Petition for Writ of Certiorari — Christopher Dean Kryger, Petitioner v. South Dakota

No.

IN THE SUPREME COURT OF THE UNITED STATES

CHRISTOPHER DEAN KRYGER,

Petitioner,

v.

STATE OF SOUTH DAKOTA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

SOUTH DAKOTA

Mark Kadi

Attorney for Petitioner

Public Advocate’s Office

415 North Dakota Avenue

Sioux Falls, SD 57104

Phone (605) 367-7392

mkadi@minnehahacounty.org

QUESTIONS PRESENTED

This Petitioner presents the following questions for consideration:

I. In the present case, a State’s witness made death threats against the

Petitioner and his counsel, who were then precluded from crossexamining the witness on those events a trial. In South Dakota,

when a felon convicted of Rape alleges Confrontation Clause

violations on direct appeal arising from the lower court’s ruling

precluding cross examination of a witness’s motive to lie and bias,

the South Dakota Supreme Court applies an abuse of discretion

standard of review regarding Confrontation Clause violations in

some cases, while applying a de novo standard of review in others,

without any distinction. The issue presented is:

WHETHER APPELLATE REVIEW IN SOUTH DAKOTA OF

CONFRONTATION CLAUSE CLAIMS ARISING FROM

LIMITATIONS ON CROSS EXAMINATION OF WITNESS BIAS

AND MOTIVE TO LIE REGARDING DEATH THREATS

VIOLATES EQUAL PROTECTION OF THE LAW AND DUE

PROCESS BY ARBITRARILY APPLYING ABUSE OF

DISCRETION REVIEW IN SOME RAPE CONVICT CASES

WHILE DE NOVO REVIEW IN OTHERS.

i

PARTIES INVOLVED

The caption of the case contains the names of all the parties to this

action.

ii

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

PETITION FOR A WRIT OF CERTIORARI . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. .

2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . .

19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39

APPENDIX (TABLE OF CONTENTS)

Appendix A: State v. Kryger, #27869, 2018 S.D. 13, 907 N.W.2d 800

Appendix B: Order Denying Petition for Rehearing #27869

Appendix C: Petition For Rehearing #27869

Appendix D: Trial Court Transcript Selections Re: Motion in Limine

Regarding Death Threats as Bias and Motive to Lie Evidence .

Appendix E: Order Excluding Johnson from Trial

CERTIFICATE AS TO WORD COUNT

PROOF OF SERVICE

iii

TABLE OF AUTHORITIES

CASES CITED

Page(s)

Aguilar v. Aguilar, 877 N.W. 2d 333 (S.D. 2016) . . . . . . . . . . . . . . . . . . . . . . 24

Bridges v. Karl’s, Inc., 538 N.W.2d 521 (S.D. 1995) . . .. . . . . . . . . . . . . . . . . 23

California v. Green, 339 U.S. 149 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Coy v. Iowa, 487 U.S. 1012 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Crane v. Kentucky, 476 U.S. 683 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Crawford v. Washington, 541 U.S. 36 (2004) . . . . . . . . . . . . .

. . . . . . . . . . 13

Davis v. Alaska, 415 U.S. 308 (1974) . . . . . . . . . . . . . . . . . . . . . .

13,14,35

Delaware v. Van Arsdall, 475 U.S. 680 (1986) . . . . . . . . . . . . . . . . . . . . . . 4,13

Douglas v. California, 372 U.S. 353 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Drinkert v. State, 741 N.W.2d (Tx.App. 1987) . . . . . . . . . . . . . . . . . . . . . . . 34

Fry v. Pliler, 551 U.S. 112 (2007) . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Graham v. West Virginia, 224 U.S. 616 (1912) . . . . . . . . . . . . . . . . . . . . . . . 20

Griffin v. Illinois, 351 U.S. 12 (1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) . . . . . . . . . . . . . . . . . . . . 22

Johnson v. Mississippi, 486 U.S. 578 (1988) . . . . . . . . . . . . . . . . . . . . .29,30,37

Lee v. Kemna, 534 U.S. 362 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Pennzoil Co. v. Texaco Inc., 481 U.S. 1 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 31

People v. Dunham, 381 P. 3d, 415 (Co.2018) . . . . . . . . . . . . . . . . . . . . . . . . 21

Peterson v. State, 188 A.3d 925 (Md.2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iv

Prihoda v. McCaughtry, 910 F.2d 1379 (7th Cir. 1990) . . . . . . . . . . . . . . . 30

Salve Regina College v.Russell, 499 U.S. 225 (1991) . . . . . . . . . . . . . . .22,24

Smith v. Robbins, 528 U.S. 259 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 20,29,30

State v. Bausch, 889 N.W.2d 404 (S.D. 2017) . . . . . . . . . . . . . . . . . . . passum

State v. Kryger, #27869, 907 N.W.2d 800. . . . . . . . . . . . . . . . . . . . . . passum

State v. McKinney, 699 N.W. 2d 471(S.D. 2005) . . . . . . . . . . . . . . . . . . 17,28

State v. Spaniol, 895 N.W. 2d 323 (S.D. 2017) . . . . . . . . . . . . . . . 13,17,25,26

State v. Olhausen, 587 N.W. 2d 715 (S.D. 1998) . . . . . . . . . . . . . . . . . . . . .23

State v. Sprik, 520 N.W. 2d 595 (S.D. 1994) . . . . . . . . . . . . . . . . . . . . . . . 28

State v. Vargas, 869 N.W.2d 150 (S.D. 2015) . . . . . . . . . . . . . . . . . . . . . . . 28

State v. Wounded Head, 305 N.W. 2d 677 (S.D. 1981) . . . . . . . . . . . . . . . .34

Staub v. City of Baxley, 355 U.S. 313 (1958 ) . . . . . . . . . . . . . . . . . . . . . . 37

U.S. v. Abel, 469 U.S. 45 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

U.S. v. Holler, 411 F.3d 1061 (9th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . 22

U.S. v. Kenyon, 481 F.3d 1054 (8th Cir.2007). . . . . . . . . . . . . . . . . . . . . . . 21

U.S. v. Larson, 495 F.3d 1094 (9th Cir.2007) . . . . . . . . . . . . . . . . . . . . passum

U.S. v. Lo, 231 F.3d 471 (9th Cir.2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

U.S. v. Smith, 451 F.3d 209 (4th Cir.2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

U.S. v. Townley, 472 F.3d 1267 (10th Cir.2007) . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Vitale, 459 F3d 190 (2d Cir.2006) . . . . . . . . . . . . . . . . . . . 21

United States v, Orisnord, 483 F.3d 1169 (11th Cir.2007) . . . . . . . . . . . . . . 2

v

CONSTITUTIONAL PROVISIONS CITED

Page(s)

U.S. Const. Art. VI, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

U.S. Const. Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. Const. Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATUTES CITED

Page(s)

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SDCL § 15-26A-3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23

SDCL § 16-1-2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

SDCL § 16-6-12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

SDCL § 22-24B-23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . 19

SDCL § 23A-32-2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

SDCL § 23A-32-9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . 23

SDCL § 22-24B-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioner Christopher Dean Kryger prays that a writ of certiorari will

issue to review the judgment of the South Dakota Supreme Court below,

affirming the trial court’s total preclusion on trial counsel’s cross examination

questions regarding evidence demonstrating a witness’s motive to lie and bias

in the form of death threats against the Petitioner and Petitioner’s Counsel ,

and applying appellate standards of review arbitrarily violated the

Petitioner’s rights to Due Process, Equal Protection of the Laws, and to

Confront the Witnesses Against Him .

