dissenting.
The more I carefully analyze what this court considers, disclaims and determines in this case, the more constitutional concerns develop from what in first review would seem to be a simple identification rape conviction appeal. Within the constitutional concerns of Andrew J. Johnson’s conviction, there is a life sentence provided by habitual criminal enhancement. Weldon v. State, 800 P.2d 513 (Wyo.1990). With that result, I cannot so lightly pass by Johnson’s denied right to counsel and his coerced incriminatory statement, both of which raise basic constitutional questions.
Among the eleven issues raised by Johnson, there are three issues which cause me particular concern.
I. WAIVER OF JURY BY DEFENDANT
I am not satisfied with the majority’s conclusion. I do not believe the Wyoming Constitution provides a right for the State to require a jury trial in a criminal case. If a defendant cannot waive a jury trial, then it means the State has a correlative right for the same remedy. I find that Wyo. Const, art. 1, § 10 does not justify adaptation of W.R.Cr.P. 24(a), which states that “[cjases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the state.” (Emphasis added.)
The philosophic problem with adaptation by this court of such a qualified waiver thesis for constitutional rights is that such an affixation to the constitution cannot properly — or logically — be confined to a right of a jury trial. The long litany that this court has developed about forfeiture and waiver for defense to constitutional right violation would be confined not just to action of the accused, but also to interaction and approval of waiver by the trial court and prosecutor. The morass of ineffectiveness of counsel, waiver and forfeiture of constitutional rights would now be corralled by agreement and consent not released to unintended mistake or intentional miscalculation. Cutbirth v. State, 751 P.2d 1257 (Wyo.1988).
If the accused cannot intentionally waive constitutional rights, it surely does not make sense — or provide justice — when the waiver unintentionally surfaces from ineffectiveness of counsel. Consequently, I find no provence under the Wyoming Constitution to limit release of the right for a jury trial to secure trial by the court even when resisted by prosecutorial veto. The Wyoming Constitution simply does not provide a right for the State to have guilt determined by a jury instead of the trial court.
I am aware of the history of federal cases and other state cases, including Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630, 638 (1965), and other cases cited in Annotation, Right of Accused, in State Criminal Trial, to Insist, Over Prosecutor’s or Court’s Objection, on Trial by Court Without Jury, 37 A.L.R.4th 304 (1985), but those courts have not adapted the omnipotent effectuation of waiver and forfeiture found in decisions of this court in Murray v. State, 776 P.2d 206 (Wyo.1989); Kallas v. State, 776 P.2d 198 (Wyo.1989); Amin v. State, 774 P.2d 597 (Wyo.1989); Campbell v. State, 772 P.2d 543 (Wyo.1989); and Cutbirth, 751 P.2d 1257.
Consistency, which is an ingredient of both due process and equal protection, should not be just a motto of desired behavior but also the standard of application of the justice delivery system within the confining structure of the Wyoming Constitution. Holm v. State, 404 P.2d 740 (Wyo.1965). If the accused defendant is required to stand subject to constitutional retrogression by an unintended mistake and counsel failure, he should also be entitled to affirmatively waive the one right remaining — to give up a jury trial in order to have a decision by the trial court. The challenge for consistency of burdens and benefits for the accused — and the prosecution — should not go unanswered in constitutional concepts of due process and equal protection.
*1293II. INTERROGATION OF A REPRESENTED ACCUSED
A significantly more divisive and clearly more obvious problem with this majority decision is created by its analysis of the renewed interrogation of a represented accused addressed in Section II of the majority opinion. The police strategy may have been effective, but surely not acceptable when crossing constitutional barriers limiting investigatory activities.
In simple fact, the police officer, Detective Stanford, initiated interrogation of Johnson in jail without the presence of counsel. That much cannot be questioned. Whether it was proper or harmless leaves for discussion my serious disagreement with the majority opinion and the clear difference about application of the definitive and explicit decisions of the United States Supreme Court.
Essentially what happened is that a couple of days after the crime, the victim found some strange glasses in her apartment which she believed might have been owned by the rape perpetrator. She called the Detective Stanford and he picked up the glasses. Several days went by during which the detective attempted to develop ownership by a contact with optical sources. Johnson came to believe that the police had his glasses without which he could not normally function and made demand for their delivery to assist his general accommodation in jail. Johnson became insistent that his glasses be returned. He did not know that the glasses could become significant evidence since found in the victim’s apartment.
