Bass v. Clarke
| Docket Number | Civil Action 7:22cv00259 |
| Decision Date | 28 July 2023 |
| Parties | KELLY DANIEL BASS, Petitioner, v. HAROLD W. CLARKE, Respondent. |
| Court | U.S. District Court — Western District of Virginia |
Petitioner Kelly Daniel Bass, proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C § 2254, challenging the convictions and sentence imposed by the Cumberland County Circuit Court in 2018. Respondent has filed a motion to dismiss. After considering the entire record, I must GRANT the motion to dismiss for the reasons stated below.
On September 27, 2016, a grand jury in Cumberland County indicted Bass for aggravated sexual battery in violation of Virginia Code § 18.2-67.3, animate object penetration of a child younger than 13 years in violation of Virginia Code § 18.2-62.2, indecent liberties with a minor in violation of Virginia Code § 18.2-370.1, and two counts of forcible oral sodomy with a child younger than 13 years in violation of Virginia Code § 18.2-62.1. Following a trial before the judge without a jury on July 11, 2017, one oral sodomy charge was struck for insufficient evidence; the court convicted Bass of the remaining four charges. After consideration of a presentence report and psychosexual evaluation, the court imposed the required mandatory life sentence for the oral sodomy conviction, 40 years (20 suspended) for animate object penetration, 20 years (10 suspended) for aggravated sexual battery, and 10 years (5 suspended) for indecent liberties with a minor, resulting in a total sentence of life plus 70 years, with 35 years suspended, conditioned on 40 years of good behavior and 5 years of supervised release. Bass's challenges to these convictions require a detailed discussion of the procedural history of the case in addition to a summary of the evidence.
The victim, D.B., age 9 at the time of the trial, testified by closed-circuit television, pursuant to Virginia Code § 18.2-67.9. She identified Bass as her cousin, who lived with his parents, her Uncle Danny and Aunt Brenda. She spent a lot of time at their house, especially on weekends, including at the end of February 2016. Bass spent time playing games with her in his room, including video games and hide-and-seek, and they jumped on the trampoline, went bowling, went to the movies, and watched television together. At night, she usually slept on the couch in his room, but she was afraid of the dark, so when he turned off all the lights, she asked him to hold her hand. He could not reach her hand on the couch, so she would crawl into his bed. She slept in pajamas, and he slept in shorts and a t-shirt. R.[1] at 1125-1213.
D.B. testified that Bass had kissed her on the lips and licked her boobs. Using anatomically correct drawings of an adult male and a female child, she identified the parts of her body that Bass had ever touched, marking her lips, breasts, butt, and female genitalia (which she called her “hoochie coochie”), and identified the male genitalia as the place she touched with her hands and her mouth. She said that Bass's “thing” looked like the male genitalia on the drawing, except that Bass did not have any hair there. Id. at 1168. Bass also wanted her to touch him. They watched movies together of naked people doing things with each other. By December 2015, he was asking her to touch his “thing” and suck it, and he was putting his “thing” in her “hoochie coochie.” Id. at 1145-1148. On three or four occasions, she saw white liquid coming out of his thing, and he wiped it off with a rag. Id. at 1160-1161. These events last occurred at the end of February 2016. She said that Bass bought her toys and gave her gifts for doing what he asked, including a locket with a picture of the two of them inside it. He also took a picture of her naked with the camera on his DS. D.B. reiterated that Bass touched her privates, licked and sucked her breasts, and put his thing inside her a little. She denied that he ever licked her privates. Id. at 1211. She touched his privates and put her mouth on it. She denied ever touching his butt and denied ever tasting the white stuff. Id. at 1205.
On direct examination, D.B. testified that Bass told her not to tell anyone or he would go to jail. On cross examination, she admitted that Bass told her to tell her mom that these things happened so her mom would spend more time with her. She later clarified that when he was happy, he told her not to tell anyone, but when he was sad, he told her to tell her mother. She told her mother in March 2016 because her mom asked her if anyone had been touching her. Id. at 1203-1204.