OPINIONS BELOW

The opinion of the Supreme Court of South Dakota is published as

State v. Kryger, #27869, 2018 S.D. 13, 907 N.W.2d 800, a copy of which is

attached as Appendix A to this Petition. The Order of the Supreme Court of

South Dakota denying the Petition for a Rehearing is attached as Appendix B

to this Petition. The Petitioner’s petition for a rehearing before the South

Dakota Supreme Court is attached as Appendix C.

JURISDICTION

The South Dakota Supreme Court issued its decision on February 7,

2018. A Petition for Rehearing was denied by the Court below on March 15,

2018. This Petition is being filed within 90 days of the Order Denying

1

Rehearing pursuant to U.S Supreme Court Rule 13(3). The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves Section 1 of the Fourteenth Amendment to the

United States Constitution which provides:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

This case involves the 6th Amendment to the United States

Constitution which provides:

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

STATEMENT OF THE CASE

1. Introduction.

The State of South Dakota charged the Petitioner with multiple counts

of Murder, Rape and Burglary arising from the death of Kari Kirkegaard in

2

Sioux Falls, S.D. in March, 2014. The Petitioner asserted a defense theory

that any sexual intercourse was consensual, and that the crime scene had

been contaminated by members of the decedent’s family. The decedent ‘s

brother, Brian Johnson, made death threats towards the Petitioner and

Petitioner’s counsel at multiple times during pendency of the proceedings

prior to trial. Kryger, 907 N.W.2d at 807. The State successfully precluded

the Petitioner from cross examining Johnson regarding bias he possessed

against the Petitioner and his counsel as shown by the death threats, and

any motive to lie or omit material facts arising from his bias to obtain a

conviction.1 Id.; T6:39-42. The Petitioner, objected arguing such would

violate the Petitioner’s Defendant’s Due Process and Confrontation Clause

rights. Id.; T6:39.

The trial court granted the State’s request, explicitly limiting its

analysis to whether state evidence law justified limiting cross examination.

T6:39. On appeal to the South Dakota Supreme Court, the Petitioner urged

“T6:39-42” refers to the trial transcript immediately followed by the volume

number (6). The number following the colon refers to the page number(s)(3941) in that particular volume of the trial transcript. The trial transcript arose

out of State of South Dakota v. Christopher Dean Kryger, Cr.# 14-1956,

Second Judicial Circuit, Minnehaha County, Sioux Falls, S.D. This transcript

citation pattern was used in the Petitioner’s appellate briefs and Petitions for

Rehearing to the South Dakota Supreme Court in their file # 27869, located

in Pierre, S.D. or the Second Judicial Circuit in Sioux Falls. “SR” refers to the

settled record of the trial court and the page number (i.e. motions, orders,

indictment).

1

3

in its Appellant’s Brief, Reply Brief and a Petition for Rehearing, that

Constitutional error occurred requiring use of de novo review to evaluate a

Confrontation Clause violation, and use of the Chapman v. California

harmless error test regarding the effect of exclusion on the jury’s perception

of Johnson per Delaware v. Van Arsdall, 475 U.S. 673 (1985). The South

Dakota Supreme Court declined without comment use of de novo review and

the Van Arsdall and Chapman tests. Instead, it chose the abuse of discretion

standard regarding the trial court’s use of South Dakota evidence law.

Kryger, 907 N.W.2d at 807. De novo review aimed at the effect on the jury’s

perception of the witness via the exclusion was not utilized.

The Petitioner filed a Petition for Rehearing alerting the Court below

of the need to have apply de novo review. Appendix C. He also argued the

Court below should have focused on the effect of preclusion on the jury’s

perception of the witness and not the overall result at trial, followed by use of

the Chapman harmless error test to evaluate the effect of the Confrontation

Clause violation generated by its absence. Appendix C. The Petitioner also

alerted the Court below that it had unequally applied either de novo or abuse

of discretion review regarding Confrontation Clause claims among Rape

convicts seeking appellate relief in recent years. Appendix C. The Court

below denied the Petition for a Rehearing and the Petitioner’s current efforts

followed. Appendix B.

4

2. Substantive Facts of Record

On Sunday, March 16, 2014, the decedent was discovered motionless in

her bathtub by a friend at the decedent’s residence. Kryger, 907 N.W.2d

at.805. Emergency first responders arrived to attend to the decedent. Id.

During their stay, none of the first responders smelled bleach while initially

in the residence at any time. Id.; T7:41, 67, 69. Concerned family members

gathered at the residence but initially waited outside.

After approximately 45 minutes after their arrival, the first responders

left the residence with the decedent’s remains. Kryger, 907 N.W.2d at 805;

T7:67; T:111 . Upon their departure, the decedent’s family members and

friends entered the residence. Id. at 805. The decedent’s brother, Brian

Johnson, struck a wall in the bathroom where his sister was found and

injured his hand. Id. At trial, members of the family and friends uniformly

testified that they smelled an overwhelming bleach odor in the house. Id.

Family members walked about the residence, taking mementos. T6:82.

Some members reported that certain personal items of the decedent were

missing. Kryger, at 805. They called law enforcement officers to return to

the scene. Upon their arrival, law enforcement officers immediately noticed

an overwhelming smell of bleach. Id.; T7:42. Some law enforcement officials

who had also been to residence both before and after the family entered

testified at trial regarding the extreme comparison. T7:42; T10:121.

5

All members of the family denied cleaning up the residence at trial,

although the initial entrant stated the members of the family were cleaning

up. T12:85; T6:62, 114. . Law enforcement investigators found no signs of

forced entry. Kryger, at 805. Numerous items were retrieved from the scene

but few were tested for DNA or fingerprint/footprint comparison. Id. at 896.

At trial, the State attempted to explain the inconsistency regarding

when bleach odors were reported. The prosecutor indicated that none of the

family members had cleaned up. T12:85. The bleach odor, thus, must have

come from the sides of the tub after the water had drained away. T12:85. At

oral argument, Petitioner’s counsel invited the Court below to consider an

open bottle of bleach, and whether the bottle would only produce any odor

after the bottle had been emptied leaving only residue on the sides of the

container. See http://ujs.sd.gov/Supreme_Court/currentterm.aspx

The County Coroner performed an autopsy concluding the decedent

died by asphyxiation. Kryger, at 806. He noticed small abrasions in her

vaginal area. Id. The Coroner was unable to give a time of death. Id.;

T9:207. Although he concluded sexual intercourse occurred, the Coroner

could not give an opinion when sex had occurred. T9:207. He said he could

6

not give an opinion as to whether the vaginal marks indicated nonconsensual or rough consensual intercourse occurred.2 Id. at 809; T9:208

Law enforcement officers were notified that a mosque two doors north

from the decedent’s residence found video footage of an individual riding a

bicycle to and fro in front of the decedent’s residence at 709 S. Garfield

Avenue in Sioux Falls earlier that weekend3. Id. at 805. It also later showed

an individual walking in front of the mosque in the direction of the decedent’s

residence. Id. at 806. The decedent’s vehicle is later seen leaving the

residence at 2;30 a.m. and returning approximately one hour later. Id.

The State argued at trial that the individual walking across the lawn

was the suspect in this case. Local media aired the video footage. The

Petitioner’s girlfriend, Lori Nave, and friend Mike Miller, contacted the police

indicating they thought the individual may be the Petitioner because he wore

a similar coat, had the same gait, and travelled around town by bike.4 Id. at

806. Nave indicated that the Petitioner and she had argued on Friday

evening (3/14/14). Id. The Petitioner later came to Nave’s residence early the

The trial court overruled the Petitioner’s objection to exclude such testimony

on relevancy grounds for presenting possibilities and not probabilities to the

jury. Id. at 809.