The police detective carefully elected not to bring defense counsel into an interrogation session where the incriminating identification could be obtained. Johnson, while in custody, was within a coercive environment. The events were discussed in a suppression hearing where, after identification of the witness as a Cheyenne, Wyoming Police Department detective, that officer testified:
Q. Did there come a time when you became involved in a piece of evidence involving a pair of glasses in this case?
A. Yes.
Q. And what was your involvement in that situation?
A. On June 13, 1989, the victim in this case called me to her apartment. She stated that she had found a pair of glasses that she believe belonged to Mr. Johnson.
Q. How long was this after the incident?
A. Two days.
Q. Okay.
A. I took the glasses into evidence. I didn’t have any way to determine exactly who they belonged to.
Q. Well, what did she tell you?
A. She said she believed they were Mr. Johnson’s.
Q. Okay. Why did you place them in evidence?
A. They didn’t belong to her, and I didn’t know that they weren’t evidence.
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Q. And as the detective-investigator on this case, what was your intent of saving the glasses? What purpose would they serve in the case?
A. I wanted to try and find a way to determine whether or not the glasses did in fact belong to Mr. Johnson.
Q. And how would that be helpful to your investigation?
A. It would place him in the bedroom of the apartment.
Q. Is that an important part of the case,—
A. Yes,
Q. —placing the defendant at the scene of the crime?
A. Yes, it is.
Q. And then when did you next become involved with the glasses?
A. Several days after that I took them to an optical shop here in town, to try, for lack of anything better to do, to try and find out what the prescription was on the lenses.
*1294Q. Okay. And then what did you do with the glasses?
A. Put them back into evidence.
Q. And when was your next involvement with the glasses?
A. I believe it was the 29th. I can check my note real quick. Yes, on the 29th I was — June 29th I was advised by the jail that Mr. Johnson was requesting his glasses, saying that we were holding them as evidence.
Q. And then what did you do?
A. I took them over to the jail myself, with Sergeant Kaine and another deputy.
Q. What was your purpose in taking them over there?
A. To determine if they were, in fact, Mr. Johnson’s glasses that he was asking for.
Q. Were you intending to give him his glasses, if they were his?
A. No.
Q. Why not?
A. Because I was still holding them as evidence.
Q. They still held the same purpose for evidence as they held before?
A. Correct.
Q. Would it be fair to say that that was your intent, to get an identification of the glasses?
A. That’s correct.
Q. Would it be fair to say that that intent was for future use at trial, if Mr. Johnson denied that those were his glasses?
A. If he would have denied it, then they would of had no further evidentiary value.
Q. But if he admitted it, then it would have evidentiary value?
A. I believe so, yes.
Q. And that was your purpose for going over there?
A. That’s correct.
Q. And what date did you go over there?
A. The 29th, I believe.
Q. And where did you go?
A. To the north annex of the county jail.
Q. Where was Mr. Johnson residing at that time?
A. He was in that annex.
Q. In custody?
A. Yes.
Q. And what did you do when you got over there?
A. I showed him the glasses, and I — I don’t recall the exact words, but I believe I asked him if they were his, and he responded affirmatively.
Q. “Yes”?
A. “Yes.”
Q. He said yes?
A. I don’t recall exactly, but, yes, he indicated that they were his glasses.
Q. Okay.
A. I asked if he would like to try them on to make sure, and he indicated that he didn’t need to.
Q. And then what happened?
A. And then I told him it would be up to Mr. Forwood as to whether or not the glasses would be released.
Q. This was now about two and a half to three weeks after the alleged incident?
A. That’s correct.
Q. And you were aware that Mr. Johnson had been in custody for about two and a half to three weeks?
A. Yes, I was.
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Q. • So, when you confronted him with the glasses on the 29th, you were aware that he was represented by myself?
A. That’s correct.
Q. Did you read Mr. Johnson his Miranda rights prior to your conversation with him?
A. No, I did not.
Q. Are those glasses still in evidence?
A. I believe so.
*1295Q. Did you return them to evidence after that conversation?
