People v. KrusePeople v. Kruse
Kruse contends the trial court prejudicially erred by (1) allowing the prosecutor to question him on cross-examination about being investigated for killing his former girlfriend‘s baby, and (2) refusing to instruct the jury on
FACTS
On the evening of September 11, 2019, Samantha Howell and her friend Clever went to the apartment of Howell‘s friend Heather Koetter for dinner. Koetter‘s apartment was a small, one-bedroom, second story apartment in Escondido. Koetter‘s daughter, who was then seven years old, sometimes lived with Koetter in the apartment and was there with Koetter when Howell and Clever arrived at around 7:15 p.m. Kruse and his friend
About an hour after everyone arrived, Koetter and Kruse got into an argument about another woman Kruse had been talking to and exchanging text messages with and about Koetter‘s refusal to let Kruse use her car to give Boxer a ride home. During the argument Koetter asked Kruse to leave the apartment and he left with Boxer.
About 20 minutes later, Kruse returned to the apartment to retrieve his cell phone and backpack. The front door was locked and Koetter did not want to let Kruse back into the apartment. She slid his cell phone under the door but initially did not want to give him his backpack. Kruse looked into the apartment through a window and told Koetter that he just wanted his “stuff.” He knocked on the door and the living room window and called out Howell‘s name. Howell told Koetter, “Heather, just give him his stuff. We‘ll get it over with. We‘ll give it back to him. We‘ll be done with it.”
A minute or two later, Koetter decided to give Kruse his backpack. When she opened the door to hand it to him, he shoved his way inside the apartment and sat on the couch. Koetter was uрset. She yelled and screamed at Kruse and told him he had to leave, and she grabbed his hands and tried to pull him off of the couch.
Howell went in and out of the apartment during the fight. At one point she entered the apartment and saw Koetter on top of Kruse with her hands around his neck, squeezing him and telling him he needed to “get the fuck out.” Kruse remained on the couch and laughed. He said to Koetter, “I‘m not going anywhere. I‘m not leaving.” When Koetter was choking Kruse, Howell tried to pull her off of him because she saw that his face was turning red.
An hour or more after Kruse returned to the apartment and refused to leave, Howell entered the apartment and became upset when she discovered Kruse had locked himself in the bedroom where Koetter‘s daughter was sleeping. Koetter was banging on the bedroom door and demanding that Kruse open the door. Howell also banged on the door and then went to the bedroom window outside the apartment and attempted to pull off the screen. A neighbor standing outside the apartment told Howell to stop because Kruse had come out of the bedroom.
Howell testified that she went back inside the apartment and walked up to Kruse. She called him a little bitch, asked him how he dared lock himself in a little girl‘s bedroom, and told him to get out and leave. Kruse looked at Howell and told her that he was going to put a bullet through her brain and kill her. Kruse sounded angry and upset and was standing “almost nose to nose with [Howell] looking [her] in the eyes” when he made the threat. Howell responded to the threat by saying, “Then do it.” She was upset but she responded that way because she did not want to feel like Kruse “was empowered over [her.]” Kruse‘s threat scared her because she did not know why he refused to leave the apartment, he was bigger than her, she knew he had a criminal record, and he had said earlier that evening that he had a trial going on in a murder case.
After Kruse threatened to kill Howell, she left the apartment and went downstairs, where she called some friends and asked them what she should do. She told neighbors who were standing there that Kruse had threatened her life. She did not call the police, but a neighbor said the police should be
About five or ten minutes after the 911 call was made, Escondido police officers arrived at the scene. Officers entered the apartment where Kruse and Koetter were still fighting and questioned them about what happened. The police arrested Koetter for misdemeanor domestic violence (battery) against Kruse. Officers handcuffed Kruse and detained him outside the apartment where he continuously yelled and screamed at the officers and was uncooperative. At one point he bragged about getting six months in jail for committing a murder. After Koetter was arrested, the police determined Kruse was not a suspect in their crime investigation and released him from the scene. They gave him his backpack and told him to leave.
