No. 43171-4-I.The Court of Appeals of Washington, Division One.
Filed: October 22, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 98-1-00470-0, Hon. Suzanne M. Barnett, August 17, 1998, Judgment or order under review.
Counsel for Appellant(s), Kevin L. Hendrickson (Appearing Pro Se), W.C.C., D.O.C. #909340, P.O. Box 900, Shelton, WA 98584.
Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Eric Broman, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Mychal H. Schwartz, 516 3rd Ave, Seattle, WA 98104.
Heather M. Jensen, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
PER CURIAM.
Kevin Hendrickson appeals from his conviction for possession of stolen property in the second degree, arguing that the trial court’s admission of hearsay testimony deprived him of his right to a fair trial. As the State concedes, various hearsay statements were improperly admitted. But because the remainder of the evidence overwhelmingly established Hendrickson’s guilt, we find the admission of the hearsay testimony to be harmless error. Because Hendrickson was denied his right of allocution, we remand for resentencing.
FACTS
Hendrickson was charged by amended information with possession of stolen property in the second degree for his possession of a stolen red Pontiac Firebird. Hendrickson was the operator of U.S. Mobile Repair, an auto repair shop. Essentially, the State’s theory was that Hendrickson was running a `chop shop’ — that he was taking stolen cars and altering them by painting them and switching their vehicle identification numbers. On the first day of trial, the parties informed the court that the alleged owner of the car, a Mr. Diepenbach, had moved and could not be located.
At trial, Detective Cross of the Renton police department testified that he began investigating Hendrickson after receiving a memo from Officer Tofthagen. Over defense objection,[1] Cross testified that Tofthagen stated in the memo that he had been investigating Hendrickson based on `peculiar circumstances’ involving two vehicles on the lot. Specifically, Tofthagen had seen a Chevrolet Camaro on the lot that had an emblem on its steering column that did not match the year of the vehicle on the plate description. Cross then spoke with a code enforcement officer, who told him to speak with a person named Earl Mathis. Cross testified that Mathis was a former employee of U.S. Mobile Repair. Based on what Mathis told him, Cross continued to investigate Hendrickson. While on surveillance, Cross noticed cars coming in and out of the business in the middle of the night, which he thought was unusual.
Cross testified without objection that he set up surveillance cameras after `being informed that purchases had been made by Kevin Hendrickson and that it was a strong possibility that vehicles that were potentially stolen would arrive at the business.’[2] When asked what vehicles he was looking for, Cross began to testify as to what Mathis had told him. The court sustained a hearsay objection to this testimony, but Cross was nonetheless permitted to testify that he was looking for a Mustang and a Bronco.
Cross saw a Mustang in the auto lot on January 10, 1998. On January 12, 1998, Cross set up a surveillance camera to observe Hendrickson’s business. Over the next several days, Cross did not see any customers driving their cars into the business, which he found to be unusual. On January 15, 1998, Cross saw a man go up to the window of the business and peer inside. The man then looked in through the windshields of a Mustang and a Firebird. Cross found this behavior to be suspicious, and testified without objection that the police knew that the Mustang was stolen, and were suspicious of the Firebird. Cross contacted Sergeant Klein, and told him that he felt there was going to be some activity with the two vehicles, and that additional surveillance should be established with officers on site. As Cross was on his way back to Hendrickson’s business with another officer, he was informed that the Mustang and the Firebird were being moved. He told the other officers at the scene to stop the vehicles. Cross obtained a search warrant for the vehicles and the business. He searched the premises the next day. In the upstairs bedroom above the office, Cross found a VIN plate.[3] Cross also found a vehicle manufacturer’s sticker in the business, and twelve to fifteen steering columns on the wall. Cross testified that this seemed unusual, because U.S. Auto Repair[4] was an engine repair shop, and that while a wrecking yard or auto body shop might have a need for steering columns, an engine repair shop would not.
