David v. Romanowski
| Decision Date | 18 March 2016 |
| Docket Number | Case No. 12-cv-15194 |
| Parties | ROBERT CARL DAVID, Petitioner, v. KEN ROMANOWSKI, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable Laurie J. Michelson
Petitioner Robert Carl David was convicted of sexually abusing two minor foster children who were then living in the home he shared with his wife. After unsuccessfully challenging his convictions on appeal in state court, Petitioner, through counsel, filed this Petition for habeas corpus relief under 28 U.S.C. § 2254. The Court concludes that Petitioner's claims do not warrant habeas relief. Accordingly, the Petition will be denied.
Petitioner was charged in two separate cases with sexually abusing two underage foster children. "J.B." was nine years old at the time of her alleged abuse, and "D.J." was eleven or twelve years old at the time of her alleged abuse. In J.B.'s case, Petitioner was charged with one count of first-degree criminal sexual conduct and two counts of second-degree sexual conduct. In D.J.'s case, Petitioner was charged with one count of first-degree criminal sexual conduct, with an alternative count of second-degree criminal sexual conduct. The two cases were consolidated for trial before a jury in Wayne County Circuit Court.
The first witness at Petitioner's trial was his wife, Annie J. Davids.1 (See Dkt. 6-4, Mar. 11, 2009 Tr. at 196-247.) Ms. Davids testified that, in May 2008, her son told her something that caused her to ask her foster child J.B. whether anybody in the home had touched her inappropriately. J.B. was nine years old at the time, and she informed Ms. Davids that Petitioner would come in her room every morning and that it happened too many times to count.
Ms. Davids called Protective Services, Lutheran Social Services, the police, and a friend who was a social worker. The police instructed her to take J.B. to the hospital where J.B. gave a less-detailed version of the events to a doctor. After they went to the hospital, Ms. Davids talked to a detective, and when she got back home, Petitioner was gone. The next morning, Petitioner's sister called Ms. Davids and said that Petitioner was at her home in Illinois. Ms. Davids noticed that Petitioner treated J.B. differently than the other children in the house by giving J.B. candy or taking her out to dinner with him and Ms. Davids.
On cross-examination by defense counsel, Ms. Davids stated that, from time to time, J.B. had a problem with lying and stealing. Ms. Davids also denied ever seeing any inappropriate contact between Petitioner and their foster children.
Ms. Davids' son, Khalil O'Banner, testified that he lived in the Davids' home from January to June of 2008. (See Mar. 11, 2009 Tr. at 252-264.) He got along well with Petitioner, but in February of 2008, he started noticing things that were out of the ordinary. He saw Petitioner masturbate and then go in the bathroom where J.B. was. He heard them whisper and then both of them came out of the bathroom. On numerous occasions, Petitioner left his two young foster children in the bathtub while he was in J.B.'s room behind a closed door. Mr. O'Banner was a former social worker, and after another incident where he saw J.B. sitting onPetitioner's lap, he informed Ms. Davids that something improper was going on. His mother became upset and asked J.B. about the matter later that evening. Mr. O'Banner denied seeing Petitioner touch J.B.'s "private parts," and he claimed that none of the children ever said anything to him about being inappropriately touched by Petitioner.
J.B. was ten years old at Petitioner's trial and no longer living with Petitioner or Ms. Davids. (See Dkt. 6-5, Mar. 12, 2009 Tr. at 53-94.) J.B. testified that when she lived with Petitioner and Ms. Davids, Petitioner would get in bed with her and touch her. She said she would lie on top of him with her belly on his belly, and the "front middle part" of his body would touch her body. He would move her up and down. She said that other times, he used his finger to touch the private part she used to "pee," and sometimes, he put his hand down her pants and touched her "middle part." She said that one time he took her hand and made her rub his "middle part," which he used for "peeing." He also reached into her pants in the kitchen on some occasions and kissed her on the mouth. He would also "grab [her] hand" and "ma[ke] [her] touch [her]self." J.B. said that Petitioner would buy her more candy, ice cream, chocolate, and toys and that he told her not to tell anyone about what they were doing. She thought at the time that she would get in trouble if she disclosed Petitioner's abusive behavior, but eventually she informed Ms. Davids about it.