When Howell saw that officers were arresting Koetter and releasing Kruse, she walked up to Kruse while he was talking to an officer and confronted him. The exchange between them was recorded on a police body-worn camera video that was played for the jury. Howell said to Kruse, “This is all your fault.” Kruse responded, “If it was my fault . . . why would I be getting let go, bro? . . . [I] have a murder case and everything and I‘m getting let go. Come on now. . . .” Howell replied, “You‘re the one who threatened to put a bullet in my brain, you know? You‘re the one who threatened us.”
An officer who overheard the conversation asked Howell when Kruse threatened her and she told him that he threatened her “right when [he and Koetter] started fighting.” Another officer at the scene then interviewed Howell about Kruse‘s threat. Howell told the officer that Kruse said to her, “Fuck you. I‘m going to put a bullet in your . . . brain.” Howell said the threat made her immediately fear for her safety and leave the apartment, and that she was afraid of Kruse because he told her he was involved in a
Armenta asked Kruse for permission to search his backpack and Kruse consented. Armenta found a small white plastic bindle containing methamphetamine in a zipper pocket on the right shoulder strap of the backpack. Another officer had searched Kruse‘s backpack earlier but did not find the methamphetamine. Armenta arrested Kruse for possession of a controlled substance and making a criminal threat. He handcuffed Kruse and placed him in the back of his patrol car to transport him to the police station for processing.
On the way to the police station, Kruse was very agitated and uncooperative. He shouted and yellеd at Armenta angrily and stepped on his seat belt to prevent Armenta from fastening it. After Armenta managed to buckle Kruse‘s seat belt, Kruse was able to reach around and unbuckle it. When they arrived at the police station and stopped in the sallyport, a secured area where officers can remove arrestees from their police vehicles, Kruse made comments to Armenta that Armenta viewed as threats toward him.
The jury viewed a body-worn camera video of Kruse‘s exchange with Armenta in the sallyport. Kruse said to Armenta, “Please tell me you‘re going to try to get me out of the holding cell. . . . Oh, my God. This shit going to be funny as hell. I‘m 6 and 0 in the fucking ring. Let‘s please do this shit.” Armenta called for backup officers because he thought that Kruse was
Armenta asked Kruse, “Are you . . . threatening us or what?” Kruse responded, “I ain‘t threatening shit, boy.” Armenta asked Kruse about his “6 and 0 in the ring” comment and Kruse said, “You got hands–if you got hands, ain‘t no threat. Run ‘em. Ain‘t no threat, B. Run ‘em. Oh, no. Shit, I ain‘t never been knocked down.” He added, “Please let‘s go, bro.” Armenta testified that when Kruse stated “if you got hands, ain‘t no threat,” Armenta believed “he was saying if [Armenta] had the skills. It wasn‘t a threat. He was ready to fight [Armenta].” Armenta interpreted Kruse‘s saying that he had never been knocked down to mean that in Kruse‘s past fights, he had never been knocked down or had never lost; Kruse believed he was superior.
After Kruse stated that he wanted the officers to “test that meth” and made comments implying that the methamphetamine found in his backpack was planted, Armenta asked Kruse, “Are you going to fight me if I get you out of that door?” Kruse responded, “I‘m not gоing to fight you. Ain‘t no fight, was it? That shit wouldn‘t be fair. Come on, now. Please. Hands behind my back. Please.” Armenta testified that he believed that in making those comments, Kruse was saying “it wasn‘t a threat“–i.e., the fight would not be fair–because he (Kruse) would win.
