People v. Krueger CA1/2 ( 2021 )

Filed 1/20/21 P. v. Krueger CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A152087
v.
SARA LYNN KRUEGER, (Napa County
Super. Ct. No. CR169462)
Defendant and Appellant.
Three-year-old Kayleigh Slusher was so badly beaten that her small
intestine ruptured. She died from the resulting sepsis. A jury found her
mother, Sara Lynn Krueger, guilty of murder with the special circumstance
of torture as well as assault resulting in the death of a child under eight
years old. A separate jury found Ryan Scott Warner, who lived with Kayleigh
and Krueger, guilty of the same charges.1 On appeal, Krueger argues that
the trial court erred in denying her Batson/Wheeler2 challenge to the
prosecutor’s exercise of a peremptory challenge; that the prosecution’s use of
a refrigerator and a mannequin as demonstrative evidence deprived her of a
fair trial; that the trial court’s response to a jury question allowed the jury to
We address Warner’s appeal of his convictions in an opinion issued
1
this day. (People v. Warner (Jan. 20, 2021, A152049) [nonpub. opn.]).
Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler
2
(1978) 22 Cal.3d 258 (Wheeler).
1
improperly find the special circumstance true; and that the record does not
contain substantial evidence of elements required to support the verdict. We
conclude that the record does not contain substantial evidence to support the
finding that Krueger acted with the intent to kill, and therefore we reverse
the special circumstance finding and remand for resentencing. We affirm the
judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
A. Charges
In November 2015, the Napa County District Attorney filed an
information charging Krueger and Warner with two counts: murder, with
the special circumstance of torture (Pen. Code,3 §§ 187, subd. (a), 190.2, subd.
(a)(18); count 1), and assault resulting in death of a child under eight years
old (§ 273ab, subd. (a);4 count 2). The prosecution did not seek the death
penalty.
The case was prosecuted under the theory that the murder was by
torture and that Krueger directly committed the crimes, or aided and abetted
Warner in committing them. The cases against Krueger and Warner were
tried to separate juries in the spring of 2017. Both juries were in attendance
for the presentation of most of the evidence, but the juries heard separate
3 All undesignated statutory references are to the Penal Code.
4
Section 273ab, subdivision (a) provides: “Any person, having the care
or custody of a child who is under eight years of age, who assaults the child
by means of force that to a reasonable person would be likely to produce great
bodily injury, resulting in the child’s death, shall be punished by
imprisonment in the state prison for 25 years to life. Nothing in this section
shall be construed as affecting the applicability of subdivision (a) of Section
187.”
2
opening statements and closing arguments, and received separate jury
instructions.5
B. Prosecution Case
1. February 1, 2014: Kayleigh’s Body is Found
Warner’s friend Antonio Valdez testified that for about two days,
starting on the afternoon of January 30, 2014, he received texts and calls
from Warner, who claimed to need his help for an unspecified emergency. At
about 12:30 on the morning of February 1, Valdez and his brother drove to
Krueger’s apartment complex and met with Krueger and Warner. Warner
said that Kayleigh had drunk poison or bleach and was dead. Valdez did not
want to be involved. He became angry and told them to call the police.
Warner said they were about to discuss doing that. Valdez left, and later
contacted Warner, asking whether he had called the police. Warner again
told him that they were going to discuss doing that. After a few hours,
Valdez realized that Warner was not going to call the police, so he called
them himself.
In the early afternoon of February 1, Napa Police Officer Robert
Chambers went to Krueger’s apartment in response to a telephone tip. He
obtained a key, entered the apartment, which was filled with a smoky haze,
and discovered Kayleigh’s body in her bed under blankets. Only her face was
visible; it looked bruised, and there was blood coming from her nostrils. It
appeared that Kayleigh had been dead for some time, and her skin was “ice-
cold.”
Krueger’s jury was sworn on April 20, 2017, heard opening statements
5
on May 1, heard testimony and viewed evidence from May 2 through 22, was
instructed and heard closing arguments on May 24, began deliberations on
the afternoon of May 24, and reached its verdict on May 25.
3
The forensic specialist who processed the crime scene testified that the
apartment was dark, dirty, disorganized, and smelled strongly of marijuana.
The curtains and shades were closed, and extra fabric around the windows
had been taped to the wall. There were three latex gloves on the floor. In the
kitchen there were dirty dishes in the sink, empty food containers, and
containers of partly-eaten food. The freezer itself was empty of food, and its
shelving unit had been removed. A later search of the apartment revealed
paraphernalia related to the use of marijuana and methamphetamine.
The coroner’s investigator who examined Kayleigh’s body in the
apartment testified that there were bruises all over the body and that the
pattern of lividity was inconsistent with the body’s position. If Kayleigh had
been in that position at the time of death, the lividity would have been on the
back of her body; instead, it was on the right side in the front.6
An attempt by police to “ping” Krueger’s cell phone to locate her that
day was unsuccessful, indicating that her phone was turned off.
2. Before June 2013: Krueger’s Relationships with Warner and with
Jason Slusher
Krueger testified that she and Warner met during the summer of 2005,
when she was 15 and he was 17; she fell in love with him; they used
methamphetamine together; and they had a brief relationship until Warner
moved away at the end of the summer.
6
The investigator explained that once the heart stops beating, gravity
takes the blood to the bottom of the body, and that Kayleigh’s body was found
on its back with the legs bent slightly to the right, with one arm across the
abdomen and the other by her side.
4
When Krueger was 16, she met Jason Slusher (Jason)7 at a “drug
house,” where people got together to use drugs. They became intimate, and
when Krueger was 17 she moved in with Jason and his parents and lived
with them for a couple of years. Later, Jason and Krueger got their own
apartment, where they were living when their daughter Kayleigh was born in
May 2010. Jason’s mother testified that both Krueger and Jason had short
tempers. They would argue often, with violence on both sides. One time
Krueger hit Jason in the head with a two-by-four, and Jason responded by
slamming the car door on Krueger’s arm. Krueger’s friend Allen Epperson,
who spent time with Krueger and Jason, saw them arguing and recalled a
time when Jason threw something at Krueger, who then pulled a knife out at
him.
In 2012, Krueger and Kayleigh moved to a new apartment in the same
complex where she and Jason had lived. The apartment measured 585
square feet, and had two bedrooms, one for Krueger and one for Kayleigh. At
some point Jason moved back in with them, but Jason and Krueger broke up,
and in June 2013 Krueger called the police because Jason was stalking and
harassing her. Jason was eventually arrested and sentenced to prison for
violating parole.
Krueger and Warner had reconnected on Facebook in the summer of
2011. She and Jason were sometimes seeing each other and sometimes not;
she would text with Warner when she and Jason were “off,” but not when she
and Jason were back together.
Friends, family members, and neighbors testified that for the first
three years of Kayleigh’s life, she was a happy and healthy child, and
We use first names to refer to individuals who share the last name
7
“Slusher.”
5
Krueger was attentive to her. Krueger took her to the doctor regularly and
facilitated her relationships with members of Jason’s family, as well as her
own.
3. Summer 2013: Warner Moves in with Krueger and Kayleigh
In the summer of 2013, Justin Kent stayed in Krueger’s apartment a
few nights a week. He testified that initially Krueger was attentive to
Kayleigh and there was no drug use in the apartment. But about a month
after Kent started staying with Krueger, Warner moved in and things began
to change. Soon Warner, Kent and Krueger were using methamphetamine
and marijuana in Krueger’s bedroom while Kayleigh watched TV or played in
another room. Warner and Krueger were in a romantic relationship, and
Kent believed that Krueger had more affection for Warner than he had for
her—Warner did not label them as a couple. Kent moved out after a
disagreement with Warner.
4. Fall 2013 through January 2014: Changes in Krueger and
Kayleigh
Robin Slusher, Kayleigh’s paternal grandmother, testified that she was
very much involved in Kayleigh’s life until about Halloween of 2013, when a
new pattern developed: Robin would ask to see Kayleigh and Krueger would
not allow it saying that Kayleigh was sick, or Krueger would cancel a planned
get-together, saying Kayleigh was sick. Robin attempted to see Kayleigh at
Thanksgiving, but Krueger told her Kayleigh was sick.
In mid-December 2013, Krueger told Robin that Kayleigh was sick and
asked Robin to bring Pedialyte and popsicles to the apartment, which Robin
did, but Krueger did not permit Robin to enter the apartment or see
Kayleigh. Robin saw Kayleigh at Robin’s house for about 45 minutes on
Christmas day, and noticed that she had dark circles under her eyes.
6
In mid-January 2014, Robin took Krueger and Kayleigh to a movie.8
Robin noticed that Kayleigh had a bruise that covered almost her entire
cheek. Krueger told her that Kayleigh had bumped heads with Krueger’s
friend, and that although the friend had been crying, Kayleigh said, “Don’t
cry. It’s not a big deal.” After the movie, Kayleigh “burst into tears” because
she didn’t want the movie to be over. When they got in the car for Robin to
drive them home, Kayleigh said she wanted to go to her grandparents’ house,
and she cried when Krueger said no.
During the third week of January, Krueger told Robin that Kayleigh
was sick, and Robin went to the apartment with food to settle Kayleigh’s
stomach. Once again, Krueger did not allow Robin to enter the apartment or
see Kayleigh. On January 29, Robin asked the police to conduct a welfare
check on Kayleigh. On January 31, Robin texted Krueger and asked if
Kayleigh could join her for a family lunch. Krueger responded by text that
they were going to Santa Cruz for the weekend.
Jennifer Slusher, Kayleigh’s aunt, testified that she had spent a great
deal of time with Robin, Kayleigh, and her own children from the time
Kayleigh was born until about three months before her death. During that
three-month period Jennifer tried several times to arrange for Kayleigh to get
together with her children, but Krueger would not allow Kayleigh to visit.
Sophia Grech, Krueger’s sister, often visited the apartment that
Krueger shared with Kayleigh. She testified that Krueger had been “an
amazing mother,” who “would play with [Kayleigh] and make sure she was
taken care of.” But things changed after Warner started living there.
Krueger seemed unhappy. Once, Krueger’s finger or hand was broken, and
8 In the remainder of this opinion, dates are in 2014 unless otherwise
stated.
7
Krueger told her she had slammed it in a door. It began to seem to Grech
that Krueger was paying attention to Warner, but not to Kayleigh, who
would be in a different room of the house. Weeks before Kayleigh’s death,
Krueger admitted to Grech that she was using methamphetamine.
Around Christmas 2013, Grech noticed a bruise about 3 inches in
diameter on Kayleigh’s lower back. When she asked Krueger about it,
Krueger said that Warner had told her that they were playing with
Kayleigh’s bike and that she fell. About a month before Kayleigh died,
Kayleigh became quieter. And in that month, Grech spent less time at the
apartment, but about two or three weeks before Kayleigh died, Grech walked
into Krueger’s bedroom and saw her using methamphetamine. The last time
Grech saw Kayleigh was about a week before Kayleigh died; Kayleigh was
coloring at the kitchen table with no one else in the room. Grech tried to call
Krueger several times in December 2013 and January 2014, but failed to
reach her: when Grech called, Warner would answer the phone and hang up
on her when she said “hello.”
Krueger’s friend Amanda Patterson would get together daily with
Krueger and Kayleigh. Before Warner came to live with Krueger, neither
Krueger nor Patterson was using drugs, though they had used them in the
past. After Warner moved in with Krueger, the women went back to using
drugs, sometimes with Warner and sometimes without him. At first, they
used methamphetamine just on the weekend, but then on an almost daily
basis. Patterson told an investigator that when Krueger came down from
methamphetamine, she would get irritable, upset, or angry.
Patterson testified that after Warner moved in, Krueger “stepped back
as a mom” and let Warner do “fatherly things,” including taking Kayleigh to
the bathroom, making meals for her, and feeding her. One time when
8
Patterson and Krueger were present, Kayleigh was sitting in her highchair,
said she was full, and then threw up. Warner responded by telling Kayleigh
she needed to stay in the chair until she was done eating. Warner would
discipline Kayleigh by lecturing her and putting her in time outs that lasted
from a couple of minutes to 20 or 30 minutes.
Patterson observed that after Warner moved in, Kayleigh cried more,
became scared to go to the bathroom, and started having a hard time moving
her bowels.9 A few weeks before Kayleigh died, Patterson noticed bruises on
Kayleigh, including a bruise on her chin and neck. Warner told her that
Kayleigh fell and hit her chin in the bathtub; Krueger told her that Kayleigh
had tripped over the clothes hamper in the bathroom. Starting about a
month before Kayleigh died, Patterson noticed that Kayleigh was often sick
and throwing up and looked tired.
Krueger described her relationship with Warner to Patterson as
complicated, as though “they were together but not together,” even though
Krueger cared for Warner. Patterson thought Krueger might have been
infatuated with Warner, but based on his behavior, she did not think he was
infatuated with Krueger. Patterson was not aware of Warner ever hitting
Krueger but observed him verbally abusing her. Patterson characterized
Warner’s behavior as “controlling.” Warner frightened Patterson once when
he and Kent woke her in the middle of the night, with Warner sitting on the
end of her bed saying he could tell her things that would scare her.