Cross ran the plates on a Camaro Iroc, and found that the plates came back as registered to a Camaro, but the year of the registration was a year in which Irocs were not made. While examining the Camaro Iroc, it appeared to Cross that the original VIN plate had been removed and replaced with another plate. He also ran the plates on the Mustang, and found that it was reported stolen. While searching the vehicles, Cross noticed that the windshield was not attached to the Firebird. After removing the windshield, Cross saw the VIN plate on the dash. He popped the plate off, and found another VIN plate underneath, with a different number from the top plate. Cross testified without objection that he checked the status of the VIN numbers, and the top VIN number came back as registered to Ray Anna Hendrickson, while the bottom number showed a vehicle registered to `a gentleman — Diepenbach — out of Puyallup.’[5]
Defense counsel objected to any further testimony about what Cross had learned regarding the VIN number as hearsay, and the State did not ask any further questions in that vein. On re-direct, the State introduced as an exhibit a copy of the registration on the Firebird registered in Ray Anna Hendrickson’s name, showing that the vehicle was a black 1984 Firebird coupe. Cross testified that the Firebird driven by Hendrickson was a red GTA Firebird, and that model was not made until 1985.
In addition to the testimony of Officer Cross, the State presented testimony from Officer Tofthagen. Tofthagen testified that he had received information from a suspect that Hendrickson’s auto repair shop was possibly a `chop shop.’ As a result, Tofthagen began watching the business. While on watch, Tofthagen ran the plates on a white convertible Camaro Iroc, and found that the plates belonged to a 1984 black Camaro. He also ran the plates on a red Firebird, and found that the plates belonged to a 1984 black Firebird. He saw no signs that the car had been painted.
While the VIN plate on the dash matched the plates, he thought that the rivets on the plate looked suspicious. Tofthagen testified without objection that he had received a tip that a stolen Mustang might be showing up on the lot. He saw a red Mustang pull into the lot, ran its plates, and found that the plates were registered to a black Mustang. Tofthagen later went onto the lot and saw the VIN number of the Mustang. When he ran that number, he learned that it was a stolen vehicle.
After Tofthagen testified, defense counsel stated that although Tofthagen and Cross had only stated that the vehicles were reported stolen, he was concerned that witnesses might testify that the vehicles were actually stolen. He therefore asked for a standing objection to any evidence, other than direct testimony, regarding the vehicles being stolen. The trial court did not rule on this objection.
The State also presented testimony from Agent Howe of the National Insurance Crime Bureau. Howe testified that in addition to the `public’ VIN number on the dash of a vehicle, every vehicle had a `private’ VIN plate that was located in a secret spot on the vehicle. He stated that the VIN plate on the Firebird’s dash did not match its private VIN number, and that the private VIN number belonged to a 1987 Firebird, which was more consistent with the appearance of the Firebird. Howe went on to testify without objection that Cross had run a check on the private VIN number, and that number came back to a stolen vehicle. Howe also inspected the Camaro Iroc and found that the public VIN came back to a 1984 hardtop coupe, while the vehicle he inspected was a convertible. Howe testified that General Motors did not make an Iroc convertible until 1987, but that it was possible to transform a coupe into a convertible. Howe looked at records for stolen Iroc convertibles, and located a white 1988 Iroc convertible that was reported stolen. He obtained a copy of the theft report, and learned that the owner of that vehicle reported that the car had a repaired tear in the driver’s side of the convertible top. When Howe examined the Iroc on Hendrickson’s lot, he found a tear that had been repaired. He also found another identifier on the car, the manufacturer’s build sheet, that matched the VIN number of the stolen white 1988 Iroc.
Finally, the State presented the testimony of Earl Mathis, a former employee of the auto repair shop. Mathis claimed that he had contacted Detective Cross because he did not like Hendrickson’s attitude, and because he `suspected what they were doing’ at the shop.[6] Mathis testified that he had seen Hendrickson rivet a VIN plate onto a white Camaro. He stated that the shop normally did not do repairs on windshields and steering columns, but that he had seen Hendrickson doing both these things, including removing windshields that were not cracked. After the State rested, defense counsel moved to dismiss the charges on the ground that the State had failed to provide testimony from Mr. Diepenbach that the red Firebird was stolen. Counsel indicated to the court that he had been informed that Key Bank owned the car. The court denied the motion, stating that the State had produced circumstantial evidence that the Firebird was stolen.
Hendrickson testified in his own defense. He stated that his sister-in-law, Ray Anna Hendrickson, owned the repair shop, and he had been employed there as a mechanic since 1996. He testified that he repaired broken windshields two to three times a month and worked on steering columns frequently. He claimed that he kept a supply of steering columns in the shop because they were expensive and hard to come by. Regarding Earl Mathis, Hendrickson testified that Mathis was not on the payroll of the auto repair shop, but occasionally hung around the shop.