3 Detective Bakke also observed on the video other individuals passing by the

decedent’s home on bike, foot, or vehicle but, according to his trial testimony,

all were disregarded summarily. T8:18.

4

Petitioner argued that photos of the Petitioner wearing a plaid coat showed

a different pattern than the coat on the video.

2

7

next morning (3/15/14) to reconcile. Id. Lori Nave was also a resident of

South Garfield Avenue to the north of the decedent’s residence at house #

224.

This information led to the Petitioner, a parolee, to be interviewed by

detectives. Kryger, at 806. The Petitioner told investigators that he got into

an argument with Nave and rode his bike around town for several hours

before returning to his separate Sioux Falls residence. Id. He then left to

continue to ride about town to eventually return to Nave’s residence early in

the morning. While on route, the Petitioner indicated he was almost run over

by a large SUV. Id.

The investigators asked the Petitioner if he had sex with the decedent.

The Petitioner denied having sex. Id. They did not present a photo of the

decedent during the interview when this question was asked. T11:55. The

Petitioner also indicated he looked at investigations with a “criminal mind”

arising from his status as a felon.5 The Petitioner’s DNA sample had been

compared with the Coroner’s samples and the Petitioner was arrested.

The remark was admitted into evidence over Petitioner’s Rule 404

objections and rejected proposed curative jury instructions. Id. at 810-11,

814. The prosecutor later argued to the jury that “Its due to the defendant,

you know, who mentioned repeatedly, as I said, that he had a criminal mind

knowing how to commit a crime”. T12:88. In addition, the Petitioner told

“officers that he had a criminal mind suggesting that he could plan a crime,

could plan aspects of getting away, disposing of evidence.” T12:138. The

5

8

The decedent’s picture had been released to local media along with the

mosque video. Id. at 806. The Petitioner while in custody saw the decedent’s

picture. He indicated to Nave during a recorded jail phone call that he did

not know who authorities were referring to until he saw her picture on

television.6 E37. He admitted to Nave that he had sex with the decedent.7

Detective Hoffman was the lead investigator regarding the decedent’s

case. He indicated that he reviewed the mosque video as well as video

footage taken from businesses at northern points of South Garfield Avenue

near #224 (Nave residence). At trial, Hoffman was presented with footage

from the mosque video and compared observations regarding footage further

north on Garfield Avenue. At 3:36:19 am, the mosque video demonstrated

the decedent’s SUV proceeding south returning to her residence. At 3:36:19

am, a different video from further north on Garfield Avenue overseeing #224

displayed a bicycle rider proceeding North about to pass the Nave residence.

EG; See http://ujs.sd.gov/Supreme_Court/currentterm.aspx . The State

regarded the driver of the SUV as the murderer. At trial, Hoffman admitted

for the first time that the driver of the SUV and the bike rider could not be

Court below did not specifically rule on this objection despite Petitioner’s

urging. Kryger, Petition for Rehearing at 12.

6

”E” refers to an exhibit followed by its number or letter.

7

Petitioner’s counsel argued at trial that someone who might consider having

intercourse with the Petitioner might not later present him with an accurate

name or phone number.

9

the same person. EG; E46-47; T11:40-41; T11:36-50. The bike and the SUV

were on the move simultaneously.8 T11:44.

3. Procedural Facts of the Trial Record: Confrontation Clause Issue.

The State of South Dakota indicted the Petitioner charging him with

Murder 1st (5 counts), Murder 2nd, Rape 2nd, Rape 3rd, and Burglary 1st (2

counts).9 SR18. A jury panel was impaneled on November 9, 2015. The trial

concluded on November 20, 2015, wherein the jury convicted him of all counts

except Rape in the 3rd degree. He received a life sentence for Murder and

consecutive terms of years for Rape and Burglary. Kryger, 907 N.W.2d at

806. SR592.

During the pendency of the proceedings, the decedent’s brother, Brian

Johnson, had made death threats against the Petitioner and Petitioner’s

counsel. Appendix E. Johnson told Petitioner’s Counsel that he hoped

counsel was “a light sleeper”, in a case involving burglary and murder

charges. Kryger, at 807. Johnson also posted matters on Facebook

8 In light of Hoffman’s admission at trial, the Petitioner requested an alibi

instruction which was denied by the trial court and upheld on appeal. Kryger, at

814.

9 Most pretrial litigation pertained to the State’s attempt to introduce 404(b) other

acts evidence concerning a 2008 Rape charge against the Petitioner which the State

dismissed on its own volition after the State learned the alleged victim provided

false information. Such evidence was not admitted to the jury in the present case,

although the Defendant’s parole and incarceration status had been presented to the

jury despite counsel’s objections and mistrial motions. Kryger, at 813.

10

indicating that the Petitioner’s attorneys had made Johnson’s “casket list”.

Id. Appendix E.

The trial court banned Johnson from the court room. T6:38. However,

the State intended to call Johnson as a witness at trial. T6:38, 102. The trial

court allowed him to be present only for the purposes of testifying. T6:38.

At trial, the Petitioner sought to cross examine Johnson regarding his

bias against the Petitioner and his counsel per his Confrontation Clause

rights as shown by his desire to end their lives or obtain a conviction. T6:3839; Kryger, at 807. The State opposed such cross examination. Kryger, at

807. The prosecutor presented an oral motion in limine to preclude questions

“regarding any post–incident, I guess I would call comments by Brian

Johnson regarding any sorts of threats toward defense counsel or the

defendant.” Id.; T6:38. The prosecutor further stated “I think they were

wholly irrelevant to the Indictment and are, thus, not relevant evidence and

should be excluded in their entirety.” T6:38. The prosecutor insinuated that

post-incident comments would not be related to the incident merely because

such comments occurred after the incident. T6:39.

The trial court specifically declined confrontation clause analysis and

ruled on state evidence law grounds. T6:39-41. The trial court branded the

Petitioner’s Confrontation Clause bias claim as a mere “suggestion that this

11

line of proposed cross examination implicates Mr. Kryger’s constitutional

right . . . of confrontation.” T6:39-40 (emphasis added). It asserted that “the

impeachment rules, 608, is still subject to balancing under Rule 403.”10

T6:40. Although acknowledging that Johnson’s perspective was “partisan

(sic)”(T6:42) as a State witness who lost his sister, the trial court excluded the

testimony per Rule 403 due to its “main concern [which] is that the jury

would feel the real issue is whether Brian Johnson has strong feelings about

Mr. Kryger or the defense counsel. That in my mind is a collateral issue that

I think would confuse the jury as it evaluates his testimony.” T6:42. The

trial court ordered that such evidence be excluded from Johnson’s cross

examination.

4. Procedural Facts on Direct Appeal

On appeal the South Dakota Supreme Court, the Petitioner assigned

as error the trial court’s preclusion of Johnson’s testimony regarding the

death threats, and their implications for bias. Kryger, South Dakota

Supreme Court. #27869, Amended Appellant’s Brief at 13-17; Reply Brief at

1-7; Petition for Rehearing 1-3. Noting that bleach odor was only observed by

law enforcement officers after they returned following Johnson and the

family’s entry into the residence, the Petitioner argued:

Cf. Wills v. Russel, 106 U.S. 621, 625 (1897)(party may ask questions on

cross exam regarding bias from its necessity)

10

12

Johnson’s bias against the Appellant, or anger about the

situation in general could suggest that he or his supportive

relatives and friends used bleach in the decedent’s home, or who

had knowledge of its use as well as the identity of who used it,

despite denials stated later. Appellant’s Brief at 16-17.

The Petitioner urged that the Court below apply de novo review

regarding the Confrontation Clause exclusion issue. De novo review is

purportedly utilized on appeals in South Dakota when an appellant asserts

Constitutional issues generally and Confrontation Clause claims specifically

following a conviction on appeal. State v. Spaniol, 895 N.W.2d 329, 323 (S.D.

