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Larsen v. Williams

United States District Court, D. Colorado

November 20, 2019

EMMETT LARSEN, Applicant,
v.
DEAN WILLIAMS, Executive Director, Colorado Department of Corrections; and PHILIP J. WEISER, Attorney General of the State of Colorado, Respondents.

          MEMORANDUM OPINION AND ORDER

          JOHN L. KANE, SENIOR U.S. DISTRICT JUDGE

         With his Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1), Emmett Larsen challenges his conviction for sexual assault on a child by one in a position of trust committed as a part of a pattern of sexual abuse. Mr. Larsen was charged in El Paso County District Court with three counts of sexually assaulting his twin granddaughters, AH and KH, when they were nine years old:

Count 1: Sexual Assault on a Child by One in a Position of Trust-Pattern of Sexual Abuse (AH the alleged victim);
Count 2: Sexual Assault on a Child by One in a Position of Trust (AH the alleged victim); and
Count 3: Sexual Assault on a Child by One in a Position of Trust (KH the alleged victim).

         The jury's general verdicts found Mr. Larsen guilty on Counts 1 and 2 (those related to AH) and not guilty on Count 3 (that related to KH). The trial court “merged” the non-pattern count of conviction (Count 2)[1] into the pattern count of conviction (Count 1) and sentenced Mr. Larsen to the mandatory minimum sentence of 8 years to life in prison.

         Mr. Larsen's direct appeals in state court ultimately proved unsuccessful, and he now seeks habeas relief from this Court on two separate grounds:

1. That his conviction is not supported by the required jury findings and that it therefore violates his right to trial by jury and to due process of law, which requires proof beyond a reasonable doubt of all elements required to support a conviction, and
2. That the trial court's total exclusion of evidence and limits on cross-examination concerning the government's efforts to take custody of the alleged victims away from their mother during an evening recess in the mother's testimony violated Mr. Larsen's rights to confrontation, to present a defense, and to a fair trial.

         I find Mr. Larsen's conviction for the pattern count is not supported by the jury's findings and verdicts and grant relief on that basis.

         I. Background[2]

         In September 2011, AH and KH moved to Colorado Springs, Colorado, from California with their mother SL, who had lost her job and was unable to find other employment in California. In Colorado Springs, AH, KH, and SL moved in with SL's father, Emmett Larsen, and his wife. Larsen is a retired Federal Aviation Administration employee and used his federal benefits to provide insurance for his granddaughters, who had health issues requiring ongoing care.

         AH and KH had been sexually abused by their paternal uncle in California. KH revealed her prior abuse to Larsen while they were living with him, and he sought counseling for her. When KH disclosed the sexual abuse by her uncle to her counselor, the counselor reported it to the authorities. As a result, Patricia Hartman, a social worker with the El Paso County Department of Human Services, visited Larsen's home on August 2, 2012, to speak with KH about her allegations regarding the uncle. Hartman was required to interview all members of the home, so she interviewed both KH and AH, separately. At trial, Hartman testified that, during those interviews, KH did not disclose any inappropriate contact other than that involving her uncle. 8/15/13 Trial Tr. at 63:2-17, ECF No. 7. AH, on the other hand, told Hartman that Larsen had touched her twice on her breast area and vaginal area and once on just her vaginal area. Id. at 65:17-22. Upon hearing AH's claims, Hartman arranged for SL to take her daughters to Safe Passage, a child advocacy center in Colorado Springs, in order for the girls to undergo forensic interviews and to protect them from continued contact with Larsen.

         When KH was interviewed at Safe Passage, she again disclosed only the sexual abuse by her uncle and specifically denied any inappropriate touching by Larsen. See 8/13/13 Trial Tr. at 170:2-9, 174:6-10, 205:4-206:18, 207:6-24, ECF No. 7. At trial, however, KH testified that her grandfather had touched her breast area once. Id. at 170:15-172:16.