Approximately a month before Hendrickson was arrested, he had asked Mathis to leave because he had shown up drunk and belligerent. Hendrickson testified that he had no reason to believe that the red Firebird was stolen. He claimed that he was with Ray Anna Hendrickson when she purchased the Firebird from an auto repair shop. The Firebird had been painted and customized before she bought it, but needed a lot of repairs. He had been working on the car because it needed a new alternator. He had taken out the old windshield because it had been broken by vandals, and the new windshield was resting on the frame of the car. He claimed that he was moving the Firebird to a different service bay to replace the windshield when he was stopped and arrested by the police.
The jury returned a verdict of guilty on the charge of possession of stolen property in the second degree. Hendrickson was given a standard range sentence. At sentencing, the trial court failed to offer Hendrickson an opportunity to address the court. This appeal follows.
DECISION
Hearsay is a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted. ER 801(c). Hendrickson argues that the trial court erred in admitting various hearsay statements. He claims that testimony by the officers that they had been told Hendrickson was operating a `chop shop’ was inadmissible hearsay, arguing that this information was not relevant except to prove the matter asserted. See, e.g., State v. Johnson, 61 Wn. App. 539, 545, 811 P.2d 687 (1991) (although State claimed that informant’s out of court statement to police was not offered to prove the truth of the matter asserted, statement constituted inadmissible hearsay when officer’s state of mind was not in issue). But here, unlike in Johnson, the officer’s state of mind was relevant to explain the officers’ subsequent actions.
The State was entitled to present the whole picture to the jury, including testimony as to why the officers began investigating Hendrickson in the first place. Similarly, Cross’s testimony that he was looking for a Mustang and a Bronco was not hearsay. It was not offered for the proof of the matter asserted, but rather to explain the officers’ actions. As the State concedes, testimony referencing information gathered from the Department of Licensing, statistical reports, a police department theft report, and a manufacturer’s build sheet constituted hearsay. This information included the fact that the VIN plates attached to the Firebird and the Camaro were registered to different cars, that the Mustang, Firebird, and Camaro were stolen, and that the Firebird belonged to Mr. Diepenbach. The officers had no first hand knowledge about these alleged facts, their testimony on these topics was based on out-of-court declarations, and their testimony was offered as proof of the matter asserted.
Arguably, Hendrickson preserved his appeal on this issue due to his counsel’s standing objection to `evidence other than direct testimony regarding the vehicles being stolen.’[7] Nonetheless, we find the admission of these statements to be harmless error given that the non-hearsay evidence against Hendrickson was more than sufficient to establish his guilt. The untainted evidence showed that the registration in Ray Anna Hendrickson’s name (a black 1984 Firebird coupe) did not match the car driven by Hendrickson (a red GTA Firebird, a model that was not made until after 1985). The untainted evidence also showed that the windshield on the Firebird was not attached, and the car had two VIN numbers attached to its dash. These facts, combined with the suspicious circumstances at the car lot and the presence of other stolen vehicles, clearly established that the Firebird was stolen. Likewise, Hendrickson’s claim that he was denied his right to confront witnesses fails due to the overwhelming evidence against him. Even an error of constitutional magnitude might be harmless. Under the “overwhelming untainted evidence” test established in State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182
(1985), the appellate court looks only at the untainted evidence to determine if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. Under this analysis, we conclude that the untainted evidence against Hendrickson was so substantial that he necessarily would have been found guilty even if the tainted evidence were not admitted.
Hendrickson also claims that his counsel was ineffective in failing to object to the admission of hearsay statements. But because the challenged statements were either not hearsay, or because he was not prejudiced by the admission of the statements, this claim likewise fails. For the first time on appeal, Hendrickson claims that he was denied his right of allocution at sentencing. The State has conceded error, and agrees that this matter should be remanded for resentencing.
A criminal defendant has a statutory right to allocution. In re Personal Restraint of Echeverria, 141 Wn.2d 323, 6 P.3d 573, 580
(2000). Because Hendrickson was not given an opportunity to speak before his sentence was imposed, we vacate Hendrickson’s sentence, and remand for resentencing. Because the judge that sentenced Hendrickson is no longer on the King County bench, Hendrickson will necessarily be resentenced by a different judge. We therefore need not reach the issue of whether remand for sentencing before a different judge is required in cases where, as here, the failure to allow an opportunity for allocution was a matter of mere oversight.
Conviction affirmed. Remanded for resentencing.