¶1dissenting:
¶2With appropriate respect to Judge Traynor and my Brother Miller, and their compelling logical development of the beneficial effects of “doctrines” of harmless error, I have been unable to purge from my mind a persistent suspicion that the rule — semantically elevated to doctrine probably because things that are doctrinal as compared to things that are simply rules, appear to carry more weight — is simply a vehicle for courts to avoid the law where they do not want to enforce it, in hard, unpopular, or politically sensitive cases.
¶3When we cut through all the lacy reasoning, we find, as did the United State Supreme Court in Chapman v. California, 386 U. S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967), that the key phrase, quoted by the majority here, is that “the court must be able to declare a belief that [an error] was harmless beyond a reasonable doubt.” (My emphasis)
¶4Well, any court can, and will as we have done here, declare that an error was harmless, whether the error was constitutional or “merely” evidenciary, upon the subjective notions of its judges about the guilt or innocence of the party against whom the error was committed. Every so-called test by which harmlessness is discovered, involves judicial subjective judgments.
¶5I find it exceedingly difficult to say, without embarrasment, that having prior convictions introduced in a trial is less infectious of the jury’s consideration of guilt or innocence than is an instruction such as is prohibited by our State v. Pendry, 227 S.E.2d 210 (1976) following Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). My own subjective judgment about that, is that juries are greatly impressed with a defendant’s criminal record, probably more so than by any instruction except, perhaps, a binding one requiring a verdict one way or the other.
¶6How can I say whether an error was prejudicial to a defendant? Are our reasonable minds so reasonable? Of *521course, the facts here seem to weigh heavily against the defendant; but who could say that had not the jury heard about this defendant’s prior record, the defense he proffered would not have resulted in a different verdict.
¶7I believe that judicially substituted judicial judgments about what may or may not have occurred had error not been involved in a criminal trial, is dangerous practice and should be avoided.
¶8Have we now invited such error by prosecutors? The majority states that a prosecutor acts at his peril, when he violates McAboy, and the case will be reversed unless a clear showing can be made that it meets the “stringent harmless error standards set out in this opinion.” The stringent standards, when reduced to what they really are, wash out to what we think of the state’s case: no one could doubt that “[a]lso of importance is the overall quality of the State’s proof” — a matter of judicial opinion — could substitute for deficiencies in all the other listed criteria: the tangentiality of the error, whether the error was highlighted in the government’s argument or in instructions, whether there were substantial factual conflicts or if the state’s case largely depended upon the testimony of a co-participant, and so forth.
¶9We should stick to the rules, to protect the criminal prosecution process from as many subjective judicial determinations — both at trial and on appeal — as possible. Rules protect everyone. When courts find their violation to be harmless, then they are really no longer rules, no longer have integrity except when judges, subjectively judging each case according to the judges’ notions of who should or who should not have the protections they afford, decide to apply them.
¶10I want the benefits of common law and constitutional protections, all of which have evolved to enhance the fairness of the contest between the powerful state and the citizen who is charged with a criminal act. I do not want those protections to be subject to discard upon *522judges’ notions about their importance in my case. And, in justice, I cannot agree that any other person’s right to those protections should be slighter than mine.