At around 3:35 a.m. Armenta was ready to transport Kruse to the jail in Vista. Kruse was lying on a bench in the holding cell. Armenta tapped on the holding cell window and told Kruse it was time to get up, but Kruse did not respond. Armenta called for another officer to assist him because he thought that Kruse might be faking being asleep and, based on Kruse‘s prior threats of violence, that there might be а physical fight if he went into Kruse‘s cell alone. Two officers arrived to assist Armenta. Armenta testified that when the other officers arrived at the scene, Kruse suddenly stood up, took his shirt off, and walked to the back of the jail cell. He balled his fists, puffed out his chest, and flexed his “lats” to make himself look bigger.
The jury viewed a body-worn camera video that showed Kruse‘s actions and statements in the holding cell. Armenta told Kruse he “tested the meth [and] it came out positive.” Kruse did not respond. Armenta asked him to get up and Kruse said, “Nah, bro.” Armenta asked Kruse to put his hands behind his back and Kruse responded, “Nope, let‘s go.” Armenta said, “All right, so you‘re gonna fight us, is that what you want to do?” Kruse responded, “Go, let‘s go.” Armenta said, “You want to do that?” Kruse responded, “Let‘s go.” Armenta told Kruse, “I don‘t want to fight you.” Kruse said, “Run it nigga. Run it.” Armenta stated, “You, you want to fight us.” Kruse responded, “Yup.” He then stated, “Positive test, let‘s run it then.”
Armenta testified that Kruse‘s demeanor inside the holding cell was angry, very agitated, confrontational, and combative. His challenging Armenta to a fight deterred Armenta from performing his duty to place Kruse in handcuffs and transport him to the Vista Detention Facility for booking.
Kruse testified at trial that when he returned to Koetter‘s apartment on the night of the dinner party to get his cell phone and backpack, Koetter gave him the phone but would not let him come inside to get his backpack. Hе knocked on the window and asked Howell to give him his backpack, and Howell asked Koetter to give him the backpack so he could leave. Koetter eventually opened the door and gave Kruse his backpack. They were talking at the door and Kruse walked into the apartment. He did not shove his way in. Kruse testified that he did not leave the apartment because Koetter was sad and he did not want to leave her feeling sad and that he did not care for her.
Kruse later testified that when he was standing at the doorway talking to Koetter, Koetter and Howell both hit him and started to push him out the
Kruse testified that when he sat on the couch, Koetter started hitting him repeatedly in the face as he asked her to calm down and talk to him. At one point she grabbed her hand in pain from hitting him. Kruse got off the couch, went to the freezer, got an ice pack, and put it on her hand. Koetter was starting to calm down until the neighbor who called the police opened the door and suggested that Kruse leave immediately to avoid getting arrested. Koetter then hit Kruse with the ice pack and started choking him. When Howell pulled Koetter off of Kruse, Kruse went into the bedroom and locked the door.
Kruse testified that he went into the bedroom “to diffuse the situation” and let Howell talk to Koetter, and to make sure Koetter‘s daughter was all right. He stayed in the bedroom about five or six minutes and opened the doоr when Foster knocked on it. When he came out, he went into the bathroom and Koetter followed him. Kruse sat on the closed toilet with his head in his hands as Koetter stood next to him yelling and crying. Kruse denied that he ever told Howell he was going to put a bullet in her brain and kill her or that he otherwise threatened her. When asked about his reference
Kruse testified that he did not put any methamphetamine in the strap of his backpack the night of the incident and was unaware there was any methamphetamine in his backpack. He thought the officers might have planted the methamphetamine.
Kruse testified that he did not threaten Officer Armenta at the police station sallyport and he did not want to fight Armenta. He intended to communicate to Armenta that a fight would not be fair because his (Kruse‘s) hands were behind his back. When Armenta woke up Kruse in the holding cell, Kruse heard him say that force was going to be used against him, so Kruse took off his shirt and walked to the back of the cell to brace himself against the use of force. He took his shirt off because he had been sleeping with his arms inside the shirt to stay warm in the cold cell, and taking the shirt off was the easiest way to put it back on. He did not remove his shirt to threaten Armenta.
