..     ..



                                                                          FILED 

                                                                       JUNE 18,2015 

                                                               In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division III 





                 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION THREE


     STATE OF WASHINGTON,                           )
                                                    )         No. 32999-2-111
                          Respondent,               )
                                                    )
            v.                                      )
                                                    )
     RICKEY LEE KITCHENS,                           )         UNPUBLISHED OPINION
                                                    )
                          Appellant.                )

            FEARING, J.     Rickey Kitchens appeals from his conviction for felony driving

     under the influence. He argues that the trial court violated his constitutional right to a

     public trial when it allowed peremptory juror challenges by paper and for-cause

     challenges outside the hearing of the jury. He further contends that the trial court

     admitted testimonial hearsay in violation of his right to confront witnesses against him.

     Finally, Kitchens argues that, to the extent defense counsel failed to object to the

     testimonial hearsay, Kitchens received ineffective assistance. We agree the trial court

     permitted inadmissible hearsay, but conclude the admission is harmless. We reject

     Kitchens' other arguments and affirm his conviction.
..      "



     No. 32999-2-III
     State v. Kitchens


                                                FACTS

            During the early afternoon of September 1,2012, a Jeep Cherokee pulling a

     camper trailer fishtailed and flipped on four lane Washington Highway 167. The Jeep

     landed upside down. Many who saw the accident rushed to the Jeep to provide

     assistance. The rescuers encountered difficulty opening the jammed Jeep's passenger and

     driver doors, but the driver's side door unsealed first. The responders pulled Rickey

     Kitchens and Marcia Howard, in that order, from the Jeep through its upside down

     driver's side door. Rickey Kitchens' main defense at trial was that Howard, not him,

     drove the Cherokee.

            Brenda Petersen, Gary Hillin, and Tiffany Stewart, among others, observed the

     accident. Brenda Petersen drove behind the Jeep in the other lane. From a car length

     away, Petersen saw the trailer veer off the road, fishtail, and flip.

            Gary Hillin witnessed the accident from opposing traffic. Hillin stopped his car on

     the opposite shoulder parallel to where the Jeep Cherokee landed after it overturned.

     Hillin crossed the road to assist. He went to the driver's side door of the upside down

     Jeep and saw a male driver and a female occupant. Hillin and others pulled Kitchens out

     of the vehicle first. Upon exiting the rolled Jeep, Rickey Kitchens told Hillin that he was

     not driving. Gary Hillin smelled alcohol on Kitchens' breath.

            Tiffany Stewart saw the Jeep and trailer fishtail and accelerate further, .



                                                 2

No. 32999-2-111
State v. Kitchens


exacerbating the fishtail. The Cherokee hit the gravel on the right-hand side of the

freeway causing the trailer to flip and slingshot the Jeep over the top. Stewart stopped

her vehicle, dialed 911, handed her fiancee the phone, and ran to the Jeep to help.

Stewart was the third person to arrive at the vehicle. She concluded Rickey Kitchens

drove the Jeep.

       Two other people pulled Rickey Kitchens from the Jeep, after which Tiffany

Stewart helped Kitchens to his feet. Kitchens immediately looked at Stewart and said: "I

wasn't driving. She was driving." Report of Proceedings (RP) at 244. Stewart observed

Kitchens swaying. Kitchens smelled profusely of alcohol. Kitchens rambled further that

he did not drive and he was not drunk. Stewart politely agreed with him.

       Washington State Patrol Trooper Raymond Seaburg responded to the scene.

Trooper Kyle Burgess later arrived to assist Trooper Seaburg. Seaburg and Burgess

distributed statement forms to witnesses. Burgess observed Rickey Kitchens as

belligerent. Kitchens' eyes were bloodshot and watery, his face flushed, and his speech

slurred.

       At the scene, Trooper Kyle Burgess examined the relative positions of the Jeep

Cherokee driver and passenger seats. He testified at trial:

                If we have two people and we're not sure which one is driving, one
       is tall and one is short, we should be able to look at the seat and tell who
       was driving just based on the positioning of the seats. In this case, Mr.
       Kitchens is 5 foot 11. His seat was adjusted for someone 5 foot 11. The
       passenger is 5 foot 6 and her seat was forward and adjusted for someone

                                           3

No. 32999-2-111
State v. Kitchens


       shorter.

RP at 282.