9
Kent had testified that when he started staying at the apartment,
Krueger was toilet training Kayleigh. The training was going well when
Warner first arrived, but Warner made her sit on the toilet until she relieved
herself, sometimes as long as half an hour. Sometimes Kayleigh asked for
her mother; even though Krueger was present, Warner would go into the
bathroom and tell Kayleigh she had to use the toilet before she could get up.
9
Several of Krueger’s neighbors in the apartment complex testified that
after Warner moved into Krueger’s apartment, they saw Kayleigh playing
outside less often than they had before; when they did see her, she was often
alone, while in the past Krueger had been with her. Neighbors also testified
that Kayleigh had bruises in the last months of her life, and that she looked
pale, acted subdued, and had a black eye in the weeks before her body was
found.
Neighbors offered other testimony as well. Breann Abernathy, a
medical assistant who lived in the apartment next to Krueger’s at the time of
Kayleigh’s death, testified that after Warner moved in with Krueger, she
heard yelling, arguments, and screaming from Krueger’s apartment.
Abernathy also recalled Krueger going to the doctor for whom Abernathy
worked to get treatment for a hand injury, and telling Abernathy that she
hurt her hand when she and Warner were moving furniture at 3:00 in the
morning and her hand was slammed against the wall. One night about a
week before Kayleigh died, Abernathy was awakened by what she thought
was something being thrown against the wall in Krueger’s apartment.
Mandi Farr testified that at about 3:30 one morning, Farr and her
boyfriend were awakened by Krueger and Warner knocking on the door,
asking the boyfriend to drive Krueger to the emergency room and Farr to
watch Kayleigh. Krueger appeared to be in pain; she said her fingers had
been slammed in a door. Farr understood that Krueger and Warner were in
an argument and Warner slammed her hand in the door. When Warner later
came to pick Kayleigh up, Kayleigh held on to Farr’s neck, saying “no, no, no,
no.” When Kayleigh realized that Krueger was there with Warner, she let
Warner pick her up and they left.
10
Alejandra Fermin Cisneros lived in an apartment next door to
Krueger’s; the apartments shared common bedroom walls, and Kayleigh’s
bedroom shared a wall with Fermin Cisneros’s. When Krueger and Kayleigh
first moved in, Fermin Cisneros would hear them laughing and playing in
Kayleigh’s bedroom. After Warner moved in, she no longer heard laughter
and playing through the wall. About three times in the two weeks before
Kayleigh’s death, Fermin Cisneros was awakened in the middle of the night
by the slamming of a door in Krueger’s apartment. She testified that after
she heard the door slam she would hear Krueger or Warner screaming at
Kayleigh to be quiet. She “would hear [Krueger] hitting her and then coming
out – getting outside of the room, because you can clearly hear that they
would slam the doors. And after that, [Warner] I believe would come in and
he would say, ‘Didn’t you hear your mom to tell you to be quiet,’ or ‘shut up.’
I can’t remember exactly what word he used. And—well, that’s what I would
hear, that they would hit her, yes.” She did not recall each occasion in detail,
but she recalled that one night Krueger yelled at Kayleigh to be quiet or she
would hit her, she heard Krueger hitting Kayleigh, and she heard Warner
yelling at Kayleigh. After Krueger and Warner left the room, she would hear
Kayleigh breathing heavily. On two of the occasions, Fermin Cisneros
knocked on the wall and said Kayleigh’s name. She thought Kayleigh
knocked back the first time.
5. Police Visits to Krueger’s Apartment in Late January
On January 27 at about 9:40 a.m., Officer Chambers responded to a
report of a loud disturbance in Krueger’s apartment. Krueger answered the
door, upset and crying; before Chambers could explain why he was there, she
asked whether it was illegal to argue. Chambers explained that someone had
reported a loud argument in her apartment, and he wanted to make sure
11
everyone was okay. Chambers was inside the apartment for about five
minutes, and while he was there, he saw Kayleigh, who sat on Krueger’s lap.
Chambers observed Kayleigh to seem happy, and she asked him about his
uniform. Krueger said she and Warner had been arguing over money and
that she had slammed a door a couple of times. She said she did not need
police assistance, and Chambers did not notice signs of domestic violence.
Warner was in the apartment when Chambers arrived; while Chambers was
talking with Krueger, Warner was outside talking with an officer who had
accompanied Chambers.
On January 29, at about 8:30 p.m., Napa Police Officer Garrett Wade
went to Krueger’s apartment to conduct a welfare check for Kayleigh that
had been requested by Robin, Kayleigh’s grandmother, who had expressed
concern that Kayleigh wasn’t being adequately fed and that Krueger was
using drugs. When Krueger answered the door, Wade explained he was there
for a welfare check and asked to come in. Krueger initially said no and closed
the door so that just her head and upper body were outside the door. Wade
then asked Krueger to call Kayleigh to the door, which Krueger did. Krueger
lifted Kayleigh, who was wearing pajamas, to her hip and stepped outside the
door; the only part of Kayleigh’s body that Wade could see was her face. He
noticed two small bruises on the left side of Kayleigh’s chin and asked
Krueger about them. She said Kayleigh had fallen off her bike. While Wade
was talking with Krueger he saw Allen Epperson, whom he knew, and
Warner walk from the back of the apartment. Wade eventually walked
through the apartment, scanning it as he went, and did not observe any
drugs or contraband or anything that seemed to pose an immediate danger to
a child. He saw food on the counter in the kitchen, which appeared
moderately clean.
12
Wade then spent about 15 minutes with Krueger and Warner,
evaluating them for signs of intoxication and interviewing them as they sat
on the living room couch a couple of feet apart from each other. Krueger did
not appear to be intoxicated. Warner, who showed some signs of intoxication,
admitted that he had taken one of Krueger’s pain pills and smoked
marijuana.10 Warner identified himself to Wade as “Ryan Howard”; Krueger
said nothing about his true name. After about 10 minutes focusing on
Warner, Wade turned his attention to Krueger. Kayleigh said nothing to
Wade during the visit; he thought she said something to Krueger, but he
could not hear what it was. A few minutes later, Kayleigh, who was still in
Krueger’s arms, vomited. Krueger stood up to leave the room, saying she was
going to take care of Kayleigh because she had the flu, and asked Wade to
leave, which he did.
6. Epperson’s Testimony
Epperson had known Krueger for about 10 years. They would use
methamphetamine and marijuana together until Krueger got pregnant, at
which point she stopped using except for occasionally smoking marijuana.
Epperson regarded Krueger as a sister and Kayleigh as his niece. He had
been in and out of jail for the past several years and would spend time with
Krueger when he was out.
Epperson first met Warner when he went to Krueger’s apartment on
January 9 or 10; he hadn’t seen Krueger in about a year before that. He
testified the apartment seemed messed up and dirty, and recalled that he had
told the police he had never seen Kayleigh looking so pale and not well taken
10Krueger testified that she had constant pain in her hand for which
she had been prescribed Percocet and Tramadol, which she took
“occasionally.”
13
care of, and that Kayleigh told him, “I’m so happy to see you. I don’t like
nobody in this house here no more.” Krueger and Warner looked “strung out,
like they’d been using,” and Krueger was acting “on edge, moody” as if she
was high. She had lost weight since he saw her last.
Epperson next went to Krueger’s apartment on January 29, the day of
the police welfare check. He recalled that he had told the police that
Kayleigh “looked like shit” that day. When he asked about Kayleigh’s bruise,
Krueger said Kayleigh had fallen down and bumped her head. At some point
he went to the refrigerator to get something to eat, but it seemed empty.
On January 29, Epperson, Krueger and Warner smoked
methamphetamine in the bedroom with the door closed while Kayleigh was
in the living room watching cartoons. Before the police came, Krueger had
gone to check on Kayleigh, and found her in the bathroom drinking
something that might have had tobacco in it. Krueger started yelling, asking
Warner where her cell phone was so she could call poison control, and then
went into the kitchen slamming things. When Epperson went out into the
living room, Krueger was trying to get Kayleigh to drink water and throw up;
Krueger said that poison control told her to do that. Epperson was under the
impression she had called poison control.
Epperson left the apartment after the police welfare check that
evening. At some point before he left, Krueger gave him a Percocet. The next
day, January 30, at about 1:50 p.m. he texted Krueger asking for more
Percocet but got no response. He texted her again on January 31 at about
10:30 a.m. and got a response saying, “Hey, my bad, we bounced out of town
for a min. After what happened the other night we just had to get away.”
During one of Epperson’s January 2014 visits to the apartment,
Warner admitted that he was with Krueger just to get a place to live.
14
7. Flight and Arrest
Sometime after 9:00 a.m. on February 1, a neighbor saw Krueger and
Warner leaving Krueger’s apartment with luggage.11
Around noon that day, Antonio Vasquez was at a Home Depot waiting
for work and noticed Krueger asking for a ride. Warner was with her, but
about 20 feet away. Krueger, who did not seem upset, asked Vasquez for a
ride to the bus station in Vallejo, telling him that she had a children’s video
game she would give him in exchange for the ride. He agreed to give her a
ride, and she called to Warner. They had a suitcase-like bag with them. The
drive took 20-25 minutes, during which no one spoke. Neither Krueger nor
Warner appeared to be upset.
On the morning of February 2, Silvia Melendez was sitting in the lobby
of a restaurant when she looked at a news story on her cell phone about the
police looking for two suspects in connection with the death of a little girl.
The story included pictures of Krueger and Warner. A woman and man then
entered the restaurant. Melendez noticed that the man looked like the
person in the photo, and started looking at the story again, at which point she
saw that the woman, who had sat down next to her, was looking down at
Melendez’s cell phone. The woman then got up quickly and spoke with the
man, and the two left immediately.
Later that morning, BART Police Officer Boutain received an alert
describing two people who were wanted for murder by the Napa police
department and who were last seen at a restaurant across from the station
where Boutain was located. Boutain canvassed the BART station, saw
Krueger and Warner, and asked if they needed help. Krueger started crying
11Warner was carrying a red and black “hand pack.” The bag was
never found.
15
and said she needed to talk to the Napa police about something bad that had
happened there. Krueger and Warner were then arrested.
Warner had his cell phone in his pocket when he was arrested. In the
phone case there was a receipt from Target for the purchase of ice cream on
January 31 at about 3:15 p.m. Krueger’s cell phone was in her purse, as were
state benefits cards for Krueger and Kayleigh.
Blood drawn from Krueger and Warner on the afternoon of February 2
tested negative for the presence of methamphetamine and positive for
marijuana. A toxicologist testified that methamphetamine is on average
undetectable three to four days after ingestion.
8. Krueger’s Interview with Detective Hess
Andrew Hess, the lead detective on the investigation of Kayleigh’s
death, interviewed Krueger in two parts on February 2, after she was
arrested and taken back to Napa.12
The interview began with Hess asking Krueger what had happened to
Kayleigh. Krueger said that on the night of January 29, Kayleigh started
vomiting after she drank from a measuring cup. The cup had contained two
squirts of Windex and dirty water that Warner said he had used to clean a
tobacco pipe; Krueger could see tobacco in the sink, and Kayleigh told
Krueger she poured out what was in the cup and then filled it up with water
because she was thirsty.13 At the time, Krueger, Warner, and Epperson were
12
As part of the prosecution case, the jury was shown a videotape of the
first part of the interview and given transcripts to follow along. As part of
the cross-examination of Krueger, who testified in her own defense, the jury
was shown videotapes of both parts of the interview and given transcripts.
We summarize both parts here.
Krueger told police that she had put the measuring cup on the stove.
13
The parties stipulated that a measuring cup found in the kitchen of Krueger’s
16
at the apartment. Krueger thought Kayleigh had swallowed tobacco, which
made her sick. Kayleigh vomited quite a few times, over a period of hours.
Asked why she didn’t call the paramedics when Kayleigh was vomiting,
Krueger said that it was because she and Warner had been using drugs. At
the time Kayleigh drank the liquid, Krueger was “coming back” to her senses
after using methamphetamine, and wanted to call poison control, but Warner
told her that Kayleigh was throwing up, which is what she needed to do.
They thought she had thrown up whatever she had drunk.
When Kayleigh stopped throwing up, she was put to bed, and Krueger
went to bed as well. When Krueger awoke, on the afternoon of Thursday,
January 30, she found Kayleigh on the bathroom floor and thought she was
sleeping. Kayleigh had apparently taken off her zip-up pajamas, which she
could do by herself. Krueger went to wake her up, but Kayleigh was stiff.
Krueger told Hess she wanted to call the police when she found
Kayleigh’s body, but Warner said the police wouldn’t believe them. So
Krueger told Warner to leave, and that she would call the police. Even
though she had a phone and could have called, she didn’t because she was
scared. Krueger said that after she found Kayleigh, she held her and then
put her in her bed wrapped in blankets.
