State v. Kryger

907 N.W.2d 800

STATE of South Dakota, Plaintiff and Appellee,

v.Christopher Dean KRYGER, Defendant and Appellant.

27869

Supreme Court of South Dakota.

ARGUED ON JANUARY 9, 2018

OPINION FILED February 7, 2018

Rehearing Denied March 15, 2018

MARTY J. JACKLEY, Attorney General, ANN C. MEYER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

MARK KADI and, AUSTIN VOS of Minnehaha County Office of the Public Advocate, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

JENSEN, Justice

[¶1.] Christopher Dean Kryger appeals his convictions for first-degree murder, first-degree burglary, and second-degree rape. He claims the circuit court erred in ruling on a number of issues and that these errors, both separately and in the aggregate, entitle him to a new trial. We affirm.

Background

[¶2.] At approximately 10:00 p.m. on Friday, March 14, 2014, Kari Kirkegaard returned to her home on South Garfield Avenue in Sioux Falls after having supper with her family. On Sunday, March 16, 2014, Kirkegaard’s son’s fiancée, Paetyn Haemze (Haemze), went to Kirkegaard’s home after failed attempts to reach her via phone. Haemze noticed Kirkegaard’s blue SUV parked in the driveway of the home and that the back door was unlocked. Upon entering the home, Haemze heard water running. She investigated the bathroom and found Kirkegaard’s body lying naked on her side in a full bathtub with the water running.

[¶3.] Haemze first called Kirkegaard’s son and then called 911. Sioux Falls Police Officer Pat Mertes responded to the scene and noted Kirkegaard’s body in the bathtub facing toward the door. Officer Mertes did not notice anything else unusual. Additional fire, ambulance, and police personnel arrived shortly thereafter. Police took photographs of Kirkegaard’s body, drained the bath water, removed the body, and checked the rest of the home. They found no apparent signs of forced entry, foul play, or physical trauma. None of the first responders reported any smell of bleach.

[¶4.] After emergency personnel left, Kirkegaard’s brother, Brian Johnson (Johnson), punched a hole in the wall of Kirkegaard’s bathroom. Family members noticed that Kirkegaard’s bedsheets, purse, SUV keys, and towels and rugs from the bathroom were missing. They also noticed a strong smell of bleach. Police were called back to the scene approximately one hour after they had left. This time, officers interviewed family and friends present at the scene. The officers also noted a strong odor of bleach in the home at this time. Law enforcement then began a homicide investigation.

[¶5.] During police interviews, Kirkegaard’s friends and family members described her as a homebody who stuck within a small circle of friends and family. Kirkegaard had previous romantic interests, but she was not in any relationships at the time of her death. It was soon discovered that a mosque located two lots north of Kirkegaard’s home possessed camera surveillance footage between March 14, 2014, and March 16, 2014. The mosque’s camera faced southeast and had captured a view of Kirkegaard’s front lawn, driveway, Garfield Avenue, and Garfield Elementary School.

[¶6.] The footage showed Kirkegaard’s SUV returning to her home on the night of March 14 after she had supper with her family. It also showed a bicyclist riding past Kirkegaard’s residence heading north at 11:30 p.m. that evening. The bicyclist doubled back on the sidewalk of Kirkegaard’s home, then slowed down. A person was seen crossing the street in front of the mosque around 2:30 a.m. on March 15. The person was wearing a plaid flannel coat, jeans, and dark shoes, and appeared to have a shiny object in their hands. The person’s face was not visible. After the individual left the view of the camera, Kirkegaard’s vehicle was seen leaving her driveway and travelling north with the headlights off. Kirkegaard’s SUV returned about an hour later, at 3:30 a.m. The driver missed Kirkegaard’s driveway, then turned around in the parking lot of Garfield Elementary School. The SUV parked in Kirkegaard’s driveway, and the same individual was seen leaving on a bicycle. None of the camera footage captured who was in the vehicle or showed anyone entering or leaving Kirkegaard’s residence.

[¶7.] Police eventually released the mosque video to the public. After receiving several tips, they were led to interview Kryger’s friend Michael Miller, Kryger’s fiancée, Lori Nagel, and Kryger’s uncle and employer Richard Foster. Nagel and Miller indicated that the person seen in the video could have been Kryger, as the person had a similar gait and wore similar clothing. They also confirmed Kryger typically used his bicycle for transportation around Sioux Falls. Nagel told police that she and Kryger had an argument the night of March 14. She stated Kryger returned to her home around 4:30 a.m. to reconcile. Miller stated that he ran into Kryger on March 15, and the pair visited Walmart where Kryger bought an engagement ring for Nagel, a new cell phone, and a cell phone plan.

