(dissenting) — I posit admission of opinion testimony from all seven of the state’s eyewitnesses was an error of constitutional magnitude that compromised Read’s constitutional right to an impartial trial; the Miles presumption1 does not apply to errors of constitutional magnitude because it would impermissibly shift the burden from the state to the defendant to prove harm; and the State failed to meet its burden to prove beyond a reasonable doubt the constitutional error did not contribute to the trial judge’s finding of guilt. Thus, I would reverse Read’s murder conviction and remand for a new trial.
I. The Court of Review Must First Determine the Magnitude of the Error Before Evaluating Its Effect on the Verdict.
When a defendant alleges an error of constitutional magnitude, the appellate court first determines whether the trial court erred, then whether the error was of constitutional magnitude and, if so, finally, whether the state met its burden to prove the error was harmless beyond a reasonable doubt. See, e.g., State v. Easter, 130 Wn.2d 228, 234-42, 922 P.2d 1285 (1996).
But our majority begins not with the alleged error but rather with the substantive issue of Read’s self-defense claim. Majority at 244. Concluding it agrees with the trial court that Read failed to satisfy the subjective element of *248self-defense,2 the majority then construes the State’s opinion testimony about the validity of Read’s self-defense claim as merely irrelevant, “not an impermissible opinion of his guilt or innocence,” thus bootstrapping its final conclusion that the admission of the inadmissible testimony was “not error of a constitutional magnitude.” Id. at 244.
However, the purpose of review is to ensure procedural fairness, not to present the state an opportunity to reprosecute its case before an appellate court. See, e.g., State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001) (“When a defendant is convicted under alternative theories, one acceptable and the other based on an erroneous instruction, this court has not been willing to substitute its judgment for that of the jury by inferring that the verdict was reached under the correct instruction.”); State v. Golladay, 78 Wn.2d 121, 140, 470 P.2d 191 (1970) (“It is not our purpose in discussing these facts to act as a ‘superjury[.]’ ”), overruled on other grounds by State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976); Ritzschke v. Dep’t of Labor & Indus., 76 Wn.2d 29, 31, 454 P.2d 850 (1969) (where findings are supported by record, appellate court will not substitute its judgment for that of trial court).
The majority errs, affirming the trial judge’s verdict on the substantive issue of Read’s self-defense claim. That issue is not before this court. The sole issues before this court are whether the trial court erred when it admitted the inadmissible opinion testimony, whether the error was of constitutional magnitude, and whether we can say, beyond a reasonable doubt, that the error did not affect the verdict.
*249II. Admission of Inadmissible Opinion Testimony Was an Error of Constitutional Magnitude
Rule of Evidence 701 governs the admissibility of opinion testimony by lay witnesses. It requires lay opinion be limited to that which is “rationally based on the perception of the witness and [is] helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” ER 701. As recently as last year this court held, “no witness may offer testimony in the form of an opinion regarding the guilt... of the defendant; such testimony is unfairly prejudicial to the defendant ‘because it “invad[es] the exclusive province of the [jury].” ’ ” State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (alterations in original) (quoting City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993) (quoting State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987))). “An opinion as to the defendant’s guilt is an improper lay or expert opinion because the determination of the defendant’s guilt or innocence is solely a question for the trier of fact.” State v. Carlin, 40 Wn. App. 698, 701, 700 P.2d 323 (1985) (citing State v. Garrison, 71 Wn.2d 312, 315, 427 P.2d 1012 (1967)), overruled on other grounds by City of Seattle v. Heatley, 70 Wn. App. 573. As we have reiterated, “[n]o witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference” State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987) (emphasis added). Admission of “impermissible opinion testimony regarding the defendant’s guilt may be reversible error because admitting such evidence ‘violates [the defendant’s] constitutional right to a jury trial, including the independent determination of the facts by the jury.’ ” Demery, 144 Wn.2d at 759 (quoting Carlin, 40 Wn. App. at 701) (citing Dubria v. Smith, 224 F.3d 995, 1001-02 (9th Cir. 2000), cert. denied, 531 U.S. 1148 (2001)).
More than 50 years ago we recognized the constitutional guaranty of an impartial trial does not distinguish between jury and bench trials. State ex rel. McFerran v. Justice Court of Evangeline Starr, 32 Wn.2d 544, 548-49, 202 P.2d *250927 (1949). We held, “[t]here can be no question. . . the Federal and our state constitutions guarantee to a defendant a trial before an impartial tribunal, be it judge or jury.” Id. at 548. We explained:
[B]oth the Federal and our state constitutions guarantee to a defendant in a criminal cause a trial before an impartial jury. We see no difference, in so far as the effect of the above guarantee is concerned, whether a defendant is tried before a judge or a jury
Id. at 549; see also Carlin, 40 Wn. App. at 701-02 (concluding “in a nonjury trial a witness’ opinion as to the defendant’s guilt violates the defendant’s jury trial right by invading the province of the impartial fact finder”) (citing Garrison, 71 Wn.2d at 315; McFerran, 32 Wn.2d at 549; Stepney v. Lopes, 592 F. Supp. 1538, 1547-49 (D. Conn. 1984), aff’d, 760 F.2d 40 (2d Cir. 1985)).
