¶1(dissenting)—I dissent. Federal law requires us to reverse a conviction obtained in contravention of a defendant's rights under the United States Constitution unless the State proves that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R.3d 1065, reh'g denied, 386 U.S. 987 (1967). Because the prosecution has not proven that the error was harmless beyond a reasonable doubt, we must reverse. See State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985) (State bears the burden of proving error harmless), cert. denied, 475 U.S. 1020 (1986); State v. St. Pierre, 111 Wn.2d 105, 119, 759 P.2d 383 (1988) (same). In a recent confrontation clause case, the United *731States Supreme Court reaffirmed its commitment to the harmless beyond a reasonable doubt standard. See Delaware v. Van Arsdall, 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986). The "overwhelming untainted evidence" test we adopted in Guloyand applied to a confrontation clause violation in St. Pierre is a means of evaluating whether the error was harmless beyond a reasonable doubt. State v. Evans, 96 Wn.2d 1, 6-7, 633 P.2d 83 (1981) (Brachtenbach, C.J., concurring). See also Guloy, at 426 (citing Justice Brachtenbach's Evansconcurrence with approval). Under this test, we may only affirm a conviction if "the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt." (Italics mine.) Guloy, at 426.
¶2Unless we apply the overwhelming untainted evidence test carefully and strictly, it will not perform its function. The doctrine allows us "to avoid reversal on merely technical or academic grounds". Guloy, at 426. It does not permit us to sustain convictions in which central testimony was improperly admitted into evidence. Proper application of our precedent insures "that a conviction will be reversed where there is any reasonable possibility that the use of inadmissible evidence was necessary to reach a guilty verdict." (Italics mine.) Guloy, at 426. If we fail to reverse when evidence at the heart of the prosecution's case is admitted in violation of the confrontation clause, we risk making a defendant's constitutionally guaranteed right to a fair trial meaningless.
¶3The record shows that the untainted evidence is not so overwhelming that it necessarily leads to a finding of guilt. Indeed, the jury which convicted Whelchel failed to reach a verdict during its first three votes even though it considered the tainted testimony. Clerk's Papers, at 309 ("As a jury we have voted 3 times, looked at all the evidence and cannot reach a unanimous verdict."). Because all of the evidence taken together did not appear overwhelming to the jury which convicted Whelchel, we cannot conclude that the untainted evidence alone is overwhelming.
¶4*732The untainted evidence is not overwhelming. On the contrary, the evidence is contradictory on almost every point. It is reasonably possible, indeed fairly likely, that the jurors convicted only because the statements improperly admitted into evidence took away reasonable doubts which the contradictory statements in the rest of the evidence may have left in their minds.
¶5The majority fails to see this because it does not examine the evidence contradicting the testimony supporting the conviction. The Supreme Court's opinion in Van Arsdall, however, requires us to consider the presence of evidence contradicting prosecution witnesses on key points in evaluating harmless error. Van Arsdall, 475 U.S. at 684.
¶6The physical evidence in this case is especially weak. At trial, the defense introduced table legs allegedly used to beat Emargo. These contained no traces of blood, hair, or fingerprints. Report of Proceedings, at 1094-1108. The prosecution claims the table legs used were never found.
¶7The prosecution found the fingerprint of Jerry McKee on the knife allegedly used to kill Emargo, but no fingerprint of Whelchel. Report of Proceedings, at 1302-03. The type O blood found on the knife could be either Emargo's or Whelchel's. Report of Proceedings, at 1085, 1087, 2117. Since McKee was convicted of murdering her with this weapon, it might very well be only Emargo's blood. Witnesses testified that McKee wanted Emargo dead and pulled the knife from her back.
¶8Moreover, Whelchel had an alibi. He did not plead the Fifth Amendment. Rather, he took the stand and explained what he did the night of the murder. Both his parents and his sister verified his alibi. The majority's failure to take this testimony into account violates Van Arsdall.
