State v. Koslowski

• Decision Date: 18 June 2009
• Docket Number: No. 80427-3.,80427-3.
• Citation: 209 P.3d 479,166 Wn.2d 409
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Duane Jonathon KOSLOWSKI, Petitioner.

209 P.3d 479

166 Wn.2d 409

STATE of Washington, Respondent, v. Duane Jonathon KOSLOWSKI, Petitioner.

No. 80427-3.

Supreme Court of Washington, En Banc.

Argued September 16, 2008.

Decided June 18, 2009.

Stephanie C. Cunningham, Attorney at Law, Seattle, WA, for Petitioner.

Kenneth L. Ramm Jr., Yakima County Prosecuting Attorney, Criminal Division, Yakima, WA, for Respondent.

MADSEN, J.

¶ 1 Petitioner Duane Koslowski maintains that his right to confrontation was violated when police officers testified about statements made to them by the victim of his charged offenses when the officers responded to a 911 call. The victim died before trial and was unavailable to testify. The question is whether the victim's statements to the officers were testimonial and, if so, whether their admission at trial was harmless error. We hold that the statements were testimonial and their admission at trial was not harmless. Accordingly, we reverse the Court of Appeals.

FACTS

¶ 2 Mr. Koslowski was charged with seven crimes involving two home invasion robberies. At this stage of the proceedings, convictions for three offenses committed on November 13, 2002, are at issue. Ms. Violet Alvarez, the victim, died before trial. The State therefore sought to introduce statements she made as excited utterances and thus satisfy confrontation clause concerns under then applicable precedent, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The trial court granted the State's motion and the statements were admitted at Koslowski's trial.

¶ 3 On appeal, Mr. Koslowski argued that under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which overruled Roberts, admission of Ms. Alvarez's statements violated his confrontation clause rights because the statements were testimonial. In Crawford, the United States Supreme Court held that the confrontation clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54, 124 S.Ct. 1354. The Court of Appeals rejected Koslowski's argument and affirmed his convictions in an unpublished opinion but reversed the exceptional sentence that had been imposed because a judge, not a jury, had found the aggravating factors justifying the exceptional sentence. State v. Koslowski, noted at 130 Wash.App. 1005, 2005 WL 3753136 (Koslowski I), review granted and cause remanded, 157 Wash.2d 1012, 138 P.3d 113 (2006).

¶ 4 Mr. Koslowski petitioned for review. While his petition was pending in this court, the Court issued its decision in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), which addressed the meaning of "testimonial statement." We remanded Koslowski's case to the Court of Appeals for reconsideration in light of Davis.¹ In an unpublished opinion, the Court of Appeals again affirmed the convictions for the crimes involving Ms. Alvarez, reasoning that her statements introduced at trial by the State were not testimonial under Davis and, even if they were testimonial, any error was harmless. State v. Koslowski, noted at 139 Wash.App. 1014, 2007 WL 1719930 (Koslowski II), review granted, 163 Wash.2d 1012, 180 P.3d 1291 (2008). Koslowski again petitioned for review, claiming that Ms. Alvarez's statements were testimonial and therefore inadmissible. We granted his petition.

¶ 5 The evidence submitted at Mr. Koslowski's trial and at the pretrial hearing addressing the State's motion to admit Ms. Alvarez's statements established that on November 13, 2002, Yakima Police Officers Nolan Wentz and Michael Kryger responded to a 911 call reporting the robbery. Sergeant Wentz testified that he arrived about 5:50 p.m., approximately two minutes after he was called to respond. He went to the front door, from which he could see Ms. Alvarez on the telephone with the 911 operator. She ended the call and opened the door for him. He testified that she was looking all around and was extremely emotional and very upset. Wentz testified that Ms. Alvarez started telling him what was going on right away and directed him inside, where there was a couch to the left and some white wire ties on the floor, like those used by police as temporary handcuffs. Ms. Alvarez told him the ties were used on her and she showed him where she had been forced to lie on the floor. Sergeant Wentz testified that he asked more questions about what happened and she responded. He said these questions did not take very long because he "was trying to get as much information as [he] could to give to the other officers in the field." 1 Verbatim Report of Proceedings at 113 (Jan. 13, 2003). The record does not show what questions were asked and how Ms. Alvarez answered, nor does it give the context and timing in more than general terms.