The Court of Appeals opinion correctly held an ER 701 error violates a criminal defendant’s constitutional right to an impartial trial. State v. Read, 106 Wn. App. 138, 144, 22 P.2d 300 (2001). It correctly concluded several of the questions “ ‘appear to have crossed the line [and] went beyond mere perceptions of the witnesses and addressed the very heart of Mr. Read’s self-defense claim.’ ” Id. (quoting State v. Read, 100 Wn. App. 776, 787, 998 P.2d 897 (2000)). But it listed only a few examples of such unconstitutional testimony:
“For example, the prosecutor sought improper opinion evidence by asking Mr. Walsh if there was ‘any reason for Mr. Read at that point to defend himself’; by asking Ms. McIntosh if Mr. Read ‘ha[d] to pull out a weapon at that time,’ if he ‘ha[d] to shoot Mr. Larson,’ if‘anybody ma[d]e him defend himself,’ or if there was any reason why Mr. Larson ‘needed to be shot’; and by asking Ms. Flom if there was any reason why Mr. Larson was shot or for Mr. Read to defend himself. These questions solicited opinions that, at least by inference, went directly to the validity of Mr. Read’s defense, and thus his guilt.”
Id. (alterations in original) (quoting Read, 100 Wn. App. at 787).
*251A review of the record reveals the testimony, correctly deemed improper and unconstitutional by Division Three, was not so confined to simply that enumerated in the appellate court’s opinion. Instead, it pervaded the trial. As with the evidence erroneously admitted during the testimony of Josh Walsh, Kim McIntosh, and Veronica Flom, the same or substantially similar questions were posed to and similar questions elicited from Kelan Walsh, Heather Bel, Sarah Campbell, and Chad Larson.
Seven eyewitnesses testified for the State. On numerous occasions each gave their opinion on the validity of Read’s self-defense claim. In relevant part their testimony is set out below:
Kelan Walsh:
Q . . . . Did Bruce Larson threaten Jeremy [Read]?
A To me he didn’t. All he did—he just jumped up and said, don’t get a smart mouth.
Verbatim Report of Proceedings (RP) at 125:9-11.3
Q Did Bruce do anything to cause Mr. Read to defend himself?
A Like I say, he just got up and said, don’t get a smart mouth. I don’t know if he was trying to start a fight or anything but that’s all I remember.
RP at 127:5-8.
Heather Bel:
Q Did [Bruce Larson] threaten [Read]?
A No.
RP at 158:18-19.
Q . . . . [D]id Chad say anything to Mr. Read to cause him to shoot his brother?
A No.
Q Were there any threats at all in the room made to Mr. Read that evening?
*252A No.
RP at 160:16-21.
Q Did you see, before the handgun came out, . . . Mr. Bruce Larson attempting in any way to threaten Mr. Read?
A No.
RP at 178:16-18.
Josh Walsh:
Q Did [Bruce Larson] threaten [Read]? Did he rush him?
A Not to my knowledge. He didn’t look like he was threatening him or anything.
Q Was there any reason for Mr. Read at that point to defend himself?
A No.
MR. ZANOL [Read’s counsel]: Objection.
MR. SHAE [Prosecutor]: I think he can answer that question, Your Honor. That’s one of the elements of this particular crime.
THE COURT: I’ll overrule.
Q (By Mr. Shae) Did Chad threaten him or anything like that?
A Not to my knowledge, no.
Q Did anybody threaten Mr. Read in that room that night?
A No.
RP at 188:10-23.
Q Was it surprising to you that someone would react [the way Read did]?
A Yeah. This is the first time I’ve ever seen anything happen like that.
Q Was there any reason for Mr. Read to pull this weapon out?
A No.
Q Was there any reason for Mr. Read to, after he pulled it out, shoot it?
A No.
RP at 190:7-15.
*253Sarah Campbell:
Q Was there any reason for the person who shot [Bruce Larson] to defend himself?
A No.
RP at 215:17-19
Q At any point did anybody in the room threaten the person that you saw with the gun?
A No. I didn’t hear anybody threaten anybody.
RP at 216:1-3.
Kim McIntosh:
Q Did [Bruce Larson] threaten anybody?
A No.
Q Did Mr. Read have to pull out a weapon at that time?
A No.
Q Could he have turned around and walked out of that room?
A Yes.
Q Did he have to shoot Mr. Larson?
A No.
Q Did anybody threaten Mr. Read?