         AH told her interviewer at Safe Passage that it was hard to talk about what had happened with her grandfather, but eventually, she wrote down:

My grampa tached my in the down part of my boddy and the up part dut he did not mean it it was an asedent he is nice and fun

AH Note, Def. Trial Ex. B at 1, ECF No. 7. AH went on to tell the interviewer she had been touched three times by her grandfather-first, on her breasts, which she believed was an accident; second, over her underwear in the front for less than a second; and third, on her breasts over her clothes. See 8/14/13 Trial Tr. at 67:23-69:6, ECF No. 7. In contrast, AH testified at trial that she did not remember her grandfather touching her in the “down part” but that he had touched her in the “up part, ” meaning her breast. Id. at 30:3-31:9, 32:10-12, 50:16-22.

         SL was interviewed by Detective Kory Dabb at Safe Passage. She was then directed by Officer Rebecca Arndt to make a “pretext call” to her father in an effort to obtain a confession or to corroborate what AH and KH had described. 8/15/13 Trial Tr. at 98:23-101:23; Call Tr., CF[3]at 70-81, ECF No. 7. During the call, SL repeatedly stated that she was afraid her children would be taken from her and explained that she needed to know anything Larsen had done. Larsen responded that the single incident that had occurred was the one they had previously discussed in which KH had placed his hand on her boob for a second. Id. at 73-75. He claimed the only touching of AH he had done was in rubbing her back and tickling her. Id. Notably, the call records SL asking Larsen, “why did you ever molest me?” and him answering, “I explained that to you once.” Id. at 78-79.

         Larsen was interviewed by Officer Arndt later that same day. See Larsen Interview, People's Ex., ECF No. 7. Throughout the interview, he maintained that any touching of his granddaughters was not for sexual gratification. Id. at 76:25-77:9, 80:17-24, 84:14-16, 101:10-11, 102:17-22. He did, however, admit to touching his daughter in a sexual manner. Id. at 88:7-91:22, 99:6-100:5.

         There was conflicting evidence at trial on whether SL had previously been told by both of her daughters that Larsen had touched them inappropriately. SL testified that KH had told her about an incident, but she did not recall knowing about any incident with AH until Hartman came to the house. 8/14/13 Trial Tr. at 123:15-124:13, 141:15-142:4. In contrast, Hartman and Detective Dabb, the officer who interviewed SL at Safe Passage, both testified that SL said she was previously aware of touching involving AH and had confronted Larsen, who acknowledged he had done it and said he was sorry and would not do it again. 8/15/13 Trial Tr. at 66:8-18, 83:3-85:25.

         The parties also elicited testimony at trial regarding SL's motivations as Hartman and the officers were investigating. SL testified that she was initially hesitant in speaking with them but acceded to their requests, including by making the pretext phone call, because she felt they were threatening to take her children from her. 8/14/13 Trial Tr. at 142:22-143:11; 8/15/13 Trial Tr. at 39:5-41:6. Hartman and Detective Dabb denied making any such threats. Id. at 67:25-68:2, 86:25-87:6. And Officer Arndt stated that she made clear to SL that her cooperation was not determinative of whether she would retain custody of her children as it was “a [Department of Human Services] issue and not a law enforcement issue.” Id. at 101:24-102:22. Still, Hartman admitted that she told SL that the children would need to be removed if SL did not act to keep them safe, and she acknowledged that SL was “very cooperative, very protective. Very scared, but willing to do what she needed to do to keep the kids safe.” Id. at 68:20-69:2. Along those same lines, Officer Arndt testified that she informed SL that the Department was working on court orders to take custody of her daughters because SL had instructed them not to disclose anything in their interviews. Id. at 102:3-17.

         During the trial, KH and AH testified that they had periodically been staying with Larsen while the criminal proceedings against him were ongoing. 8/13/13 Trial Tr. at 176:3-23, 186:4-187:1; 8/14/13 Trial Tr. at 24:15-20, 41:6-45:13. SL confirmed this fact and claimed she did not have to leave her daughters with Larsen if she thought they were in danger with him. 8/15/13 Trial Tr. at 46:3-48:5. An individual in the courtroom heard the girls' testimony and felt compelled to report their continued contact with Larsen to the Department of Human Services. 8/15/13 Trial Tr. at 4:10-16. A custody order for SL's daughters was then obtained from a magistrate judge. Id. at 8:17-18. Hartman was sent out during the evening recess in SL's testimony to take custody of the children but was unsuccessful in locating them. She did encounter SL, who reportedly stated that Hartman was “making a big mistake, ” that her daughters were not sexually abused by Larsen, and that she was forced to say everything in the last investigation. Def. 2/11/14 Ex. A at 1, ECF No. 7.

