Kryger v. Sullivan
| Decision Date | 16 November 2022 |
| Docket Number | 4:22-CV-04086-LLP |
| Parties | CHRISTOPHER DEAN KRYGER, Petitioner, v. WARDEN DAN SULLIVAN, THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, Respondent. |
| Court | U.S. District Court — District of South Dakota |
REPORT AND RECOMMENDATION
Page
1. Pretrial Proceedings 1
2. Hearing on Rule 404(b) Evidence-2008 Incident 2
3. Pretrial Motions 8
4. Jury Trial 10
i Family and Friends of Kari 11
ii. Police and First Responders 17
iii. Further Police Investigation 24
iv. Lay Witnesses From the Community 33
v. Scientific Witnesses 40 vi. Lead Detective Sgt. Hoffman 47
i. Prosecution 52
ii. Defense 57
iii. Rebuttal 62
5. Sentencing 67
1. Limitations on Cross-Examining Brian Johnson 69
2. Admission of Dr. Snell's Expert Opinion 71
3. Admission of Irrelevant Evidence 71
4. Admission of Mr. Kryger's “Criminal Mind” Statement 71
5. Denial of Defense Motions for Mistrial 73
6. Jury Instructions 73
7. Sufficiency of the Evidence 73
1. Standard for Ineffectiveness Claims 83
2. Counsel's Alleged Unpredaredness 87
3. Counsel's Failure to Object or Question 90
1. Federal Confrontation Clause Law 92
2. Application of the Law to Mr. Kryger's Claim 97
1. Standard for Evaluating a Due Process Sufficiency of the Evidence Claim 101
2. The Jury was Properly Instructed 104
3. Sufficiency of the Evidence 105
4. Irrelevant Evidence 110
1. Standard Applicable Under AEDPA 115
2. Supreme Court Precedent and Lower Court Decisions 118
[The balance of this page was intentionally left blank.]
This matter is pending before the court pursuant to the pro se petition pursuant to 28 U.S.C. § 2254 of Christopher Dean Kryger, a person incarcerated pursuant to a judgment of a South Dakota state court. See Docket No. 1. Now pending is a motion to dismiss Mr. Kryger's petition without holding an evidentiary hearing by respondent. See Docket No. 11. Mr. Kryger has not responded to the motion and the time for doing so has passed. This matter has been referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 57.11.
1. Pretrial Proceedings
Mr. Kryger was charged by complaint first (State v. Kryger, CRI 14-1956 at 6-8, (S.D. 2nd Cir., Minnehaha Cnty. April 27, 2016) (“CR”)), and then by indictment (CR at pp. 18-20), asserting he had murdered and raped 56-year-old Kari Kirkegaard, and burglarized her home. The state filed a part II information alleging Mr. Kryger was an habitual offender by reason of two prior convictions, one for burning within a structure where a person is confined and one for aggravated assault. CR at pp. 22-23. Attorneys Mark Kadi and Austin Vos were appointed to represent Mr. Kryger.
Mr. Kadi filed a motion for disclosure of other bad acts evidence under Rule 404(b) of the rules of evidence (SDCL § 19-12-5). CR at pp. 24-25. He also filed an order for a copy of the grand jury transcript. Id. at p. 26. The state filed its own motion seeking to admit 404(b) evidence concerning a prior incident in December 2008 when Mr. Kryger was charged with rape, aggravated assault, burglary, and kidnapping. Id. at pp. 29-30. Mr. Kadi then filed a motion in limine seeking to exclude evidence at trial of Mr. Kryger's criminal convictions and any 404(b) evidence, specifically the 2008 incident. Id. at pp. 32-34.
Mr. Kadi filed a motion for discovery of DNA evidence as well as other evidence in the state's possession. Id. at pp. 35-39. Another motion sought discovery of witness statements, Mr. Kryger's statement, his prior criminal record, all documents intended to be used by the state at trial, the names of all witnesses, police reports, the victim's medical records, and various other items. Id. at pp. 46-50. Mr. Kadi also filed a motion in limine to exclude any evidence of the 2008 incident because the state had destroyed or failed to preserve photos and recorded statements by the alleged victim and other witnesses. Id. at pp. 51-53.
Mr. Kadi made a motion for the appointment of a DNA expert on Mr. Kryger's behalf. That motion was granted by the trial court. Id. at pp. 80-81.