¶ 6 Officer Kryger testified that it took him about six or seven minutes to respond and he was the second officer on the scene. He also testified that Ms. Alvarez was very frightened. After Kryger arrived, Officer Wentz had her begin again her explanation of what had happened. The officers testified that Ms. Alvarez explained that she had been outside her home unloading groceries from her car when she saw a dark-colored foreign car drive by. The car slowed, stopped, and backed up. Three men got out of the car and approached her. According to Officer Wentz's testimony, Ms. Alvarez said that one of the men took out a gun and pushed it into her side, and then in English told her to go into the house. Officer Kryger's account of what Ms. Alvarez said generally accorded with that of Wentz, although he testified that Ms. Alvarez had a strong belief there was a gun but he was not sure that she actually saw a gun or whether she said that she believed it was a gun rather than being certain that there was a gun.

¶ 7 The officers testified that once in the house, Ms. Alvarez was forced to the floor, her hands were tied, and her face was covered with a shirt. She told them that she thought the men were Hispanic because they spoke to each other in Spanish, which she also spoke. The men took her wallet, cash, credit cards, a ring removed from her finger, other jewelry, a jewelry box, a DVD (digital video disc) player, and the keys to her house and car. After she heard the men leave, Ms. Alvarez freed her hands² and called 911.

¶ 8 The officers went through the house and saw Ms. Alvarez's grocery bags knocked over and the contents of her purse spilled on the floor. They also found that someone had gone through the drawers in the master bedroom, taken the clothing out and dumped it on the floor, and moved the mattress off to the side to look underneath it. There was a pillowcase missing from the bed. The State introduced photographs showing the front room and Ms. Alvarez's purse and the contents that had been dumped out, the ties that bound her, the white t-shirt that had been used to cover her head, and the groceries. Photographs were also introduced that showed the master bedroom had been ransacked.

¶ 9 The State also introduced evidence that on the same day that Ms. Alvarez was robbed, Mr. Koslowski's roommate, Brenda Duffy, was moving out of his residence. Duffy's daughter, Heather Killion, and others, including Glenn Dockins, were at Koslowski's residence that evening to help her move. Killion testified that Koslowski and a Hispanic male friend came home later in the evening and Koslowski showed her and Duffy some credit cards. She testified the cards were obviously stolen because they had an unfamiliar woman's name on them. Killion testified that she asked Koslowski to whom the cards belonged but he did not answer. Rather, she testified, he made the gesture of a gun with his right hand and she took this to mean that Koslowski had robbed a lady, although she also testified that she did not take it seriously. Later the same evening, according to Ms. Duffy's testimony, Mr. Koslowski gave Dockins a credit card that Dockins used to buy gas.

¶ 10 The State introduced evidence that the next day police responded to a report of a shooting at another residence (where the second home invasion occurred that led to Koslowski's other convictions). Police located a vehicle involved in that incident and learned it was registered to Koslowski. Numerous law enforcement officers then went to his residence. While investigating the shooting and second home robbery, officers questioned individuals present at the residence. Dockins was among them, and police discovered that he had a credit card in the name of Violet Alvarez. They traced a purchase made with the card at a gas station in Yakima the previous day and learned that Dockins had made the purchase.

¶ 11The jury returned a verdict of guilty on all counts. Koslowski was convicted of first degree robbery, first degree burglary, and first degree unlawful possession of a firearm as a result of the robbery at Ms. Alvarez's home. As explained, our review involves the Court of Appeals' reconsideration of the confrontation clause issue in light of Davis. The only issues concern admissibility of the statements that Ms. Alvarez made to the police officers.

ANALYSIS

¶ 12 Mr. Koslowski argues that his confrontation rights were violated when the officers testified about the statements that Ms. Alvarez made. He contends that the statements were testimonial under the analysis in Davis and their admission therefore erroneous. A confrontation clause challenge is reviewed de novo. State v. Mason, 160 Wash.2d 910, 922, 162 P.3d 396 (2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2430, 171 L.Ed.2d 235 (2008).

¶ 13 The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The confrontation clause "applies to `witnesses' against the accused-in other words, those who `bear testimony.'"...