A. Yes, I did.
Without question, this was interrogation — in jail — without the presence of Johnson’s counsel for the purpose of developing an incriminatory “confession.” Two things could have occurred — the police detective could have told Johnson where the glasses were found or, more appropriately, could have contacted the appointed defense counsel to check ownership or to be present to advise Johnson before any statement was made. Neither was done and this court now applies a harmless error resolution to the constitutional deprivation of right to counsel under both the state and federal constitutions. Wyo. Const, art. 1 § 10; U.S. Const, amend. VI.1
It may be, as the majority suggests, that other processes for the identification of the glasses could have been successfully used by prosecution. It may also be that, considering other evidence introduced, the eye glass identification was unnecessary for conviction. Both are clearly only suppositions, undocumented by factual determinations within this record. What we do know is that Johnson’s constitutional right to counsel should have been protected by sustaining suppression of the non-counseled admission during interrogation in jail. Although the Sixth Amendment was implicated in the constitutionally impermissible police conduct, I would suggest that a Fifth Amendment violation issue is even more persuasively presented.
The United States Supreme Court has spoken emphatically this current term about the use of incriminatory testimony obtained in the absence of counsel as a violation of the Fifth Amendment to the United States Constitution within the purview of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, reh’g denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981) and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh’g denied sub nom. California v. Stewart, 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966). In Minnick v. Mississippi, — U.S. -, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), Minnick, as a fugitive from a killing in Mississippi, was arrested in California and held on a fugitive warrant in the San Diego jail. He was first interviewed by FBI agents, which resulted in his request to have an attorney present. An attorney was appointed and met with him, or at least had contact with him, on two or three occasions. Following those contacts, a sheriff’s officer from Mississippi came to the California jail to question Minnick, who was then advised by his jailers that he would have to talk to the deputy sheriff. It was the statement then given to the Mississippi sheriff’s officer, without requested counsel present, that became the subject of the decision by the United States Supreme Court following a death penalty conviction where the evidence was used in the Mississippi trial.
The United States Supreme Court, for the Minnick decision, did not reach any Sixth Amendment implications in the case, but determined that Fifth Amendment protection had not been terminated or suspended by consultation with counsel so that the non-counseled interview should not have been pursued. By application of Edwards, 451 U.S. 477, 101 S.Ct. 1880 and Miranda, 384 U.S. 436, 86 S.Ct. 1602, as followed by Patterson v. Illinois, 487 U.S. 285, 291, 108 S.Ct. 2389, 2393-94, 101 L.Ed.2d 261 (1988), the United States Supreme Court succinctly delineated the rule:
In our view, a fair reading of Edwards and subsequent cases demonstrates that we have interpreted the rule to bar police-initiated interrogation unless the accused has counsel with him at the time of questioning. Whatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.
Minnick, 111 S.Ct. at 491. The United States Supreme Court further stated:
*1296We decline to remove protection from police-initiated questioning based on isolated consultations with counsel who is absent when the interrogation resumes.
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Both waiver of rights and admission of guilt are consistent with the affirmation of individual responsibility that is a principle of the criminal justice system. It does not detract from this principle, however, to insist that neither admissions nor waivers are effective unless there are both particular and systemic assurances that the coercive pressures of custody were not the inducing cause. The Edwards rule sets forth a specific standard to fulfil these purposes, and we have declined to confine it in other instances. See Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). It would detract from the efficacy of the rule to remove its protections based on consultation with counsel.
Id. 111 S.Ct. at 491-92.
The strategy employed to obtain the admission from Johnson does not bring these events within the province of a waiver of Fifth Amendment protections such as when the accused might reinitiate the discussions. There can be no doubt that the interrogation in question was initiated by the police detective — it was a formal interview which Johnson was compelled to attend. Since Johnson made a specific request for and had obtained counsel before the interview, the police-initiated interrogation was impermissible. Johnson’s statement to Detective Stanford is clearly inadmissible under the principles of Minnick.
It misshapes the facts of this case to suggest that coercion and compulsion were not present. Johnson was in jail, he needed the glasses for normal living and there is no evidence that he knew that original custody of the glasses had been obtained from the victim’s apartment by the police. The activity then pursued by subterfuge, as it was, by the police was not to make the glasses available for Johnson’s use, which they did not, but rather to authenticate trial evidence by coercive interrogation.
I take exception to the majority’s notion that a visually handicapped person initiates “ ‘communication, exchanges, or conversations with the police’ ” sufficient to waive Fifth or Sixth Amendment rights to counsel by asking for his corrective lenses. (Quoting Edwards, 451 U.S. at 485, 101 S.Ct. at 1885.) “[CJourts indulge in every reasonable presumption against waiver [of the right to counsel].” Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424, reh’g denied 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 240 (1977). What happened here is no different in principle than keeping an artificial limb from an amputee until he initiates “communication” by asking for his artificial arm or leg. People’s handicaps should not be exploited. I also take exception to that part of the majority opinion which expresses no disapproval regarding the behavior of the police detective. While harmless constitutional error may be possible under Chapman v. State of California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, reh’g denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), any intentional behavior which leads to the need for a Chapman analysis should be discouraged. The behavior of the police detective appears to have been intentional — such behavior places the conviction at serious risk of reversal. I believe the judicial system does a disservice to the Republic when we discount, by our silence, such inappropriate behavior by governmental employees.
