(dissenting)—I respectfully dissent. While I agree that under the facts of this case the substitution of counsel creates a manifest necessity for a mistrial, I reach that conclusion only by construing CrR 2.1(d) to limit the State to a prosecution for second-degree murder. I also cannot accept the majority's disposition of the evidentiary issue which arose during the testimony of Llewellyn Thomas.
Amendment of the Information
The original information charged Jones with second-degree murder, alleging an intentional slaying. The amendment to first-degree murder charged a more serious offense. The new information alleged both a premeditated, intentional killing and felony-murder based upon an alleged rape. Not only did Jones face the additional time to prepare to meet these new allegations, but he also was confronted with a jury which had been impaneled and sworn without being examined on possible bias concerning the new and more serious charges. An amendment at that time was erroneous and prejudicial. See State v. Olds, 39 Wn.2d 258, 235 P.2d 165 (1951); see also 42 C.J.S. Indictments and Informations § 240, at 1251-52 (1944). While I agree with the majority that the mistrial eliminated the foregoing prejudice, I conclude that the erroneous amendment is so *11closely connected with the mistrial4 that the possibility of violating Jones' double jeopardy rights requires limiting the State to a second-degree murder prosecution.
The majority correctly states that where "there is any reason to believe the superior resources of the State are being used to harass or achieve a tactical advantage over the accused," the mistrial must be carefully scrutinized. From the record, two critical queries relevant to a claim of an unfair tactical advantage for the State cannot be answered. First, would Jones have continued to pursue his motion to substitute counsel if the court had ruled properly and refused to consider amending the information? Second, would the trial court have allowed substitution of counsel if the motion to amend had been denied? These questions do not imply bad faith conduct by judge or prosecutor, but they disclose the significance of the close connection between the erroneous amendment and the mistrial. If the trial court had ruled properly and denied the motion to amend, a negative answer to either question would have made a mistrial improper5 and required a trial on second-degree murder. I, therefore, have reason to suspect that the superior resources of the State were used to achieve a tactical advantage over the accused. The erroneous amendment allowed the State to pursue a more serious charge which, under one allegation, could be proven without the element of intent to kill. The possible tactical advantage is that the lesser charge of second-degree murder might have been all that Jones would have faced if the trial court had not erroneously granted the motion to amend.
*12The remedy is found in CrR 2.1(d). This rule bars amendments which prejudice substantial rights of the accused. Jones has a substantial right to be tried by the first jury he chooses without the State's use of its superior resources to gain a tactical advantage and secure a mistrial. The erroneous amendment and subsequent mistrial may have denied Jones this right.6 Because we do not know that this right was denied, we need not dismiss the case. The possibility of its denial, however, requires construing CrR 2.1(d) to bar the State from ever amending the information. Only then can I conclude that the State secured no unfair tactical advantage from the erroneous amendment and subsequent mistrial.
Thomas' Testimony
Llewellyn Thomas testified that he was employed by the Morrison Hotel at the time of the murder. One of his duties was to unlock doors to rooms provided for transients. George Nixon was a registered guest who sought Thomas' assistance to get into his room. When Thomas opened the door, he and Nixon immediately observed the victim's body.
During cross-examination by the defense, Thomas testified to Nixon's excited reaction to the discovery of the body. On redirect examination by the State, Thomas testified that upon observing the body, he asked Nixon "what was going on." Before Thomas could describe what Nixon told him, the court responded to a defense objection by tentatively indicating the testimony was admissible as a spontaneous utterance. The court then heard arguments in a side-bar conference. After the off-record conference, the prosecutor was allowed to continue her examination of the witness:
*13Q: Mr. Thomas, you were indicating that as you opened the door and Mr. Nixon looked in, you said that something was said. Would you explain to the jury what happened when you started to enter the room?
A: He was raving and hollering about this Jones guy. Well, I didn't even know who this Jones guy was.
[Defense counsel]: If the Court please, for the record, since we had a sidebar conference, I'm going to object to this testimony on the basis of hearsay and on the basis that Mr. Nixon isn't even available for me to cross-examine to go into this issue. I think it is entirely inappropriate to allow this witness to testify relative to conclusions, to hearsay, and especially when the person who is supposed to have said this isn't available for cross-examination.
The Court: We'll note the objection. Proceed.
Q: [By the prosecutor] You said that he started to say something about Jones. Do you remember what he said?
A: He said this Jones guy—he was raving about him. So that's when I was telling him that he didn't have no business letting nobody use his room because that's against the hotel policy. So from that point, that was all we talked about, this Jones guy. I kept on trying to ask him what Jones and he kept on telling me, "A tall guy. A tall guy." So I thought it was someone else. Personally, that's what I thought. I didn't know who it was, because I never known no Jones guy by name. You see faces, folks in and out there all the time.
The majority holds that the evidence was admissible under the excited utterance exception to the hearsay rule. To satisfy the requirements of that exception, the offered evidence must possess at least the following essential elements:
(1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact, and not the mere expression of an opinion; (4) it must be a spontaneous or instinctive utterance -of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration *14or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation, and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made.