For the rest of Thursday afternoon and Friday, she would go in and out
of Kayleigh’s room. Warner said he didn’t want to go to jail for something he
didn’t do, and Krueger told him to leave and run so she could call the police.
Warner spent time on Friday making phone calls.
On Friday night, two people came to the house, including one of
Warner’s friends, who Krueger knew to be a high-ranking gang member and
apartment bore Warner’s fingerprint, and DNA consistent with Kayleigh and
Warner.
17
who terrified her, and the friend’s brother. Warner had asked them to get
Warner and Krueger out of there. Warner and Krueger told the men what
happened, and the friend said they should have called the police. Warner
took the men into Kayleigh’s room, while Krueger remained in the kitchen.
The men told Warner and Krueger to call the police, which they did not do.
At about 1:00 or 2:00 on Saturday morning, after the men left, Krueger
said she was going to call the police, and Warner put Kayleigh’s body in the
freezer to preserve evidence. Krueger said she may have passed out, and that
Kayleigh’s body was in the freezer for about three hours before she took it out
and put it back in bed with blankets, a pillow and a toy.
Krueger and Warner then fell asleep for a couple of hours, and when
they awoke they decided they had to leave. At about 9:30 or 10:00 a.m. on
Saturday, they left the apartment and walked to a nearby Game Stop, where
they tried to sell a PlayStation 3. Later they sold it to someone at Home
Depot to get a ride to Vallejo, where they got on a bus, which they took to a
BART station. They then went to San Francisco and walked around, and
they went to a church to pray and have the pastor help them call the police,
but the church was closed, so they went to the airport, where they stayed the
night. On Sunday morning, they took BART back to the station where they
had boarded and went to a restaurant because Warner was hungry. She
turned her phone on just one time.
Krueger told Hess she hadn’t used drugs in days, except for some
marijuana. She said she had a problem with methamphetamine long before
she had Kayleigh, but she stopped using when she learned she was pregnant
and didn’t use again until Warner came into her life in 2013, at which point
they were using almost every day or every other day. Kayleigh would watch
a movie when they used.
18
When asked about bruising on Kayleigh that neighbors had noted
about a week before, Krueger said Kayleigh had fallen off her bike, and had
just a little bruise. Krueger also said that at one point Kayleigh had a black
eye; Warner told her that he and Kayleigh had bumped heads when Kayleigh
jumped up to give him a hug, resulting in a black eye for Kayleigh and a
swollen eyebrow for him. Krueger was not present when it happened but had
no reason not to believe it. Also, Kayleigh had the flu about two weeks before
she died.
Krueger said she and Warner had been together since August and
although her own relationship with Warner was “complicated,” he was good
to Kayleigh, and the two of them were close. He helped with Kayleigh’s toilet
training and taught her letters and numbers. Kayleigh was smart, friendly
and outgoing, and used to ask Krueger if Warner could be her dad. In
response to Hess’s remark that people told him Kayleigh’s demeanor had
changed since Warner was around, Krueger told Hess that Kayleigh missed
her father and was often nervous but perked up around Warner. Krueger
said she never saw Warner put his hands on Kayleigh, and Kayleigh never
said anything to Krueger about Warner doing anything to her.
In the second part of the interview, Hess asked who had given Kayleigh
baths, and whether Krueger had noticed bruises when she bathed her.
Krueger said that both she and Warner had given Kayleigh baths. Kayleigh
bruised easily, and she sometimes noticed bruises, mostly on Kayleigh’s
knees or elbows. Krueger said that sometimes Warner would be alone with
Kayleigh, for example when she went to the store.
Asked how they put Kayleigh in the freezer, Krueger answered that
Warner folded her legs, put her in a plastic garbage bag and then a suitcase,
and put the suitcase in the freezer, which had no food in it.
19
Krueger said she promised the men who came to the apartment early
Saturday morning that she would call the police, but she didn’t. Krueger said
she was afraid to call the police because Warner told her that if he went to
jail, the men would come for her. She also said that Warner had her phone
most of the time, but she turned on her phone once and saw that she had a
lot of text messages and knew that the police would be coming.
Krueger said that when Warner got angry he would yell a lot, but
generally not get physical, except that once he got angry and slammed a door
on her hand; she didn’t know if he had done it on purpose. When Warner was
on methamphetamine, he would be up for days and his temper would be
much shorter.
As far as Krueger knew, Warner was good to Kayleigh. He spanked
Kayleigh with an open hand a couple of times on her bottom; Krueger told
him not to do that anymore and Warner said he wouldn’t. During the last
couple of weeks of Kayleigh’s life, Kayleigh and Warner got along very well
together—she would sit on the couch with him and hug him. Sometimes he
would get angry with Kayleigh because he thought “she was holding in her
poop.” At first Krueger thought it was strange that he would take Kayleigh
to the bathroom, but she was okay with it because she would hear Kayleigh
tell Warner that she loved him and say that she wished he was her dad.
Hess left the room for a time; when he returned, he said he had been
talking with Warner and had some more questions for her. He asked about
Krueger trying to give Kayleigh popsicles after she was sick to make her
better. He asked if she had hit her, and Krueger said she had raised her
voice at Kayleigh to get her to eat them but did not touch her. She said she
spanked Kayleigh in the past, a long time ago, but apart from that never put
her hand on her.
20
He asked about going out for ice cream. Krueger said that Warner
wanted to get ice cream, but she couldn’t eat it; Warner ate most of it. They
also got cigarettes, and she smoked to calm her nerves.
When she found Kayleigh dead, she saw bruising on her buttocks or
“red butt” from Warner spanking her. She also saw bruises on Kayleigh’s
back that Warner said were “from the red butt.” She said she saw only a few
tiny bruises, and she didn’t see any on Kayleigh’s stomach. When she saw
Kayleigh dead, her first thought was that “she didn’t pour out the water,”
that she “drank that stuff and we poisoned her.”
9. Medical Experts
Two medical experts testified for the prosecution, forensic pathologist
Dr. Joseph Cohen, who performed the autopsy on Kayleigh on February 3,
and Dr. James Crawford-Jakubiak, a child abuse pediatrician, who had
reviewed Kayleigh’s medical records as well as documents, photographs and
x-rays from the autopsy.
Kayleigh was 41 inches tall and weighed 34 pounds. Dr. Cohen
identified 41 external injuries on the body, which appeared to have been
made within hours to two or three days before death.14 There were numerous
blunt force injuries to the front and back of the torso, reflected in small and
large bruises, mostly on the abdomen, but also on the back and buttocks. Dr.
Cohen counted 8 to 15 individual bruises to the abdomen, indicating 8 to 15
individual impacts. There were also external injuries to the extremities, i.e.,
the arms, forearms, thighs, legs and knees, as well as injuries to her head,
14
Some of Kayleigh’s injuries, including a healed broken rib, occurred a
few weeks before death. Dr. Crawford-Jakubiak testified that the broken rib
would have caused Kayleigh pain, including when she moved, and that given
her age, Kayleigh would have communicated the nature of the injury.
21
which were reflected in bruises on her forehead, cheek and under her chin,
and internal injuries to her scalp, one corresponding to the bruise on her
forehead, and one on her temple.
Dr. Cohen testified that moderate force would have been required to
inflict the injury to the head that resulted in interior bruising, and that
“moderate to severe” force would have been required to inflict the other
external injuries that he observed. None of the injuries to the abdomen
would have resulted from a spanking. Nor were the injuries to the buttocks,
back, or thighs caused by a “typical” spanking. Dr. Crawford-Jakubiak
opined that the extent of injuries on Kayleigh’s body was far beyond what
would commonly be suffered by a three-and-a-half-year-old in the course of
her life, and were caused by repeated episodes of major blunt force trauma.
The injuries were consistent with beating, not with spanking or falling from a
bike.
Dr. Cohen noted that the skin over the entire abdomen was green, a
sign of infection. When he opened the abdominal cavity, about two cups of
liquid poured out, consisting of blood and intestinal contents. The source of
the liquid was a rupture in the wall of the small intestine in the middle of a
12-inch segment of the intestine that was necrotic (i.e., dead or dying). In
addition to the injury to the intestine, Dr. Cohen observed blunt force injury
to the mesentery, which is the tissue that holds the intestine in place and is
anchored near the spine. Dr. Cohen also found a small recent injury to the
front of the spine. He found no evidence of constipation, abdominal disease,
or a spontaneous rupture.
The cause of death was abdominal trauma, which caused a lack of blood
flow in the belly, as well as damage to the intestine. As a result of the
trauma and lack of blood flow, the intestinal tissue became necrotic. The
22
intestine perforated and its contents spilled into the belly, ultimately
resulting in shock and death. Dr. Cohen stated that Kayleigh had been
abused and neglected. As to neglect, he opined that “it would have been very
clear that Kayleigh was in harm’s way after receiving the lethal injury, that
the lethal injury if treated early would have resulted in survival through
surgical excision of that dead portion of small intestine.” Neglect was also
reflected in Kayleigh being dehydrated and slightly malnourished. Dr.
Crawford-Jakubiak noted that from just after her birth until just after her
third birthday, Kayleigh went to the doctor frequently and Krueger often
called the nurses for small problems. On a couple of occasions, Krueger
sought care for Kayleigh when Kayleigh was vomiting. Kayleigh’s history of
medical care abruptly stopped in June 2013.
Dr. Cohen testified that after suffering a blow to the abdomen that
resulted in the injuries he observed in Kayleigh, a child would have cried and
would have suffered discomfort, pain, nausea, vomiting, and loss of appetite.
The symptoms would have progressed over time to unconsciousness and
death. Dr. Crawford-Jakubiak testified that the fatal injury to her abdomen
would have been very painful and Kayleigh would have cried, probably
vomited, and expressed what happened in words. As the injury progressed
and the bowel died, Kayleigh would have vomited, could have passed blood
from her anus, and would have experienced great pain for an extended period
of time until she lost consciousness.
Dr. Cohen testified that a “substantial” amount of force would have
been required to injure her spine, and a “severe” amount of force would have
been required for the fatal injury, and in each case the force came from blows
to the front of the body. He could not be certain how many impacts caused
the injuries; it could have been one or two or more.
23
Neither Dr. Cohen nor Dr. Crawford-Jakubiak could determine exactly
when Kayleigh died. Dr. Cohen testified that based on the state of the body’s
reactions to the injuries and the fact that the reactions stop at the time of
death, he estimated that the fatal injury to the intestine and mesentery was
inflicted more than 12 hours before Kayleigh died, and probably 18 to 24
hours up to two or three days. From the necrosis of the bowel and the
amount of fluid in the abdomen, Dr. Crawford-Jakubiak concluded that the
fatal injury occurred at least a day before Kayleigh died, and possibly longer.
The experts agreed that, based on the descriptions of Kayleigh’s behavior
during the January 27 police visit, when she was active and engaging with
people in her environment, and the January 29 visit, when she was quiet and
during which she vomited, that the fatal injury occurred between the two
visits.
Dr. Cohen noted that an “atypical” lividity pattern on the body
indicated that it had been moved after death.
10. Police Investigation
Investigators obtained, and played for the jury, video footage from
Target corresponding to the day and time shown on the receipt found with
Warner’s cell phone. Detective Hess noted that the footage shows Krueger
and Warner buying ice cream on January 31 at about 3:00 p.m. and that the
container was consistent with one found in Krueger’s apartment. He noted
that Krueger was ahead of Warner when they entered and left the store and
did not appear to be under duress or upset in the footage.
Video surveillance footage from the San Francisco International
Airport (SFO), also played for the jury, showed Krueger and Warner on an
airport tram at about 11:15 p.m. on February 1. Detective Hess testified that
Krueger appeared calm in the video. He noted that the video shows Krueger
24
and Warner conversing, and shows Krueger resting her head on Warner’s
shoulder and then trying to snuggle with him and shows Krueger laughing or
giggling. Hess stated that she did not cry or act upset; she appeared to be
affectionate toward Warner, and did not appear to be afraid of him or under
duress.
Krueger’s medical records showed that she was treated for a hand
injury on January 9 and told treating personnel that the injury was caused
by her boyfriend, “Ryan Howard,” who had accidentally slammed her hand in
the door. She was also seen for a hand injury on January 10 at a different
facility, and she told the treatment team that a friend had accidentally
slammed her hand in the door.
Kayleigh’s medical records showed that Krueger had taken Kayleigh to
the emergency room about seven times during the first three years of her life,
including when Kayleigh had possibly ingested hand sanitizer. Krueger had
also taken Kayleigh to nine appointments, and she had two phone
appointments.
An investigator who examined the computer found in Krueger’s
apartment testified that the web browsing history reflected a search for the
phrase “stabbing pain next to bellybutton,” but not the date or time of the
search. He also determined that at about 11:00 p.m. on January 29, two
video files were accessed or downloaded: Terminator 2, Judgment Day and
The Secret Life of Walter Mitty.
Another investigator testified that a review of web browsing on
Krueger’s phone during January showed a search on January 23, a week
before Kayleigh’s death, asking whether vitamin E is good for bruises, and at
about the same time frame, searches on how to get rid of bruises now. On
January 24, there were continued searches on the same topics. On January
25
25, there was a search for an article to the effect of a woman booked or jailed
on suspicion of child abuse. On January 31, after Kayleigh’s death, there
were searches for U.S. cities, including a search for U.S. cities with the
highest population.