When he said “Let‘s go” to Armenta, he meant that he was ready to be transported. He testified that when Armenta asked if he wanted to fight the officers he answered “Yup” because he was not really hearing Armenta and “was just yelling things back” and “answering questions that [Armenta] had asked prior.” Armenta asked multiple questions and Kruse “was saying yep to some, no to others, and [he] wasn‘t really hearing each question individually.” He could not hear well because the holding cell had an echo and he and Armenta were yelling at each other.
I. Cross-Examination of Kruse About Having Been Investigated for Killing His Girlfriend‘s Baby
Kruse contends the court prejudicially erred by allowing the Pеople to ask Kruse on cross-examination about having been investigated for killing his girlfriend‘s baby. We conclude the court abused its discretion in allowing the prosecutor to ask Kruse whether he had been investigated for killing a baby, but the error was not prejudicial–i.e., it is not reasonably probable that Kruse would have obtained a more favorable outcome if the prosecutor had asked him about a prior homicide investigation without mentioning that it involved a baby.
Background
At trial, outside the presence of the jury, the prosecutor told the court that she wanted to offer the testimony of Escondido police officer Armenta that on the night of the incident, Kruse “bragged” to officers on the scene that he “got six months for killing a child.” Defense counsel argued the evidence should be excluded under
The court ruled that “under [
When the court and counsel were later discussing jury instructions outside the presence of the jury, defense counsel asked the court to sanitize the evidence that Kruse bragged about committing a murder. Counsel first asked the court to either take judicial notice that there is no murder case pending and that Kruse had no prior convictions for murder or have an investigator from her office testify to those facts. Alternatively, counsel asked the court to instruct the jury as follows: “[Y]ou heard evidence that Mr. Kruse told some of the witnesses that he only got six months for murder. You are not to speculate about any other case not before you or whether such a case actually exists. You are only to consider this evidence for the limited purpose of determining how this statement affected Ms. Howell.” The prosecutor was not opposed to that instruction.
When Kruse testified at trial, the prosecutor asked him on cross-examination to acknowledge that he told an officer on the scene that he “did six months for committing a murder.” Kruse responded, “Incorrect, miss.” When asked if he was saying the officer was lying, Kruse stated, “I‘m not saying he was lying. I‘m saying that the information that he gathered could have been incorrect.” During a break, the prosecutor asked the court to allow her to impeach Kruse‘s credibility by showing the jury the body-worn camera video in which Kruse told an officer on the scene that he got six months for killing a child. The court allowed the prosecutor to play the video with the word “child” deleted.
The prosecutor played the video clip, which contained the following dialogue:
“OFFICER: Is that for the, uh, for the murder? When they flash banged . . .
“KRUSE: Yup.
“OFFICER: (Unintelligible)?
“KRUSE: Yeah, it was for the murder, which I got six months for.”
On redirect examination, Kruse‘s counsel asked Kruse questions related to the video. Kruse testified that he was not currently on trial for murder, did not have an open case for murder, and had never pled guilty to murder or attempted murder. Counsel asked him to explain what led up to the conversation shown in the video. Kruse explained that he and some friends in an apartment had been “flash banged” by SWAT officers in 2013 and arrested, but not charged, with attempted murder. He explained that “flash bang” referred to “a diversionary tactical grenade or aka flash bang grenade,” which the officers “deployed . . . on us to frazzle us I guess.”
Kruse then gave testimony that indicated his reference to getting six months for murder related to the 2013 case involving the flash bang grenade. He testified that he told an officer that he “got six months for something you guys tried to make that wasn‘t even it at all.” He said he was not bragging about getting only six months for murder and was never charged with murder in the 2013 case, although one of his accomplices was “booked under attempted murder.”