2017) citing Crawford v. Washington, 541 U.S. 36 (2004). Petitioner also

cited Davis v. Alaska, 415 U.S. 308, 317 (1974) wherein this Court disagreed

with the Supreme Court of Alaska’s legal conclusion affirming a trial court’s

limitation of cross examination regarding a juvenile witness’s bias and

motive to lie. Davis illustrated this Court’s use of de novo review of a state

court’s legal decision.

Kryger involved the total preclusion exclusion of evidence of a

particular action (i.e. event) concerning the witness’s death threats

demonstrating bias or motive to lie. As such, the Petitioner urged that the

Court below focus its de novo review on the effect of the exclusion of evidence

regarding the jury’s evaluation of the testifying witness, and not on the

eventual result or verdict, per Delaware v. Van Arsdall, 475 U.S. 673, 680

13

(1986). Kryger, Appellant’s Brief at 14. The Court below did not cite Van

Arsdall in its opinion.

Many methods and areas of inquiry on cross examination are subject to

the broad discretion of the trial judge. Davis v. Alaska, 415 U.S. 308, 316

(1974). A trial judge has discretion to preclude “repetitive and unduly

harassing interrogation,” regarding “general” attacks on a witness’s

credibility. Id. In contrast to general attacks on credibility, bias and motive

to lie constitute a more “particular attack . . . as they may related directly to

issues or personalities in the case at hand. The partiality of a witness is

subject to exploration at trial and is always relevant as discrediting the

witness and affecting the weight of his testimony. ” Id. (emphasis added) .

The trial court below excluded the bias evidence because of its concern

that “the jury would feel the real issue is whether Brian Johnson has strong

feelings about Mr. Kryger or the defense counsel.” T6:42. When a trial court

precludes particular attacks as to bias and motive to lie, a violation of

Confrontation clause rights is stated by a defendant “by showing that he was

prohibited from engaging in otherwise appropriate cross-examination

designed to show a prototypical form of bias on the part of the witness, and

thereby “to expose to the jury the facts from which jurors ... could

appropriately draw inferences relating to the reliability of the witness’”. Van

Arsdall, 475 U.S. at 680. “Strong feelings about Mr. Kryger or his defense

14

counsel,” acknowledged by the trial court, demonstrated the Petitioner met

his showing required by Van Arsdall of “prototypical bias”. Id.

In light of the Confrontation Clause violation by precluding

confrontation regarding protypical bias, the Court below was urged to employ

the Chapman v California harmless error analysis to determine whether the

violation justified reversal of the case11.:

If a witness prior to trial possessed the will to kill or to even

consider killing the Appellant or his counsel, subsequent

misstatements of facts such as the denial of bleach enhanced

crime scene clean-up activities might not be beneath him during

subsequent testimony at trial. Petition for Rehearing, at 3.

The Court below declined to do use Chapman without explanation.

The State of South Dakota urged use of an abuse of discretion

standard to resolve the issues raised below. Kryger, State Appellee Brief at

13. Petitioner urged use of de novo review once again in his Reply Brief.

Kryger, Reply Brief at 2. The Court below noted the Petitioner raised

Confrontation Clause claims, and Johnson admitted he would take homicidal

action if the Petitioner were “not convicted” or otherwise released. Kryger,

907 N.W.2d at 807. However, it nevertheless employed abuse of discretion

The Van Arsdall Court held “the constitutionally improper denial of a

defendant's opportunity to impeach a witness for bias, like other

Confrontation Clause errors, is subject to Chapman harmless-error analysis “

Id. at 684

11

15

review regarding the matter as a “review of a circuit court’s evidentiary

rulings”. Id.

It concluded that the trial court did not abuse its discretion in that,

inter alia, Johnson’s testimony was limited at the time of trial to address

events occurring at the time of the decedent’s death. Id. at 808. In reviewing

this issue the Court below concluded the exclusion of the death threats did

not prejudice the Petitioner. It compared Johnson’s actual testimony absent

any death threat evidence to those of “other friends and family members” in

the overall case, which the Court below regarded as “the same facts”.12 Id.

The Petitioner submitted a Petition for a Rehearing seeking the Court below

to reconsider its position. In preparing the Petition, counsel noticed some

anomalies in recent years regarding the South Dakota Supreme Court’s

choice of the standard of review it employs in cases where a defendant

convicted of Rape asserts a Confrontation Clause claim on appeal after a

lower circuit court excludes evidence supportive of a defendant’s theory of

defense at trial. De novo review is used on some occasions while abuse of

discretion is used on others, all with no articulated distinction, occurring

within a relatively recent time frame.

Comparison of the “same facts” between Johnson and the other

witness presents a departure from the rule of Van Arsdall by focusing on the

result of the entire case and the overall result at trial versus evaluation of

the witness’s testimony alone.

12

16

In the Kryger decision published February 7, 2018, and State v.

Bausch, 2017 S.D. 1, 889 N.W.2d 404, issued on January 4, 2017, the

defendants convicted of Rape wished to cross examine witnesses at trial

concerning their bias and motive to lie. The respective trial courts excluded

the evidence. On appeal, the defendants explicitly argued that Confrontation

Clause analysis should employ de novo review within the parameters of Van

Arsdall utilizing the Chapman harmless error test. The Court below,

however, used abuse of discretion review comparing the excluded testimony

area with evidence from the entire case resulting in a guilty verdict, in turn

resulting in affirmances in both cases, see infra note 22.

Sandwiched in between Kryger and Bausch, the Court below published

its opinion regarding State v. Spaniol, 895 N.W.2d 329 (S.D. 2017) on May 3,

2017. In Spaniol, the defendant convicted of rape asserted a confrontation

clause claim. The Court below utilized de novo review. Spaniol, 895 N.W.2d

at 323. In State v. McKinney, 699 N.W.2d 471 (2005), a defendant convicted

of rape alleged violations of the Confrontation Clause. McKinney, 2005 S.D.

75, 18, 699 N.W.2d 471, 478. The Court below applied de novo review to

resolve the issue. Id.

Petitioner’s counsel also noted recent anomalies in cases where bias

and motive to lie evidence were excluded and claimed to be in violation of

Confrontation Clause rights where Van Arsdal and the Chapman harmless

17

error tests is not used at all by the Court below. In the present case from

2018, the Petitioner sought to cross examine on incidents of bias in the form

of death threats motivated to obtain a conviction of the Petitioner to alleviate

the need to kill him or Petitioner’s counsel upon the Petitioner’s release.

Kryger, 907 N.W.2d at 807. In Bausch from 2017, the defendant sought to

cross examine complaining witness’s bias and motive to lie to accuse the

defendant of rape. Cross examination on bias and motive to lie was excluded

the respective trial courts in both cases. Appellant-defendants in both cases

urged application of Van Arsdall and Chapman to focus attention on the

effect of exclusion concerning the jury’s evaluation of the testifying witness,

rather than in the context of all other witnesses or the ultimate result at

trial. The Supreme Court of South Dakota, however, searched for prejudice

by evaluating the exclusion in the context of other witnesses in the case and

the overall result of the trial.

The Petitioner argued in his Petition for Rehearing that South Dakota

Supreme Court’s selection of the standard of review it employed violated the

Equal Protection, Due Process and Fair Trial rights of defendants convicted

of Rape seeking to assert Confrontation Clause violations regarding exclusion

of evidence of an entire event of a witness’s bias and motive to lie. De Novo

review was utilized for Rape convicts in Spaniol and McKinney. Abuse of

discretion review was applied to Rape convicts in Kryger and Bausch. The

18

Petitioner argued that Equal Protection required use of de novo amongst all

Rape convicts asserting a Constitutional Confrontation clause regarding

excluded bias and motive to lie evidence. Kryger, Petition for Rehearing at 9.

