¶1(concurring).
¶2In State v. Iron Shell, 336 N.W.2d 372, 377-78 (S.D.1983), believing there had been a Bruton violation, some 10 years ago, I dissented and wrote:
The most damning evidence in the trial against appellant came on direct examination of Officer Thomas L. Jensen by State’s Attorney Long. When Officer Jensen was asked what codefendant witnessed, he stated: “Yeah, he indicated to me that he woke up and the car was parked along the roadway and that someone was hollering, Carl, stop it, Carl, stop it. Then he went back to sleep again.” This was an out-of-court inculpatory statement as to appellant, made by his codefendant and related in court by a third-party witness. The prejudicial error of constitutional dimension arose in this case from appellant’s inability to cross-examine the declarant (codefendant making the inculpatory statement), when he, the declarant, invokes his Fifth Amendment right to refuse to take the stand. The landmark case in the United States is Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The codefendant did not take the stand. As a result, this appellant was deprived of his Sixth Amendment right to confront his accuser. Yes, his accuser sat at the counsel table with him and he could not ask a question.
¶3Justice Roger Wollman joined the dissent. He now serves on the Eighth Circuit Court of Appeals.
¶4Was there harmless error before us — as it relates to constitutional error? Absolutely not. See the premier case of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In Chapman, the United States Supreme Court held that “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 24, 87 S.Ct. at 828. In Chapman, the United States Supreme Court made it very clear that for an error to be harmless, it must have made no contribution to the criminal conviction.
¶5As recent as two years ago, in Yates v. Evatt, 500 U.S. -, -, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991) “contribution” was again focused upon:
*873To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.
¶6A conviction was secured against Carl Iron Shell by an absolute violation of the Brutonrule. This Court cannot say that the statement given to Officer Jensen, attributed to Nelson Iron Shell, made no contribution whatsoever to the conviction herein.
¶7Occasionally, the Law will flower and reseed itself. Here, it blooms into a sharpened consciousness of constitutional rights. And that consciousness is now articulated with an intention to right the wrong. Accordingly, I concur.