Investigators reviewed text messages on Krueger’s phone between
Krueger and Robin Slusher. On December 17, 2013, Krueger asked Robin to
bring ibuprofen for Kayleigh, as well as some food that would be easy on her
stomach. Krueger told Robin this was the sickest Kayleigh had been in a
long time. When Robin asked about Kayleigh the next day, Krueger said that
Kayleigh had a fever of 100.4, down from 102.1. Texting between the two on
Kayleigh’s condition continued through December 20, 2013, when Krueger
reported that Kayleigh was still sick and had been throwing up all night.
In mid-January there was another series of text messages between
Krueger and Robin. On January 16, Krueger reported that Kayleigh had a
fever and was throwing up. Robin asked about Kayleigh the next day and
was told Kayleigh had horrible diarrhea and a fever. Robin checked in again
on January 18 and 19; each time, she was told that Kayleigh was still sick.
Robin asked to see Kayleigh, but Krueger said no.
Robin contacted Krueger by text on January 25 and 26, wanting to see
Kayleigh. Krueger did not respond until January 27, when she informed
Robin that Kayleigh was very sick and she was waiting for a phone
appointment with the doctor. When Robin checked in later to find out what
the doctor had said, Krueger responded that the doctor said it was a nasty flu
season and she should keep Kayleigh inside, give her fluids and monitor her
for 48 hours.
26
During these periods there was no indication on the phone or in
Kayleigh’s medical records that Krueger had sought medical advice regarding
Kayleigh.
The last text exchange with Robin was on January 31, when Robin
asked to see Kayleigh and Krueger responded that they were going to Santa
Cruz.
Investigators found that starting on January 30 at about 4:30 p.m.
there were 76 outgoing phone calls from Krueger’s cell phone to Valdez, as
well as missed incoming calls from Epperson and Robin. There was an
outgoing call on January 31 at about 3:00 p.m. to a number that allows
recipients of welfare to check the status of their benefits. This call was made
just before the purchase of ice cream at Target.
C. Defense Case
In her defense, Krueger called fact witnesses, offered her own
testimony, and called an expert witness.
1. Fact Witnesses
Linda Reed testified that from April through June of 2013, Krueger
occasionally worked as a substitute at Reed’s daycare center, which Kayleigh
attended. Reed thought Krueger was a good mother and asked her to work
as a substitute based on seeing Krueger interact with Kayleigh.
Krueger’s father, John Krueger (John), testified that when he saw
Kayleigh on Christmas Day 2013, she was behaving normally, and that the
last time he saw Kayleigh was about a week before she died. After that, at
the end of January 2014, he tried to see Kayleigh, but was told by Krueger
that Kayleigh was sick with the flu.
John testified that he and Krueger had a close relationship and used to
talk on the phone every day. Their contact became less frequent after
27
October 2013. By mid-January 2014, John was aware that Krueger was
using drugs.
2. Krueger’s Testimony
Krueger testified that she met Jason at a drug house when she was 16.
At that time she had a “problem” with methamphetamine, and they used it
together every day. Later, they used only on weekends. After about five
months they became intimate, and when Krueger was 17 she moved in with
Jason at his parents’ home.
Jason was jealous, and he accused Krueger of cheating on him. The
jealousy led to frequent arguments in which Jason became violent and struck
her. He called her names, told her she was worthless, and harassed her
when she went to see friends, so she stopped seeing many of them.
At 19, Krueger became pregnant, stopped using methamphetamine,
and delivered Kayleigh in May 2010. Jason was in jail during part of the
pregnancy, having been convicted of domestic violence for slamming
Krueger’s arm in a car door. On his release from jail, Jason continued using
methamphetamine, and when he was coming off a high, he was sometimes
violent. In June 2013 he was arrested and sent to prison after he threatened
to kill Krueger and kidnap Kayleigh.
While Jason was in prison, Krueger reconnected with Warner, with
whom she had been acquainted when she was 15. She invited him to visit,
which he did in August 2013. At first Warner was going to stay for just a
couple of days, but he ended up moving in with them. Krueger described
Warner’s relationship with Kayleigh as “[g]ood, like a stepdad.” Like a good
parent, he played with Kayleigh, helped with toilet training, and seemed very
loving. Warner would have Kayleigh sit on the toilet for 15 or 20 minutes to
have a bowel movement, and sometimes Krueger and Warner would argue
28
because Krueger thought that was too long, but Warner told her that
Kayleigh “was so backed up and constipated” and that “it was borderline
child abuse to let her hold it in all day long” because she would be in so much
pain when she finally moved her bowels, and Krueger thought it was better
for Kayleigh to sit on the toilet than be in pain.
The first day Warner arrived, Krueger resumed her methamphetamine
habit with him. They would smoke methamphetamine in Krueger’s bedroom;
Kayleigh would play in her bedroom or watch a movie. From the beginning of
December 2013, Krueger was using methamphetamine every day. She would
take a “hit” or two of methamphetamine for a “boost,” five or six times a day,
and used marijuana to ease the feelings of coming down from the high,
sleeping every night or every other night. She agreed that she was high
pretty much all the time from Thanksgiving through January.
Krueger initially testified that she would buy marijuana, but not
methamphetamine. She said that Kent would come over and leave them
some, or Warner would trade video games to a friend for drugs. Later, she
testified that she would also go to friends’ houses and use there and
sometimes they would give her some to take home. Eventually, after
reviewing texts she had sent and a transcript of a telephone call from jail, she
admitted that she would spend money on marijuana, which she would trade
for methamphetamine with her friends because they gave her a better deal,
and that she had bought methamphetamine at least once.
In mid-December, Krueger learned that there was a warrant for
Warner’s arrest. She was present on occasions when he lied to people about
his name. Because of the warrant, Warner rarely left the apartment, and
Krueger was usually the one to run errands, and she would often leave
Kayleigh with Warner. Starting in mid or late December, she and Warner
29
would often argue about her wanting to stop using drugs and having them
around.
Krueger and Warner had verbal arguments almost daily from mid-
December through January. Krueger testified that the arguments would be
about getting clean and denied that they concerned the relationship.
Although she wanted more from the relationship than Warner was willing to
give, they argued about the relationship “maybe two times,” the first of which
was in November. Around Christmas, they had their “first big fight” about
getting clean, during which Warner threw the Christmas tree over. On
January 9, during another argument about getting clean, Warner slammed
her hand in her bedroom door, injuring her badly. She and Warner went to
the hospital to have her hand treated, leaving Kayleigh with a neighbor.
On the morning of January 27, she and Warner got high. Later, they
had an argument: she wanted to get clean, and he didn’t, so she told him to
move out. Warner threw an abalone shell against the wall and pushed
Krueger against her bedroom door and punched it right next to her face
twice, leaving two holes in the door. Warner told her that he would leave
only if she had the police remove him, and if she did that, he would have
“Antonio [Valdez] and all his homies come handle [her].” Warner had told
her that Valdez was a high-ranking gang member, and Krueger was afraid
that if the police were involved, Antonio would come to the house and hurt
her in front of Kayleigh. Krueger was also concerned that Kayleigh would be
taken away because they were using drugs. The police arrived at the
apartment in response to the argument, but Krueger did not tell them what
Warner had said and done.
After the police left on the morning of January 27, Krueger took
Kayleigh to a friend’s house for several hours. She had told Warner to pack
30
his things and leave while she was away. But while she was at her friend’s
house, she sent Warner a text message that said, “I really hope you’re home
when I get there.” He responded, “I got up, made pancakes for your
daughter, put cinnamon rolls in the oven . . . and you woke up treating me
like dog shit for nothing,” to which she replied, “I am so sorry. You do so
much for us. I am so sorry. I guess I was just mad because I wanted to
cuddle with you last night.” She and Kayleigh went back to the apartment
that afternoon, took a nap on the couch, and awoke to Warner saying that he
would take Kayleigh to the bathroom and then make dinner.
That night, Krueger didn’t really sleep. At about 10:00 a.m. on
January 28, she was taking a shower and fainted; she hadn’t eaten because
she was using, and Warner told her to lie down, made her some soup, and
said he would take care of Kayleigh.
For the rest of the day on January 28 Krueger slept off and on, until
about 5:00 in the afternoon, when Kayleigh brought her a picture she had
made for her. Krueger and Warner had an argument that evening, and at
some point on January 28 she sent him a text saying that she cared for him,
and it was clear he would never have the same feelings for her, and she “just
want[ed] to feel loved.” After the argument, Krueger called her friend
Epperson, crying and saying that she was upset about the way Warner
treated her because she was helping him out so much and felt things were
one-sided. Epperson asked if she wanted him to come over, and she said yes,
so he could keep her company.
31
Krueger testified that on January 29, she woke at about 8:00 a.m.15 and
Epperson arrived soon thereafter. That day she smoked marijuana but did
not use methamphetamine, contrary to Epperson’s testimony. During the
day she was “periodically” in her bedroom with the door closed, and Kayleigh
was in another room watching a movie. That afternoon, at about 4:00 or 4:30,
Krueger was in her bedroom and heard Warner say, “[W]hat happened, did
you throw up?” Krueger, who was under the effects of “coming down” from
methamphetamine and high from smoking marijuana, went into the
bathroom where Kayleigh was, and saw vomit on the floor, brown liquid in
the sink, and a measuring cup on the floor in which Warner had a tobacco
pipe soaking in water and Windex. Kayleigh said she was thirsty and that
she got new water. As far as Krueger knew, that was the first time Kayleigh
vomited that day.
Krueger testified that she wanted to call poison control because she
thought Kayleigh had swallowed tobacco; Warner said no, that it was okay
and that Kayleigh just needed to throw up and that they should give her
water. Epperson reminded Krueger that when Kayleigh was a baby she had
eaten half a cigarette, Krueger had called poison control, which told her that
she would throw up and to give her water. So she gave Kayleigh water, and
Warner put his finger in her throat a couple of times to get her to throw up.
Kayleigh threw up about six times; the last time was while the police were
there that evening. Kayleigh was sitting in Krueger’s lap when she vomited;
the vomit was red from Pedialyte that she had given Kayleigh, and it got on
Krueger’s clothes.
15
On February 5 and 15, 2014, in recorded telephone calls with her
father, Krueger said she had been awake for 30 hours, since she last used
methamphetamine, when she fell asleep on the morning of January 30.
32
Krueger said she told the police that Kayleigh had been throwing up;
they said they were done with her and that she should go get cleaned up.
The police left while she was in the shower, with Kayleigh sitting in the tub
playing. Warner knocked on the bathroom door, and Krueger clung to him
and cried because she was afraid Kayleigh would be taken away because of
the drugs in the house.
Krueger did not notice anything unusual about Kayleigh while she was
in the tub. The only bruises she saw were bruises she knew about: a few on
her lower back, two little ones on her chin, and one on her forehead.
Kayleigh had told her the bruises were from bumping her head on the table
or from her bike. Previously, before her hand was slammed in the door,
Warner had told her that Kayleigh had jumped up from the toilet to hug him,
and they bumped heads, giving him a swollen eyebrow and Kayleigh a black
eye. The black eye had gone away by January 29.
After Krueger put Kayleigh to bed, Kayleigh woke up a few times
whining that she was thirsty. Krueger gave her Pedialyte, thinking that the
tobacco she had drunk was gone and she was waking up thirsty from having
thrown up so much.
Krueger did not sleep until about 4:00 in the morning on the 30th.
When she went to bed, Kayleigh was in the bathroom with Warner. Krueger
woke at 4:00 in the afternoon. She had expected to find Kayleigh in bed with
her, looked at her phone to see what time it was, and then, concerned that
she had slept so long, went to find Kayleigh, who she found on the bathroom
floor lying on her stomach. Krueger thought she was asleep, and went back
to the bedroom and asked Warner, who was waking up, why Kayleigh was
sleeping on the floor. Krueger went back to check on her, called her name,
and went to shake her, but realized that Kayleigh was dead when she
33
touched Kayleigh’s leg, which was cold and stiff. There was a bruise on
Kayleigh’s bottom that she had not seen before.16 She started screaming that
Kayleigh was dead and started to pick Kayleigh up. Warner ran into the
bathroom and took Kayleigh from her arms. He started shaking Kayleigh
and poking at her stomach, and said, look, she’s breathing. Krueger told him
to stop and give Kayleigh to her, which he did. Krueger said they needed to
call 911. Warner said he needed 10 minutes to process what had happened,
and he took Kayleigh and put her on her bed.
When Krueger asked for her phone to call 911, Warner said the police
would think he did something to Kayleigh because of the bruise on her
bottom. He told Krueger that the day before, Kayleigh had gotten out of a
time out early, and he spanked her, but he didn’t think he had spanked her
hard, but apparently he had. Krueger told him a spanking would not kill
Kayleigh and there must have been more Windex in the cup, which she must
have drunk and which poisoned her. Krueger testified at trial that she still
believed that Kayleigh died from drinking the Windex and tobacco solution.
