Krutsinger v. Williams, 102820 CODC, C. A. 11-cv-02963-JLK

Docket NºCivil Action 11-cv-02963-JLK
Opinion JudgeJOHN L. KANE, SENIOR U.S. DISTRICT JUDGE
Party NameCHARLES M. KRUTSINGER, Petitioner, v. DEAN WILLIAMS, Executive Director, Colorado Department of Corrections; and PHILIP J. WEISER, Attorney General of the State of Colorado, Respondents.
Case DateOctober 28, 2020
CourtUnited States District Courts, 10th Circuit, District of Colorado

CHARLES M. KRUTSINGER, Petitioner,

v.

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

Civil Action No. 11-cv-02963-JLK

United States District Court, D. Colorado

October 28, 2020

MEMORANDUM OPINION AND ORDER

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

The U.S. Supreme Court has described the writ of habeas corpus as “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” Harris v. Nelson, 394 U.S. 286, 290-91 (1969). With roots predating the Magna Carta, habeas corpus originated as a mechanism for ensuring that prisoners are not held unlawfully. See Leonard Levy, Origins of the Bill of Rights at 44 (2001). The writ was assumed in the drafting of the U.S. Constitution, see U.S. Const. art. 1, § 9, cl. 2, and officially instituted in the U.S. with the Judiciary Act of 1789, § 14, 1 Stat. 73 (1789). Post-Civil War, courts were empowered by Congress to grant habeas relief “in all cases, ” state or federal, “where any person may be restrained of his or her liberty in violation of the constitution, or any treaty or law of the United States.” Habeas Corpus Act of 1867, ch. 27, 14 Stat. 385 (1867). Despite its veneration as a “fundamental instrument, ” the scope of the writ has since been narrowed via the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (imposing a highly deferential standard for claims adjudicated on the merits by the state courts) and Supreme Court opinions such as Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (holding that a more forgiving harmless-error standard is to be applied in determining whether habeas relief must be granted for constitutional error of the trial type). See Brian R. Means, Postconviction Remedies § 4.5 (2020).

Petitioner Charles Krutsinger asserts several claims for relief in his Amended Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 24). Under the standards by which I am bound, I determine that he has not established he is entitled to relief on any of the claims and therefore deny his Amended Petition.

Mr. Krutsinger challenges his convictions related to the sexual assault of his stepdaughter, S.M. He was charged in District Court in Douglas County, Colorado, with: • One count of Sexual Assault on a Child in violation of Colorado Revised Statutes § 18-3-405(1);

• Nine counts of Sexual Assault on a Child-Pattern of Abuse in violation of Colorado Revised Statutes § 18-3-405(1)(2)(d);

• Nine counts of Sexual Assault on a Child-Position of Trust (victim under fifteen) in violation of Colorado Revised Statutes § 18-3-405.3; and

• Ten counts of Aggravated Incest in violation of Colorado Revised Statues § 18-6-302.

Following a four-day trial and two days of deliberation, a jury found him guilty on all 29 counts.

The trial judge sentenced Mr. Krutsinger to two years of imprisonment on his conviction for Sexual Assault on a Child, ten years of imprisonment on his Pattern-of-Abuse convictions, four years of imprisonment on one of his Position-of-Trust convictions, ten years of imprisonment on his remaining Position-of-Trust convictions, and four years of imprisonment on his Aggravated-Incest convictions, all terms to run concurrently.

Mr. Krutsinger's appeals and attempts at postconviction relief in the state courts lasted fifteen years and resulted in four Colorado Court of Appeals opinions and one Colorado Supreme Court opinion as well as additional hearings in the district court over four days. Although Mr. Krutsinger finished serving his sentence years ago, he persists in his efforts to overturn his convictions. His original Petition in this case was filed in November 2011, but the case was stayed as Mr. Krutsinger continued to pursue relief in the state courts. His efforts there ultimately proved unsuccessful. Consequently, the stay was lifted in this case in November 2018, and the parties were permitted to amend their filings. After my colleague Judge Matsch's passing in May 2019, the case was reassigned to me. I held oral argument in August 2019 to gain clarity on the numerous and complicated issues Mr. Krutsinger advances.

Mr. Krutsinger's Amended Petition in this case asserts four claims for habeas relief. First, he argues that the trial court violated his Sixth Amendment rights to present a defense, to compulsory process, and to a fair trial by excluding the testimony of S.M.'s therapist, Dr. Patricia Howard. Second, he contends that his constitutional rights to due process and a fair trial were violated when the prosecutor misrepresented a key fact and inappropriately bolstered S.M.'s credibility during closing arguments. Third, Mr. Krutsinger claims that the cumulative instances of prosecutorial misconduct during closing arguments violated his constitutional rights to due process, the presumption of innocence, and a fair trial. And, lastly, he maintains that his trial attorney provided ineffective assistance of counsel.

