adversary Procedures, 122 Yale L.J. 2550 (2013) (arguing the defendant should have greater authority over decisions affecting constitutional rights). But even critics recognize the lines that have heretofore been drawn. See id. at 2556-67 (acknowledging defendant’s authority is limited to decisions deemed “fundamental”); James J. Tomkovicz, The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution 74 (2002) (recognizing that a “majority of the Supreme Court has rejected” the position that counsel must defer to the defendant’s wishes on significant questions). The division of authority between counsel and client attempts to balance the defendant’s ability to choose his own defense with his right to effective assistance of counsel. See Faretta, 422 U.S. at 819 (recognizing that the right to counsel “does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to *731make his defense”). True, the right to counsel “implicitly embodies a ‘correlative right to dispense with a lawyer’s help.’ ” Id. at 814 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942)). But once “a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas.”Id. at 820; Brookhart, 384 U.S. at 7-8; Fay v. Noia, 372 U.S. 391, 439, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), overruled on other grounds by Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). The majority’s holding must be recognized for what it is: not a limited exception to the traditional division of decision-making authority between client and counsel, but a rejection of the very framework that has supported a large body of law. I would hold that counsel’s decision to stipulate to a prior serious offense did not require Humphries’s knowing, intelligent, and voluntary waiver of his right to make the State prove this element. Therefore, Humphries suffered no constitutional error — whether framed as a due process or a Sixth Amendment violation. I would affirm on this basis.
If the Stipulation Violated Humphries’s Rights, the Error Was Harmless beyond a Reasonable Doubt
¶40 Even if the trial court committed constitutional error in accepting defense counsel’s stipulation that Humphries “had previously been convicted of a serious offense” over Humphries’s objection, I disagree with the majority that the error was prejudicial. CP at 12.10
¶41 The majority correctly observes that constitutional errors are subject to harmless error analysis and are considered “harmless when there is no reasonable doubt *732that any reasonable jury would have reached the same result in the absence of the error.” Majority at 718. In determining whether defense counsel’s stipulation was harmless, the majority echoes Judge Dwyer’s reliance on the overwhelming untainted evidence test and considers only the absence of other evidence introduced at trial to prove a prior serious offense conviction. Id. (citing State v. Humphries, 170 Wn. App. 777, 809, 285 P.3d 917 (2012) (Dwyer, J., dissenting)). Noting that the State presented no evidence in light of the stipulation, the majority concludes that the error was not harmless. It rejects as “irrelevant” the fact “that the State ‘was fully prepared to present evidence’ of the prior conviction.” Id. (internal quotation marks omitted) (quoting Humphries, 170 Wn. App. at 809 (Dwyer, J., dissenting)).
¶42 The majority contends its conclusion is supported by State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74 (2002). But, Smith involved the erroneous admission of evidence. Here, we are concerned with an alleged error (acceptance of the stipulation) that operated to preclude the State from introducing otherwise admissible evidence. In other words, the error at issue, if there was error, involved the erroneous exclusion of evidence, and we must examine the question of harmless error in this context. Relying on a test that looks only to other evidence admitted at trial is both artificial and unhelpful. Once defense counsel offered to stipulate to a prior serious offense conviction, the State was obligated to accept this stipulation and was precluded from presenting evidence of Humphries’s criminal history. Old Chief, 519 U.S. at 190-92.11 Because the alleged error in this case had a mandatory exclusionary effect, a meaningful harmless *733error analysis requires that we look beyond what was presented to the jury and consider the effect of the erroneous decision at issue. This is consistent with the essential purpose of harmless error inquiry, which asks, “Was the defendant afforded, not a perfect but, rather a fair trial?— for the constitution guarantees no one a perfect trial.” State v. Green, 71 Wn.2d 372, 373, 428 P.2d 540 (1967). To answer this question, we look to the record; “if the record supports a finding that the jury verdict would be the same absent the error, harmless error may be found.” State v. Berube, 150 Wn.2d 498, 506, 79 P.3d 1144 (2003).
¶43 The record in this case establishes that the State had certified copies of Humphries’s prior criminal history, CP at 56-88, and that the stipulation was admitted in lieu of the State’s proffer. Absent the stipulation, the State would have submitted its evidence to establish Humphries’s prior convictions for a serious offense. This evidence, beyond simply proving the element of a “prior serious offense,” carried a risk of unfair prejudice to Humphries. See Old Chief, 519 U.S. at 185 (recognizing “risk of unfair prejudice to the defendant”). Defense counsel’s stipulation was therefore harmless beyond a reasonable doubt. If admission of the stipulation violated Humphries’s constitutional rights, I would affirm on this alternative basis.
Owens, J., concurs with Stephens, J.
That question was at issue in State v. Woods, 143 Wn.2d 561, 609, 23 P.3d 1046 (2001) (discussing when defense counsel, as opposed to the court, bears responsibility for informing the defendant of a particular right and explaining the merits and demerits of waiving such right).
Counsel also stipulated that Humphries “had previously received written notice that he was ineligible to possess a firearm” and that he “knew that he could not possess a firearm.” CP at 12. These factual stipulations seem to have been gratuitous. As instructed, the jury did not need to accept these facts in order to convict. Id. at 26 (Instr. 8).
Old, Chief does recognize that the prosecution can in some circumstances present redacted criminal records without the name and nature of the prior conviction as supplemental evidence of a defendant’s past conviction notwithstanding a defendant’s stipulation. 519 U.S. at 191 n.10. But, redacted criminal records would have had no evidentiary value in this case. Here, the names of Humphries’s prior convictions were needed to establish their qualification as “serious offenses.”