Although Krueger had told Detective Hess in her interview that she
was in and out of Kayleigh’s room after she found Kayleigh on January 30
and on January 31, she testified at trial that Warner would not let her into
Kayleigh’s room until after she took Kayleigh’s body from the freezer.
On Friday afternoon, Warner said he needed to get out of the house, so
they went for a walk, and ended up at Target, where Warner bought ice
cream. They returned to the apartment, and late that night or early
Saturday morning, Valdez and his brother came over at Warner’s request.
The four of them talked in Valdez’s car. Warner said that Kayleigh had
16Krueger testified that she did not see other bruises on Kayleigh when
she found the body.
34
drunk something and died, and that he needed help to get away and get rid of
her. Krueger was crying, and Valdez yelled, why didn’t you call the police.
Krueger told him that she wanted to. She testified that she did not call, and
asked why not, she testified that Warner had her phone.
After Valdez and his brother left, as Krueger was dozing off, she heard
Warner say something about the freezer. She awoke at about sunrise and
could not recall whether he had actually said that; she asked him if Kayleigh
was in the freezer. When Warner said yes, she went to the kitchen, opened
the freezer, took out the bag with Kayleigh’s body, and removed the body
from the bag. She noticed the body had a red, purplish color on the side that
had been lying on the floor.17 She put Kayleigh’s body back in her bed, under
blankets.
Later that morning, they left the apartment. One of the last things
Krueger did before leaving was pack a bag of “special clothes of Kayleigh’s
and hospital clothes and first birthday clothes.” The bag was marked “Please
give to my mom.” After leaving the apartment, Krueger and Warner tried to
sell some video game equipment at Game Stop to get money, and then went
to Home Depot where she arranged with Vasquez to give them a ride to
Vallejo. Warner had told her they should go to Vallejo, and she assumed that
was to get a bus, but she didn’t know where they would go from there.
Warner told her he would give her the phone and let her call the police when
they got out of town.
17 Krueger testified that although she had since seen photographs that
show bruises all over Kayleigh’s body, including on her stomach, she did not
see other bruises when she found the body or when she took the body from
the freezer and laid it on the bed.
35
At Vallejo, they took a bus to the El Cerrito Del Norte BART station,
arriving at about 1:30 p.m. on Saturday, February 1. They took BART to San
Francisco and went into a fast food restaurant, where Warner gave her phone
back and said she could call the police. She turned on the phone and saw
dozens of messages, and she knew that the police had found Kayleigh. She
told Warner she wanted to go back to Napa and go to the police station
herself rather than calling. Warner said he would go with her, but as they
started walking back to the BART station, Warner said he wanted to go to
the beach and smoke some marijuana that Krueger had with her, and then
they would head back. So they went to the beach, and later took BART to
SFO. It was too late to get a bus to Napa, so they went to the airport where
they sat on chairs for the rest of the night. Krueger added that “before the
airport, we were gonna go to a church.” The next day they took BART back to
El Cerrito Del Norte, where they were arrested.
Krueger testified she had spanked Kayleigh just three or four times in
her life, with an open hand on Kayleigh’s bottom. She did not yell at
Kayleigh during the last week of her life, except on January 29, when she
was on the couch with Kayleigh trying to get her to eat a Pedialyte popsicle to
rehydrate her. Warner came out of the bedroom and said to Kayleigh, are
you not listening to your mom, at which point Kayleigh took a bite from the
popsicle. Krueger said she was not concerned that Kayleigh was seriously ill,
but just worried about dehydration and noted that it was unusual for
Kayleigh to refuse to eat a popsicle.
Krueger admitted that Kent and Patterson each expressed dislike for
Warner, who they characterized as arrogant. Her father disliked Warner
because he thought Warner should be working. In January 2014, Krueger
36
and her father fought about the fact that he thought she was using drugs and
that that he didn’t approve of Warner living in her home.
Krueger admitted that child protective services (CPS) was supervising
her with Kayleigh from the time Kayleigh was five months old until she was
almost two. She also admitted that during that time Jason went to prison for
an incident that occurred when he came to her apartment, grabbed her arm,
and twisted it. She told her CPS worker that she had lied to the police, and
that Jason had not assaulted her but had been jumped by gang members.
She admitted at trial that what she told CPS was a lie. The truth was that
she had fought back when Jason assaulted her and it had left marks on him,
and she and Jason were concerned that she would get in trouble with CPS for
fighting him.
Krueger testified that Warner did not physically abuse her as Jason
had; the only physical injury she ever received from Warner was the injury to
her hand when the door slammed, and she did not know whether that was
intentional on his part. Unlike Jason, Warner did not try to prevent her from
seeing her friends.
3. Expert Testimony
Marriage and family therapist Linda Barnard testified as an expert in
intimate partner battering and the psychological concept of dissociation.
Intimate partner battering creates “coercive control” even if physical force is
absent. Abuse followed by kindness creates a bond, which is enhanced by
isolation of the victim from other support.
“Cumulative traumatic stress” leads to changes in the brain. Memory
of a traumatic event may be disordered and inconsistent. Perception may be
altered. A person who has been the victim of trauma, including intimate
partner battering, and who suffers a traumatic event, like finding their child
37
dead on the floor, might not notice aspects of the child’s body, such as
bruising.
Dr. Barnard testified that dissociation is commonly part of a response
to trauma, whether cumulative trauma or an extremely traumatic event. A
dissociative response can include a failure to register information about a
traumatic event and loss of memory of details surrounding a traumatic event.
The person may be unable to describe events in sequence, or may remember
some things but not others. A person in a dissociative state “feels like they’re
split off from their feelings,” or “their behaviors show that they’re somehow
not connected to the behaviors that they’re doing, that there’s a disconnection
there,” but might be able to negotiate with a cab driver for a ride, or perform
routines tasks, like laundry. A person undergoing an extreme dissociative
episode cannot function, but more commonly, a person in a dissociative state
has a flat affect even when talking about the traumatic event.
After interviewing Krueger, reviewing a transcript of Krueger’s
testimony, and the video of Krueger’s interrogation by Detective Hess, as well
as various police reports, medical reports, Kayleigh’s autopsy report, and a
receipt from Target, Dr. Barnard diagnosed Krueger as suffering from
posttraumatic stress disorder with depressive symptoms. Dr. Barnard opined
that Krueger experienced multiple traumatic events in her life, including
being involved in two relationships that included intimate partner battering:
one with Jason Slusher, characterized by numerous incidents of physical
violence, and one with Warner characterized by strident arguments and three
incidents of physical violence.18 Dr. Barnard opined that the trauma affected
18
Dr. Barnard opined that other traumatic events in Krueger’s life
included experiencing violence in her home growing up, abandonment issues
with her parents, physical and verbal abuse from her father, being molested
multiple times by a boyfriend’s father, being the victim of a rape by two men
38
Krueger’s memory, perception, behavior, outlook and beliefs, that Krueger
went into a dissociative state upon finding Kayleigh dead, and that the
dissociation was probably prevalent for the first few days, including the first
days after her arrest, and intermittent from then on.
D. Rebuttal
Psychiatrist Mikel Matto, an expert in dissociative disorders, the
effects of trauma, and intimate partner battering, opined that Krueger had a
demonstrated history of abuse from Jason that impaired her reasoning and
judgment, but that she did not have such a history with Warner, and that
there was no evidence that her relationship with Warner affected her like the
relationship with Jason. Dr. Matto said that when he interviewed Krueger in
March 2017, she described a dissociative episode that lasted almost three
months from her discovery of Kayleigh’s body, but Dr. Matto did not believe
that Krueger was actually in a dissociative state. Dr. Matto opined that
Krueger’s behavior during that period, as reflected in her actions and
appearance in the videos, including those from Target and SFO (which Dr.
Barnard had not viewed), and her recall of details when she was interviewed
by Detective Hess, were inconsistent with dissociation.
E. Verdict and Sentencing
The jury found Krueger guilty of both murder and assault resulting in
the death of a child under eight years old, and found true the special
circumstance of torture. Krueger was sentenced to life in prison without the
possibility of parole for the murder charge. Her sentence of 25 years to life on
the assault charge was stayed under section 654. She timely appealed.
at the age of 14, and experiencing a car accident. Krueger had testified to
these incidents.
39
DISCUSSION
A. Batson/Wheeler Challenge
Krueger argues that the trial court violated her state and federal
constitutional rights when it overruled her Batson/Wheeler objection to the
prosecutor’s peremptory challenge of juror D.B., an African American woman.
We are not persuaded.
1. Additional Facts
At the beginning of jury selection on the morning of April 19, 2017, the
trial court stated that the trial would likely be finished the first week in
June, and asked, “Is there anyone here in the jury panel who believes that’s
going to be an issue for you that you didn’t mention in your papers?”
D.B. voiced concern about the length of the trial: “I have a
granddaughter who’s expecting her baby any day now and she is kind of a
high risk and we’ve got someone covering for me now. She’s in Fairfield.
There’s no one staying with her to—because she’s alone. So we’re at that
point now where someone has to be with her. So I’ve got—so it’s kind of like
passing the torch to be with her now. [¶] So not knowing that—how long this
would take—we’re hoping that she has the baby and that’s my great
grandbaby, so it’s one of those things that—I’m hoping that she has the baby
while—I just didn’t expect it to go this long. So it’s one of those things.”
In response to questioning, D.B. told the court she was a resident of
Napa; was married; she had worked for the Vallejo Health Department but
went out on disability; her husband was retired; she had three grown
children, whose ages and jobs she described, and several grandchildren; she
was very excited about the upcoming birth of her great grandchild; and her
mother-in-law remembered the trial judge “from way back in the day.” She
said, “I do believe I can be fair, because I’m a fair person. There’s always two
40
sides to every story. I always felt like that, but I do feel strongly about it
because I do have grandchildren. But I do feel I could be fair about it.” The
court noted, “I haven’t forgotten what you stated about your great
granddaughter ready to be born.”
Later that morning, the judge and attorneys spoke with D.B. outside
the presence of the jury. The court addressed D.B.: “[Y]ou indicated that you
received a text that your . . . granddaughter is in labor? [¶] We would really
like to keep you because we think you could be fair and impartial. Is there
any—.” D.B interjected, “That’s what I’m trying to, I would like to take the
call.” The colloquy continued:
“THE COURT: “Somebody is there at the hospital with her?
“[D.B.]: I’m trying to see if I can get somebody to cover. Because her
step dad is there—this is the first baby, so she’s probably got time.
“THE COURT: Usually they’re in labor for a while.
“[D.B.]: But she’s been dilated . . . to three and a half since for a week
now. Oh, okay. And she says she’s not going back to the hospital until—until
she feels ready.
“THE COURT: I’ll let you go ahead and make the call and let us know
how things are going, because we would love to keep you as a juror if possible.
“[D.B.]: So I can step out?
“THE COURT: Please.”
Shortly after that, the court asked D.B, “[W]ere you able to get
somebody?”, to which D.B. replied, “Yeah.”
Still later in the morning, the prosecutor observed that “there was some
concern expressed in some of the questionnaires about seeing” photos of the
injuries to Kayleigh, including photographs of the exterior and interior of her
41
body. The prosecutor then asked D.B. if she would hold it against him if he
showed her certain photos of Kayleigh’s body. This colloquy followed:
“[D.B.]: I don’t know how. I can’t answer that until—because I do have
grandchildren and I am expecting the new born. So I can only be honest
answering that to you because I don’t know how I would feel about that.
“[PROSECUTOR]: It’s hard to specifically answer that question –
“[D.B.]: Yes.
“[PROSECUTOR]: —without having seen the photos. [¶] What I
wanted to do is not have you sworn as a juror in this case and start showing
evidence and pop photos up and have you—because I think if we’ve talked
about it before, no one likes these charges, that’s not the issue.
“[D.B.]: You just bringing that up to me has got my heart beating.
“[PROSECUTOR]: Okay. [¶] I have a daughter who loves to go to
horror movies with me but I feel like most of the time I turn to her and she’s
doing this and you can’t do that in this trial.
“[D.B.]: Right.
“[PROSECUTOR]: You got to pay attention. You’ve got to look, you got
to evaluate because it’s going to be discussed by witnesses, you’re not gonna
just see pictures. There’s got to be a witness that helps explain the picture
for you but you’ll see multiple pictures of the outside of Kayleigh’s body, front
and back, and you’ll see multiple pictures of the inside of her body.
“[D.B.]: That’s going to be hard for me.
“[PROSECUTOR]: It’s going to be hard for anybody.
“[D.B.]: It’s hard for me right now just hearing you say that.
“[PROSECUTOR]: Okay. [¶] (Juror number 4), what’s your feeling on
this issue.
42
“JUROR No. 4: I think that, like I said, it has to be done. You’re doing
your job, so that is part of the process to see these photos. So again without
knowing how I would feel but I do understand that’s part of the process.