Similarly, Due Process, Fair Trial rights and the Supremacy Clause required

application of Van Arsdall and Chapman to supersede and preclude abuse of

discretion review based on solely on state evidence laws. The Court below

summarily denied the Petition for Rehearing.

REASONS FOR GRANTING THE WRIT

I.

WHETHER APPELLATE REVIEW IN SOUTH DAKOTA OF

CONFRONTATION CLAUSE CLAIMS ARISING FROM

LIMITATIONS ON CROSS EXAMINATION OF WITNESS BIAS

AND MOTIVE TO LIE REGARDING DEATH THREATS

AGAINST THE PETITIONER AND COUNSEL VIOLATES DUE

PROCESS AND EQUAL PROTECTION OF THE LAWS BY

ARBITRARILY APPLYING ABUSE OF DISCRETION REVIEW

FOR SOME RAPE CONVICTS WHILE DE NOVO REVIEW FOR

OTHERS

The Petitioner and other felons convicted of Rape13 possess a right to

due process and equal protection of the laws. U.S. Const. Amend. XIV. For a

Felons convicted of Rape are uniquely classified under South Dakota law.

South Dakota law discriminates those felons convicted of Rape from felons

convicted of other offenses. Felons convicted of Rape are prohibited from

living near or entering certain protected areas such as public parks and

public schools. SDCL 22-24B-23. They are required to register their

whereabouts with local authorities at least twice per year and within 3 days

of any change of address. SDCL 22-24B-2.

13

19

law or its application to withstand an equal protection challenge from an

incarcerated defendant, the law must apply “to all those ‘convicted of an

offense, and sentenced to confinement therefor in the penitentiary’”. Graham

v. West Virginia, 224 U.S. 616, 630 (1912). The appellate procedures of a

State, once enacted and utilized by the State’s court system, must comply

with Due Process and Equal Protection standards accorded to this nation’s

citizens through United States Constitution via, inter alia, the Fourteenth

Amendment. Smith v. Robbins, 528 U.S. 259, 260 (2000), citing Griffin v

Illinois, 351 U.S. 12 (1956) and Douglas v California, 372 U.S. 353 (1963).

The “Equal Protection and Due Process Clauses require that a State’s

procedure ‘afford adequate and effective appellate review to indigent

defendants’.” Smith, 528 U.S. at 261. Equal Protection is violated where, as

in South Dakota, de novo or abuse of discretion review is applied

indiscriminately to Rape convicts. Due process, Fair Trial rights and Federal

Supremacy is violated through continued disregard for Confrontation Clause

violation tests regarding cross examination limitations. A writ of certiorari

would halt this practice and would encourage the Court below and appellate

courts of the Several States to apply standards of review equally among

similarly situated convicts in their jurisdictions.

20

A writ of certiorari would also resolve a split of authority in federal

and state courts14 regarding whether appellate courts must utilize abuse of

discretion or de novo review when a defendant asserts Confrontation Clause

violations. The split was categorized by the United States Court of Appeals

for the 9th Circuit in U.S. v. Larson, 495 F.3d 1094 (9th Cir. 2007). One line of

cases applies de novo review. Larson, 495 F.3d at 1100, citing United States

v. Vitale, 459 F.3d 190, 195 (2d Cir.2006) (reviewing Confrontation Clause

claims de novo); Another line of cases demonstrates use of an abuse of

discretion standard. Larson, 495 F.3d at 1100, citing United States v.

Orisnord, 483 F.3d 1169, 1178 (11th Cir.2007) (reviewing for abuse of

discretion a Confrontation Clause claim); United States v. Smith, 451 F.3d

209, 220 (4th Cir.2006) (reviewing restrictions on cross-examination claims

for abuse of discretion); The Larson Court also noted a third approach which

combines both. Larson, 495 F.3d at 1100, citing United States v. Kenyon, 481

F.3d 1054, 1063 (8th Cir.2007) (“We review evidentiary rulings regarding the

scope of a cross examination for abuse of discretion, but where the

Confrontation Clause is implicated, we consider the matter de novo.”); United

States v. Townley, 472 F.3d 1267, 1271 (10th Cir.2007) (“Although a district

14 Some State appellate courts apply de novo review to confrontation clause

claims, while others utilize abuse of discretion review. See People v Dunham,

381 P.3d. 415 (Co. 2018)(de novo used); State v. Spaniol, 2017 S.D. 20, 895

N.W.2d 329 (de novo used); Peterson v State, 188 A.3d 925 (Md.

2015)(abuse of discretion used); State v. Bausch, 2017 S.D. 1, 889 N.W.2d

404 (abuse of discretion used)

21

court's evidentiary rulings are reviewed for abuse of discretion, whether

admission of such evidence violates the Confrontation Clause is reviewed de

novo.”), The Larson Court also noted there was a split of authority within the

9th Circuit. Larson, 495 F.3d at 1100.15

A. Impact of De Novo versus Abuse of Discretion Review

Certiorari is further warranted due the impact of an appellate court’s

choice to use one standard of review versus another on the ultimate result in

a case following an appeal. This Court noted in Salve Regina College v.

Russell, 499 U.S. 225 (1991) a judicial review panel had “indicated that if the

question of law were reviewed under the deferential standard that we have

applied in the past, which permits reversal only for clear error, then they

would affirm; but if they were to review the determination under an

independent de novo standard, they would reverse”. Salve, 499 U.S. at 238,

citing In re McLinn, 739 F.2d 1395, 1397 (9th Cir. 1984). This Court

maintained a “firm . . . conviction that the difference between a rule of

deference and the duty to exercise independent review is ‘much more than a

mere matter of degree.’” Salve, 499 U.S. at 238.

U.S. v. Holler, 411 F.3d 1061, 1066 (9th Cir.) (de novo applied to right of

confrontation claim.); U.S. v. Lo, 231 F.3d 471, 482 (9th Cir.2000) (abuse of

discretion applied to Confrontation Clause violation).

15

22

Due process provides that a defendant receive a fair trial before to a

jury. In South Dakota and other states, a single trial judge presides over a

jury to rule on issues of law which arise during the trial. SDCL 16-6-12.

Following an adverse verdict, a defendant may proceed to seek appellate

review of the trial court’s rulings following his judgment and sentence. SDCL

15-26A-3; SDCL 23A-32-2; SDCL 23A-32-9. Appellate review in South

Dakota is provided by the South Dakota Supreme Court. S.D.Const. 5. The

Court below consists of five Justices. SDCL 16-1-2.

The manner in which these five Justices may review the rulings of a

single trial court judge may have a profound impact on the result of an

appeal. De novo review allows each Justice to substitute their own legal

conclusions for those of the trial court judge. State v. Olhausen, 587 N.W.2d

715, 717 (S.D. 1998 ). If three of the five Justices conclude the trial court

erred, the conclusion of the majority may produce a remand (if prejudicial

error is also found). Abuse of discretion review still conceivably permits the

Court below to overturn a trial court’s ruling. However, such a course of

action may only occur under far less limited circumstances, where each of the

five justices merely look to whether the single trial judge’s ruling is legally

conceivable as compared to hypothetical reasonable decisions of judges in

general. Bridges v. Karl’s, Inc., 538 N.W.2d 521, 523 (S.D. 1995) (“An abuse

of discretion occurs only if no ‘judicial mind, in view of the law and the

23

circumstances of the particular case, could reasonably have reached such a

conclusion’”). If the trial court’s ruling is based on some reason, the appellate

court will affirm a trial court’s decision with abuse of discretion review.

