Cone v. Denney

• Decision Date: 29 February 2012
• Docket Number: Case No. 11-0724-CV-W-GAF-P
• Parties: WILLIAM CONE Petitioner, v. LARRY DENNEY, Respondent.
• Court: U.S. District Court — Western District of Missouri

WILLIAM CONE Petitioner,

v.LARRY DENNEY, Respondent.

Case No. 11-0724-CV-W-GAF-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

Dated: February 29, 2012

OPINION AND ORDER DENYING WRIT OF HABEAS CORPUS

Petitioner, a convicted state prisoner currently confined at the Crossroads Correctional Center in Cameron, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1997 convictions and 1998 sentences for six counts of first degree sexual assault and thirteen counts of first degree deviate sexual assault, which were entered in the Circuit Court of Lafayette County, Missouri. Petitioner raises four (4) grounds for relief. Respondent contends that all four grounds are without merit.

FACTUAL BACKGROUND

In affirming the judgment of conviction and sentence, the Missouri Court of Appeals, Western District, set forth the following facts:

The defendant began practicing psychiatry in West Plains, Missouri, in 1979. Rebecca and Jean were his patients. The defendant practiced until 1994 when, at 70 years old, he lost his license as a direct result of the facts recited herein. Subsequently, in January 1997, the defendant was charged by information with sexually assaulting Jean, and encouraging another person to do so on one occasion, and sexually assaulting Rebecca, both between November 1993 and January 1994. At trial, the defendant did not dispute that he engaged in sexual relations with both women. His contention at trial and on appeal was that the women were not "mentally incapacitated," as required for a conviction under § 566.040 and § 566.070. With respect to this issue, the state presented the testimony of threeexperts, the two victims and several other witnesses. The defendant also testified. The evidence, which supports the verdicts, is as follows.

REBECCA

Rebecca first sought psychiatric treatment when she was 12 years old for problems related to a troubled childhood. In the Fall of 1993, Rebecca was involuntarily hospitalized by the defendant. She had been receiving treatment from the defendant since 1988, when she was 26 years old. He diagnosed her with bi-polar disorder, mixed type, borderline personality disorder, and substance abuse, primarily from her overuse of prescription medications. The hospital records showed that the defendant considered Rebecca's judgment so impaired that she could not make the decision to leave against medical advice. She was discharged from the hospital on September 26, 1993. The defendant's discharge notes stated that Rebecca had "poor judgment" and that her prognosis was "guarded." She was discharged with Prozac, Trazodone, Buspar, and Vistaril. It was a little over a month later that the defendant commenced having a sexual relationship with her.

Following this hospitalization, the defendant encouraged Rebecca to become more trusting by discussing sexual fantasies. The defendant's "treatment" progressed from discussion of sexual fantasies to actual sexual contact. The defendant's discussions about sex were timed to tragic past events in Rebecca's life that caused her to be distraught and upset. It was during this time that the defendant started his "reparenting" therapy as a prelude to their sexual relationship. In late 1993, the defendant told her that her condition was worsening and convinced her that if they had sex, it would help her treatment because she needed the nurturing she never received from her mother. The defendant gave her two pills and then they engaged in sexual intercourse and oral sex at his office. She testified that "[e]very time I saw him [after the initial sexual encounter] I had to give him oral sex" as part of the "nurturing process." She further testified that she did not enjoy the sexual contact, but believed it to be a part of her treatment. The sexual contact continued for approximately three months, until she got "high enough and drunk enough" to tell her family. On one previous occasion, while being forcibly medicated and restrained, Rebecca attempted to reveal the sexual aspects of her therapy. The defendant told her if she told anyone about the sexual aspect of her therapy, that he would have her involuntarily committed to a state mental hospital. She then tried to commit suicide.

Rebecca's psychiatric treatment with the defendant was very stormy. She was frequently angry and depressed, was using a variety of drugs and alcohol, and was often restrained, forcibly medicated and involuntarily hospitalized when she would not cooperate. She was involuntarily committed "several" times while under the care of the defendant.