                                       PROCEDURE

       The State of Washington charged Rickey Kitchens with felony driving under the

influence in violation ofRCW 46.61.502(6)(a). Kitchens stipulated to four prior DUls

within the last ten years, an element of the felony. See RCW 46.61.5055(14)(a).

       Rickey Kitchens contends on appeal that the voir dire in his case violated his right

to a public trial. Therefore, we reproduce the relevant portion of the voir dire transcript:

               THE COURT: Folks, we're going to let the attorneys do their final
       selection here in writing. It will take a few minutes for them to do that.
       While they're doing that, you can talk quietly among yourselves over
       anything other than this case. You can't talk about this case. If you want[,]
       stand up and stretch, feel free to do that as well, and we'll be back to you
       here shortly.
               If any of you have an urgent need to use the restroom, you can use
       the restroom on this floor only. The same instruction applies on not talking
       to anybody about the case and not allowing anyone to discuss it in your
       presence. Use the restroom and come right back to your same seat, so the
       lawyers can match up your number and your face when they're doing their
       final selections. Okay?
               (Attorneys doing their peremptory challenges.) 

               THE COURT: Counsel. 

               (Sidebar held, but not reported.) 


RP at 2-3. The trial court then directed jurors and alternates to sit in the jury box.

       The trial court filed the written peremptory challenges that day. The filing listed

Rickey Kitchens' and the State's respective peremptory challenges by jury number and



                                            4

No. 32999-2-III
State v. Kitchens


name. The trial court made a record of what occurred during the unreported sidebar:

              THE COURT: We did have a discussion at sidebar regarding
       challenges for cause. The defense asked to excuse No.5 and No. 18. 1
       indicated that 1 believed that both of those jurors had rehabilitated
       themselves sufficiently so that they could remain on this case, and I denied
       those challenges.
              There was also an agreed challenge to Juror No.-an agreed excusal
       of Juror No. 29, and we excused her. 

              Anything else you want to make a record of, counsel? 

              [DEFENSE COUNSEL]: Not at this time, Your Honor. 


RP at 138.

       The critical issue at trial was whether Rickey Kitchens or Marcia Howard drove

the Jeep at the time of the September 1,2012 accident. The State called eyewitnesses

Brenda Petersen, Gary Hillin, and Tiffany Stewart and Troopers Raymond Seaburg and

Kyle Burgess to testify on this subject. Petersen testified, "I watched them pull a male

and a female out of the vehicle." RP at 148. At trial, Petersen could not remember who

was pulled out bfthe Jeep first. Therefore, at the request of the State, Petersen read to the

jury the statement she provided the police on the day of the accident:

               The involved vehicle was in front of me and the attached trailer
       started to fishtail. Driver lost control and flipped. 1 watched another
       witness pull the driver out, which was the male. Female passenger was also
       pulled out from the driver's side, but after the male was taken out.

RP at 160. After reading her statement, Petersen testified at the questioning of the State:

              Q. Thank you, ma'am. Now, do you remember the officer asking
       about the certainty of who was driving the vehicle?
              A. Yes.
              Q. Do you remember responding to the officer asking you whether

                                           5

   "



No. 32999-2-111
State v. Kitchens


       you're 100 percent sure that the male was driving the car?
              A. 1 do remember him asking that question.
              Q. What was your response when the officer asked you that 

       question? 

              A. Yes.

RP at 160.

       At trial, Tiffany Stewart identified Rickey Kitchens as the vehicle's driver,

testitying:

                Q. You came to the conclusion he was the driver. How did you get
       there?
              A. Because he came out of the driver's seat in that area. 1don't feel
       there was much of a place for him to go anywhere other than that. So he
       came out of the driver's seat, even though the vehicle was upside down. So
       he was still in that area.

RP at 242-43.

       On appeal, Rickey Kitchens challenges portions of the troopers' respective

testimony as testimonial hearsay. Trooper Raymond Seaburg testified that he saw twenty

to thirty people assisting Rickey Kitchens and Marcia Howard after the accident.

Seaburg added: "I was contacted by several witnesses at the scene. They pointed out the

two occupants that they knew ofthat were in the vehicle that had rolled over. 1 walked

over, contacted a male and female, and then began asking them if they were okay and

what had happened." RP at 180.

       Trooper Seaburg then testified at trial:

             Q. Through the investigation and the process of taking statements,
       were you able to determine-I'm sorry. Did you have any evidence that

                                           6

   ..