Through granting the power to appellate justices to reach their own

conclusion and act accordingly, de novo review broadens the limits of

possibilities that at least three justices might reach a different conclusion

than the single trial court below per Salve. Abuse of discretion review, by

contrast, prevents substitution of an appellate justice’s own opinion on a trial

court’s conclusion. Appellate justices must only consider whether the trial

court’s decision is out of line with that of all reasonable judges. By comparing

the standards, one compares the ability of an Appellant to persuade each

single Justice (up to three) versus the need of an Appellant to persuade an

appellate court that a single trial court is out of step with the collective whole

of the Judiciary. The focus shifts from a Justice’s self-reflection to

consideration of a group consciousness – all reasonable judges. De novo,

however, permits no deference to a lower court. ” Salve, 499 U.S. at 238;

Aguilar v. Aguilar, 877 N.W.2d 333, 336 (S.D. 2016.)(“Under the de novo

standard of review, we give no deference to the circuit court's conclusions of

law.”). Abuse of discretion is accordingly regarded as a “more forgiving”

standard of review. Fry v. Pliler, 551 U.S. 112, 116 (2007).

24

An appellant suffers prejudice when he raises a constitutional

Confrontation Clause issue calling for application of de novo review, and

abuse of discretion review is applied in its absence. In South Dakota,

standards or review are applied arbitrarily when such constitutional issues

are raised, resulting in prejudice to this Petitioner. Felons convicted of Rape

in South Dakota are deprived of equal protection of the laws, where some

convicts receive de novo review on appeal, while others receive abuse of

discretion review.

B. Unequal Application of Standards of Review in South Dakota

The Petitioner was convicted of Rape and other charges. Kryger, 907 N.W.2d

at 805. He was sentenced to the penitentiary. He specifically raised Confrontation

Clause issues before the trial court regarding the death threat events. Id. at

807. He specifically advocated for use of de novo review to the Court below to

evaluate the issues, inter alia, per the recent case of State v Spaniol, supra.

Kryger,, Appellant’s Brief at 14; Reply Brief at 1. The trial court resolved the

issue regarding cross examination of Johnson as a matter of state law

specifically declining confrontation clause analysis. T6:38-41. The Court

below resolved the issue using an abuse of discretion standard regarding the

trial court’s use of state law and affirmed the trial court’s decision. Kryger,

907 N.W.2d at 807-08.

25

In Spaniol, the defendant was convicted of Rape and was sentenced to

the penitentiary. On appeal, the South Dakota Supreme Court examined

constitutional error per the defendant’s claimed Confrontation Clause

violations regarding the trial court’s decision to exclude admit evidence from

an alleged unavailable witness. Spaniol, 895 N.W. 2d at 338. The Court

below first noted that its review of a lower court’s evidentiary rulings

entailed use of abuse of discretion review. Id. It next distinguished the

standard of review regarding Confrontation Clause claims. Id. It stated

“However, the issue here—whether Spaniol's Sixth Amendment right to

confrontation was violated—is a constitutional question, which we review de

novo.” Id. The Court below noted the right to Confrontation “‘generally

satisfied when the defense is given a full and fair opportunity to probe and

expose a witness' infirmities through cross-examination, thereby calling to

the attention of the factfinder the reasons for giving scant weight to the

witness' testimony.’ ” Id. Unlike the Petitioner’s case, the Court below in

Spaniol then applied de novo review in resolving the Confrontation Clause

issue, noting the constitutional issue created an exception to use of standard

abuse of discretion analysis. Id.

In State v. Bausch, 889 N.W.2d 404 (S.D. 2017), the defendant was

convicted of rape and sentenced to the penitentiary. Bausch, 889 N.W.2d at

415. The defendant raised issues framed in terms of alleged violations of his

26

Due Process and Confrontation Clause rights. See Bausch v. South Dakota,

138 S.Ct. 87 (2017); State v. Bausch, S.D. Supreme Court,. #27526, Petition

for Rehearing at 3. He argued the trial court erred prohibiting cross

examination concerning statements by the alleged victim that she sought to

harm herself as means to seek attention from her estranged family. Bausch,

889 N.W.2d at 409-11. Prior attention seeking statements were not

successful. Statements of self-harm were a fairly alarming topic chosen to

seek attention, which had failed. Having failed, the defendant argued that

statements by the alleged victim alleging rape were an even more alarming

means to achieve the chosen end of seeking attention. Bausch, Reply Brief at

9-10. The trial court excluded the evidence as being irrelevant. Bausch, 889

N.W.2d at 409.

Following the trial court’s exclusion of such evidence, the defendant in

Bausch specifically advocated use of de novo review before the South Dakota

Supreme Court. Bausch, Reply Brief at7; Petition for Rehearing at 3. On

appeal, the Court below acknowledged that area of inquiry of the “statements

of self-harm may have strengthened Bausch’s defense”. Bausch, 889 N.W.2d

at 410. If such evidence strengthened the defense, the appellant argued it

must be relevant, thus demonstrating the trial court’s error. Bausch, Petition

for Rehearing at 5. Unlike Spaniol, three months later, the Court below

27

applied abuse of discretion review to the issue rather than de novo.16 Bausch,

at 409. No reason was indicated why de novo review was not utilized.

In State v. McKinney, 699 N.W.2d 571 (2005), the defendant was

convicted of rape along with other charges and was sentenced to the

penitentiary. McKinney, 699 N.W.2d at 474. The defendant raised issues

framed in terms of alleged violations of the Confrontation Clause. Id. at 478.

The defendant argued that the minor victim was unable to remember her

prior statements or answer questions at all thus depriving him of the right to

fully confront and cross examine the alleged victim. Id. In light of the

defendant’s allegations, the Court below stated “’[A]n alleged violation of

[this] constitutionally protected right is a question of law’ reviewed de novo.”

Id. Unlike Kryger and Bausch, the Court below applied de novo review to

the Confrontation Clause issue raised in McKinney. See also State v. Vargas,

869 N.W.2d 150 (S.D. 2015)(de novo review applied to Confrontation Clause

issue in a Rape case)

Irrespective of appellate court preferences for which standard of review

South Dakota, or any other State, might choose to utilize in its appellate

Despite the defendant urging use of the Chapman harmless error

test per Van Arsdall, the Court below compared the excluded evidence to its

effect on the jury’s verdict, rather than on an evaluation of the individual

witness. Id. at 409. The Court below, however, had demonstrated its

appreciation of the need to focus on the jury’s perception of the witness, and

not the final end result of a Rape conviction in State v. Sprik, 520 N.W.2d

595, 600 (S.D. 1994).

16

28

system, standards of review are not applied equally now among similarly

situated felons convicted of Rape. When this class of defendants assert

Confrontation Clause claims in South Dakota, particularly those regarding

excluded bias and motive to lie evidence, different standards of review are

applied. Due Process and Equal Protection principles require that minimum

Constitutional requirements are met once a State establishes an appellate

system. Smith v. Robbins, 528 U.S. 259, 260 (2000). South Dakota’s

standard of review selection process presents various applications which are

not “firmly established and regularly followed.” Johnson v. Mississippi, 486

U.S. 578, 587-89 (1988). The differing applications of either de novo or abuse

of discretion review in response to Confrontation Clause issues raised by

appellants in the new millennium, its application to this Petitioner, and its

potential application or lack thereof to defendants in the future in South

Dakota warrants review by the United States Supreme Court.

C. Random Pattern or Intended Design

The South Dakota Supreme Court has employed differing standards of

review in Confrontation Clause cases. If this inconsistent pattern is random

in nature, Due Process nevertheless requires consistency. After electing to

provide appellate review to its citizens, South Dakota must present and apply

29

appellate rules which meet minimum Constitutional standards. Smith v.