During the treatment, the defendant prescribed Prozac, Trazodene andKlonopin for Rebecca. The defendant would only provide her with medication (specifically, samples of Xanax) when she had "done a good job." On one occasion, the defendant showed Rebecca a gun that he kept in his office for "unruly patients." She took the incident as an implied threat and it frightened her because she considered herself to have been unruly. She testified that the defendant was her psychiatrist, but she also "trusted him as a father figure."

Dr. Stephen Jarvis, a board certified psychiatrist, was assigned by the Department of Mental Health to evaluate the defendant's patients. Dr. Jarvis reviewed the extensive medical records of both women, and the defendant's treatment notes. He then spent approximately two hours interviewing each victim. At trial, he testified as to the reasons why sexual relations between physicians and their patients are prohibited and to the concept of transference in which psychiatric patients have inaccurate preconceptions regarding their doctor's intelligence, wisdom and ability to heal.

. . . .

He concluded, within a reasonable degree of medical certainty, that Rebecca was not able to appreciate the nature of her sexual conduct with the defendant because of her mental illness and her belief that the conduct was part of her treatment. Additionally, he opined that she was unable to express her unwillingness to act because of her illness, as well as her dependence on the defendant and the prescription medication he was providing her.

Dr. Richard Scott, a psychologist and certified forensic examiner, also evaluated Rebecca. He reviewed her medical records and conducted a three-hour interview. Dr. Scott is employed by the Missouri Department of Mental Health as the Program Director for the Forensic Evaluation Program. During the interview, he described Rebecca as very, very nervous, she had a tremor in her hands, her voice quivered, and she was very, very anxious. He diagnosed her as having a personality disorder with dependant features, a severe bi-polar disorder, post-traumatic stress disorder related to her history of rapes, and Benzodiazepine dependence. He believed that Rebecca was suffering from these disorders at the time she was sexually abused by the defendant.

. . . .

Dr. Scott opined that, within a reasonable degree of psychological certainty, Rebecca was not able to appreciate the nature of her sexual conduct with the defendant as the result of her mental disorders, in that she was unable to discern that she was engaging in sex rather than therapy. Additionally, stated within a reasonable degree of certainty, she was unable to express her unwillingness to participate in the sexual activity. His opinion was the result of the interaction of Rebecca'sdependence on the prescription medication with the defendant's manipulation and abuse of the transference and her "very strong personality disorder."

The defendant admitted that the sexual part of his relationship with Rebecca began in November 1993, and that there was some form of sexual contact with her in every session until January 1994. He admitted prescribing various medications for her, and he realized that she was very addicted to Benzodiazpines as early as 1991. He also admitted that he told Rebecca that he would have her hospitalized if she refused to take her medications.

JEAN

In February 1988, Jean took her son to the defendant for treatment and was told that her son's problems stemmed from her own. At the defendant's suggestion, she agreed to seek treatment for her son from another doctor elsewhere and that Jean should continue her therapy with him. Over the six years of treatment, the defendant prescribed her Prozac, Trazodone, and Xanax.

Early on in the sessions with Jean, the defendant encouraged open discussion of sexual matters. Over time, the physical, and eventually sexual, contact between them increased during their sessions. In August 1988, the defendant explained that "it was time for us to start the sexual part of our therapy." Jean believed that this was the next step in her treatment. By 1990, the defendant introduced her to "reparenting therapy" or "regression therapy." The defendant lead Jean to believe that she had been sexually abused as a small child, probably by her father, although she did not have any recollection of abuse. The defendant engaged in "guided imagery" by which he would hold Jean in his lap and feed her with a baby bottle like a child. Jean would lie on the couch, and the defendant would describe a situation in which her father placed his penis in her month. Eventually, the defendant's penis took the "place of the bottle" during the therapy. Jean testified that the defendant explained to her that "since he was a male and not female, that would be the best that he could offer me, the closest thing to being my mother." He told her that he thought she was suicidal, and that sex would be a way for her to connect with him, and he would become her "lifeline." She testified that she did not believe that she was in a "romantic relationship" with the defendant, but that it was part of the progression of her therapy.

Jean and the defendant had sexual intercourse during her therapy sessions on three occasions in late 1993. On January 1, 1994, at the defendant's

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