No. 32999-2-II1
State v. Kitchens


        contradicted what you had learned thus far based on­ 

                [DEFENSE COUNSEL]: Objection, calls for hearsay. 

               THE COURT: Overruled. He can answer that yes or no. 

               A. Yes.
               Q. ([THE STATE]) What was your belief after conducting a further
        investigation after the interaction you did with the defendant and the female
        that were the occupants of the vehicle?
               A. Through the investigation further I determined that the male was
        the driver.
               Q. What did you do once you came to that conclusion?
               A. At that point, I went back and spoke with him briefly. I told
        them my investigation concluded that you were the driver, and he was not
        in agreeance. He basically told me I had conflicting stories and that it was
        fucking bullshit.
               Q. Were those his words, the salty language?
               A. Yes.

RP at 183-84.

        Trooper Seaburg testified to collecting statements from witnesses. Defense

counsel again objected:

             Q. Did the information that you collected support your belief about
        who was driving and what happened?
             [DEFENSE COUNSEL]: Objection, calls for hearsay, Your Honor.
             THE COURT: Overruled. He can answer that yes or no.
             A. Yes.

RP at 189.

        Trooper Kyle Burgess also testified that, through his investigation, he concluded

that Rickey Kitchens drove the Jeep leading to the accident. Burgess then testified:

               Q. During your course of the investigation, without saying what
        these individuals said, did you identify any witnesses to this incident?
               A. I talked to several witnesses, including three that were excellent
        witnesses that we got a statement from. I don't recall if! actually gave

                                           7

   .


No. 32999-2-III
State v. Kitchens


       them the statement, but I know that I took the statement, read over it, and
       talked to them about it before they left the scene.
              Q. You provided or wanted to make sure one of the troopers
       provided these witnesses with the forms for completing those statements; is
       that correct?
              A. Yes, sir.
              Q. Did your interaction with the witnesses assist you in determining
       how the accident was caused?
              A. Yes, it did.
              Q. Did your interactions with the witnesses assist you in 

       determining who the driver of the vehicle was? 

              A. Yes, it did.

RP at 280-81. Trial defense counsel did not object to this line of questioning of Burgess.

       Rickey Kitchens called Marcia Howard to testify at trial. Howard averred that she

owned tht:; Jeep and drove the Jeep on September 1,2012. Howard testified that rescuers

pulled her and Kitchens through the Jeep's passenger side door. Kitchens first escaped

the rolled Jeep since he was the passenger. Rickey Kitchens did not testify at trial.

       In closing arguments, the State of Washington relied on the testimony of Brenda

Petersen, Gary Hillin, and Tiffany Stewart to show that Rickey Kitchens drove the Jeep.

The State also pointed to Trooper Kyle Burgess' testimony regarding the relative position

of the driver and passenger seats and Kitchens' statements immediately after the accident

that he did not drive. During summation, the State did not mention statements from

witnesses to the accident who did not testify at trial.

       The jury found Rickey Kitchens guilty of felony driving under the influence.




                                            8

   ..


No. 32999-2-II1
State v. Kitchens


                                    LAW AND ANALYSIS

          Issue 1: Whether the trial court deprived Rickey Kitchens of his public trial rights

by permitting peremptory challenges by written notes and for-cause challenges by sidebar

during voir dire?

        Answer 1: No.

        Rickey Kitchens contends the trial court violated his, and the public's, right to a

public trial when the court allowed for-cause challenges at sidebar and peremptory

challenges by written notes. This court, Division Three, recently approved similar

processes in State v. Love, 176 Wn. App. 911, 309 P.3d 1209 (2013), review granted in

part, 181 Wn.2d 1029 (2015). Division Two likewise approved the processes, adopting

the reasoning of Love, in State v. Dunn, 180 Wn. App. 570,321 P.3d 1283 (2014), review

denied, 181 Wn.2d lO30 (2015). Finally, the state high court recently approved sidebar

conferences for juror challenges. State v. Smith, 181 Wn.2d 508, 521, 334 P.3d lO49

(2014).

        The United States Constitution's Sixth Amendment, applicable to the states

through the Fourteenth Amendment due process clause, directs, in relevant part, that "in

all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial."