Before the prosecutor began her re-cross examination she asked the court for a sidebar. The court asked the prosecutor, “Are you going to go into the area that was brought up on redirect?” The prosecutor answered
The prosecutor then asked Kruse whether he was investigated for murder in 2018. Kruse denied that he was. Defense counsel objected that the question was outside the scope of redirect. The court disagreed and overruled the objection. After the prosecutor asked a couple more questions that indicated Kruse had been investigated for a homicide relating to a former girlfriend in 2018, she asked, “And you were in fact investigated for killing your ex-girlfriend‘s baby; is that correct?” Kruse answered, “Incorrect, miss[,]” and his counsel objected, stating, “Motion in limines. Facts not in evidence. Outside the scope of redirect.” The court overruled the objection “on all grounds.”
The prosecutor then asked, “And Detective Mayfield tried to contact your girlfriend back in 2018 regarding the baby that – your girlfriend‘s baby died, correct?” Kruse answered, “At that time, no, miss.” The prosecutor next asked, “So is it your testimony today that you were never investigated for a baby homicide?” Kruse replied. “It is my testimony today, yes, that I was never investigated in 2018 for a baby homicide, miss.” The prosecutor asked, “Either in 2018 or 2019?” Kruse responded, “Never, miss.”
On redirect, Kruse‘s counsel asked Kruse if there was anything he wanted to share about the “baby homicide” or his former girlfriend. Kruse got emotional as he explained that he met his former girlfriend the year before and got into a relationship with her. The girlfriend‘s son had a sеizure and was going to undergo brain surgery when the police arrested Kruse and
When the court instructed the jury, it included the following instruction regarding Kruse‘s statements that he got six months for murder: “Now you heard evidence the defendant, Mr. Kruse, told some of the witnesses that he only got six months for murder. You are not to speculate about any other case not before you or whether such a case actually exists. You are only to consider this evidence for the limited purpose of determining whether any alleged threat made by the defendant actually caused Samantha Howell to be in sustained fear for her own safety and whether her fear was reasonable under the circumstances. You may consider that evidence only for that purpose and for no other.”
After the court instructed the jury and before closing arguments, Kruse‘s counsel moved for a mistrial on the ground the jury was tainted when the prosecutor questioned Kruse “about a 2019 case involving the death of a child[.]” Counsel argued that she had not brought up a topic on redirect that opened the door to “that specific inquiry on recross.” Counsel further argued that the trial was unfair to Kruse because “we‘ve spent an ample amount of time on that particular investigation without the defense having an opportunity to have any police reports relating to the investigation[.]” The court denied the motion for a mistrial.
Applicable principles
“A trial court‘s decision to admit or exclude evidence is reviewable for abuse of discretion.” (People v. Viera (2005) 35 Cal.4th 264, 292.) “[T]he trial
“Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional . . . test [set forth in People v. Watson (1956) 46 Cal.2d 818, 836]: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (People v. Partida (2005) 37 Cal.4th 428, 439.)
Analysis
We conclude that it was an abuse of discretion to overrule Kruse‘s objection to the prosecutor‘s reference to Kruse‘s being investigated for killing a baby after the court had twice ruled that any such reference to a “baby” or “child” must be excluded because, in the court‘s words, it “could be overly prejudicial.” Kruse‘s inaccurate testimony on redirect examination that his statement to the police about getting six months for murder related to the 2013 case involving the flash bang grenade and not a later 2018 case may have opened the door for the prosecutor to ask questions about a 2018 or 2019 murder investigation, but it did not open the door to ignore the court‘s ruling that any reference to killing a child оr baby must be excluded from the jury.2
The jury obviously found Howell credible and presumably found Kruse guilty of the criminal threat count based on her testimony that he made the threat and that she feared Kruse because, among other reasons, she heard him say in Koetter‘s apartment that he was involved in a murder case. Howell‘s testimony that Kruse criminally threatened her was corroborated by Foster‘s testimony that when Howell came downstairs from the apartment
Although evidence of Kruse‘s statement to the police about getting six months for a murder and the prosecutor‘s questions regarding a 2018 investigation into the death of his girlfriend‘s baby may have negatively affected the jury‘s assessment of Kruse‘s character, neither was likely to have affeсted the jury‘s determination of whether Howell was reasonably in fear of Kruse as a result of his threat because there was no evidence that Howell was present when Kruse made the statement to the police or that she was aware of the statement or the 2018 case involving the death of a child. The court instructed the jury to consider evidence that Kruse said he got six months for murder only “for the limited purpose of determining whether any alleged threat made by the defendant actually caused Samantha Howell to be in sustained fear for her own safety and whether her fear was reasonable under the circumstances.” Because there was no evidence that Howell heard Kruse make the statement about getting six months for a murder or knew anything about the case he was referring to, it is unlikely that the jury gave either much weight in considering whether Howell was reasonably in sustained fear as a result of Kruse‘s threat to kill her. Evidence of a statement that Howell did not hear and a case she was unaware of had little, if any, relevance to her state of mind.