“[PROSECUTOR]: Just with this general concept of the photos, is
there anyone who’s sitting here now thinking I can’t do it? Not I don’t want
to do it—no one wants to do it, but I can’t do it in this case? Okay. For the
record, no response.”
Voir dire continued. That afternoon, after further questioning, the
prosecution exercised six peremptory challenges and the defense exercised
five. The prosecution then used its seventh peremptory challenge to remove
D.B. from the panel.
Defense counsel made a Batson/Wheeler objection. Outside the
presence of the jury, defense counsel stated, “[T]he prosecution has excused
[D.B.], an African American woman. Her answers were unremarkable.
They’re much like answers of all the other jurors. If she exhibited any bias
. . . which I don’t think she did, it probably was in favor of the prosecution.
[¶] She mentioned gruesome photos, how hard it would be for her to serve
because of her grandchildren. But she didn’t disagree with any of the
principles of law, she didn’t say she had made up her mind on the facts. She
basically said looking at gruesome photos is hard and that’s what everybody
else said. That’s what any reasonable person would say, and yet the
Government dismissed her. I failed to discern any reason why she couldn’t
serve on this jury, keep an open mind, judge the facts, apply the law and
render a good verdict. [¶] So I submit there’s an invidious purpose to the
dismissal of her.”
The judge responded, “I don’t know that the burden has been met. I
understand that it can be made with individuals but there’s been several
43
people who have been excused that didn’t set forth any bias. In fact, people
we felt were not able to sit on this case we excused for hardship. But,
nevertheless, so that we have a good record I’ll go ahead and ask the People
to set forth their reason.” At that point, the prosecutor asked for clarification:
“[F]or the record is the Court finding there’s not been a prima facie case?”
The judge replied: “I’m finding there’s not been a prima facie case just
because she’s African American. There’s another African American on the
panel. There’s not very many in this county. We also have people of other
races . . . that have been on the panel that have been excused by both sides.
And the fact that that’s done doesn’t mean that this is an appropriate
Wheeler/Batson motion. But in the interests of having a good record I’m
going to ask you to set forth the reasons.” The prosecutor then did so, and
the trial court accepted them as nondiscriminatory.19
2. Applicable Law and Standard of Review
“Both the United States and California Constitutions prohibit
discriminatory use of peremptory strikes.” (People v. Reed (2018) 4 Cal.5th
989, 999.) “A three-step procedure applies at trial when a defendant alleges
discriminatory use of peremptory challenges. First, the defendant must
19
The prosecutor stated his primary concern was that earlier in the
day, when counsel were at the bench, D.B. received a text about her great
grandchild, which made her “visibly anxious.” In addition, D.B. left blank
question 19 on the questionnaire, which asked the age, gender, and
occupation of all children, and whether they lived at home. The only
indication that she had children was in her answer to question 55, which
asked whether graphic evidence showing injuries to Kayleigh’s body would
make it impossible for her to serve as a juror: she answered, “yes,”
explaining “I have grandchildren.” Also, D.B. answered question 43 about
her prior jury service by writing “VJO” as her answer for “When/Where?”
The prosecution noted that D.B. provided no other detail, including the type
of case, which suggested “some confusion on her part.”
44
make a prima facie showing that the prosecution exercised a challenge based
on impermissible criteria. Second, if the trial court finds a prima facie case,
then the prosecution must offer nondiscriminatory reasons for the challenge.
Third, the trial court must determine whether the prosecution’s offered
justification is credible and whether, in light of all relevant circumstances,
the defendant has shown purposeful race discrimination. (People v. Lenix
(2008) 44 Cal.4th 602, 612 [(Lenix)].) ‘The ultimate burden of persuasion
regarding [discriminatory] motivation rests with, and never shifts from the
[defendant].’ (Id. at pp. 612-613.)” (People v. Manibusan (2013) 58 Cal.4th
40, 75.)
A defendant makes a prima facie case by showing that “the totality of
the relevant facts ‘ “gives rise to an inference of discriminatory purpose.” ’ ”
(People v. Scott (2015) 61 Cal.4th 363, 384 (Scott), quoting Johnson v.
California (2005) 545 U.S. 162, 168.) Whether a prima facie case exists
depends upon “the entire record of voir dire as of the time the motion was
made,” and “certain types of evidence may prove particularly relevant.”
(Scott, supra, 61 Cal.4th at p. 384.) “Among these are that a party has struck
most or all of the members of the identified group from the venire, that a
party has used a disproportionate number of strikes against the group, that
the party has failed to engage these jurors in more than desultory voir dire,
that the defendant is a member of the identified group, and that the victim is
a member of the group to which the majority of the remaining jurors belong.
[Citation.] A court may also consider nondiscriminatory reasons for a
peremptory challenge that are apparent from and ‘clearly established’ in the
record [citations] and that necessarily dispel any inference of bias.” (Ibid.)
When a trial court finds that the defendant failed to establish a prima
facie case of purposeful discrimination, we review the record, including voir
45
dire and any jury questionnaires, to determine whether substantial evidence
supports the ruling. (People v. Griffin (2004) 33 Cal.4th 536, 555 (Griffin),
disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758,
824, fn. 32.) “We sustain the ruling when the record discloses grounds upon
which the prosecutor properly might have exercised the peremptory
challenge[ ] against the prospective juror[ ] in question.”20 (Griffin at p. 555.)
3. Analysis
Substantial evidence supports the trial court’s finding that Krueger did
not make a prima facie showing that the prosecution dismissed D.B. for the
improper reason that she was an African American woman. (See Scott,
supra, 61 Cal.4th at p. 384.)
To begin, the record shows that the prosecution did not strike all, most,
or a disproportionate number of African Americans: to the contrary, the
prosecutor had not previously challenged any African American juror, and
there was one other African American juror on the panel at the time D.B. was
challenged.21 Nothing in the record suggests that the prosecution struck all,
20
If the trial court finds that no prima facie case has been made, the
court may nevertheless offer the prosecution an opportunity to state its
reasons for dismissing the challenged juror, as happened here. (Scott, supra,
61 Cal.4th at p. 388.) And even if, as here, the prosecution provides
nondiscriminatory reasons and the trial court determines that the reasons
are genuine, the reviewing court begins its analysis of the denial of the
challenge with a review of the first-stage finding that no prima facie case was
made. (Id. at p. 391.) If the reviewing court determines that the trial court’s
finding on the first-stage issue is supported by substantial evidence, the
claim is resolved without consideration of the third-stage ruling. (Ibid.) If
the reviewing court determines that the first-stage ruling was in error, it
proceeds to review the third-stage ruling without the need for a remand to
the trial court. (Ibid.)
21
No party disputes the trial court’s statement that there was another
African American juror on the panel when D.B. was challenged. The record
46
most, or a disproportionate number of women. Also, defendant Krueger is
not African American—the parties describe her as Caucasian—so there is no
concern that D.B. was challenged because she and Krueger are members of
the same identified group. The prosecution conducted in-depth voir dire of
D.B. as well as other jurors.
In responding to the juror questionnaire, D.B. expressed her reluctance
to view the evidence: she stated that seeing the evidence of injuries to
Kayleigh’s body would make it impossible for her to serve as a juror because
she had grandchildren. The prosecutor probed this issue in voir dire, where
D.B. expressed concern that because of her grandchildren and the expected
newborn, she might hold it against the prosecutor if he showed her photos of
Kayleigh’s body. In response to questions, D.B. emphasized that seeing the
evidence would be “hard” for her. The record therefore clearly establishes
D.B.’s reluctance to serve on the jury, which is a nondiscriminatory reason for
challenging her. (See Griffin, supra, 33 Cal.4th at p. 555.) The record clearly
establishes additional nondiscriminatory reasons for excusing D.B. from the
panel. D.B. was anxious and apparently preoccupied about her
granddaughter, who had just gone into labor in a high-risk pregnancy with
D.B.’s first great grandchild. D.B. had been staying with her granddaughter,
who was otherwise alone, although someone was currently covering for D.B.
If D.B. were seated on the jury, she might have difficulty paying attention to
the evidence or she might have had to be excused after the trial began
because of some complication with the labor or birth.
does not reflect whether that juror was male or female. No party suggests
that the other African American juror was subsequently stricken from the
panel; the record suggests not.
47
Relying on People v. Cunningham (2015) 61 Cal.4th 609, Krueger
argues that the trial court ruling is subject to de novo review because her
challenge “is not a dispute about the record facts.” Krueger is mistaken.
Cunningham holds that de novo review is appropriate where the trial court
applies the incorrect standard to determine whether a peremptory challenge
is improperly motivated. (Id. at p. 664.) The trial court here did not use an
incorrect standard, and therefore the de novo standard does not apply.
Krueger argues that the trial court denied the motion because Krueger
failed to show “systematic bias,” and that in so doing the trial court applied a
standard that has been rejected since Swain v. Alabama (1965) 380 U.S. 202and was overruled by Batson. This argument is belied by the record: the
trial court stated that it understood that a prima facie case “can be made
with individuals,” which indicates that the trial court did not use an
erroneous systematic bias standard.
Krueger also argues that the sole basis for the trial court’s denial of her
motion was the fact that an African American juror remained on the jury.
The record does not support this argument, either. We do not interpret the
trial court’s statement that there was another African American on the panel
as indicating that its ruling was based solely on that fact. Accepting
Krueger’s interpretation would require us to consider the trial court’s
statement in isolation and out of context. Further, the court may have been
mindful of the need for comparative juror analysis as part of any third-stage
inquiry. (Lenix, supra, 44 Cal.4th at p. 622 [“evidence of comparative juror
analysis must be considered in the trial court and even for the first time on
appeal if relied upon by defendant and the record is adequate to permit the
urged comparisons”].)
48
Finally, Krueger contends that the trial court failed to take the
relevant factors into account in making its ruling, and argues that her case is
like Turner v. Marshall (9th Cir. 1995) 63 F.3d 807. We disagree that the
case is like Turner, where “the judge simply reviewed the racial and ethnic
makeup of the excluded venirepersons and of the petit jury at the time of the
motion, and concluded, ‘I don’t see any pattern of individual discrimination at
this point . . . I think we’ve got a fair mix right now.’ ” (Id. at p. 814.)
Moreover, Krueger’s argument rests on the premise that the trial court’s sole
basis for rejecting the challenge to D.B. is that an African American juror
remained on the panel, a premise we have rejected.
Because we conclude that substantial evidence supports the trial
court’s finding that Krueger failed at the first stage of the Batson/Wheeler
objection to make a prima facie showing of discriminatory purpose in using a
peremptory challenge to strike D.B., we need not, and do not, reach the trial
court’s third-stage ruling. (Scott, supra, 61 Cal.4th at p. 388.)
B. Evidence to Support the Verdict
Krueger argues that the record contains no substantial evidence that
she had the intent to torture required for a conviction for first degree torture
murder or the intent to kill required for the torture special circumstance.
She also argues that there is no substantial evidence that she assaulted
Kayleigh at or near the time of her death or knowingly aided Warner in doing
do. We conclude that substantial evidence supports the verdicts for torture
murder and assault resulting in the death of a child, but we agree with
Krueger that there is not substantial evidence to support that she had the
intent to kill required for the special circumstance, and therefore we shall
reverse the jury’s finding that the special circumstance was true.
49
1. Standard of Review
“In addressing a challenge to the sufficiency of the evidence supporting
a conviction, the reviewing court must examine the whole record in the light
most favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that
a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] The appellate court presumes in support of the judgment
the existence of every fact the trier could reasonably deduce from the
evidence. [Citations.] The same standard applies when the conviction rests
primarily on circumstantial evidence. [Citation.] Although it is the jury’s
duty to acquit a defendant if it finds the circumstantial evidence susceptible
of two reasonable interpretations, one of which suggests guilt and the other
innocence, it is the jury, not the appellate court that must be convinced of the
defendant’s guilt beyond a reasonable doubt. [Citation.] ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.
[Citation.]” ’ ” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
2. Analysis
a. First Degree Murder
A conviction for first degree murder under the theory that the murder
was by torture requires proof of “(1) acts causing death that involve a high
degree of probability of the victim’s death; and (2) a willful, deliberate, and
premeditated intent to cause extreme pain or suffering for the purpose of
revenge, extortion, persuasion, or another sadistic purpose.” (People v. Cook
(2006) 39 Cal.4th 566, 602.) “The intent to torture ‘is a state of mind which,
unless established by the defendant’s own statements (or by another witness’s
50
description of a defendant’s behavior in committing the offenses), must be
proved by the circumstances surrounding the commission of the offense
[citations], which include the nature and severity of the victim’s wounds.’ ”
(People v. Mungia (2008) 44 Cal.4th 1101, 1137.) The severity of the wounds
must not be given undue weight, because “severe injuries may also be
consistent with the desire to kill, the heat of passion, or an explosion of
violence.” (Ibid.)