A No.
Q Did anybody make him defend himself?
A No.
RP at 233:11-24.
Q And could Mr. Read have just as likely walked out of that room?
A Yeah.
Q And was there any reason why . . . Mr. Larson . . . needed to be shot?
A No.
Q Anything that Chad said . . . that would cause Mr. Read to shoot his brother?
A No.
RP at 252:6-15.
*254Chad Larson:
Q Is there anything you could have said or done that particular evening that could have caused the defendant to shoot your brother?
A No.
Q Did anybody in the room threaten [Read]?
A No.
RP at 267:13-18.
Q Could Mr. Read have walked out of that room that night?
A Yes.
RP at 268:23-25.
Veronica Flom
Q Did [Bruce Larson] threaten Mr. Read?
A No, he didn’t.
RP at 287:23-24.
Q Is there any reason that you could see why Mr. Larson should be shot that night?
A No.
Q Was there any reason that anybody needed to defend themself [sic] in that manner?
A No.
Q Was there any reason anybody needed to defend them themself [sic] in any manner?
A No.
RP at 295:17-25.
All of this opinion evidence violated ER 701 and compromised Read’s constitutional right to an impartial trial.
III. Miles Presumption
Notwithstanding its determination that admission of impermissible testimony on the defendant’s guilt violated Read’s constitutional right to a fair trial, the Court of Appeals affirmed Read’s conviction under the Miles presumption that the trial judge in a bench trial will not *255consider matters which are inadmissible when making his findings. Read, 106 Wn. App. at 144-46. This was error and our majority simply repeats it.4
Where an error infringes upon a defendant’s constitutional rights, the error is presumed prejudicial, and the state has the burden to prove it was harmless. State v. Caldwell, 94 Wn.2d 614, 618, 618 P.2d 508 (1980). But by applying the Miles presumption to the trial judge’s erroneous admission of opinion testimony the Court of Appeals reversed the presumption of harm. See Read, 106 Wn. App. at 144-45.
The Miles presumption has never been applied when reviewing constitutional errors. The authority the Court of Appeals relied on, State v. Melton, 63 Wn. App. 63, 68, 817 P.2d 413 (1991) and State v. Hadd, 127 Ariz. 270, 275, 619 P.2d 1047 (Ct. App. 1980), is inapposite because in both cases the reviewing court concluded there was no error. Read, 106 Wn. App. at 147 n.1; see Melton, 63 Wn. App. at 68-70 (concluding no error); Hadd, 127 Ariz. at 275 (same).
In point of fact the Miles presumption has been applied only on appeals of bench trials with alleged nonconstitutional evidentiary errors. See, e.g., State v. Adams, 91 Wn.2d 86, 92-93, 586 P.2d 1168 (1978) (concluding no prejudice from leading questions in bench trial). On the other hand, harmless constitutional error analyses have been performed consistently when reviewing constitutional errors made in bench trials. See, e.g., State v. Palomo, 113 Wn.2d 789, 798-99, 783 P.2d 575 (1989); State v. Wethered, 110 Wn.2d 466, 474-75, 755 P.2d 797 (1988); State v. Silva, 108 Wn. App. 536, 542, 31 P.3d 729 (2001).
*256Moreover when this court adopted the harmless error rule of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), it also adopted the correlative presumption of harm to the defendant. State v. Johnson, 71 Wn.2d 239, 244-45, 427 P.2d 705 (1967). In Chapman, the United States Supreme Court stated “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Chapman, 386 U.S. at 22. However, it warned that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Id. at 24. Additionally, Chapman indicated that some constitutional rights may be so basic to a fair trial that their infraction can never be treated as harmless error. Id. at 23. The presumption of harm is therefore a necessary component of the harmless error analysis.
Further, the Miles presumption is predicated on practical concerns, not on safeguarding a defendant’s constitutional rights. See, e.g., Note, Improper Evidence in Nonjury Trials: Basis for Reversal?, 79 Hakv. L. Rev. 407, 409-10 (1965) (The purpose of the presumption is “to save time that would otherwise be spent hearing arguments on ‘nice’ evidentiary points.”). Thus, an extension of the Miles presumption to evidentiary errors of constitutional magnitude is inappropriate.
Accordingly, when reviewing a constitutional evidentiary error made in a bench trial, as with other constitutional error, the proper standard of appellate review is to determine whether the state can prove such constitutional error was harmless beyond a reasonable doubt.
