(concurring in part/dissenting in part) — I concur with the majority that the lineup was not imper-missibly suggestive. But I respectfully disagree that the errors by the trial court require reversal.
I accept the State’s concession that the trial court erred by not notifying the parties of the jury’s questions and agree that the error of communicating with the jury in violation of former CrR 6.15(f)(1) (2002) was of constitutional dimensions. And I agree with the standard set forth by the majority with the content of the trial court’s answers, i.e., that those answers should be measured by a violation of the Washington State Constitution, article IV, section 16. But, I view the trial court’s errors as being harmless beyond a reasonable doubt; thus, reversal is not required.
I analyze the answers differently from the majority.
Under other circumstances, the judge’s answer to question 1 might have conveyed a personal attitude on an evidentiary issue. For example, had the question been whether Ratliff had an alibi and the judge responded “[n]o evidence on that issue,” the response would have suggested that the judge disbelieved Ratliff’s evidence that he was *651with his girl friend at the time of the robbery. Clerk’s Papers at 90; Majority at 647-48. But we are not faced with that scenario. Instead, question 1 merely asked about an evidentiary issue for which there truly was no evidence introduced, a point that Ratliff acknowledges. The judge’s answer did not convey a personal opinion on any trial evidence.
The judge’s answer to question 2 also was not an impermissible comment. Although Ratliff correctly notes that evidence did not establish vehicle ownership, that issue was not relevant to the case. That the answer implies Ratliff’s ownership is therefore inconsequential. The important point was that the gun was found in a car linked to Ratliff. This was a stipulated fact that the judge’s answer merely confirmed. Had ownership been a contentious point, the answer may have expressed a personal opinion. As it was not, the answer was not an improper comment.
As to the judge’s answer to question 3, Ratliff acknowledges its truth but asserts that “the jury should have been told it could only consider items admitted into evidence.” Br. of Appellant at 9. The analysis done as to the judge’s answer to question 1 applies here as well. Ratliff’s suggestion may have been the more prudent course, but the judge’s answer certainly did not convey a personal opinion on any trial evidence.
Finally, there is no dispute that the judge’s answers to questions 4 and 5 informed the jury of facts not in evidence — that Ratliff was arrested prior to the lineup and arrested in Washington County. This was improper and in direct contravention of article IV, section 16, which commands that “fj]udges shall not charge juries with respect to matters of fact.” The only question is whether the error warrants a new trial. According to Ratliff, the prejudicial effect of the judge’s answers was that they “left the jury to draw negative conclusions about Mr. Ratliff’s arrest in Washington County and his participation in the lineup.” Br. of Appellant at 9.
*652The following analysis answers the constitutional harmless error issue as to Ratliff’s former CrR 6.15(f)(1) claim as well.
The only issue at trial was identity; the State, of course, argued that Ratliff was the perpetrator, and Ratliff put on evidence of an alibi, i.e., that he had been on an all-day outing with his girl friend and her daughter. The State’s evidence consisted mainly of identifications by employees of the establishment that was robbed.
One employee, Heidi Ammons, positively identified Ratliff at a lineup and then again at trial. She stated that she based her in-court identification on her recollection of the lineup and her recollection of the crime.3 Another employee, Kerry Walker, also identified Ratliff at the lineup and, though somewhat equivocally, at trial too. The record is unclear as to whether she based her trial recollection on the lineup or the crime, but the lineup identification hinged on Ratliff’s bright blue eyes. Walker testified that she was 97 percent positive about the lineup identification. The third employee present, Linda Desper, identified a different lineup participant as the perpetrator, though she made her selection because she “had a choice between two people, so I picked the one I thought looked like the right height and mustache.” RP at 127.
There is no reason to believe that the jury was affected in any way by the judge’s answers to questions 4 and 5. Although Ratliff’s point that the jury would not have asked the questions if it did not expect to use the answers has some resonance, he fails to explain how the untainted evidence — the positive identifications in particular — does not establish guilt beyond a reasonable doubt. In light of the identifications, the trial outcome would have been the same absent the errors — the evidence of guilt was overwhelming, with the timing and location of Ratliff’s arrest being irrelevant. The trial court’s errors were harmless beyond a reasonable doubt.
*653Therefore, I would affirm the conviction and respectfully dissent from the majority.
Ratliff does not challenge the validity of the witnesses’ in-court identifications.