Krueger concedes that there is substantial evidence that Kayleigh’s
death was by one or more blows to the abdomen, and that the injuries that
caused her death would have caused extreme prolonged pain. She argues
there is no evidence that she inflicted Kayleigh’s fatal injuries or aided
Warner in inflicting them, and no evidence that she intended to cause
extreme pain for a sadistic purpose or that, as an aider and abettor, she
shared Warner’s intent, which would have occurred if she had “ ‘ “know[n] the
full extent of [his] criminal purpose and give[n] aid or encouragement with
the intent or purpose of facilitating [his] commission of the crime.” ’ ”22
(People v. McCoy (2001) 25 Cal.4th 1111, 1118.) More specifically, she
contends there is no evidence of the circumstances under which Kayleigh
suffered the fatal injuries, and that absent such evidence, “the mere fact she
suffered painful injuries” does not prove the intent required for a conviction
for first degree murder.
22
The jury was instructed, “Someone aids and abets a crime if he or she
knows of the perpetrator’s unlawful purpose and he or she specifically
intends to, and does in fact, aid, facilitate, promote, encourage, or instigate
the perpetrator’s commission of that crime.” The jury was also instructed
that the aid can be provided by “[t]he defendant’s words or conduct, or failure
to act in those situations where the defendant was under a legal duty to act.”
51
Reviewing the record in the light most favorable to the judgment, we
conclude there is ample evidence of the circumstances under which Kayleigh
suffered the injuries to support the verdict against Krueger, including
evidence of deliberate and premeditated intent to cause extreme pain for a
sadistic purpose.
The medical experts agreed that the fatal injury or injuries occurred
between the police visits to Krueger’s apartment on January 27 and 29.
During that time, the only people who had access to Kayleigh were Krueger,
Warner, Epperson and the friend Krueger visited on January 27 after the
police visit, and there is no evidence or suggestion that Epperson or the other
friend laid a hand on her. That leaves Warner and Krueger, who were in
Krueger’s 585-square-foot apartment for most of that time with no one
present but Kayleigh. The jury could have inferred that the injuries were
inflicted by Warner, or Krueger, or both of them. As to Warner, evidence that
in the weeks before Kayleigh’s death he had thrown over a Christmas tree,
slammed Krueger’s hand in a door, pushed Krueger against a door, punched
holes in a door, and spanked Kayleigh so hard he left marks on her supports
an inference that he struck the fatal blow. As to Krueger, there was evidence
that she had a temper, had directed violence at Jason, became angry when
coming down from a methamphetamine high, and hit Kayleigh on at least
one occasion during the two weeks before her death, notwithstanding her
claim that she had never hit her except for three or four spankings with an
open hand that had occurred long ago.23
23 The jury could well have doubted Krueger’s credibility on a number
of issues. Among other things, there was evidence that she gave different
accounts of her injuries and Kayleigh’s to different people, and that she had
lied to CPS in connection with their supervision of Kayleigh.
52
If the fatal injuries were inflicted by Warner, the jury could have
inferred that Krueger not only knew about them, but also assisted Warner in
inflicting them or approved of his actions. The injuries required “severe”
force, which would no doubt have provoked an audible reaction from Kayleigh
even if the force itself could not be heard. The juries could have inferred that
any sound would be heard within the apartment, which was only 585 square
feet. Further, there was ample evidence that noises in the apartment carried
to neighboring units, which supports the inference that noises would be heard
within the apartment as well. Yet there is no evidence that Krueger did
anything to protect Kayleigh or interfere with Warner. The jury could have
inferred, therefore, that Krueger approved of, encouraged, or assisted
Warner’s acts.
Krueger claims that the prosecution’s evidence of torture consisted
“solely of repeated blunt force trauma causing ‘extremely painful’ injuries.”
Not so. Kayleigh’s small body – she was just 41 inches tall and weighed only
34 pounds—was covered with 41 bruises. There was vivid evidence of
prolonged deterioration of Kayleigh’s health, including abuse and attempts
by Krueger to conceal it, suggesting a deliberate and premeditated intent to
cause severe pain to Kayleigh. Some of the bruises that covered Kayleigh’s
body were caused by a beating or beatings that occurred within days or hours
of her death. But those recent injuries were not the only injuries she had
suffered. Some of the injuries on her body, including the broken rib, had
occurred longer ago, and there is evidence from family members and
neighbors that Kayleigh had exhibited a number of bruises in the weeks
before her death and that Krueger and Warner gave conflicting accounts of
them. Dr. Crawford-Jakubiak testified her injuries, the result of repeated
episodes of blunt-force trauma, were “far beyond” what would commonly be
53
suffered by a three-and-a-half-year-old, despite a litany of repeated excuses,
like falling off a bike, bumping a head on the table, tripping over a clothes
hamper, hitting a chin on a bathtub, or an overly energetic embrace while
Kayleigh was sitting on a toilet seat. Toward the end of her life Kayleigh also
exhibited an unusually subdued demeanor. Kayleigh played outside less
often, and when she did, she was often alone. In the last month of her life,
Kayleigh indicated to at least three different people that she did not want
even to be at Krueger’s apartment. There was a search on Krueger’s cell
phone for an article about a woman accused of child abuse.
There was evidence of premeditated and deliberate intent to cause
extreme pain in Krueger’s failing to seek any medical attention for Kayleigh
at any time in the last weeks of her life, not to mention the last few days of
her life, despite knowing there were bruises on her body and that she was in
pain. This was a dramatic change from Krueger’s previous practice of
seeking care for Kayleigh for even minor problems. Krueger did not seek
medical help despite abundant evidence that Kayleigh had become pale, was
looking tired, and was vomiting. To the contrary, Krueger lied about what
was wrong with Kayleigh and lied about seeking help when she told Robin
that Kayleigh was ill and that she had contacted the doctor, when she told
her father in late January that Kayleigh had the flu, when she led Epperson
to believe she had called poison control, and when she told the police during
their January 29 welfare check that Kayleigh had the flu.
More specifically, the jury could infer that Krueger was aware of
bruising on Kayleigh from the online searches for information on how to get
rid of bruises during the last week of Kayleigh’s life. Accordingly, the jury
could well have disbelieved Krueger’s testimony that she was unaware of
extensive bruising on Kayleigh’s body on January 29 when they were in the
54
shower together and on January 30 when she found the body. And the jury
could infer that Krueger was aware that Kayleigh was in pain, because even
though Kayleigh was just three-and-a-half when she died, she was fully able
to communicate how she felt, as shown by her interactions with Krueger,
Robin, Epperson, and Officer Chambers. There was evidence from Dr.
Crawford-Jakubiak that Kayleigh would have demonstrated pain from her
broken rib and fatal injuries and would have communicated what happened
to her, and jurors could infer that Kayleigh did indeed communicate about it,
and that the computer search for “stabbing pain next to bellybutton” was
conducted in response to a complaint from Kayleigh. Further, Krueger took
steps to prevent Kayleigh from communicating with family members during
the last weeks of her life by isolating her and preventing her from visiting
with them.
There was evidence of premeditated and deliberate intent to cause
extreme pain in the sheer number of bruises that covered Kayleigh’s small
body: 41 separate external injuries, of which 8 to 15 were on her abdomen.
Dr. Cohen and Dr. Crawford-Jakubiak testified that bruising, which resulted
from moderate to severe force, was consistent with beating, not with
accidental injury or spanking; indeed, Krueger concedes that there is
substantial evidence that Kayleigh’s death was the result of an assault to her
abdomen.
Krueger’s conduct after Kayleigh’s death provides further evidence that
she had acted with premeditated and deliberate intent and that she and
Warner acted with shared intent. Krueger did not appear to be in any
distress in video footage taken after Kayleigh’s death. She did not contact
the police or any family members to seek assistance after Kayleigh died. She
did, however, check on her benefits, go out for a walk with Warner to buy ice
55
cream, and conduct a search for high-population U.S. cities, suggesting she
was looking for a place to hide. She accompanied Warner when he asked his
friends for help getting away and getting rid of Kayleigh’s body. Despite the
friends’ insistence that they call the police, Krueger failed to do so and
instead tried to flee with Warner. And the flight was not precipitous:
Krueger testified that she found Kayleigh’s body on the afternoon of January
30, but did not flee until the morning of February 1. She took the time to
pack a bag of Kayleigh’s clothes for her mother, and the jury could have
inferred that she acted with Warner to conceal evidence, as reflected in the
latex gloves found in the apartment and the fact that she and Warner left the
apartment with a bag that was never found. While Krueger and Warner
were away from the apartment, they took BART to San Francisco, where they
went to a fast food restaurant and then to the beach; later they cuddled on an
airport tram.
We agree with the Attorney General that a reasonable juror could have
concluded that as Krueger and Warner increased their use of
methamphetamine, they found Kayleigh to be an annoyance and obstacle to
their drug use. Once Krueger reconnected with Warner in the summer of
2013, she became less attentive to Kayleigh. Eventually, Krueger and
Warner were screaming at her to be quiet, as heard by a neighbor. In light of
Kayleigh’s injuries and Krueger’s and Warner’s conduct, the jury could
conclude that they took to beating her with premediated and deliberate
intent to cause pain for the sadistic purpose of persuading the toddler to
simply be quiet and leave them alone, escalating their assaults over time to
achieve their aim when screaming at her or leaving her alone in a room with
a movie was not enough. Krueger’s actions support the conclusion that she
knew of the abuse and suffering she and Warner inflicted on Kayleigh,
56
recognized that she bore blame for that abuse, and acted in concert with
Warner and with the same intent.
In sum, the record contains substantial evidence to support the finding
that Krueger acted with a torturous intent. There was evidence that severe
force was used to inflict the fatal injury or injuries, evidence that Kayleigh
had been injured extensively over a period of time, evidence that Kayleigh
was in severe distress, and evidence that not only was her distress known to
Krueger and ignored, but also Krueger kept Kayleigh away from people who
might have been able to help her. Because we conclude that substantial
evidence supports the verdict of first degree murder under a torture murder
theory, we do not reach Krueger’s argument that in the absence of such
evidence the judgment may not be modified to reflect a conviction for second
degree murder.
b. Torture Special Circumstance
The torture special circumstance, as set forth in section 190.2,
subdivision (a)(18), requires proof of first degree murder and proof “that
defendant intended to kill and had a torturous intent, i.e., an intent to cause
extreme pain or suffering for the purpose of revenge, extortion, persuasion, or
another sadistic purpose.” (People v. Streeter (2012) 54 Cal.4th 205, 237,
italics added.) “The relevant inquiry . . . is whether defendant harbored an
intent to kill when he tortured” the victim. (People v. Jennings (2010) 50
Cal.4th 616, 647.) As with intent to torture, there is rarely direct evidence of
intent to kill, which must usually be derived from the circumstances,
including the defendant’s actions. (People v. Smith (2005) 37 Cal.4th 733,
741.)
Krueger argues that the evidence here, all of which is circumstantial, is
insufficient to support a finding that she intentionally killed Kayleigh or
57
harbored an intent to kill, and insufficient to support a finding that she
tortured Kayleigh at or near the time of her death, as required for the special
circumstance.
We have already explained that the record contains substantial
evidence to support the finding that Krueger acted with a torturous intent,
including near the time of Kayleigh’s death. The Attorney General argues
that the evidence that supports the finding of intent to torture also supports
a finding of intent to kill. We disagree.
The large number of bruises to Kayleigh’s body, including bruises to
places other than her abdomen evidence the intent to cause pain, but not
necessarily intent to kill. Krueger’s failure to contact the police after
Kayleigh’s death and her flight with Warner are evidence of consciousness of
guilt and of premeditated conduct, but not necessarily evidence of intent to
kill. Further, important pieces of evidence that support the finding of intent
to torture are inconsistent with a finding of intent to kill. The phone
searches about ways to get rid of bruises show awareness of the extent of
Kayleigh’s injuries, but do not support an inference of the intent to kill
Kayleigh. Likewise, the computer search for information about “stabbing
pain next to bellybutton” shows awareness of Kayleigh’s suffering, but is
more consistent with an attempt to ascertain that Kayleigh’s injuries were
not fatal than with the intent to kill. And other uncontradicted evidence,
including evidence from both Krueger and Epperson that Krueger tried to
make Kayleigh vomit after drinking tainted water, and the evidence that
Krueger gave Kayleigh Pedialyte and popsicles to keep her hydrated, is
inconsistent with an intent to kill, because it supports the inference that
although Krueger wanted Kayleigh to be quiet and leave her and Warner
alone, and took drastic steps to do so, she did not want Kayleigh to die.
58
We conclude that the record does not contain substantial evidence to
support a finding that Krueger acted with the intent to kill; in other words,
we conclude that a reasonable jury could not be convinced that the only
reasonable conclusion supported by the circumstantial evidence was that
Krueger had the intent to kill, as required by CALCRIM No. 705, with which
the jury was instructed.24 Therefore we reverse the jury’s finding that the
special circumstance was true.25
c. Fatal Assault of a Child
A conviction for assault on a child resulting in death requires proof that
(1) a person, having the care or custody of a child under the age of eight, (2)
24
CALCRIM No. 705 instructs that before relying on circumstantial
evidence to conclude that the defendant had the intent or mental state
required for the special circumstance, the jury must be “convinced that the
only reasonable conclusion supported by the circumstantial evidence is that
the defendant had the required intent or mental state.” (Italics added.)