[¶8.] Kryger was contacted by police and taken to the Sioux Falls law enforcement center for an interview. In the interview, Kryger stated he became upset with Nagel on the night of March 14 and decided to go on a long bike ride around Sioux Falls. Kryger claimed that during this ride, he was nearly struck by an SUV without its headlights on just north of Kirkegaard’s home. He also stated that later in the evening, his bike slid into the river. Kryger maintained that he returned home to wash his dirty clothes and called Nagel to reconcile. He stated he then rode his bike to Nagel’s home and remained there until morning. Kryger discussed seeing Miller on March 15 and confirmed that the pair had gone shopping at Walmart. Kryger denied ever having sex with Kirkegaard. Kryger also made comments about having a "criminal mind."

[¶9.] Police collected hundreds of items in the course of their investigation of Kirkegaard’s death. Only some of the items were tested. An autopsy performed on Kirkegaard’s body revealed ligature furrows across her neck in two parallel lines, petechial hemorrhages, numerous small abrasions, a fractured hyoid bone, and fractured thyroid cartilage. The examination also revealed small abrasions on the outside wall of Kirkegaard’s vaginal vault. The coroner was unable to pinpoint a time of death but concluded Kirkegaard was asphyxiated and that the manner of death was homicide. A rape kit conducted on Kirkegaard’s body tested positive for Kryger’s sperm cell DNA.

[¶10.] Kryger was arrested and indicted on five counts of first-degree murder, one count of second-degree murder, one count of second-degree rape, one count of third-degree rape, and two counts of first-degree burglary. The jury convicted Kryger on all counts except third-degree rape. On February 25, 2016, Kryger was sentenced to life in prison for first-degree murder, 50 years for second-degree rape, and 25 years for first-degree burglary to run concurrently with the first-degree murder sentence, but consecutive to the sentence for second-degree rape. Kryger appeals his conviction and sentence, raising several issues for our review, which we combine and restate as follows:

1. Whether the circuit court erred by precluding questioning of Johnson concerning his bias against Kryger.

2. Whether the circuit court erred by admitting expert testimony expressed in terms of possibilities.

3. Whether the circuit court erred by admitting irrelevant evidence without a foundation of physical evidence from the State’s investigation of Kryger.

4. Whether the circuit court erred by admitting Kryger’s statements that he has a criminal mind.

5. Whether the circuit court erred by denying Kryger’s motions for mistrial.

6. Whether the circuit court erred by denying Kryger’s proposed jury instructions regarding Kryger’s statements about his criminal mind, speculation and conjecture, and an alibi defense.

7. Whether the circuit court erred by denying Kryger’s motion for judgment of acquittal.

8. Whether the accumulation of the errors claimed by Kryger constitute reversible error.

Analysis

1. Whether the circuit court erred by precluding questioning of Johnson concerning his bias against Kryger.

[¶11.] Kryger argues he was deprived of his due process and Confrontation Clause rights when the circuit court denied Kryger the opportunity to cross-examine Johnson concerning threats Johnson made toward Kryger and defense counsel prior to trial. This included a threat to defense counsel at the conclusion of a pretrial hearing where Johnson stated words to the effect that defense counsel had better be a light sleeper. Johnson also made comments to the media that he would torture and kill Kryger if Kryger were released or not convicted. On Facebook, Johnson suggested he would harm or kill Kryger and defense counsel. Johnson’s actions prompted the circuit court to exclude Johnson from Kryger’s trial, but the State was allowed to call Johnson as a witness.

[¶12.] Before Johnson’s testimony, the State orally moved to preclude Kryger from referencing any threatening comments made by Johnson. The circuit court precluded Kryger from cross-examining Johnson about the threats. Kryger claims the circuit court’s ruling totally deprived him of the ability to effectively cross-examine Johnson. He argues Johnson’s bias created a motive for Johnson to fabricate and exaggerate his testimony. Kryger maintains that without the ability to question Johnson regarding his bias, he was denied the right to a fair trial.

[¶13.] "We review a circuit court’s evidentiary rulings under an abuse of discretion standard with a presumption that the rulings are correct." State v. Birdshead , 2015 S.D. 77, ¶ 36, 871 N.W.2d 62, 75-76. A circuit court’s decision to limit cross-examination will be reversed only if there is both an abuse of discretion and a showing of prejudice to the defendant. State v. Carter , 2009 S.D. 65, ¶ 31, 771 N.W.2d 329, 338....