Second, I believe the police detective’s behavior violated a Fifth Amendment right to counsel rather than involving only a Sixth Amendment right to counsel as indicated by the majority opinion. Minnick, 111 S.Ct. at 487 held that “[w]hen counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.” Minnick was based upon the Fifth Amendment right to counsel. Under the facts revealed by the majority opinion, the police detective initiated an interrogation without Johnson’s counsel being present. Minnick, 111 S.Ct. at 490 (quoting Miranda, 384 U.S. at 466, 86 S.Ct. at 1623). *1297spotlighted the common purpose to Edwards and Miranda, which is to “ ‘insure that statements made in the government-established atmosphere are not the product of compulsion.’ ”
The majority then proceeds with what I believe has to be a Minnick violation by a Chapman analysis sufficient to obviate reversible error. The majority holds that “the state’s evidence against appellant is so overwhelming that the error is harmless beyond a reasonable doubt.” The United States Supreme Court disapproved of this “overwhelming evidence” approach in Chapman, 386 U.S. at 23, 87 S.Ct. at 827. “ ‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” Chapman, 386 U.S. at 23, 87 S.Ct. at 827 (quoting Fahy v. State of Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963)). In the absence of proof from which a foundation for introduction of the glasses into evidence could be obtained, a character of non-contribution required for constitutional error absolution surely cannot be implied into this case. Speculation as to what other investigation and identification could have made the glasses admissible into evidence introduces a significant bundle of unknown and non-evidentiary hypothetical straws into the completed product which was the verdict of conviction.2
There is greater mischief to be observed in reading the majority opinion than what appears to be presented. In the last sentence covering this issue it is stated “[tjhere is no possibility that, in the absence of the error, the verdict would have been more favorable to appellant.” (Citing Campbell v. State, 589 P.2d 358, 367 (Wyo.1979).) If Campbell did elicit that concept, it was then and is now just plain wrong. The result-emplaced basis for a harmless constitutional error rule was specifically and directly rejected in Chapman and the substantial right principle applied. Any statement taken from the Campbell case directed to result and not to affect cannot withstand scrutiny on a constitutional right violation inquiry, and the Campbell dissent was clearly correct in analysis of a Chapman application. The same result remains true today. That rule was reemphasized in Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S.Ct. 1792, 1798-99, 100 L.Ed.2d 284 (1988) (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828 and emphasis added) as examining “whether the State has proved ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” See likewise Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986) (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828 and emphasis added), where the United States Supreme Court again emphasized the test of constitutional error is that it “ ‘did not contribute to the verdict obtained ’ ” and United States v. Hasting, 461 U.S. 499, 506, 103 S.Ct. 1974, 1979, 76 L.Ed.2d 96 (1983) (citing Fahy, 375 U.S. at 86-87, 84 S.Ct. at 230-31) which was the case where the rule also recognized the substantive right, not the plausibility of a different verdict, as the required test. Furthermore, *1298at least with this issue, a like result was found in Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986), where an “outcome determinate” prejudice was rejected as the test of reversible error for violation of the Confrontation Clause. See also Mahorney v. Wallman, 917 F.2d 469 (10th Cir.1990).
This court may try to restrict the protection of the Wyoming Constitution, but it surely cannot ignore the recognition that the United States Constitution, as applied by the United States Supreme Court, is the supreme law of the land. One could factually differentiate Campbell as a misidenti-fication controversy from a basic constitutional issue review, which is the subject here presented of coerced confession and right to counsel. Admission of the unconstitutionally obtained incriminatory testimony requires reversal and retrial.3
III. LIMITATION OF EXAMINATION TO IMPEACH A WITNESS
Johnson attempted to impeach the prose-cutorial witness regarding a contended pri- or complaint that she allegedly made of sexual assault. The trial court rejection of available evidence after the witness denied the occurrence was clearly improper if based on the concept of a rape shield preclusion. W.S. 6-2-312. This court now justifies countervailing that rejection under a W.R.E. 404(b) thesis. First, I perceive a double standard by this court for admissibility of evidence, whether tendered by prosecution or defense. Essentially, the inquiry was no different than that used against Johnson regarding conviction of prior offenses. Gentry v. State, 724 P.2d 450 (Wyo.1986), Urbigkit, Justice, dissenting. The significance from a defense standpoint within the case, although tough at best to defend, was that a prior police report may not have been made or, in fact, the complaint was false.