2. Hearing on 404(b) Evidence-2008 Incident
The state trial court held a hearing on the subject of the admissibility of the evidence of an incident involving Mr. Kryger which had occurred in 2008. Id. at pp. 85-186; 229-77.[1]At the hearing, Mr. Kadi called Captain Blaine Larsen, Sergeant David Huntimer, and Detective Martin Hoffman, all of the Sioux Falls Police Department (“SFPD”). Id. at pp. 91, 98, 105. These three law enforcement officers testified that they were involved in the investigation of the 2008 incident, but that the recordings and photographs they took to document their investigation had been destroyed or lost. Id. at pp. 91-123.
The state called T.N., the victim of the December 5, 2008, assault. Id. at p. 146. She testified that she had emigrated from Ethiopia to Sioux Falls, South Dakota in 2007. Id. at p. 147. On the date of the incident, she was living in apartment nine with her sisters while her brothers lived in the same building in apartment eight. Id. at p. 148. On that day, she had prepared meals to get ready to go to her job. Id. The door to apartment nine was locked. Id. at p. 149. Someone knocked on the door. Id. Thinking it was one of her brothers, she called out that they could let themselves in with a key. Id. at p. 150. She then went into the bathroom when she heard a great noise, seemingly shaking the whole building. Id. She ran out and there was a man inside her apartment covering his face with a hat and wearing a tan or brown coat. Id. pp. 150, 159-60. He was of medium height, but she could tell by his eyes that he was a white man. Id. at p. 150.
The man grabbed T.N. by the throat and told her if she screamed he would kill her. Id. at p. 151. It was difficult for T.N. to breathe. Id. T.N. lost consciousness and did not wake up until 11:30 p.m. Id. She had an injury to her neck and a wound on her back when she woke up. Id. at p. 152.
Two months later, a female police officer spoke with T.N. and said that the DNA test came back from the lab and it did not match Mr. Kryger's DNA. Id. at p. 158. T.N. argued with the officer and asserted Mr. Kryger had raped her, so how could the DNA not match? Id. T.N. testified the charges against Mr. Kryger were then dismissed. Id. at p. 159.
The prosecution also called T.N.'s brother, J.N., to testify. Id. at p. 124. In December 2008, J.N. testified he, T.N., their brother Mustafea, and their father all worked at the same workplace and all worked the 6:00 p.m. to 6:00 a.m. shift. Id. at pp. 125-26, 128. J.N. drove the family to work because he was the only one that owned a car. Id. at p. 126. Before driving to work, the family usually ate a meal together. Id. at p. 127. On December 5, 2008, J.N. and his brother ate a meal together with T.N. in T.N.'s apartment. Id. T.N. was the only sister home at the time. Id.
Just outside T.N.'s apartment after supper, J.N. and Mustafea encountered a stranger in the hallway. Id. Later identified as Mr. Kryger, the stranger asked the brothers in which apartment a particular person lived. Id. at p. 130. The brothers did not recognize the stranger, nor did they recognize the name of the person he was purportedly looking for. Id. J.N. testified the residents of the apartment building all knew each other and in which apartment each lived. Id. He suggested the stranger go to another building and look because no one by that name lived in his building. Id. at pp. 130-31.
Mr. Kryger was wearing a kind of brown coat with a hat on his head pulled down close over his eyes. Id. at p. 138.
After this encounter, J.N. went outside to start his car to warm it up and was joined shortly thereafter by Mustafea. Id. at pp. 128, 131. T.N. did not come to the car as expected, so J.N. sent Mustafea back to T.N.'s apartment to check on her. Id. at pp. 128-29. Mustafea went back to T.N.'s apartment and found the door had been broken in. Id. at p. 129. He did not enter the apartment, but called out for T.N., who did not answer. Id. Mustafea ran back to J.N. and reported what he had seen. Id. J.N. then ran upstairs to T.N.'s apartment. Id. at p. 130.
As J.N. approached T.N.'s apartment, he encountered Mr. Kryger coming out of the apartment. Id. at p. 131. Mr. Kryger stated to J.N. that he didn't know who broke the door to T.N.'s apartment. Id. J.N. challenged Mr. Kryger's veracity. Id. Mr. Kryger started running, stuffing his hat into his jacket pocket, but the two brothers ran after him and caught him. Id. at pp. 131-32, 138. They then called the police. Id. at p. 132.
J.N. then went back to T.N.'s apartment and entered. Id. at p. 133. He found T.N. lying on the bed, naked. Id. He touched T.N. and called her name and she did not respond. Id. at p. 137. J.N. thought his sister was dead. Id. He ran back to try to attack Mr. Kryger, but the police held J.N. back. Id. at pp. 133, 137.
Mr Kadi then called Sgt. Candace Gearman, who interviewed T.N. the night of the assault,...
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