In Re Oliver, 333 U.S. 257,273,68 S. Ct. 499, 92 L. Ed. 682 (1948). Washington's

Constitution contains two corollary provisions. Article I, section lO of the Washington



                                             9

No. 32999-2-III
State v. Kitchens


Constitution reads, "Justice in all cases shall be administered openly, and without

unnecessary delay." This provision entitles the public and the press, as representatives of

the public, to openly administered justice. Allied Daily Newspapers a/Wash. v.

Eikenberry, 121 Wn.2d 205, 209-10, 848 P.2d 1258 (1993); Cohen v. Everett City

Council, 85 Wn.2d 385,388, 535 P.2d 801 (1975). Article I, section 22 of the

Washington Constitution provides, in pertinent part, "In criminal prosecutions the

accused shall have the right ... to have a speedy public trial." The constitutional

principles arise from the guaranty of open judicial proceedings being a fundamental part

of Anglo-American jurisprudence since the common law. Richmond Newspapers, Inc. v.

Va., 448 U.S. 555, 573 n.9, 100 S. Ct. 2814,65 L. Ed. 2d 973 (1980); Federated Publ'ns,

Inc. v. Kurtz, 94 Wn.2d 51,65,615 P.2d 440 (1980) (Utter, C.J., concurring and

dissenting). America had a tradition of open criminal trials that preceded drafting of the

Bill of Rights. Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 35-36, 640 P.2d 716 (1982).

       The threshold determination when addressing an alleged violation of the public

trial right is whether the proceeding at issue even implicates the right. State v. Sublett,

176 Wn.2d 58, 71, 292 PJd 715 (2012). In Sublett, our Supreme Court adopted a two-

part "experience and logic" test to address this issue: (l) whether the place and process

historically have been open to the press and general public (experience prong), and (2)

whether the public access plays a significant positive role in the functioning of a



                                           10 

No. 32999-2-III
State v. Kitchens


particular process in question (logic prong). 176 Wn.2d at 72-73. Both questions must

be answered affirmatively to implicate the public trial right. Sublett, 176 Wn.2d at 73;

Dunn, 180 Wn. App. at 574-75.

       In State v. Love, 176 Wn. App. 911 (2013), this division applied the experience

and logic test to conclude that for-cause challenges at sidebar and peremptory challenges

by written notes do not implicate public trial rights. For the experience prong, the Love

court concluded "there is no evidence suggesting that historical practices required these

challenges to be made in pubIic." 176 Wn. App. at 918. We wrote:

              Our research discloses one case in which the defense challenged the
       "use of secret-written-peremptory jury challenges." State v. Thomas, 16
       Wn. App. 1, 13,553 P.2d 1357 (1976). Discerning no prejudice to the
       defendant from the process, and noting that the process was used in several
       counties, the court rejected the argument for having "no merit." Id.
       Although suggestive that there may have been an "open" peremptory
       challenge process in use in other places, Thomas is strong evidence that
       peremptory challenges can be conducted in private.

Love, 176 Wn. App. at 918. In explaining the practical underpinnings of the historical

practices discussed in State v. Thomas, the Love court noted: "Most parties, in fact, would

probably rather not have a challenge for cause made in the presence of the juror in case

the challenge failed and the juror might serve knowing the identity of a party that had not

wanted him or her to serve." 176 Wn. App. at 918. This passage also goes far in

establishing the logic prong of the public trial test.

       The Love court also directly addressed the logic prong. The court noted the


                                            11 

No. 32999-2-111
State v. Kitchens


purpose of public trial rights as '" to ensure a fair trial, to remind the officers of the court

of the importance of their functions, to encourage witnesses to come forward, and to

discourage perjury.'" 176 Wn. App. at 919 (quoting State v. Brightman, 155 Wn.2d 506,

514, 122 P.3d 150 (2005». The Love court reasoned:

                Those purposes simply are not furthered by a party's actions in
       exercising a peremptory challenge or in seeking a cause challenge of a
       potential juror. The first action presents no questions of public oversight,
       and the second typically presents issues of law for the judge to decide. The
       written record of these actions-the clerk's written juror record and the
       court reporter's transcription of the cause challenges at sidebar-satisfies
       the public's interest in the case and assures that all activities were
       conducted aboveboard, even if not within public earshot. The alternative is
       to excuse all jurors from the courtroom while legal arguments take place in
       public concerning a juror's perceived bias. We do not believe the public
       trial right requires the use of two rooms in order to facilitate the defendant's
       challenge to some jurors for cause.