         The next morning, before SL was slated to retake the stand, Larsen's counsel advised the court that he anticipated questioning her about the events of the previous evening. 8/15/13 Trial Tr. at 10:21-11:4. The judge ordered that defense counsel “not to go into that” and stated that he would not allow counsel “to cross-examine in that area.” Id. at 11:5-6. Defense counsel objected on the grounds that prohibiting him from eliciting such testimony would deny Mr. Larsen his constitutional rights to present a defense, to counsel, and to appropriate cross-examination. Id. at 12:18-25. He explained that the testimony would bolster the defense's argument that SL made the pretext phone call, the allegations, and the statements to the police because she was being threatened with having her children taken from her. Id. at 12:3-7. The judge did not budge. Id. at 13:1-6. Instead, the judge relayed to SL before she continued testifying that he had countermanded the custody order, telling her: “The children are not going to be taken away from you. Any further action involving your children will have to be ordered by me and no other judge, and they are aware of that.” Id. at 15:20-23. Defense counsel repeatedly renewed his request to elicit testimony on the Department's most recent attempt to take custody of the children, and each time the judge denied it. Id. at 48:25-49:3, 69:17-20.

         The jury acquitted Larsen of the charge involving KH but found him guilty of both the pattern and non-pattern counts involving AH. In addition to the general verdict, the verdict form for the pattern count contained two specific interrogatories. The jury responded to those questions finding: (1) that Larsen did commit the pattern count by touching AH's breasts under her shirt; and (2) that Larsen did not commit the pattern count by touching AH's vaginal area over her underwear. The trial judge “merged” the pattern and non-pattern counts of conviction for sentencing and sentenced Larsen to the mandatory minimum sentence triggered by the pattern count-8 years to life in prison. Judgment, CF at 309.

         State Court Direct Appeal

         Larsen filed a direct appeal in the Colorado Court of Appeals, in which he asserted three grounds for reversal. Two of those grounds are similar to what he raises here. There, Larsen argued:

1. His rights to confrontation, to present a defense, and to a fair trial were violated when the trial court excluded evidence of efforts by the Department of Human Services to take custody of KH and AH away from SL during the overnight recess in SL's testimony;
2. His conviction for the pattern count must be vacated because the jury's findings and verdict do not support the required factual finding of two or more incidents of sexual contact involving the same child; and
3. He was denied his due process right to a fair trial and a trial by an impartial jury when the trial court refused his request to poll the jury after prejudicial material was published in the local newspaper.

         The Court of Appeals reversed Larsen's conviction, holding that the trial court abused its discretion in failing to poll the jury after the prejudicial article was published. People v. Larsen, No. 14CA0487, 2015 WL 6746509, *4 (Colo.App. Nov. 5, 2015) (“Larsen 1”), rev'd People v. Larsen, 393 P.3d 543 (Colo. 2017) (“Larsen 2”). But the court upheld the trial court's evidentiary ruling and deemed it unnecessary to address the jury's findings and verdict since it was remanding for a new trial. Larsen 1, 2015 WL 6746509, *5-6. The Colorado Supreme Court granted the State's petition for certiorari and reversed the Court of Appeals' holding on the jury polling claim. Larsen 2, 393 P.3d at 547.

         On remand, the Court of Appeals issued a second opinion, this time ruling on the jury verdicts claim and upholding the conviction. See People v. Larsen, No. 14CA0487 (Colo.App. July 20, 2017) (unpublished) (“Larsen 3”), ECF No. 1-3. Larsen then filed a petition for rehearing. The court denied the petition and instead issued a modified opinion. See People v. Larsen, No. 14CA0487 (Colo.App. Oct. 26, 2017) (unpublished) (“Larsen 4”), ECF No. 1-5. Judge Berger dissented, stating that he would grant the petition for rehearing and reverse the conviction for the pattern count on the ground that the verdict “does not carry the indicia of reliability that [they] must insist on in serious criminal cases.” Id. at 11.