D.B.'s mother testified that she and her husband went out to dinner on February 27, 2016, for a date night. She left D.B. at her brother's house, where her brother Danny, his wife Brenda, and their kids were all at home. On March 13, 2016, when she was preparing for her daughter's bath, she noticed marks on D.B.'s breasts that resembled stretch marks. She had seen them before in January or February, but they seemed to be getting worse. She asked D.B. what happened to her breasts, and D.B. said she didn't know. She then asked if anyone had done something to her, and D.B. started crying and told her that Bass had been sexually abusing her.[2]Her testimony was admitted under the fresh complaint doctrine. Mrs. B. also testified that she had been concerned about D.B. for about a year before March 2016, because D.B. started having nightmares and migraine headaches, had started hoarding food in her room, and had gone from good grades to failing grades at school. She took D.B. to the hospital for an examination on March 15, 2016, spoke to a Sheriff's deputy the next day, and started D.B. in counseling shortly afterward. D.B.'s headaches had stopped, and her grades had improved by the time of trial. Id. at 1083-1111.
Captain Ownby, a deputy sheriff with the Cumberland County Sheriff's Office, testified that he first saw Bass on March 15, 2016, when Bass came into the office with his mother and grandfather. He told the dispatcher that he was there to turn himself in for child molestation, but there were no warrants for him. Bass spoke to Ownby alone, and Ownby recorded the conversation. Bass said that his cousin, D.B., had told him she was not getting enough attention from her mother at home; he said he told her to tell her mom that he was sexually abusing her, and she would get all the attention she needed. He said he told her exactly what to say and how to say it. He claimed he had a close, powerful relationship with D.B. because she had been supportive of him, and he was trying to be supportive back. After their conversation, Bass and his family left.
Ownby spoke with Mrs. B. the next day and the hospital's forensic nurse examiner. An arrest warrant was issued for Bass, and he turned himself in on March 17, 2016. The next morning, Ownby brought Bass back to the Sheriff's Office to collect a DNA sample and took a formal statement from him at that time, after reading him his Miranda rights.[3]This time, Bass described the same activities with D.B. that he described on March 15, but Bass described them as events that had actually taken place. He said that the physical relationship had been going on for about a year, starting with fondling over the clothing and progressing. By December 2015, he admitted that they were having oral sex with each other. He said he tried to have intercourse with her, but he could not get in. He admitted watching pornographic movies with D.B. and taking a picture of her butt with his DS. The Commonwealth introduced and played the recording of this statement. Id. at 1442.
Ownsby executed a search warrant at Bass's home and seized the DS, two thumb drives, bedsheets, and a towel from Bass's bedroom, which he submitted to the Department of Forensic Science for analysis. No naked pictures of D.B. or her butt were found. The court did not permit Ownsby to testify about the contents of the flash drive, because Ownsby did not look at the drives, only the report from DFS (which was not introduced into evidence). Id. at 1216-1248.
Lori Seman, a serology and DNA examiner for the Virginia Department of Forensic Science (DFS), testified about the DNA analysis of the bedsheets and towel and the comparison with the known DNA swabs taken from D.B. and Bass. No seminal fluids were found on anything, but there were three spots of blood on one of the sheets; the DNA profile from one of the spots was consistent with D.B.'s DNA, with a probability of that spot coming from someone else being 1 in 7.2 billion. Id. at 1250-1293; 1435-1438.
The only remaining prosecution witness, Deputy Matthew Seal, testified about chain of custody matters when he picked material up from DFS after the forensic analysis. Id. 12981299.
The defense case is best summarized by Bass's testimony. Bass, age 26, testified that he suffered from depression most of his life. He took medication as a child but had stopped all medication by the time he was 17. He could not remember what medicines had been prescribed.
In early 2015, he became severely depressed when his brother's girlfriend accused him of molesting his two-year-old nephew (her child). The accusation was withdrawn and never went to the police, but it bothered him so much that he attempted suicide by taking several Tylenol. Nothing happened. Later, he told D.B. he wanted to kill himself and held a knife to his chest, but D.B. took the knife away from him.
Bass was close to his Aunt Cheryl, D.B.'s mom. He said he had talked to her a lot about his problems with depression, and she understood because she had suffered depression, too. She was the first relative...
To continue reading
Request your trial