176 Wn. App. at 919-20 (footnote omitted).

       Rickey Kitchens cites State v. Wilson, 174 Wn. App. 328, 298 P.3d 148 (2013), as

reaching the opposite conclusion, and standing for the proposition that, unlike potential

juror excusals governed by CrR 6.3, exercise of for-cause and peremptory challenges,

governed by CrR 6.4, constitutes part of voir dire, to which the public trial right attaches.

Nevertheless, Wilson concerned whether public trial rights extended to a bailiffs excusal

oftwo potential jurors for illness-related reasons. 174 Wn. App. at 331. Like Love and

Dunn before it, the Wilson court applied the experience and logic test to conclude the

excusals did not implicate public trial rights. 174 Wn. App. at 347. Wilson undermines


                                            12 

No. 32999-2-III
State v. Kitchens


neither Love nor Dunn.

       In short, the public trial right does not attach to the exercise of challenges during

jury selection. State v. Dunn, 180 Wn. App. at 575. Experience and logic do not suggest

that exercising peremptory challenges at the clerk's station implicates the public trial

right. Dunn, 180 Wn. App. at 575.

       The trial transcript in Rickey Kitchens' trial shows which jurors were excused by

which means. Therefore, the public has an available record of the challenges. This

record satisfies the purposes behind a public trial. The process did not violate either the

public's or Rickey Kitchens' public trial rights.

       Issue 2: Whether the trial court erroneously admitted hearsay?

       Answer 2: Yes.

       Rickey Kitchens contends the trial court admitted testimonial hearsay in violation

of his constitutional right to confront witnesses against him. Kitchens observes that

Troopers Raymond Seaburg and Kyle Burgess interviewed as many as thirty witnesses of

the accident. The State called only three ofthose witnesses to testify at trial, but then,

citing all the interviews, the troopers testified to their conclusion that Kitchens drove the

Jeep. Kitchens thus argues that the troopers incorporated into their own testimony

hearsay statements from witnesses who did not testify. We agree that the testimony was

inadmissible hearsay. We do not reach whether the hearsay was testimonial.



                                           13
   .


No. 32999-2-111
State v. Kitchens


       Washington State Troopers Raymond Seaburg and Kyle Burgess lacked percipient

knowledge that Rickey Kitchens drove the Jeep Cherokee. Nevertheless, the State

elicited testimony from each trooper that, after interviewing witnesses, each concluded

that Kitchens drove the Cherokee. While neither trooper repeated verbatim what

eyewitnesses reported, the jury could infer the content of those reports from the trooper's

conclusory testimony.

       "Hearsay" is a statement, other than one made by the declarant while testifYing at

the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER

801 (c). Unless an exception or exclusion applies, hearsay is inadmissible. ER 802. The

use of hearsay impinges on a defendant's constitutional right to confront and cross-

examine witnesses. State v. Neal, 144 Wn.2d 600, 607, 30 P.3d 1255 (2001).

       The prosecution often seeks to introduce hearsay evidence surrounding a law

enforcement officer's investigation of the crime through various arguments such as the

evidence provides background information or the evidence informs the jury of the

investigating officer's state of mind. "A statement is not hearsay if it is used only to

show the effect on the listener, without regard to the truth ofthe statement." State v.

Edwards, 131 Wn. App. 611,614, 128 P.3d 631 (2006) (emphasis added). Such

evidence may be important in a motion to suppress hearing to justifY the conduct of the

officer during a search or seizure. But such evidence frequently lacks materiality in the



                                           14 

No. 32999-2-III
State v. Kitchens


criminal trial, when the guilt of the accused, not the conduct of the officer, is at issue.

Out-of-court declarations made to a law enforcement officer may be admitted to

demonstrate the officer's or the declarant's state of mind only if their state of mind is

relevant to a material issue in the case; otherwise, such declarations are hearsay. State v.

Johnson, 61 Wn. App. 539,545,811 P.2d 687 (1991); State v. Aaron, 57 Wn. App. 277,

279-81,787 P.2d 949 (1990); State v. Stamm, 16 Wn. App. 603, 610-12, 559 P.2d 1

(1976). Hearsay is always hearsay, but admissible hearsay, like relevance, depends on

the issues in the case.