         Larsen petitioned the Colorado Supreme Court for certiorari. The court denied his petition on June 25, 2018. See Larsen v. People, No. 17SC810, 2018 WL 3104246 (Colo. June 25, 2018). Justices Marquez and Gabriel indicated they would have granted certiorari on:

Whether in light of the plain language of the sentence enhancement statute and United States v. Alleyne, 570 U.S. 99 (2013), which requires the jury to find any fact that increases a mandatory minimum sentence, the pattern offense-sentence enhancement count must be vacated since the jury did not find the required two or more acts.

Id. at 1.

         Claims Raised in Larsen's Application

         As recited above, Larsen's Application for a Writ of Habeas Corpus makes two claims, one arguing the jury's findings and verdicts are insufficient to support his conviction and the other asserting that the trial court improperly excluded evidence on the attempted removal of AH and KH from SL during the trial.

         II. Habeas Corpus Standard

         “The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Although the nature and purpose of habeas corpus are informed by the common law, federal courts are only empowered to exercise the writ to the extent authorized by Congress. Ex Parte Bollman, 8 U.S. 75, 93-94 (1807). Over time, the scope and function of habeas corpus review available in federal courts has been significantly curtailed by Congress and the U.S. Supreme Court. An example of such a limitation is the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). The Act “requires a state prisoner seeking federal habeas relief first to ‘exhaus[t] the remedies available in the courts of the State.'” Kernan v. Hinojosa, 136 S.Ct. 1603, 1604 (2016) (per curiam) (quoting 28 U.S.C. § 2254(b)(1)(A)). Then, as the Supreme Court has underscored, the Act “imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks and citations omitted). Federal courts are only freed from the Act's strictures when the state courts have not adjudicated the prisoner's federal claim “on the merits.” See Kernan, 136 S.Ct. at 1604 (quoting 28 U.S.C. 2254(d)).

         Deferential Review

         When the state courts have addressed a prisoner's claim on the merits, habeas relief is appropriate if the adjudication by the state courts:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (emphasis added).

         A decision is contrary to clearly established Federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's].” Williams v. Taylor, 529 U.S. 362, 405 (2000) (O'Connor, J., concurring in the judgment of the Court and delivering the opinion of the Court as to Part II).

         A decision is an unreasonable application of clearly established Federal law if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case . . . .” Id. at 407-08. The reasonableness of a decision, vel non, is determined by reference to an objective standard. Id. at 409. “[A] state court's application of federal law is only unreasonable if ‘all fairminded jurists would agree the state court decision was incorrect.'” Wood v. Carpenter, 907 F.3d 1279, 1289 (10th Cir. 2018) (quoting Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014)).

         A decision is not based on an unreasonable determination of the facts “merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 130 S.Ct. 841, 849 (2010). The Supreme Court has warned that, “even if reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination.” Id. (internal quotation marks, citation, and alteration omitted). The Tenth Circuit has elaborated that a state court unreasonably determines the facts when it “plainly misapprehend[s] or misstate[s] the record in making [its] findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim . . . .” Byrd v. Workman, 645 F.3d 1159, 1171-72 (10th Cir. 2011) (internal quotation marks and citation omitted). Subsection 2254(e)(1) further instructs that “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). And “[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” Id. Significantly, the Supreme Court has “not yet ‘defined the precise relationship between § 2254(d)(2) and § 2254(e)(1).'” Brumfield v. Cain, 135 S.Ct. 2269, 2282 (2015) (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)).

         De Novo Review

         When an applicant presents a claim that the state courts have not adjudicated on the merits, the federal court may review that claim de novo. Johnson v. Williams, 568 U.S. 289, 293, 303 (2013). Then, the “standard of review is more searching.” Stouffer v. Trammell, 738 F.3d 1205, 1213 (10th Cir. 2013) (internal quotation marks and citation omitted). And “[I] may exercise [my] independent judgment in deciding the claim.” McCracken v. Gibson, 268 F.3d 970, 975 (10th Cir. 2001).

         With these standards in mind, I turn to Larsen's claims for habeas corpus relief.

         III. ...


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