25
The record indicates that the jury puzzled over the issue of intent to
kill. The jury posed three questions to the trial court on the second day of
deliberations, all concerning the intent to kill as required for the special
circumstance. On the morning of the second day, the jury submitted the
following question: “We would like an explanation/definition of ‘intent to kill’
as a mental state requirement in the special circumstance of torture.” A few
hours later the jury submitted two more questions to the court: “Does blatant
disregard for human life equal intent to kill?” and “Does withholding medical
care for someone who is in severe distress equal ‘intent to kill’?” The jury
stated that both questions concerned “intent to kill” as the required mental
state under the special circumstance of torture. Krueger argues that the trial
court erred in its responses, which, she says, allowed the jury to find the
special circumstance without finding intent to kill in violation of her right to
due process. Krueger further argues that, if we conclude that her trial
counsel forfeited the claim of error, she was denied effective assistance of
counsel under the Sixth Amendment. Because we reverse the special
circumstance finding for lack of substantial evidence, as discussed above, we
do not reach these issues.
59
assaults the child, (3) by means of force that to a reasonable person would be
likely to produce great bodily injury, and (4) resulting in the child’s death.
(§ 273ab, subd. (a); People v. Malfavon (2002) 102 Cal.App.4th 727, 735.)
Krueger concedes there is substantial evidence that Kayleigh’s death
was the result of an assault, specifically blows to her abdomen, but argues
that the evidence is insufficient to support a finding that she personally
assaulted Kayleigh or that she knowingly aided Warner in doing so. She
suggests her conviction for fatal assault rests solely on her presence and
opportunity before Kayleigh’s death and her flight after Kayleigh’s death, and
argues that “mere opportunity” will not sustain the verdict, and that evidence
of flight does not suffice to prove guilt.
We disagree with Krueger’s characterization of the evidence. As we
have discussed, the record shows more than “mere opportunity” and flight.
Krueger’s characterization disregards the evidence of her activities after
Kayleigh’s death, which go beyond flight, and which suggest consciousness of
guilt and shared intent with Warner. Krueger did not immediately flee. She
refused to call the police. She went out with Warner to get ice cream, tried to
dispose of evidence, packed a bag of Kayleigh’s clothes for her mother,
negotiated a ride for herself and Warner to the bus station, accompanied
Warner to the beach, and then laughed and snuggled with him on an airport
tram. As we have discussed, although the evidence does not prove whether
Krueger or Warner, or both of them, struck the fatal blow or blows to
Kayleigh’s abdomen, there is substantial evidence to support the finding that
Krueger either struck the blow herself or aided and abetted Warner in the
assault.
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C. Demonstration with Mannequin
Over Krueger’s objection, the trial court allowed the prosecutor to
demonstrate that a mannequin the size of Kayleigh fit inside Krueger’s
freezer.26 Immediately after the demonstration, Krueger moved for a
mistrial. Krueger argues that the trial court abused its discretion in allowing
the demonstration and denying her mistrial motion. Although we conclude
that the trial court erred in allowing the demonstration, the error was
harmless, and the court did not err in denying the motion for mistrial.
1. Additional Facts
Krueger moved in limine to prevent the prosecution’s planned
demonstration that a mannequin the size of Kayleigh could fit in the freezer
compartment of Krueger’s refrigerator.
The prosecutor argued that the demonstration was relevant to the
intent to inflict extreme pain and the intent to kill, and that the treatment of
Kayleigh after she died “gives a pretty good indication of the intent while she
was still alive.” In addition, the prosecutor claimed it was “pertinent to the
jury instruction on hiding or detracting from the evidence, which I believe
this was in this case,” and to show that it was physically possible to place a
figure Kayleigh’s size in the freezer. In particular, the prosecutor noted that
Detective Hess had inferred that it was difficult to place the body in the
freezer, but “[i]n actuality the mannequin fits quite easily in the freezer
compartment.” The prosecutor also argued that if the defense pathologist
suggested that any of the bruises could have been caused by the act of
26The prosecutor described the mannequin as “a nongender mannequin
with no clothing and no features that are visible, sort of facial features or
anything like that. [It is] ivory-colored.”
61
putting her in the freezer, it would be important “to show that and to have
the [prosecution] pathologist comment on that issue.”
The defense argued that the prosecution could accomplish its stated
purposes with photographs and witness testimony. The demonstration,
according to the defense, would “unfairly focus[ ] . . . attention on a bizarre
aspect of the case that suggests, impermissibly, that the defendants are
deranged and callous”; its purpose was “to inflame the jury against” Krueger;
and it would “infect the proceedings with prejudice.”
The trial court denied the motion in limine, commenting that it had
reviewed the law on Evidence Code section 352 and considered both the
probative value of the evidence and how it could be prejudicial. The court
concluded, “I understand the Defense’s position, but this is probative.” The
court stated it would allow the demonstration if it was “limited to a very
short time of 10, 15 minutes.”
The demonstration was carried out during Dr. Cohen’s testimony.
After he testified about the atypical pattern of lividity, which suggested that
the body had been moved after death, and the injuries to the body, a
mannequin the same length as Kayleigh was folded and placed in the freezer
compartment of Krueger’s refrigerator. The prosecutor qualified his
questions to Dr. Cohen by asking him not to “assum[e] that this is the exact
way that Kayleigh’s body was put into a freezer,” and asked whether any of
the marks or injuries were the result of Kayleigh’s placement in the freezer
after death. Dr. Cohen testified that none of the injuries were caused by the
placement after death, but that “livor mortis would be influenced by the
specific position of the body and the changing, potential changing positions of
the body after death.”
62
Defense counsel then moved for a mistrial, contending that the
demonstration was unnecessary, proved nothing, and served only “to inflame
the passion of the jury.” The trial court denied the motion, stating, “I’ll note
for the record that we have dealt with this issue previously. The refrigerator
was requested to be brought in by the Prosecution to show the jury, it is the
best evidence. I know you’ve requested it just be shown by way of a picture.
They are entitled to show what actually happened or is alleged to have
happened and it’s up to the jury to give that the weight they feel appropriate.
So the mistrial is denied.”
2. Analysis
a. Admissibility of Evidence
Only relevant evidence is admissible at trial (Evid. Code, § 350), where
relevant evidence is evidence “having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.” (Id., § 210.) Under Evidence Code section 352, a trial court may
exclude relevant evidence when its probative value is substantially
outweighed by concerns of undue prejudice. For purposes of section 352,
evidence is unduly prejudicial if it “uniquely tends to evoke an emotional bias
against a part as an individual, while having only slight probative value with
regard to the issues.” (People v. Carter (2005) 36 Cal.4th 1114, 1168.)
“Evidence is not prejudicial, as that term is used in a section 352 context,
merely because it undermines the opponent’s position or shores up that of the
proponent.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008.)
A court may admit demonstrative evidence only where (1) the
demonstration is relevant, (2) its conditions are substantially similar to those
existing at the time of the alleged occurrence, and (3) the evidence will not
consume undue time or confuse the jury. (People v. Rivera (2011) 201
63
Cal.App.4th 353, 363 (Rivera).) The demonstration must be a “reasonable
representation of that which it is alleged to portray,” but need not precisely
duplicate the physical conditions of the actual occurrence. (Ibid.)
“Mannequins may be used as illustrative evidence to assist the jury in
understanding the testimony of witnesses or to clarify the circumstances of a
crime.” (People v. Cummings (1993) 4 Cal.4th 1233, 1291, overruled on a
different issue by People v. Merritt (2017) 2 Cal.5th 819, 831.)
We review trial court rulings on the admissibility of evidence for abuse
of discretion and uphold a decision to admit demonstrative evidence under
Evidence Code section 352 unless its prejudicial effect clearly outweighs its
probative value. (Rivera, supra, 201 Cal.App.4th at pp. 362-363.)
We agree with Krueger that the trial court abused its discretion in
allowing the demonstration. Although the trial court could reasonably
conclude that the demonstration was a reasonable representation of what it
was meant to portray (a mannequin the size of Kayleigh’s body fit easily in
the freezer, even if there was no evidence of exactly how Kayleigh’s body was
folded), the probative value of the demonstration was minimal. Krueger
admitted that Kayleigh’s body had been moved from the position in which it
was found, and that Kayleigh’s legs were folded and her body was placed in a
plastic garbage bag and then a suitcase, which then went into the freezer.
And even though the demonstration might have been probative of Dr.
Cohen’s testimony that none of Kayleigh’s injuries occurred after her death,
as the Attorney General suggests, there was no suggestion, let alone
evidence, to the contrary.
We disagree with the trial court’s implicit determination that the
demonstration was not unduly prejudicial. The demonstration was
undoubtedly inflammatory, even though Krueger’s admission that Kayleigh’s
64
body was placed in the freezer undercut its prejudicial impact. Krueger
argues that the demonstration here is at least as prejudicial as the
demonstration in Rivera, where our colleagues in Division One considered a
demonstration in which an adult defendant strangled an adult-sized
mannequin on the witness stand to show how a murder was committed.
(Rivera, supra, 201 Cal.App.at pp. 364-365.) The panel in Rivera found that
“a demonstration of the murder by defendant in court, before the jury, was
inflammatory,” and that its prejudicial effect, “while not great, exceeded its
comparatively inconsequential probative value.” (Id. at p. 365.) We likewise
conclude that in the circumstances here, the prejudicial effect of the
demonstration exceeds its minimal probative value.
We also conclude, however, that it is not reasonably probable that
Krueger would have obtained a more favorable result in the absence of the
demonstration, and therefore the error was harmless. (People v. Watson
(1956) 46 Cal.2d 818, 836.) In view of Krueger’s admission that the body was
put in the freezer and the extensive and uncontradicted evidence that
Kayleigh was severely beaten, that her body suffered numerous injuries, and
that she suffered great pain, and in view of the substantial evidence that
Krueger inflicted those injuries or aided and abetted Warner in inflicting
them, there is not a reasonable probability that the omission of the
demonstration would have led to a more favorable verdict for Krueger with
respect to the verdicts for first degree torture murder and assault resulting in
the death of a child.27 (Id. at p. 836.) In that respect, too, this case is like
27 Because we are reversing the jury’s special circumstance finding for
insufficiency of the evidence, we do not reach the question whether omission
of the demonstration would have led to a more favorable verdict for Krueger
as to the special circumstance.
65
Rivera, where the Court of Appeal concluded that the demonstration, which
was “a visual repetition of defendant’s testimony” and “cumulative,” was
ultimately harmless. (Rivera, supra, 201 Cal.4th at p. 366.)
b. Motion for Mistrial
“A trial court should grant a motion for mistrial ‘only when “ ‘a party’s
chances of receiving a fair trial have been irreparably damaged’ ” ’ [citation],
that is, if it is ‘apprised of prejudice that it judges incurable by admonition or
instruction’ [citation]. ‘Whether a particular incident is incurably prejudicial
is by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions.’ [Citation.]
Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse
of discretion. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 573.)
Krueger argues that the trial court abused its discretion by basing its
denial of the mistrial motion on a “mistaken factual finding that the
demonstration showed ‘what actually happened.’ ” According to Krueger, the
trial court was mistaken because it disregarded the fact that the prosecution
prefaced its question to Dr. Cohen by asking him not to assume that the
demonstration was “the exact way Kayleigh’s body was put into a freezer.”
This argument is meritless. What “actually happened” is that
Kayleigh’s body was put into a freezer, as Krueger had told Detective Hess
shortly after her arrest, and as Krueger testified at trial. Specifically,
Krueger told Detective Hess that Kayleigh’s body was folded, put in a bag,
and put into the freezer, and the point of the demonstration was, in part, to
show that Kayleigh’s folded body would fit easily into the freezer in Krueger’s
apartment without further damaging the body. It was error to admit the
demonstration, because there was no dispute that the body fit in the freezer
and that Kayleigh’s injuries occurred before she died. But the demonstration
66
was a reasonable representation of what it was alleged to portray: a
demonstration or reenactment need not be exact in all respects. (See People
v. Rodrigues (1994) 8 Cal.4th 1060, 1113-1115.)
In sum, Krueger fails to show that she was harmed by the trial court’s
denial of her motion in limine or that the trial court erred in denying her
motion for mistrial. Accordingly, we reject Krueger’s argument that we must
reverse the judgment and remand for a new trial.
D. Cumulative Error
Krueger argues that the trial court’s errors, taken together, require
reversal of the judgment because they deprived her of her right to a fair trial.
We shall reverse the special circumstance finding, as we discussed above. We
have rejected Krueger’s other claims of error, except her claim concerning the
demonstrative evidence, the admission of which we found harmless.
Accordingly, we reject her claim of cumulative error.
DISPOSITION
We reverse the special circumstance finding for lack of substantial
evidence and remand the matter for resentencing. The judgment is otherwise
affirmed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Kline, P.J.
_________________________
Richman, J.
A152087, People v. Krueger
68