       The State relies on State v. Lillard, 122 Wn. App. 422, 93 P.3d 969 (2004) in

arguing that the state troopers' testimony was admissible to provide background to their

investigation. We agree with the State that Lillard supports its position. Lonnie Lillard

challenged the trial court's decision allowing testimony by Officer Chadd Thomas

concerning his investigation of the theft ring to which Lillard belonged. Lillard objected

when Thomas explained that he called customers to determine if they used stolen cards.

This court upheld introduction of the evidence, reasoning that, contrary to Lillard's

assertion, the State did not offer Thomas' statements to prove what the cardholders said,

but to show how he conducted his investigation. We decline to follow Lillard, however,

since this court erroneously concluded that the manner in which Thomas conducted his

investigation was relevant.



                                            15 

•      .

    No. 32999-2-III
    State v. Kitchens


           In this appeal, the question for the jury to decide was whether Rickey Kitchens

    drove the Jeep Cherokee. This question needed to be resolved by direct testimony of

    eyewitnesses, statements of Rickey Kitchens, and observations of the troopers with

    regard to physical evidence at the scene, not the conclusions of the troopers' investigation

    based on interviewing witnesses.

           Several analogous decisions compel a conclusion that the state troopers' testimony

    was inadmissible hearsay. In State v. Lowrie, 14 Wn. App. 408, 542 P.2d 128 (1975), a

    detective testified that an informant told him the defendant was involved in the crimes

    that were the subject of the prosecution. Although the trial court indicated that the

    testimony was not admitted for the truth of the matter asserted but only to show that the

    statement was made and that it in tum resulted in police action, the appellate court held

    the statement was inadmissible hearsay. The court reasoned that neither the making of

    the statement by the informant nor the resultant police action was relevant to any issue in

    the case, except to prove the truth of the matter asserted.

           In State v. Aaron, 57 Wn. App. 277 (1990), an officer testified to an out-of-court

    declaration made by a police dispatcher. The court reasoned that if the legality of the

    search and seizure was being challenged, the information available to the officer as the

    basis for his action would be relevant and material. Nevertheless, the officer's state of

    mind in reacting to the information he learned from the dispatcher was not an issue and



                                               16 

•   (I   ..




    No. 32999-2-111
    State v. Kitchens


    did not make determination of the action more probable or less probable than it would be

    without the evidence.

              In State v. Johnson, 61 Wn. App. 539 (1991), an officer testified to information

    from a confidential informant recorded in a search warrant affidavit. The State argued

    that the lieutenant's testimony was not offered to prove the truth of the matter asserted,

    but only to show the officer's state of mind at the time the search warrant was executed.

    The defendant did not challenge the validity or execution of the search warrant, so the

    lieutenant's state of mind in executing it was not at issue.

              Finally in State v. Edwards, 131 Wn. App. 611 (2006), a detective testified that he

    initiated his investigation of the defendant based on statements of a confidential

    informant. Thus, the State argued the testimony was not offered to prove the truth of the

    confidential informant's statement to the detective, but to provide background to the

    officer's investigation. The Edwards court ruled the statement inadmissible hearsay

    because it was only relevant if offered for its truth, since the detective's motive for

    starting his investigation was not an issue in controversy. Edwards, 131 Wn. App. at

    614.

              Neither Trooper Raymond Seaburg nor Kyle Burgess specified who gave

    information during their respective investigations. Thus, the declarants are unknown and

    their specific statements are missing. Thus, the State could argue that the troopers'



                                                17
•   I)   ...




    No. 32999-2-111
    State v. Kitchens


    testimony was not hearsay since the witnesses' statements were not repeated in court.

    But, Johnson, 61 Wn. App. 539 (1991), demands an opposite conclusion.

               In Johnson, the lieutenant did not testify to the contents of the informant's

    statement, but the trial court allowed testimony, based on the statement, that he had

    reason to suspect the appellant was involved in drug trafficking. This court noted that

    cases from other jurisdictions have held that a law enforcement officer's testimony

    concerning an informant's or eyewitness's statement is inadmissible hearsay even when

    the officer does not repeat the contents of the statement, but only testifies that the

    statement led police to investigate or arrest the defendant. See State v. Irving, 114 N.J.

    427,555 A.2d 575 (1989); State v. Hardy, 354 N.W.2d 21, 23 (Minn. 1984); Postell v.

