State of Washington v. Rickey Lee Kitchens ( 2015 )

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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RICKEY LEE KITCHENS, ) UNPUBLISHED OPINION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.
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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, .
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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
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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
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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
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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
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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
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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.
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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 Wash. App. 911, 309 P.3d 1209 (2013), review granted in
part, 181 Wash. 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 Wash. 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
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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 Wash. 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 Wash. 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 Wash. 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
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particular process in question (logic prong). 176 Wash. 2d at 72-73. Both questions must
be answered affirmatively to implicate the public trial right. Sublett, 176 Wash. 2d at 73;
Dunn, 180 Wash. App. at 574-75.
In State v. Love, 176 Wash. 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 Wash. 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
Wash. 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 Wash. 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 Wash. 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
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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 Wash. App. at 919 (quoting State v. Brightman, 155 Wash. 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 Wash. App. at 919-20 (footnote omitted).
Rickey Kitchens cites State v. Wilson, 174 Wash. 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 Wash. 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 Wash. App. at 347. Wilson undermines
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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 Wash. 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 Wash. 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.
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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 Wash. 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 Wash. 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
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No. 32999-2-III
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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 Wash. App. 539,545,811 P.2d 687 (1991); State v. Aaron, 57 Wash. App. 277,
279-81,787 P.2d 949 (1990); State v. Stamm, 16 Wash. 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 Wash. 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.
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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 Wash. 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 Wash. 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
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No. 32999-2-111
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did not make determination of the action more probable or less probable than it would be
without the evidence.
In State v. Johnson, 61 Wash. 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 Wash. 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 Wash. 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'
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No. 32999-2-111
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testimony was not hearsay since the witnesses' statements were not repeated in court.
But, Johnson, 61 Wash. 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 Wash. App. at 547.
The State also relies on this division's opinion in State v. O'Hara, 141 Wash. App.
900, 174 P.3d 114 (2007), rev 'd on other grounds, 167 Wash. 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
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No. 32999-2-III
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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.
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No. 32999-2-II1
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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 Wash. 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 Wash. 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
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No. 32999-2-111
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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:
;)-``~rt; . Cl­
~.&:
Brown, J.
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