State v. Krueger

Decision Date21 October 2020
Docket Number#28522
Citation950 N.W.2d 664
Parties STATE of South Dakota, Plaintiff and Appellee, v. Kevin Allan KRUEGER, Defendant and Appellant.
CourtSouth Dakota Supreme Court

JASON R. RAVNSBORG, Attorney General, PATRICIA ARCHER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

KENNETH M. TSCHETTER of Tschetter & Adams Law Office, P.C., Sioux Falls, South Dakota, Attorneys for defendant and appellant.

SALTER, Justice

[¶1.] A Beadle County jury found Kevin Krueger guilty of first-degree murder, and the circuit court imposed a mandatory sentence of life in prison. Krueger raises several issues on appeal. We affirm.

Background

[¶2.] Law enforcement officers in Beadle County had been searching unsuccessfully for Keith Houck during late May and early June of 2016, for reasons unrelated to this case. On June 2, 2016, local resident Trent Jankord reported to Huron police that Houck was missing or had possibly been killed. Special Agent Brent Spencer of the South Dakota Division of Criminal Investigation (DCI) interviewed Jankord that day.

[¶3.] Following the interview, Agent Spencer went to Houck's rural Huron residence. Spencer observed that neither Houck nor his vehicle or two dogs were home. He also noted a window of the residence was completely broken out. Spencer's attempts to reach Houck by phone were also unsuccessful as was a return trip to Houck's farm the following day. Later that evening, Spencer received information through the Huron Police Department that Houck had been killed, and his body was located at Kevin Krueger's farm near Cavour.

[¶4.] The source of the information was Krueger himself who had gone unprompted to the home of Beadle County Deputy Sheriff Shane Ball and confessed to killing Houck. The visit was peculiar and occurred at approximately 8:00 p.m. on June 3 while Ball was off duty. Krueger was a passenger in a truck driven by his girlfriend, Bonnie Goehring. Ball was outside and went to meet the truck as it drove up. He recognized Krueger and later testified at trial that he had asked the couple "what was up?"

[¶5.] Deputy Ball recalled that Goehring asked him if he had the phone number for the Beadle County Sheriff. When Ball told Goehring the sheriff was out of town, she gestured toward Krueger as if to suggest he had something to say. Ball testified that Krueger kept his head down and spoke quietly, asking Ball if he was looking for Houck. Ball responded that he believed local law enforcement officers had been looking for Houck recently. Krueger then told Ball, "[Houck] was dead." According to Ball, Krueger paused then stated, "[H]e was buried at my farm." Ball asked, "[W]hy is that?" and Krueger answered, "[B]ecause I hit him with a bat."

[¶6.] Deputy Ball testified that he called 911 and requested that an officer come to his home. During the brief time before the officer arrived, Ball stated that Krueger told him Houck "kept messing" with his family and he "had enough." Krueger was arrested and transported to the Beadle County Detention Center.

[¶7.] Agent Spencer's earlier efforts to locate Houck quickly turned into a homicide investigation. He sought and obtained several search warrants, including one for Krueger's farm. Officers executed the warrant in the early morning hours of June 4. Agent Spencer and Agent Neitzert located Houck's disfigured body under some tarps and tires at Krueger's farm.

[¶8.] Agent Spencer and other law enforcement officers searched Houck's residence. They located two empty gun boxes in a closet. One of the missing guns was quickly located inside a leather holster on the floor of Krueger's pickup truck. The second gun was turned over to Spencer approximately one year later by the family of Jose Antonio Vega, who investigators determined early on was also complicit in Houck's death.

[¶9.] Forensic pathologist Kenneth Snell, M.D., performed an autopsy and concluded that Houck's death was a homicide caused by blunt force injury to the head administered through two lethal blows. Officers had discovered a baseball bat located near Houck's body that was marked with several stains. The bat was sent to the South Dakota State Forensic Laboratory (state crime laboratory) for testing.

[¶10.] Krueger was indicted by a Beadle County grand jury and charged with first-degree murder under the theory that he killed Houck with a premeditated design to effect his death. See SDCL 22-16-4(1). Vega was also charged with first-degree murder in connection with Houck's death in a separate indictment. The cases were not consolidated.