    State, 398 So. 2d 851,854 (Fla. Dist. Ct. App. 1981); Favre v. Henderson, 464 F.2d 359

    (5th Cir. 1972). The Johnson court held that when the inescapable inference from the

    testimony is that a nontestifying witness has furnished the police with evidence of the

    defendant's guilt, the testimony is hearsay, notwithstanding that the actual statements

    made by the nontestifying witness are not repeated. Johnson, 61 Wn. App. at 547.

               The State also relies on this division's opinion in State v. O'Hara, 141 Wn. App.

    900, 174 P.3d 114 (2007), rev 'd on other grounds, 167 Wn.2d 91, 217 P.3d 756 (2009) to

    support its argument that the state troopers' testimony that they interviewed witnesses to

    support their conclusions was permissible. In 0 'Hara, a law enforcement officer testified



                                                  18 

No. 32999-2-III
State v. Kitchens


that he interviewed witnesses at the scene of the crime. The officer, however, did not

link witness statements to any conclusions he drew. In our appeal, the state troopers

testified that they concluded Rickey Kitchens drove the car based, in part, on witness

statements. Reference to witness statements served no purpose other than to support the

State's theory that Kitchens drove the Cherokee.

       Issue 3: Whether the trial court's admission of the troopers' testimony regarding

witness statements is harmless error?

       Answer 3 : Yes.

       The State argues that Rickey Kitchens' trial counsel never objected to the hearsay

testimony elicited from Troopers Raymond Seaburg and Kyle Burgess, and, therefore,

Kitchens may not complain about the evidence on appeal. Kitchens contends his trial

attorney objected, but, if the attorney failed to object, he deserves a new trial because a

lack of objection deprived him of effective assistance of counsel. We also note that, if

trial counsel failed to object to the hearsay testimony or conclusions of the troopers, we

may still review the error if an issue of manifest constitutional error arises. RAP 2.5(a);

State v. Scott, 110 Wn.2d 682,686-87, 757 P.2d 492 (1988). Not all hearsay errors

constitute a constitutional error. Nevertheless, even hearsay with an applicable exception

becomes inadmissible ifits admission would violate a defendant's confrontation clause

rights precluding testimonial hearsay. Davis v. Washington, 547 U.S. 8l3, 821,126 S.



                                           19 

·   .(.   ~




    No. 32999-2-II1
    State v. Kitchens


    Ct. 2266, 165 L. Ed. 2d 224 (2006).

              We decline to decide whether defense counsel at trial sufficiently objected to the

    inadmissible evidence, whether any failure to object constitutes ineffective assistance of

    counsel, or whether the hearsay constituted testimonial hearsay. Resolution of these

    questions becomes important only in deciding what harmless error rule to apply. Even if

    we imposed the strictest or constitutional rule of harmless error, we would affirm the

    conviction.

              A constitutional error is harmless if the appellate court is assured beyond a

    reasonable doubt that the jury verdict is unattributable to the error. State v. Anderson,

     171 Wn.2d 764, 770, 254 P.3d 815 (2011). This court employs the "overwhelming

    untainted evidence" test and looks to the untainted evidence to determine if it is so

    overwhelming that it necessarily leads to a finding of guilt. Anderson, 171 Wn.2d at 770.

              Rickey Kitchens' immediate, voluntary, and vehement protests at the accident site

    against being the driver of the car provides strong evidence of his guilt. More

    importantly, eyewitnesses testified that Kitchens was in the driver's seat as he and Marcia

    Howard were pulled from the Jeep Cherokee. Gary Hillin saw Kitchens in the driver's

    seat. Rescuers removed Kitchens from the vehicle first.

              The undisputed physical evidence overwhelmingly establishes Rickey Kitchens as

    the driver and guilty of felony driving under the influence. For Marcia Howard and



                                                 20 

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 ~   .

 No. 32999-2-111
 State v. Kitchens


 Kitchens to have switched seats after the accident, the two would have needed to perform

 Herculean and Houdiniesque acrobatics while upside down and without rescuers

 observing the feat. The position of the driver and passenger seats established the taller

 Rickey Kitchens as the driver.

                                       CONCLUSION

         We affirm Rickey Kitchens' conviction for felony driving under the intluence.

 The trial court did not deny him of public trial rights. Although the trial court admitted

 inadmissible hearsay, the error was harmless.

         A majority of the panel has determined this opinion will not be printed in the

 Washington Appellate Reports, but it will be filed for public record pursuant to RCW

 2.06.040.




 WE CONCUR:




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         ~.&:

         Brown, J.




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