Beck v. Dye, 200 Wash. 1, 9-10, 92 P.2d 1113, 127 A.L.R. 1022 (1939); Makoviney v. Svinth, 21 Wn. App. 16, 20-21, 584 P.2d 948 (1978). See also ER 803(a)(2) and comment. Nixon's statement, to which Thomas testified, is not an excited utterance because it does not satisfy the third and sixth requirements of Beck v. Dye, supra. The statement was an expression of opinion, not fact, concerning Jones' involvement in a murder not witnessed by the declarant.
The majority concludes the statement was an expression of fact because it showed the room was loaned by Nixon to Jones. To the extent this inference can be drawn, it fails to satisfy the first two requirements of Beck v. Dye, supra. It does not relate to the main event, and it is a narrative of a past completed affair. Further, this inference is but the first step in a logical progression to the inference that Nixon believed Jones committed the murder. There was also other evidence to prove Nixon loaned his room to Jones, so the prejudicial impact of the statement far outweighed its probative value.
The majority next concludes the statement was admissible as circumstantial evidence of the declarant's state of mind. I cannot agree. When the declarant's state of mind is relevant, statements tending to prove it are not hearsay and may be admissible. State v. Haga, 13 Wn. App. 630, 536 P.2d 648 (1975), cert. denied, 425 U.S. 959, 48 L. Ed. 2d 204, 96 S. Ct. 1740 (1976); 5 R. Meisenholder, Evidence Law and Practice § 383, at 387 (1965). Nixon's state of mind, his surprise and excitement, was relevant only as it tended to show he was not involved in the murder. This purpose was satisfied by the statement of excitement admitted during cross-examination without reference to *15Jones. It strains credulity to assert that Nixon's excited reaction would support a logical inference "that Nixon's behavior betrayed a guilty mind." Contrary to the majority's opinion, the excited reaction was a normal response to a grisly murder scene. Admission of the same statement with the addition of the reference to Jones did not shed any new light on Nixon's state of mind. Being cumulative on the issue of the declarant's state of mind, its prejudicial effect far outweighed its probative value.
I must also reject the majority's conclusion that further inquiry into the reason for Nixon's excitement was permissible. I agree that an explanation would be warranted if Nixon's excited reaction were helpful to the defense, but as already discussed, no such advantage could be inferred from Nixon's expected excitement. The issue of Nixon's opinion as to Jones' guilt was not opened up by this or any other testimony elicited by the defense. It was entirely outside the scope of cross-examination and should have been excluded. State v. Gefeller, 76 Wn.2d 449, 458 P.2d 17 (1969).
Harmless error is the majority's final refuge. The opinion concludes that Nixon's statement fell short of an accusation against Jones. Not only was the statement made upon Nixon's observation of the body, but afterwards, all he and Thomas talked about was "this Jones guy." A fact finder could only conclude that Nixon believed Jones committed the murder. This accusation was the only direct evidence against Jones. It was a self-serving statement made by an unavailable suspect who had initially been arrested for the slaying because the body was found in his room. The governing rule was formulated in State v. Martin, 73 Wn.2d 616, 627, 440 P.2d 429 (1968):
A prejudicial error may be defined as one which affects or presumptively affects the final results of the trial. State v. Britton, supra. When the appellate court is unable to say from the record before it whether the defendant would or would not have been convicted but for the error committed in the trial court, then the error *16may not be deemed harmless, and the defendant's right to a fair trial requires that the verdict be set aside and that he be granted a new trial. But, where the defendant's guilt is conclusively proven by competent evidence, and no other rational conclusion can be reached except that the defendant is guilty as charged, then the conviction should not be set aside because of unsubstantial errors.
(Italics mine.)
I do not possess the omniscience to say from this record whether Jones would or would not have been convicted but for the admission of this evidence. The fact that the prosecution did not dwell on Nixon's excited reaction in closing argument reveals nothing about the impact the testimony had on the jury. I cannot say that the jury would have found the defendant's guilt conclusively proven by the remaining competent evidence. I cannot conscientiously sustain a verdict which may well have been influenced by such erroneously admitted evidence. State v. Irving, 24 Wn. App. 370, 601 P.2d 954 (1979).
For the foregoing reasons, I would reverse and remand for trial on second-degree murder.
Reconsideration denied June 11, 1980.
Review denied by Supreme Court October 10,1980.
Jones' motion to substitute counsel and the State's motion to amend were considered in the same hearing. The trial court cited the amendment as one of its reasons for granting the mistrial.
The only remaining reason for the mistrial, the loss of one juror, would not sustain a mistrial unless the court first inquired into the accused's willingness to proceed with 11 jurors. Parker v. United States, 507 F.2d 587 (8th Cir. 1974), cert. denied, 421 U.S. 916, 43 L. Ed. 2d 782, 95 S. Ct. 1576 (1975).
The prosecutor was wary of a mistrial and sought a continuance. The trial court, however, also has a responsibility to protect the accused's rights under the double jeopardy clause.