concurring:
I join in today’s opinion and, since it does not address the question of the applicability of the doctrine of harmless error, I believe it advisable to comment on the doctrine, in view of Justice Neely’s concurring opinion.
Initially the doctrine of harmless constitutional error appears as an inviting panacea which would insulate the *178convictions of criminal defendants whose constitutional rights have been violated. If, as Justice Neely suggests, the harmless error test places primary emphasis on the amount of evidence properly admitted against a defendant, that is, overwhelming indication of guilt — then any constitutional error can be regarded as harmless.
Under the classic formulation of the doctrine, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 17 L.Ed.2d 705, 710, 87 S.Ct. 824, 828 (1967). In devising this harmless error standard, the Court followed the approach it conceived in Fahy v. Connecticut, 375 U.S. 85, 11 L.Ed.2d 171, 84 S.Ct. 229 (1963), where it stated that the harmless error question must be answered by determining “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” 375 U.S. at 86-87, 11 L.Ed.2d at 173, 84 S.Ct. at 230.
The Chapman Court noted that not all constitutional errors must be deemed harmful and therefore receive automatic reversal when found. It did, however, characterize the type of constitutional error that would be deemed harmless as “unimportant and insignificant.” 386 U.S. at 22, 17 L.Ed.2d at 709, 87 S.Ct. at 827.
On the other hand, Chapman recognized “that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” 386 U.S. at 23, 17 L.Ed.2d at 710, 87 S.Ct. at 827-28. It then cited as illustrations Payne v. Arkansas, 356 U.S. 560, 2 L.Ed.2d 975, 78 S.Ct. 844 (1958) (coerced confession); Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed. 2d 799, 83 S.Ct. 792 (1963) (right to counsel); Tumey v. Ohio, 273 U.S. 510, 71 L.Ed 749, 47 S.Ct. 437 (1927) (impartial judge).
Finally, Chapman requires “the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24, 17 L.Ed.2d at 710, 87 *179S.Ct. at 828. Normally, the beneficiary of a constitutional error in a criminal case is the prosecution.
This Court has considered the doctrine of harmless constitutional error in several recent cases and there is no suggestion that our rule is different from the federal rule. State v. Boyd, _ W. Va. _, 233 S.E.2d 710 (1977); State ex rel. Grob v. Blair, _ W. Va. _, 214 S.E.2d 330 (1975); State v. Thomas, W. Va., 203 S.E.2d 445 (1974). Indeed, as Chapman teaches us, where the error involves federal constitutional rights the State must follow the federal harmless constitutional error standard. 386 U.S. at 21, 17 L. Ed.2d at 709, 87 S.Ct. at 826. The State, of course, is free to set a higher protective standard under its own Constitution, but it cannot diminish its constitutional standard where there is a parallel federal constitutional standard. Oregon v. Haas, 420 U.S. 714, 43 L.Ed.2d 570, 95 S.Ct. 1215 (1975); Sibron v. New York, 392 U.S. 40, 20 L.Ed.2d 917, 85 S.Ct. 1889 (1968).
With this background on the doctrine of harmless constitutional error, the question arises: Does it have any applicability to the present case?
It is of considerable interest that in Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed.2d 508, 95 S.Ct. 1881 (1975), which was the progenitor of the rule that we today hold is retroactive, the two concurring Justices urged consideration of the doctrine of harmless constitutional error. The majority, however, refused to even discuss the doctrine in Mullaney.
Of even greater significance is the fact that in Hankerson v. North Carolina, __ U.S. _, 53 L.Ed.2d 306, 97 S.Ct. 2339 (1977), which held the Mullaney rule to be retroactive, there was again no discussion by any of the Justices of the doctrine of harmless constitutional error.1
The challenged practice condemned in Mullaney “substantially impair[ed]” the “truth finding function and so raise[d] serious questions about the accuracy of guilty *180verdicts in past trials.” [Emphasis in original] U.S. at _, 53 L.Ed.2d at 316, 97 S.Ct. at 2344. See also, Ivan V. v. City of New York, 407 U.S. 203, 32 L. Ed. 2d 659, 95 S.Ct. 1951 (1972).
Obviously where, as in Hankerson and here, the challenged practice has been found to seriously impair the truth finding functions, it could not be deemed harmless error under the Chapman test.
The rule that we today announce flows inexorably from the mandate announced in Hankerson by a unanimous United States Supreme Court. While I agree with my concurring brothers that Note 8 in Hankerson is chimerical, I do not agree that the doctrine of harmless constitutional error can be applied.
We adopted the Mullaney rule in State v. Pendry, _ W.Va. _, 227 S.E.2d 210 (1976). Today’s holding is dictated by Hankerson. Neither Mullaney nor Hanker-son considered the doctrine of harmless constitutional error for the simple reason that the error was so significant that the Court obviously felt it could not be harmless. We, therefore, cannot treat it as harmless.
I am authorized to state that Justice Harshbarger joins with me in this concurring opinion.
Hankerson is also unusual, if not unique, because not a single Justice dissented.