State v. Koslowski, No. 22023-1-III (WA 9/27/2005)

• Decision Date: 27 September 2005
• Docket Number: No. 22023-1-III.
• Citation: State v. Koslowski, No. 22023-1-III (WA 9/27/2005), No. 22023-1-III. (Wash. Sep 27, 2005)
• Court: Washington Supreme Court
• Parties: STATE OF WASHINGTON, Respondent, v. DUANE JONATHON KOSLOWSKI, Appellant.

Page 1

Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. DUANE JONATHON KOSLOWSKI, Appellant.

No. 22023-1-III.

Court of Appeals of Washington, Division Three, Panel Eight.

Filed: September 27, 2005.

Appeal from Superior Court of Yakima County. Docket No: 02-1-02351-2. Judgment or order under review. Date filed: 04/24/2003. Judge signing: Hon. Michael W Leavitt.

Counsel for Appellant(s), Stephanie C Cunningham, Attorney at Law, 4616 25th Ave NE # 552, Seattle, WA 98105-4183.

Counsel for Respondent(s), Kenneth L. Jr Ramm, Yakima County Courthouse, 128 N 2nd St Rm 211, Yakima, WA 98901-2639.

KURTZ, J.

Duane Jonathon Koslowski was charged with seven offenses in connection with two incidents against elderly victims in their homes. A jury convicted Mr. Koslowski of two counts of first degree robbery, two counts of first degree burglary, one count of first degree assault—each subject to a firearm enhancement—and two counts of unlawful possession of a firearm. On appeal, Mr. Koslowski contends: (1) his custodial statements were inadmissible; (2) the omission of material facts invalidated the search warrant for his vehicle; (3) the counts related to the Alvarez incident should have been severed from the counts related to the Wall incident; (4) his right to a speedy trial was prejudiced by the State's mismanagement in disclosing new evidence; (5) the evidence was insufficient to support the convictions for the crimes related to the Alvarez incident; (6) the jury instructions for unlawful possession of a firearm improperly omitted the essential element of knowledge; (7) the cumulative effect of the claimed errors materially affected the outcome of the trial; and (8) the court abused its discretion by imposing a 720-month exceptional sentence. In his statement of additional grounds for review, Mr. Koslowski maintains that the court erred by allowing juror number 7 to be seated on the panel and by imposing five firearm enhancements when he only committed two crimes. We affirm Mr. Koslowski's convictions, but reverse his sentence and remand for resentencing within the standard range.

FACTS

Duane Jonathon Koslowski was charged by amended information with seven counts related to two incidents against elderly victims. Mr. Koslowski was charged with first degree robbery, first degree burglary, and unlawful possession of a firearm as a result of an incident on November 13, 2002, against Violet Alvarez. Mr. Koslowski was charged with the same crimes, plus first degree assault, in connection with a second incident occurring one day later against Marion Wall. The State also alleged that Mr. Koslowski was subject to sentence enhancements because he was armed with a firearm during the commission of five counts. Ms. Alvarez and Mr. Wall died of causes unrelated to the crimes charged and were unavailable to testify at the January 2003 trial.

Procedural History. The court held a CrR 3.5 hearing and determined that Mr. Koslowski's custodial statements were voluntary and therefore admissible. The court also held a CrR 3.6 hearing to determine whether evidence found in Mr. Koslowski's vehicle should be suppressed because the affiant officer omitted certain information from his affidavit in support of the search warrant. The trial court determined that the officer's failure to include these facts in the affidavit was a material omission, but that this omission was not fatal to the probable cause supporting the issuance of the warrant. The court denied the motion to suppress. The court also denied Mr. Koslowski's motion to sever the charges relating to the Alvarez case from the charges relating to the Wall case.

After these pretrial proceedings, but before trial, the State requested a continuance because the state crime laboratory had not completed DNA tests comparing Mr. Koslowski's blood with a strand of hair found at the scene of the Alvarez home. Over the objection of defense counsel, the trial court granted a five-day continuance past Mr. Koslowski's speedy trial date to January 22, 2003. On January 22, the State requested another continuance over defense counsel's objection. The State informed the court of the discovery that a coat seized from Mr. Koslowski's vehicle contained a bloodstain and that the crime laboratory was in the process of comparing this bloodstain with a sample of Mr. Wall's blood. The trial court denied the continuance and began jury selection.

During the trial, the State received the DNA results from the crime laboratory showing a match between the blood on the coat and Mr. Wall's blood. Mr. Koslowski attempted to suppress the results on the basis of prosecutorial mismanagement. The court concluded that there was no mismanagement and denied the motion to suppress. Later, Mr. Koslowski requested a four- to eight-week continuance so that his expert could conduct independent testing and review of the evidence. The trial court denied this request. Mr. Koslowski requested a mistrial, but the court denied this motion. Mr. Koslowski then asked for a two-week continuance and was granted a one-week continuance.

