dissenting:
After correctly determining that the defendant was denied his constitutional right to counsel at a crucial stage of the proceedings, the majority concludes incorrectly, in my opinion, that the error was harmless within the standards set down by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).
The majority opinion in effect stands Chapman v. California on its head by requiring that the appellant demonstrate specific prejudice as a result of his lack of counsel at the preliminary hearing. Justice Black’s opinion in Chapman v. California categorically rejected that position and held that “[cjertainly error, constitutional error . casts on someone other than the person prejudiced by it a burden to show that it was harmless.” Chapman v. California, 386 U.S. at 24, 87 S.Ct. at 828. In this case, the state has not even attempted to argue that the lack of counsel was harmless error, and it does not even examine the factors set forth in Coleman as appropriate in determining whether denial of counsel at the preliminary hearing was harmless.
The majority’s reasoning is especially strained in this case since the lawyer initially representing the appellant never appeared with the appellant in court,2 and this *578record does not indicate that the appellant ever met face to face with any lawyer representing him until the day of trial.
Moreover, when this record is analyzed in the light of the advantages of counsel at the preliminary hearing as discussed in Coleman, it is impossible to conclude that the defendant was not materially disadvantaged. Our Arizona rules indicate that the preliminary hearing should be a discovery device. Thus, once a witness appears at the preliminary hearing, he cannot later be deposed by the defense. Ariz.R.Civ.P., 15.-3(a)(2) and comment to Rule 5.3(a). While the majority struggles to find alternatives in the form of a possible interview with witnesses, and possible application for exceptional relief by court order as suggested in the comment to Rule 15.3(a)(2), I cannot view such alternatives as adequate substitutes for sworn cross examination by trained counsel of key state witnesses. The loss of that opportunity is particularly grave in a case such as this where the state’s ease rested on identification testimony, and where, at trial, a principal strategy was to cast doubt on that identification through cross examination.3
As the United States Supreme Court’s opinion in Coleman points out, counsel at the preliminary hearing can also make a record or raise questions concerning other factors not directly related to probable cause. The Supreme Court gives as examples bail and psychiatric examination. In this regard the majority wholly misconstrues Coleman. The United States Supreme Court mentioned these simply as illustrative examples. We do not know what subjects might have been raised at this preliminary hearing but it is clear with respect to bail, at least, that the defendant at the time of preliminary hearing was being held in custody, was unable to post the substantial bond previously set, and lacked representation to question the bond.
Finally, the majority improperly suggests that the test of harmless error in this case should be whether the proof of guilt at trial was overwhelming. Such a test has been applied when the constitutional error relates to the improper proceedings at trial. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); State v. Magby, 113 Ariz. 345, 554 P.2d 1272 (1976); State v. Reese, 26 Ariz.App. 251, 547 P.2d 522 (1976). In such cases the error occurs during the trial and its effect can be weighed in the context of the trial proceedings.
The error here is lack of counsel at a crucial preliminary stage materially relating to the preparation of the defense itself. The notion that the right to counsel diminishes as the strength of the state’s case increases is wholly incompatible with our system of justice.
For these reasons, I must respectfully dissent.
. His only appearance of record prior to withdrawal was a written waiver of the defendant’s right to appear personally at arraignment.
. The defendant at the preliminary hearing did attempt to cross examine one of the state’s witnesses and made no attempt to cross examine the other. His cross examination was ineffectual, as illustrated by the following colloquy:
“Q. Where was you located when you seen me?
A. I was about 70 feet north.
Q. And the parking lot is dark?
A. Where I was at, yes.
Q. And where 1 was at?
A. Not as dark.
Q. But you could make positive identification?
A. Yes, sir.
Q. Do you remember what I was wearing?
A. You had on a brown felt cowboy hat. The shirt, I believe, was white with some sort of stripes on it, long-sleeved, rolled up to the elbows.
Q. Pardon?
A. I believe it was a long-sleeved, rolled up to the elbows.
Q. And pants?
A. Pardon?
Q. What color was the pants?
A. The pants?
Q. Yes, sir.
A. I believe denim. I’m not sure. DEFENDANT CANADY: 1 have no other questions.”