Robbins, 528 U.S. 259, 260 (2000).

The issue of whether a state court’s ruling on a procedural law is

Constitutionally adequate itself implicates federal law. Lee v. Kemna, 534

U.S. 362, 375 (2002). Federal courts review whether the procedural rule is

“firmly established and regularly followed”. Johnson, 486 U.S. at, 587-89 .

Conversely, if a state court’s rule has been applied “‘infrequently,

unexpectedly, or freakishly,’” it will fall short of Constitutional muster due to

“the lack of notice and consistency [which] may show that the state is

discriminating against the federal rights asserted.” Prihoda v. McCaughtry,

910 F.2d 1379, 1383 (7th Cir. 1990) citing Johnson v. Mississippi, 486 U.S.

578, 587-89 (1988).

The Petitioner’s case demonstrates actions taken by the South Dakota

Supreme Court that minimize the extent of federal subject matter presented

for appellate review. Other recent cases demonstrate similar occurrences.

Assuming arguendo, affirmances were a desired end, standards of review as

chosen in South Dakota present the means to meet that end.

The Petitioner specifically raised federal Confrontation Clause issues

in its assignment of errors on appeal. He raised as his first issue,

”WHETHER THE TRIAL COURT ERRED BY COMPLETELY

PRECLUDING QUESTIONING OF THE DECEDENT’S BROTHER

30

CONCERNING HIS BIAS AGAINST THE DEFENDANT AND MOTIVE TO

FABRICATE IN VIOLATION OF KRYGER’S DUE PROCESS AND

CONFRONTATION CLAUSE RIGHTS.” Kryger, Petition for Rehearing at 4 .

The Court below, however, made adjustments to the assigned error. It

indicated the Appellant “raised several issues for our review, which we

combine and restate as follows”. Kryger , 907 N.W.2d at 806 (emphasis

added). The Court below restated the Petitioner’s issue as “[w]hether the

circuit court erred by precluding questioning of Johnson concerning his bias

against Kryger”. Id. at 807. The Court below stripped specific mention of

federal Confrontation Clause rights from the assigned error. It also redacted

mention of a “motive to lie”, thus, minimizing the federal subject matter

inhibiting the Petitioner’s right to meaningful subsequent review on such

issues. Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 22 (1987)(concurring

opinion)(due process and equal protection ensures meaningful appellate

review). However, the degree to which a State complies with its own

procedures does not obviate the need to review associated federal issues

arising from a State’s use of its own procedures, warranting such review by

this Court. Johnson , 486 U.S. at 587-89 .

The subsequent effect of this action was to eliminate de novo in favor

of abuse of discretion review to resolve the federal issues. The Court below

concluded that “the circuit court did not abuse its discretion in limiting cross-

31

examination on the specific threats made by Johnson toward Kryger and his

counsel.” Id. at 808. As such, it could not substitute its own collective

independent judgment, or the independent judgment of individual justices

when reviewing the Confrontation Clause claim.

The trial court noted that the death threat evidence was relevant,

although it categorized its probative value as “marginal”. T6:42. The trial

court excluded the evidence on Rule 403 grounds. The Court below noted the

trial court’s determination that some “marginal” relevance was present and

adopted that conclusion. Kryger, at 808.

Evidence that went to whether Johnson “has strong feelings about . . .

Mr. Kryger or the defense counsel,” inherently addresses bias. T6:42. Bias is

relevant “because the jury, as finder of fact and weigher of credibility, has

historically been entitled to assess all evidence which might bear on the

accuracy and truth of a witness’s testimony.” U.S. v. Abel, 469 U.S. 45, 469

(1984). The trial court conclusion that Johnson was a partisan for the State

should have further triggered application of Van Arsdall. Van Arsdall, 475

U.S. at .680 (“a motive for favoring the prosecution”). As such, a

confrontation clause issue is stated per Van Arsdall and exclusion of such

testimony is regarded as a violation17. Id. The next step, as urged by the

See Larson, 495 F.3d at 1108 (concurring opinion) (“The Supreme Court

consistently has held that a Confrontation Clause violation occurs when a

trial judge prohibits any inquiry into why a witness may be baised”)

17

32

Petitioner before the Court below, was to apply the Chapman harmless error

test. Id. at 683. In silent defiance of Van Arsdall, and Chapman, the Court

below utilized abuse of discretion standard to address the Confrontation

Clause violation.

If the Court below had applied Van Arsdall and Chapman, the Court

below would not have concluded beyond a reasonable doubt the exclusion of

bias and motive to lie evidence would have been harmless error. In the

present case, Johnson’s testimony was regarded by the State as significant.

Johnson was one of the family members that entered the residence after first

responders initially left the scene. T6:114. He was the only known family

member to acknowledge changing the crime scene to any extent by smashing

a wall with his hand causing injury to himself. T6:121. He had owned the

house and had given it to the decedent. He was familiar with its dimensions,

characteristics and the decedent’s habits and locations of property. T6:111

The decedent supposedly placed money in her refrigerator freezer to be

used for house payments to Johnson. T6:115. Johnson found no money and

initially attributed its absence to the Petitioner, which, inter alia, lead to

Burglary charges associated with theft. After indictment, during the trial,

Johnson essentially withdrew that claim alleging that sums in the freezer

had in fact been deposited. T6:117. Johnson’s initial account of events at the

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time of the initial investigation regarding lost money changed by the time he

testified at trial.

The Court below’s conclusion to find no error by focusing on Johnson’s

testimony concerning the events at the time of the murder is misdirected.

Post-trial investigation facts were nevertheless considered such as the freezer

money. Johnson’s bias and motive to lie at the time of trial, when testimony

concerning events at the time of murder is first elicited and subject to cross

examination, should have been the true focus. It was at trial, that Johnson

had his last chance to obtain a conviction. Johnson’s bias developed and

increased as the proceedings below progressed making their current status at

the time of trial relevant, not at the time the murder occurred. See Drinkert

v. State, 741 N.W.2d 514, 516 (Tx.App. 1987) (source of bias must be present

at trial); State v Wounded Head, 305 N.W.2d 677, 681 (S.D. 1981).

The State concedes Johnson’s importance through its actions. Johnson

had been excluded from the court room during the trial. T6:38-42. It was

only after the State requested he be admitted to provide testimony that he

was allowed into the court room at all, despite concerns of further threats and

disruptive behaviors during the trial. The trial court took additional court

time to admonish Johnson to ensure proper court room decorum noting that

it thought the State had “a right to call witnesses they think are important to

their case,” T6:103.(emphasis added) The State risked a mistrial in case

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scheduled to take an entire month in order to have Johnson testify. He was

that important.

This case posed the question that if a witness could even consider

killing a defendant or his counsel if a conviction did not result and the

defendant’s release obtained, what else might he might conceivably consider

doing to obtain his goal. The threats posed by Johnson were real enough to

the trial court to exclude him from the court room – an extreme remedy.

T6:101-02. If realistic threats were an option, cleaning up the crime scene

and denying it later were not beyond the pale. If Johnson’s hand damaged the

wall and his hand received injury, might he or the family members attempt

to clean the residence to assist Johnson so as not to give law enforcement the

“wrong idea” upon their return?

In Davis, the defendant’s attorney was permitted to ask the witness

whether he was biased at trial. Davis, 415 U.S. at 318. The attorney,

however, could not “make a record from which to argue why [the witness]

might have been biased or otherwise lacked that degree of impartiality

expected of a witness at trial”. Id. (emphasis added). This presented the

danger that limited cross examination would have on the jury: “the jury

might well have thought that defense counsel was engaged in a speculative

and baseless line of attack on the credibility of an apparently blameless

witness”.