At the close of the State's case-in-chief, Mr. Koslowski moved to dismiss count 5—unlawful possession of a firearm—for lack of evidence, but the court denied this motion. The jury found Mr. Koslowski guilty of all seven counts and entered special verdicts finding that Mr. Koslowski was armed with a deadly weapon during the commission of five of the offenses. The court imposed an exceptional sentence of 720 months based on four statutory factors: the particular vulnerability of the victims, deliberate cruelty, a presumptive sentence that was too lenient, and invasion of the victims' zones of privacy.

Events at Alvarez home on November 13, 2002. On November 13, 2002, Yakima police officers Nolan Wentz and Michael Kryger responded to the report of a robbery at the home of Violet Alvarez on south 34th Street in Yakima, Washington. Officer Wentz arrived at the home first. He described Ms. Alvarez as `extremely emotional, very upset.' Report of Proceedings (RP) (Jan. 29, 2003) at 322. Officer Kryger arrived soon after Officer Wentz. Officer Kryger described Ms. Alvarez as `very pale,' with a `very shaky voice,' and `very, very frightened, scared.' RP (Jan. 29, 2003) at 332. Ms. Alvarez was also very weak and wanted to sit down, so the officers helped her sit on the couch.

Ms. Alvarez told the officers that earlier she had been outside her home unloading grocery bags from her car, when she saw a dark-colored foreign car drive by. The car slowed, stopped, and then backed up toward her house. Three men got out of the car and approached her. Ms. Alvarez told the officers that she thought the three men were Hispanic. According to Officer Wentz, Ms. Alvarez reported that one man had a gun and pushed it against her back; in English, the man ordered her into the house. In contrast, Officer Kryger stated that Ms. Alvarez `had a strong belief that there was a gun,' but he was not certain whether Ms. Alvarez actually saw the gun or whether she stated that she believed it was a gun. RP (Jan. 29, 2003) at 348.

Once inside, the men ordered Ms. Alvarez to the floor, tied her hands together with wire ties, and covered her face with a T-shirt. Ms. Alvarez heard the men rummaging around the house and heard the men speak to each other in Spanish. She did not see the gunman's face because it was obscured by the hood of his sweatshirt. When Ms. Alvarez heard the men leave, she called the police.

Ms. Alvarez told the officers that while she was tied up on the floor, one of the men took her grandmother's ring off her finger. She also told them that the men took her wallet, cash, credit cards, jewelry, jewelry box, and a DVD player. The officers observed that Ms. Alvarez's grocery bags were knocked over and that the contents of her purse were spilled on the floor. They also noted that the master bedroom had been ransacked.

Events at the Koslowski residence on November 13, 2002. On the same day that the Alvarez incident took place, Mr. Koslowski's roommate, Brenda Duffy, was in the process of moving out of Mr. Koslowski's residence. That evening, Ms. Duffy's daughter, Heather Killion, and some others, including Glenn Dockins, came over to visit Ms. Duffy and help her move.

Ms. Killion testified that Mr. Koslowski and a Hispanic male friend came home later that evening. Mr. Koslowski came into the room where Ms. Duffy and Ms. Killion were talking and showed them some credit cards. Ms Killion stated that the cards were obviously stolen because they had an unfamiliar woman's name on them. When Ms. Killion asked Mr. Koslowski who the cards belonged to, he made the gesture of a gun with his right hand and two fingers to Ms. Killion and Ms. Duffy. Ms. Killion did not take Mr. Koslowski seriously when he made the gesture, but she inferred from the circumstances that `he had robbed an old lady.' RP (Jan. 29, 2003) at 440. Later that same evening, Ms. Duffy, Ms. Killion, and Mr. Dockins needed gas for their car but did not have any money. According to Ms. Duffy, Mr. Koslowski gave Mr. Dockins a credit card that Mr. Dockins used to buy gas. Both Ms. Killion and Ms. Duffy testified that Mr. Koslowski speaks Spanish and English.

Events on November 14, 2002. The day after the Alvarez incident, firefighter Benjamin St. Mary and emergency medical technician Keith Schrank responded to the report of a shooting in a home on Gamache Road in Yakima County, Washington. Arriving at the home, they treated the resident, Marion Wall, for a gunshot wound in the back. Mr. Wall told Mr. St. Mary that "{s}ome bastard shot me in the back." RP (Jan. 30, 2003) at 509. Mr. St. Mary observed that Mr. Wall had a phone cord around his shoulder and right above his wrist.

Mr. Schrank testified to what Mr. Wall told him about the incident:

He was at home and he heard a knock at the door. And he went and answered the door, opened it up. There was two peo...