Facts: Petitioner Duane Koslowski was convicted of robbery in the Superior Court for Yakima County after a trial in which statements made by the victim were entered into the record despite the fact that she had died prior to trial. Koslowski subsequently appealed his conviction, asserting that admitting the statements into evidence without the victim testifying and being subject to cross-examination violated his right to confrontation under the 6^th Amendment to the United States Constitution and Article I §22 of the Washington State Constitution insofar as the statements were testimonial in nature. The Washington Court of Appeals, in light of the Supreme Court of Washington’s decision in the interim in Washington v. Davis, affirmed Koslowski’s conviction, holding that the statements were not testimonial and that their admission was harmless error in any event insofar as there was other overwhelming evidence against Koslowski. Koslowski appealed this decision to the Supreme Court of Washington.

Question(s): Were the statements made by the victim admissible as excited utterances or were they testimonial in nature and therefore inadmissible?

Conclusion: Justice Madsen’s opinion for the Court reversed the Washington Court of Appeals, concluding that the victim’s statements were testimonial rather than excited utterances as they were statements recounting past events rather than statements responding to ongoing events. The Court also held that the error was not harmless as without the statements there was not overwhelming evidence against Koslowski. Thus, the Court remanded the case to the trial court.

Docket No. 80427-3 (from Court of Appeals Division III Case No. 22023-1)

Petitioner: Duane Jonathon Koslowski

Respondent: State of Washington

Briefs:

Argument: Tuesday, September 16, 2008 9:00am

[Source: TVW, http://tvw.org]

Decided: Thursday, June 18th, 2009

Prevailing Party: State of Washington (Respondent)

Vote: 6-3

Citation: Pending

Alexander

Johnson

Madsen

Sanders

Chambers

Owens

Fairhurst

Johnson

Stephens

Opinion

Concurrence

Dissent