Id. Without discussing the magnitude of the means to which

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Johnson contemplated to obtain a conviction, inflicting death, the Petitioner

was left to cross examine an aggrieved brother inspiring the jury to wrongly

conclude that any lesser particular attack presented to them was merely

speculative per Davis.18

While the Court below concluded the testimony of the “other”

witnesses were consistent with each other, they were collectively inconsistent

with objective facts. All testified that no bleach or cleaning was done when

they entered and remained in the residence. T6:114. However, disinterested

first responders who entered before the family did not smell any bleach when

they entered the residence, remained for 30 to 45 minutes and then removed

the decedent directly from her filled bath tub. T7:42, T10:121. Bleach odor

was detected by disinterested law enforcement officials when they returned

to the residence. As such, crime scene cleanup activities must have occurred

in the intervening period when only Johnson and the family were present. Of

the 20 family members present (T6:71), none testified that the Petitioner was

present during that period of time when they were present using bleach to

clean the crime scene.

Introduction of the death threats, found by the trial court to have

actually occurred, would put in a proper perspective the notion of Johnson or

See also Larson, 495 F.3d at 1105-06 (some evidence as to motive may raise

some doubt, but not the magnitude of the motivation) citing Van Arsdall.

18

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his relatives’ cleaning and thus altering a crime scene and collectively lying

about such activities later at trial, and would not seem farfetched. The

magnitude of the bias against the Petitioner rising to the level of considering

inflicting death is colossal. When such magnitude is compared the Johnson’s

motive to deny or omit evidence of a crime scene clean up to obtain a

conviction, acts by the witness and his family to cover up their cleanup of the

crime scene become a reasonable and not a speculative defense.

The Court below may resolve questions raised by Appellant-Defendant

on state law grounds. However, a conclusion by the Court below that a state

law issue raised does not demonstrate error still should not end its inquiry. It

must also address matters of federal Constitutional law raised as well, per

Staub v. City of Baxley, 355 U.S. 313, 315-18 (1958); Johnson v.

Mississippi, 486 U.S. 578, 587-89 (1988); California v. Green, 339 U.S. 149,

155-56 (1970) In Kryger, the Court below erred by departing from its

obligation to resolve federal issues before it by failing to find a Confrontation

Clause violation arising from de novo review leading to application of

Chapman .

De Novo review stood in the way of an affirmance in Kryger. Use of

abuse of discretion review and its aspect requiring deference to the lower

court served to isolate the independent decision of the Court below regarding

relevancy of the statements as bias and motive to lie evidence. Its actions

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demonstrated an unequal application of the law regarding appellate

standards of review against a defendant convicted of Rape. 19 The technique

Similar patterns of activity regarding standard of review selection

and impact were seen in Bausch. In that matter, the defendant sought to

cross examine regarding a complaining witness statements of self-harm as a

means to receive attention from her family. The defendant’s theory of defense

was that once this means to get attention failed, the complaining witness had

to fabricate a more horrific story in the form of a rape allegation against the

defendant. Bausch, #27526, Reply Brief at 7. The trial court precluded

defense counsel from cross examining regarding self-harm as it determined

such statements were not relevant. Bausch, 889 N.W.2d at 408. No other

reason was stated by the trial court. Id.

On direct appeal, the defendant argued the trial court’s ruling violated

the Defendant’s Confrontation Clause rights limiting questioning, and Due

Process rights from preventing presentation of his theory of defense to the

jury. Bausch, Reply Brief at 11; Petition for Rehearing at 2-7. The Court

below acknowledged that area of inquiry of the “statements of self-harm may

have strengthened Bausch’s defense”. Bausch, 889 N.W.2d at 410. The

South Dakota Supreme Court did not rule on whether the trial court’s ruling

regarding relevancy was correct. Id. Instead, it leaped over the need to rule

on the issue by reviewing prejudice to the defendant from the exclusion of

evidence on the result of the trial, concluding that prejudice was not shown.

Without ruling on the relevancy issue, the Court below concluded that the

trial court did not abuse its discretion limiting cross examination.

The Court below evaluated prejudice in terms of whether exclusion of

evidence affected the trial’s result. Bausch, 889 N.W.2d at 409. The

defendant in Bausch urged that the Court below analyze the Confrontation

Clause violation via Van Arsdall by examining its effect on the jury’s

perception of the witness. Bausch, Petition for Rehearing at 7

De novo review, if properly and consistently used by the Court below in

Bausch, would have produced a different result. The South Dakota Supreme

Court unanimously affirmed the trial court’s decision. No concurring or

dissenting opinions were stated. The unanimous Court below indicated that

the victim’s “statements of self-harm may have strengthened Bausch’s

defense”. Bausch, 889 N.W.2d at 410. This per curiam acknowledgment that

the evidence would have helped the defendant’s case shows the Court

below had actually unanimously concluded that the evidence was relevant,

constitutional issues in play as well.

19

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of restating an assigned error which minimizes constitutional errors inserted

into a subsequent published opinion, steers an appeal away from de novo

review which would otherwise lead to reversal. The effect then steers the

appeal toward abuse of discretion review resulting in an affirmance of a Rape

defendant’s conviction. The inconsistent applications by the Court below

regarding standards of review in cases of this type demonstrate arbitrary

standards of review. Equal application of standards of review are required by

the Equal Protection Clause.

CONCLUSION

The Petitioner humbly requests that this Court permit further briefing

to issue a Writ of Certiorari and apply de novo review regarding the legal

Bausch also demonstrated that the action of the Court below to restate

an appellant’s assigned error was not unique to its decision in Kryger. In

Bausch, the defendant asserted Constitutional issues in its assignment of

errors: “WHETHER THE TRIAL COURT ERRED BY PREVENTING THE

APPELLANT FROM CROSS EXAMINING THE ALLEGED VICTIM

REGARDING SUICIDAL IDEATIONS AND SELF-HARM TO ESTABLISH

HIS THEORY OF THE CASE”. Bausch, #27526. Appellant’s Brief at 2. The

Court below, however, changed the assignment of error in its opinion to state:

“Whether the circuit court abused its discretion in limiting cross-examination

by excluding questions regarding statements A.L. made about self-harm”.

Bausch, 889 N.W.2d at 408. Due Process considerations concerning the

defendant’s right to present a theory of defense was deleted from the

assigned error. See Crane v Kentucky, 476 U.S. 683, 687 (1986)(recognizing

a “fundamental constitutional right to a fair opportunity to present a

defense”).

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conclusions of the Courts below per Davis v. Alaska. Tests arising from Van

Arsdall and Chapman should reveal that the Petitioner’s Constitutional

Confrontation rights were violated when the trial court precluded cross

examination on an entire event demonstrating a witness’s bias against the

Petitioner and his counsel to the extent that he advocated their deaths if a

conviction were not obtained. A remand would be appropriate ordering a new

trial. In the alternative, a remand would be appropriate with instructions to

the South Dakota Supreme Court to similarly apply de novo review to ensure

compliance with the Equal Protection Clause regarding all felons convicted of

Rape, and to then address Van Arsdall tests, including whether “the

Confrontation Clause error was harmless beyond a reasonable doubt under

Chapman,” Coy v. Iowa, 487 U.S. 1012, 1021 (1988).

Dated at Sioux Falls, South Dakota, this 24th day of May, 2018.

Respectfully submitted,

Mark Kadi

Attorney for Petitioner

Public Advocate’s Office

415 North Dakota Avenue

Sioux Falls, South Dakota 57104

Phone (605) 367-7392

mkadi@minnehahacounty.org

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