However, even if the Miles presumption applied to constitutional errors, as the majority notes, it is a rebuttable presumption. Majority at 245-46. Here the record rebuts the presumption the trial judge did not rely on the state’s inadmissible evidence. First, in his Findings of Fact and *257Conclusions of Law on Bench Trial, the trial judge summarized the witness testimony, expressly noting:
(1) Kelan Walsh’s testimony that Read “did not have to defend himself,”
(2) Heather Bel’s testimony “that there were no threats made to Mr. Read,”
(3) Josh Walsh’s testimony “that Mr. Read was never threatened,”
(4) Sarah Campbell’s testimony that “no threats [were] being made to anybody,”
(5) Kim McIntosh’s testimony that Bruce Larson “made no threats” and “Mr. Read did not have to shoot or kill Mr. Larson,”
(6) Chad Larson’s testimony “that Mr. Read could have turned and walked out of the room [and] there were no threats made toward him,” and
(7) Veronica Flom’s testimony that Bruce Larson “did not threaten [Read].”
Clerk’s Papers (CP) at 85-89.
The judge then concluded:
[T]he facts of this case do not establish that this homicide was justifiable because the court cannot conclude under the facts of this case that Mr. Read reasonably felt that he was in any danger from Bruce Larson, Jr. because Mr. Read’s belief has to be reasonable. The court finds that the testimony of the witnesses of the State is reliable in that the testimony was convincing that Mr. Read could have turned around and walked out of the room or that he did not have to shoot Mr. Larson, and that everybody had frozen and stopped when he pulled out the weapon. He also further aimed that weapon directly at Mr. Larson. Also, the evidence in this case would not support any conclusion that Mr. Bruce Larson, Jr. was threatening Mr. Read with either a felony or with death or with great personal injury. Again, the court finds that the testimony of the State’s witnesses is convincing. There are also no facts in this case to support a conclusion that Mr. Read was in imminent danger of such harm being accomplished to him. The court concludes that the State has proven beyond a reasonable doubt that Mr. Larson’s death was not justified.
*258CP at 92 (emphasis added). Where, as here, a trial judge openly refutes the presumption he did not consider inadmissible evidence, we cannot conclude otherwise. Thus, even if our precedent allowed the application of the Miles presumption to errors of constitutional magnitude, it would not apply to the facts of this case.
IV. State Did Not Meet Its Burden to Prove Beyond a Reasonable Doubt the Error Was Harmless
As discussed supra in section II, the admission of inadmissible testimony compromised Read’s Sixth Amendment right to an impartial trial. The only remaining issue is whether the State proved beyond a reasonable doubt that the ubiquitous unconstitutional opinion evidence in Read’s trial did not contribute to the finding of his guilt. See, e.g., Easter, 130 Wn.2d at 242 (requiring the state to prove “beyond a reasonable doubt any reasonable jury would reach the same result absent the error”).
I posit the state has not met this burden. At the outset, the trial judge improperly overruled a defense objection to its admissibility. RP at 188:10-23. Furthermore, the erroneous opinion testimony pervaded the trial. All seven eyewitnesses for the state provided improper opinions on the defendant’s self-defense claim and therefore his guilt. It is also evident the trial judge relied on this evidence in rendering Read’s guilty verdict as the judge’s written findings are replete with references to the unconstitutional testimony. CP at 85-89. Moreover, in his conclusions, the trial judge twice characterized the testimony of the State’s witnesses regarding the threat of harm to Mr. Read as “convincing.” CP at 92.
The record simply does not support our majority’s bald assertion that the error was harmless beyond a reasonable doubt. Indeed, it gives every indication the error was very harmful.
For these reasons, I respectfully dissent.
Alexander, C.J., concurs with Sanders, J.
In State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 723 (1970) we articulated a presumption on review that a judge in a bench trial did not consider inadmissible evidence.
The defendant is not required to prove self-defense. State v. McCullum, 98 Wn.2d 484, 491-96, 656 P.2d 1064 (1983). Due process requires the State to prove the absence of self-defense beyond a reasonable doubt. Id. Contrary to the majority’s contention, Read did produce some evidence that he had a reasonable apprehension of great bodily harm and imminent danger. Specifically he stated he was threatened by Bruce Larson, he believed Bruce was angry, Bruce was coming quickly at him, and the crowd of people he did not know blocked his way out. Report of Proceedings (RP) at 341-46. Read thought he was going to be hurt and “panicked.” RP at 346:21. Furthermore, other people Read did not know were both in front of and behind Read. RP at 147:6-10, 170:17-172:21, 345:6-25.
Citation is made to the verbatim report of the trial proceeding instead of the court’s written findings of fact because, in this case, the latter represents merely a summary of the witnesses’ testimony.
The majority reasons that because trial judges in bench trials “sit as both arbiters of law and as finders of fact” and must consider, for example, the very evidence that is the subject of a motion to exclude evidence to rule on the motion, we can presume they disregard inadmissible evidence when reaching their decisions. Majority at 245. However, our majority misses the point. Read does not dispute the trial court’s ability to disregard properly excluded evidence, but rather its failure to exclude the inadmissible opinion evidence and its overt reliance on such evidence in its conclusions of law.