I. Background

Mr. Krutsinger's Trial

As is often the case with allegations of child sexual abuse, no physical evidence of the abuse was presented at Mr. Krutsinger's trial and no witness testified to the incidents other than the victim, S.M. The outcome of the trial hinged entirely on credibility-primarily S.M.'s but also Mr. Krutsinger's. The prosecution supported S.M.'s statements with the testimony of her mother, Roberta Krutsinger; the school counselor to whom she disclosed the abuse, Michael Lantz; the officers involved in her interviews after that disclosure, Douglas County Deputy Sheriffs Jeffrey Egnor and Brock Bowers; and expert witness Marte McNally. The defense challenged S.M.'s testimony by showing the inconsistencies in her various accounts of the abuse and by offering motives for why she would have fabricated the allegations. Some of the motives suggested were that she was covering for her own bad behavior, that she wished to go live with her father on the Colville Reservation in Washington State, and that she wanted to separate her mother from Mr. Krutsinger.

The prosecution started the four-day trial with S.M.'s testimony. She alleged that Mr. Krutsinger sexually abused her from when she was in second grade to when she was in sixth grade. 8/19/2003 Trial Tr. 57:23-58:1, 71:17-72:2, ECF No. 33. S.M. was a junior in high school when she disclosed the abuse and was 16 at the time of the trial. According to S.M., Mr. Krutsinger abused her in two different ways: by putting her hand in his pants and making her stimulate his penis, id. 58:6-12, 59:1-5, 62:5-19, and by rubbing his erect penis up against her backside while clothed, id. 64:12-66:4. She testified that Mr. Krutsinger engaged in the first type of abuse three or four times per week over the approximately five-year period and that in total there were more than a hundred instances. Id. 60:6-8, 67:1-2. With respect to the second type of abuse, she testified that it started when she was in third grade and occurred once a week or every other week until she was in sixth grade. Id. 65:6-7, 66:8-9. On the stand, S.M. reported that the first time the abuse occurred was in their family room while she was watching cartoons one morning before she went to school. Id. 61:10-20. She stated that, when the abuse occurred in the mornings, Mr. Krutsinger would be wearing his work clothes, including suit pants. Id. 62:1-4; 8/20/2003 Trial Tr. 16:25-17:3, 18:13-20, ECF No. 33. The last incident of abuse, per her testimony, took place in the middle of the night and involved Mr. Krutsinger putting her hand in his pants. 8/19/2003 Trial Tr. 71:22-72:9.

On the stand, S.M. described how for years she had told Mrs. Krutsinger that she had a secret but that she was always too scared to tell her mother what the secret was. Id. 77:11-79:11. Similarly, S.M. testified that she had hinted to her high school counselor, Michael Lantz, about the abuse, but that she had not named the perpetrator because Mr. Lantz had warned her he would then have to report the abuse. Id. 96:9-17; 8/20/2003 Trial Tr. 65:24-66:1.1

Ultimately, more than five years after the last alleged incident of abuse, S.M. revealed her secret to her mother outside of a bowling alley. That night, S.M. drove to go midnight bowling without permission. When confronted by her mother at the bowling alley, S.M. disclosed that she had been sexually abused. 8/19/2003 Trial Tr. 83:1-7, 84:21-86:24. S.M. testified that, during that disclosure, she only told her mother that she had been molested and not who she thought had done it. Id. 86:13-18; 8/20/2003 Trial Tr. 61:15-17. After their conversation, Mrs. Krutsinger allowed S.M. to stay for midnight bowling but arranged for S.M. to see a therapist a few weeks later.

S.M. saw psychologist Patricia Howard on four occasions. At the first session, on October 31, 2002, S.M. told Dr. Howard that she had been abused but that she was not certain who the perpetrator was. S.M. explained at trial that, in fact, she knew Mr. Krutsinger had abused her but did not tell Dr. Howard because, like Mr. Lantz, Dr. Howard had warned that a case would have to be filed immediately if she stated who had abused her. 8/19/2003 Trial Tr. 91:24-92:2; 8/20/2003 Trial Tr. 64:15-25. S.M. testified that she was not “ready at that point for [Dr. Howard] to do that.” 08/19/2003 Trial Tr. 91:6-92:12. Dr. Howard's notes from that first session document that S.M. told her the abuse ended when S.M. was in fourth grade. Defense counsel used these notes to question S.M. on the inconsistency in her timeline, 2 but S.M. responded that she only remembered telling everyone the...

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