¶9The two witnesses who placed Whelchel at the scene of the crime, Nancy Hughes and Beth Packer, had an interest in testifying against him. The Grant County Prosecutor agreed to try them as juveniles rather than adults and allowed Hughes to plead guilty to rendering criminal assistance, a crime carrying a much lighter sentence than *733murder, in exchange for their testimony. Report of Proceedings, at 587-88; 639-40. The statements of codefendants are, of course, suspect. Majority, at 722; Bruton v. United States, 391 U.S. 123, 136, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968).
¶10The majority's factual statement is based on the testimony of these two witnesses. Majority, at 711. We cannot be certain a jury would have found their stories credible without the collaborative statements improperly admitted. In fact, defense counsel showed that their statements contradicted earlier statements they had made. The impeached statements include facts critical to the result reached. For example, Hughes' statement that Whelchel indicated he planned to kill Emargo prior to the event contradicted her earlier statement that she did not anticipate any problem when they went to the lake the night Emargo was killed. Report of Proceedings, at 562. This testimony might be critical to a jury's decision on premeditated murder in the absence of the tainted testimony. Although Hughes claimed that Whelchel stabbed the victim, as the majority states, she admitted on cross examination that she did not see Whelchel's knife at the lake where the murder took place. Report of Proceedings, at 597. Nor did she say that she actually saw him stab her.
¶11The majority also uncritically relies on the testimony of a witness that Whelchel left the apartment with the others at 3:30 a.m. on the night of the murder. This witness' testimony is arguably erroneous. He testified that he saw five people leave the apartment on the night of the murder and that one of those people was Whelchel. Report of Proceedings, at 741. The victim plus the four people already convicted of murdering or helping murder Emargo add up to five. Either there were more people there than he stated or his identification of Whelchel was erroneous. Inasmuch as the witness saw only the back of the person he claims is Whelchel, Report of Proceedings, at 740, it is possible that he misidentified one of the party. We ought not to base a harmless error decision on our conviction that the witness *734could not have confused Whelchel with Flota, who has been convicted of murdering the girl in a fair trial.
¶12Several witnesses reported that Whelchel said "we killed her," as the majority states. The majority fails to mention that one witness specifically contradicted a report that Whelchel admitted killing the victim. Other witnesses stated that Whelchel had said that "they killed her." Others stated that he explicitly denied being a murderer.
¶13The evidence not tainted by admission of the tapes is far from overwhelming. Our holding in this case cuts the number of eyewitnesses to two. Both of these eyewitnesses have severe credibility problems because they were accomplices to the murder. They have an interest in implicating Whelchel whether he is guilty or not. The combination of two witnesses of dubious credibility and no physical evidence might create a reasonable doubt in a juror's mind about whether Whelchel committed the murder.
¶14The improper admission of critical evidence justifies a new trial by itself. But this was not the only error found in this case. The Court of Appeals found that the prosecutor made an improper argument in closing. The prosecutor appealed to the victim's memory and the jurors' emotions by addressing the dead woman, using the name she used in everyday life:
Margo, I've carried the ship as far as I can. It's up to the jury. It's now in the hands of the jury. Margo, I can look this jury in the eye—
mr. mckean: I object to this.
mr. klasen: —and I can, on the basis of the evidence, ask this jury on the basis of the evidence to return a verdict of guilty. And I'm doing that Margo.
¶15Report of Proceedings, at 2172. This kind of impropriety will cease the day this court announces a rule that such statements will always cause reversal. We need not announce such a rule in this case, however. In this case, the appeal to emotion combines with the improper admission of evidence crucial to the prosecution's case. We should have little difficulty in recognizing that a "reasonable possibility" exists that the inadmissible evidence and the improper *735appeal to emotion were necessary to the jury's guilty verdict. A "reasonable possibility" that errors were necessary to the jury's verdict precludes the conclusion that the errors were "harmless beyond a reasonable doubt." See Guloy, at 426. Accordingly, federal law requires reversal.
¶16Smith, J., concurs with Utter, J.
¶17Reconsideration denied February 13, 1991.