D.J., the other complainant in the case, was eleven or twelve years old when she lived with the Davids. (See Mar. 12, 2009 Tr. at 96-123.) D.J. testified that one night when she was in bed asleep, Petitioner came into her room and licked her "private area." Petitioner told her not to tell anyone about it because, if she did, she would not be able to see her mother, father, brothers, and sisters. After she stopped living with Petitioner, she disclosed the incident to her mother. She testified that she did not disclose the abuse sooner because she was afraid of Petitioner.
The officer in charge of the case, Detective Marc Abdilla, testified that Petitioner was arrested in Illinois where he had been living with his sister. (Mar. 12, 2009 Tr. at 135.) Dr. Susan Horling testified that she examined J.B. due to a complaint of physical or sexual abuse. (Id. at 166.) She did not see any injuries, and she did not use a rape kit because there was no report of vaginal penetration. (Id. at 168-70.)
Petitioner did not testify, but he called four witnesses in his behalf: Carol Schiller, Constance Rutledge, Carol Young, and Gerald Young. Ms. Schiller testified that she worked for Lutheran Adoption Services and that she prepared an adoption report for J.B. The report indicated that J.B. had some behavioral issues, including lying. Ms. Schiller, however, opined that lying was normal for a foster child because foster children often lie as a coping mechanism for stress.
Constance Rutledge was a Child Protective Services worker. (Mar. 12, 2009 Tr. at 139-65.) She testified that she interviewed D.J., who stated that no one had touched her inappropriately while she was in the various foster homes. When D.J. was asked why she waited such a long time to report the incident with Petitioner, she merely shrugged her shoulders and said she did not know why. Ms. Rutledge also interviewed J.B., who said that the only inappropriate touching that took place in the Davids' home was Petitioner's touching that she had reported to Ms. Davids.
Petitioner's sister, Carol Young, testified that Petitioner came to live with her in May of 2008. (Mar. 12, 2009 Tr. at 178-87.) During that time, she overheard Ms. Davids tell Petitioner over the telephone, In another conversation, Ms. Davids was angry with Petitioner because he had withdrawn some money from his checking account. According to Ms. Young, Ms. Davids told Petitioner duringtheir telephone conversation, "I'm going to hurt you, and I'm going to hurt you real bad." Ms. Young also testified that in 2007, she and her husband stayed at the Davids' home for several days on two occasions and that she did not notice anything unusual about Petitioner's actions towards J.B. She described Petitioner as a tender-spirited person who would help anyone.
Gerald Young was Carol Young's husband and Petitioner's brother-in-law. He testified that in his opinion, Petitioner's character was impeccable and that Petitioner had never before been accused of sexual abuse. (See Mar. 12, 2009 Tr. at 188-91.)
The defense theory was that there was insufficient evidence of either first- or second-degree criminal sexual conduct. Defense counsel argued to the jury that D.J.'s testimony was clearly suspect, that J.B.'s credibility was also in question, and that the witnesses' testimony was insufficient to establish penetration.
On March 13, 2009, the jury found Petitioner guilty of one count of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct as to J.B. The jury also found Petitioner guilty of one count of first-degree criminal sexual conduct as to D.J. On March 27, 2009, the trial court sentenced Petitioner to concurrent terms of twenty-five to sixty years in prison for the first-degree criminal sexual conduct convictions and three to fifteen years in prison for the second-degree criminal sexual conduct convictions.
In his direct appeal, Petitioner argued that (1) D.J.'s "prior acts" testimony should have been excluded under Michigan Rule of Evidence 403; (2) Mich. Comp. Laws § 768.27a was an unconstitutional ex post facto law; (3) there was insufficient evidence that he penetrated J.B.; (4) the trial court erred reversibly by refusing to instruct the jury on J.B.'s prior inconsistent statements; (5) he was denied a fair trial by the trial court's failure to grant the jury's request to review the complainants' testimony; and (6) the trial court abused its discretion by not departingbelow the mandatory minimum sentence for first-degree criminal sexual conduct. The Michigan Court of Appeals rejected these arguments and affirmed Petitioner's convictions and sentence in an unpublished per curiam opinion. See People v. David, No. 291537, 2010 WL 4671030 (Mich. Ct. App. Nov. 18, 2010). Petitioner raised the same claims with the Michigan Supreme Court, which denied leave to appeal on September 4, 2012, because it was not persuaded to review the issues. See People v. David, 819 N.W.2d 887 (Mich. 2012).
On November 26, 2012, Petitioner filed his habeas corpus petition...
To continue reading
Request your trial