I neither agree with the cursory disposition of this subject on the basis of lack of cogent argument or the switch in basis for decision providing a pro forma recognition that the stated reason for the decision by the trial court was wrong. At issue was a challenge to credibility by impeachment of the witness. Result-oriented absolution based on relevancy or remoteness could have greater validity, but not the basic right to impeach by challenging credibility. W.R.E. 607 and 608(b). See Story v. State, 721 P.2d 1020, 1038 (Wyo.), cert. denied 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986); Chapman v. State, 638 P.2d 1280 (Wyo.1982); and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).
*1299IV. CONCLUSION
Among the several issues advanced by Johnson in seeking to obtain reversal of his life sentence and obtain a new trial on his rape conviction, there are three issues about which I am left with particular concern in permanent effect on Wyoming law and the Wyoming Constitution by this majority’s analysis and decision. Obviously, the Minnick reanalysis and reapplication of longstanding basic constitutional principles is singularly the most significant and consequently the most severely troubling. Direct questions about enforcement of both the Wyoming Constitution and the Fifth and Sixth Amendments to the United States Constitution are provided within our agenda in this decision. I conclude that this majority not only misstates the proper tests, but then misapplies whatever concept is then used to find justification in absolving constitutionally prohibited investigatory overreaching. We write badly here not only to decide this case as it involves fundamental constitutional interests, but also to prepare and instruct for the future in justice delivery system operation and court decision.
Consequently, I respectfully dissent.
. In other filings in this court, Johnson questioned whether the glasses were actually his as contested by requested comparison with an identification photograph.
. I am not satisfied that a pure harmless error Chapman examination is appropriate in these cases of interrogation of a defendant without the presence of his attorney who had already commenced representation. It would seem that anything obtained of evidentiary value which is sufficient to be admitted into evidence as relevant and material should be excluded and, conversely, if the wrongfully obtained testimony does meet relevancy and materiality tests, such evidence cannot be considered to be beyond the criteria of a reasonable possibility of contribution to conviction. If the evidence is probative for admissibility, it is probative to add weight to accomplish conviction. Information obtained by the police from a represented defendant should simply not be admissible in evidence as an empirical practice of prosecution unless a clear and defined Edwards waiver is demonstrable. See Chapman, 37 S.Ct. at 828 n. 8. Two of the three examples of constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error are implicated here. Those are coerced confessions, Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); right to counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and impartial judge, Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). It is also noteworthy that even within the strongly stated dissent of Justice Scalia in Minnick, which was premised on waiver, possible application of a Chapman harmless error was never presented.
. Illustrative of the issues presented is the offer of proof bypass decision of People v. Whitt, 51 Cal.3d 620, 274 Cal.Rptr. 252, 798 P.2d 849 (1990), where a Skipper error was at issue. Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). Justice Mosk of the California Supreme Court, in concurrence and dissent, stated:
Under Chapman, "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.” (386 U.S. at p. 24, 87 S.Ct. at p. 828.) The "burden of proof’ as to prejudice rests on the state. "Certainly error, constitutional error, * * * casts on someone other than the person prejudiced by it a burden to show that it was harmless * * *. [T]he beneficiary of a constitutional error [is required] to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Ibid.)
Whitt, 798 P.2d at 876. Then Justice Kennard added:
Under California law, error in a criminal case is considered harmless unless the defendant can show it resulted in a “miscarriage of justice.” (Cal. Const., art. VI, § 13; People v. Archerd, 3 Cal.3d 615, 643, 91 Cal.Rptr. 397, 477 P.2d 421 (1970).) This means the defendant must demonstrate that without the error "it is reasonably probable a result more favorable" to the defendant would have been reached. (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243 (1956).) In Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 705 (1966), the United States Supreme Court rejected California's "miscarriage of justice” test as inappropriate for evaluating federal constitutional error. Under Chapman, "the beneficiary of a [federal] constitutional error” must prove beyond a reasonable doubt "that the error complained of did not contribute to the verdict obtained.” (Ibid.) Thus, when the error violates the federal Constitution, the defendant need not show prejudice; rather, the prosecution must establish the absence of prejudice.
Id. at 880-881 (emphasis in original).