[¶11.] Krueger filed a motion for change of venue on March 24, 2017.1 Attached to the motion were seven articles published in the local Huron newspaper. Following a hearing, the circuit court denied the motion, but stated, "[W]e will take it up again after the Vega trial[,]" which was scheduled first. Ultimately, however, Vega's case was not tried, and he instead pled guilty to first-degree manslaughter pursuant to a plea agreement with the State.2 Krueger did not renew the motion for change of venue, and the circuit court did not revisit the issue on its own.

[¶12.] Krueger's case was tried to a jury over the course of four days. During voir dire, Krueger's counsel questioned individual prospective jurors concerning their responses to a juror questionnaire sent out months earlier. In addition to general biographical information, the questionnaire sought responses regarding potential jurors’ knowledge of the case and any opinions they may have formed, including their views about the fact that Vega had pled guilty. At the conclusion of voir dire, counsel for both parties passed the panel for cause and selected fourteen jurors, two of whom were later designated as alternates.

[¶13.] The State called six witnesses at trial, including Dr. Snell who testified about his autopsy findings and his determination that both the right and left sides of Houck's skull had fractures that radiated forward. According to Dr. Snell, the fractures were traumatic injuries and were consistent with blows from a baseball bat. Dr. Snell also noted several other non-fatal contusions during Houck's autopsy that could have been caused by a baseball bat or by kicking.

[¶14.] Amber Bell, a forensic scientist with the state crime laboratory, testified concerning the methods used in her DNA analysis of physical evidence, which included the bat recovered near Houck's body and black Velcro tennis shoes seized from Krueger. She explained that swabs taken from the barrel of the bat indicated a mixture of DNA from two individuals. The main contributor of the DNA was Houck, but the DNA testing for the second contributor was inconclusive. Bell's analysis of samples excised from the black Velcro shoes revealed DNA from a single source, Houck.

[¶15.] Agent Spencer testified that he seized the pair of black Velcro tennis shoes from Krueger's personal belongings retained by the jail after Krueger's arrest and detention. Because the shoes were stained, Spencer explained that he sent the shoes to the state crime laboratory for testing, detailing the steps he took to package, seal, and document the evidence. A photograph of the shoes was admitted into evidence. However, the circuit court refused to admit the shoes after determining that Bell had testified only that she had analyzed samples taken from a pair of black Velcro shoes without identifying the particular shoes the State sought to introduce.

[¶16.] The State's theory of the case was that Krueger lured Houck to Krueger's farm with the intent to kill him and had enlisted Vega's assistance. To support its theory, the State presented a detailed timeline of Krueger's separate communications with Vega, Goehring, and Houck, developed from a series of telephone calls and text messages. Included were texts from Krueger instructing Goehring to tell Houck he should come to Krueger's farm to collect money Houck claimed Goehring owed him. Krueger also texted Houck directly, asking when Houck would come to his farm to get the money. In another series of text messages, Krueger asked Vega whether he had purchased "40 rounds" of ammunition, followed by a subsequent message stating, "[S]howtime."

[¶17.] Agent Spencer also testified about eight notes Krueger wrote while in pretrial custody. In one note intended for Vega, who was housed in the same jail, Krueger stated he had arranged for a lawyer to represent them and to "stay cool." The note also indicated, "There is no way we can say the exaxt [sic] same thing ..." and encouraged Vega to "Hangtight." Another of Krueger's notes included a message to DCI agents and asked, "What lie to [sic] you tell Tony [Vega] You have wrong person. He didn't do it."

[¶18.] At the close of the State's evidence, Krueger moved for judgment of acquittal, which the circuit court denied. The court also denied Krueger's motion to strike Bell's testimony regarding the DNA found on the black Velcro shoes. Krueger elected to rest without presenting any evidence. During closing argument, Krueger's attorney told the jurors that the State's evidence was too spare and left too many unanswered questions about the specifics of Houck's death due, in large part, to its failure to call Vega or Jankord as witnesses.

[¶19.] During the State's closing rebuttal argument, the prosecutor responded to defense counsel's argument that individual jurors must be able to explain their verdict to the larger Huron community. In doing so, the prosecutor mentioned a private conversation with Houck's father, Don, who was not called as a witness, telling the jury, "[Don] says the defendant killed my boy. He killed my boy." Krueger objected claiming the argument was improper, and the circuit court sustained the objection. Krueger made no further objection and did not ask the court to strike the comment or instruct the jury to disregard it.

[¶20.] The jury returned a guilty verdict on the first-degree...

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