Further, we conclude it is not reasonably probable that but for the prosecutor‘s questions about a baby homicide investigation, the jury would
The police body-worn camera videos of Kruse at the police station presented strong evidence of Kruse‘s guilt of the section 69 count and likely were key to the jury‘s assessment of his credibility with respect to his denial that he committed any of the charged offenses. The videos impeached Kruse‘s credibility by reflecting that he threatened officers, contrary to his trial testimony that he had not done so. The jury‘s decision to believe Howell‘s and Armenta‘s testimony over Kruse‘s testimony would not likely have been different if the prosecutor had not questioned Kruse about a baby-homicide investigation or the court had sustained Kruse‘s objection to that questioning. Accordingly, we conclude that the court‘s error in allowing the prosecutor to question Kruse about having been investigated for killing his girlfriend‘s child was not prejudicial because it is not reasonably probable that Kruse would have obtained a more favorable verdict but for the error.
Kruse contends that the court prejudicially erred in refusing to instruct the jury on
Background
The court instructed the jury on the
When counsel and the court were discussing jury instructions, Kruse‘s counsel requested an instruction on
The court denied the request to instruct on
Smith
The Smith court addressed the specific issue of whether
” ‘California law has long provided that even absent a request, and over any party‘s objection, a trial court must instruct a criminal jury on any lesser offensе “necessarily included” in the charged offense, if there is substantial evidence that only the lesser crime was committed. . . . Thus, ‘a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.’ [Citation.]
“For purposes of determining a trial court‘s instructional duties . . . ‘a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.’ ” (Smith, supra, 57 Cal.4th at pp. 239-240.)
The Smith court observed that “[
“The first way of violating
“The second way of violating
However, the Smith court noted that in determining whether there is a duty to instruct the jury on a lesser included offense, courts “also consider the language of the accusatory pleading.” (Smith, supra, 57 Cal.4th at p. 242.) Smith observed that “[i]f the accusatory pleading in [the present] case had charged only the first way of violating
The Smith court “summarize[d] the trial court‘s instructional duty as follows: Where an accusatory pleading alleges both ways of violating
Kruse contends that under Smith, the trial court was required to instruct on
Smith did not consider whether the court must instruct on
The italicized language shows that Smith‘s holding is based on the assumption that where an accusatory pleading alleges both ways of violating
There is language in Smith that suggests the court‘s analysis would have been different if the jury in Smith had not been instructed on both ways of violating
The Smith court reiterated that “[t]he prosecution may, of course, choose to file an accusatory pleading that does not allege the commission of a greater offense in a way that necessarily subsumes a lesser offense.” (Smith, supra, 57 Cal.4th at p. 244.) Likewise, the prosecution may choose to only
Although we have not found a published California case that directly addresses the issue of whether a trial court must instruct on
The Lewis court concluded the defendant‘s claim failed on the merits in part because
In sum, we conclude that the rationale for a lesser included offense instruction does not apply when the lesser offense is not necessarily included in the only theory of the greater offense pursued by the prosecution and instructed to the jury at trial. When a lesser included offense instruction is
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
DATO, J.
GUERRERO, J.