LaRose v. Bell

• Decision Date: 21 February 2012
• Docket Number: CASE NO. 2:09-CV-14911
• Parties: LOUIS GEORGE LAROSE, IV, #663552, Petitioner, v. THOMAS BELL, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

LOUIS GEORGE LAROSE, IV, #663552, Petitioner,

v.THOMAS BELL, Respondent.

CASE NO. 2:09-CV-14911

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: February 21, 2012

HONORABLE PAUL D. BORMAN

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS

CORPUS. DENYING A CERTIFICATE OF APPEALABILITY. AND

DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Louis George LaRose, IV ("Petitioner") was convicted of four counts of first-degree criminal sexual conduct (person under 13), Mich. Comp. Laws § 750.520b(l)(a), four counts of second-degree criminal sexual conduct (person under 13), Mich. Comp. Laws § 750.520c(l)(a), three counts of accosting a child for immoral purposes, Mich. Comp. Laws § 750.145a, and four counts of aggravated indecent exposure, Mich. Comp. Laws § 750.335a(2)(b), following a jury trial in the Oakland County Circuit Court. He was sentenced to concurrent terms of 35 to 55 years imprisonment on the first-degree criminal sexual conduct convictions, 10 to 15 years imprisonment on the second-degree criminal sexual conduct convictions, 2½ to 4 years imprisonment on the accosting a child convictions, and 104 days in jail (with credit for 104 days time served) on the indecent exposure convictions in 2007.

In his pleadings, Petitioner raises claims concerning the admission of other acts evidence, the use of jury questions, the prosecution's failure to turn over discovery, the proportionality of his sentence, and the trial court's sentencing decision. For the reasons set forth, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner's convictions arise from his sexual misconduct with a neighbor girl in Waterford, Michigan from 1995 to 1997 when she was 6 to 8 years old and from 2002 to 2007 when she was 13 to 17 years old. The Court adopts the facts set forth by the prosecutor on direct appeal. Those facts are as follows:

[C.B.] was 17 years old at the time of trial. (T II, 60.) She was born on December 25, 1989. (T II, 60.) At the time of trial, she was in 12th grade (a senior) at Waterford Mott High School. (T II, 61-62.)

[C.B.] had lived at 2633 Mott Avenue in Waterford Township all of her life. (T II, 62.) Michelle Hobbs was like a godmother to her. (T II, 64.) Hobbs' 14 year-old daughter Cassie was [C.B's] best friend and [C.B.] considered her like a sister. (T II, 64.) [C.B.] would confide important and private things in-Michelle and Cassie that she would not tell her father. (T II, 65.)

When she was younger, [C.B.] would play with [Petitioner's] son Evan because there were no little girls that lived nearby. (T II, 70.) Evan would come to her house and [C.B.] would go to [Petitioner's] house. (T II, 70.)

When [C.B.] was six years old, something unusual began to happen when she would go to [Petitioner's] house to play with Evan. (T II, 83.) She would ask [Petitioner] to see Evan and [Petitioner] would say, "Hey, come here. Look at this" and take her into the garage. (T II, 85,137.) Once in the garage, [Petitioner] (who would sit on a chair while [C.B.] would remain standing with her back to [Petitioner]) would pull down [C.B's] pants and underwear and touch her vagina with his fingers going inside her body. (T II, 85-89.) During this time, [Petitioner] would breathe "heavily." (T II, 88.) [Petitioner] would tell [C.B.] not to say anything to anyone or he would go to jail. (T II, 90, 109.) This would occur one or two days a week. (T II, 91.)

This abuse also occurred in [Petitioner's] bedroom. (T II, 92.) [C.B.] and Evan would play "hide-and-go-seek" in [Petitioner's] room and, while [C.B.] would be counting (and Evan hiding), [Petitioner] would count with [C.B.] and, while Evan would hide, [Petitioner] would pull down [C.B.'s] pants and underwear and touch the inside of her vagina with his fingers. (T II, 92-94.) Some identical abuse by [Petitioner] also occurred in Bay Court Park on Andersonville Road. (T II, 96-98,145-147.)

The abuse continued when [C.B.] was seven years old and "[s]ome of eight" (T II, 95,98.) She recalled that at the age of seven, while in the garage, [Petitioner's] penis touched her butt, and that this sometimes occurred at the same time that [Petitioner] would touch her vagina with his fingers. (T II, 103-104,132.) [Petitioner] would also take her hand and place it on his penis. (T II, 106.)

[C.B.] continued going over to [Petitioner's] home to play with Evan even though she did not like what was happening with [Petitioner] and did not want it to continue. (T II, 139,140.)

Once [C.B.] turned eight years old, the abuse started occurring less often. (T II, 99.) Between the age of eight and nine, the touching stopped altogether. (T II, 108.) [C .B.] remembered that this was about the time that she got a new bike. (T II, 108,163.)

When [C.B.] was about 13 years old, [Petitioner] began "shining lights" into her room. (T II, 110.) In other words, [Petitioner] "would take a [red] laser and shine it through my windows." (T II, 110.) [Petitioner] had told her that the light shining through her window would be a signal to her to lift up her shirt (something that [C.B.] did at least once). (T II, 124-125,151-152.)

Mostly, [C.B.] would look out her window and see [Petitioner] standing there with no pants, his penis exposed and his hand moving about his penis. (T II, 111, 152.) This would occur "a couple times a week." (T II, 111.) [C.B.] knew that it was [Petitioner] because he would shine a flashlight on his face and also on his "area." (T II, 112.) However, there were some occasions when [Petitioner] would be standing there and his pants would not be down. (T II, 115,152.) This continued until [C.B.] was 17 years old. (T II, 112.) There were others that saw this occur - Danielle, Micki, Cassie, and Nicky (friends of [C.B.'s]). (T II, 112-113.)

[C.B.] never told anyone else (other than her friends that were present when it occurred) about [Petitioner's] "laser" incidents. (T II, 113.) She did not tell anyone else because she was scared. (T II, 113.) She also did not want Evan to lose his dad because [Petitioner] had previously told her that he would go to jail if she told anyone. (T II, 114.)

When she was 14 and 15 years old, [Petitioner] began asking [C.B.] to give him"blowjobs." (T II, 116, 158, 182.) In addition, [Petitioner] would tell [C.B.] that she would like it if he "licked inside" her. (T II, 116.) [Petitioner] told her at the beginning of April of2007 that he would find a way for her to "sneak out". (T II, 119, 168-169.) He also talked about "blowjobs" in this conversation. (T II, 169.)

In April of 2007, [C.B.] told Michelle Hobbs "about the whole thing" while she was staying overnight at her house. (T II, 118, 121.) She told her because she was beginning to become fearful that that "something would actually really happen ... [L]ike sex or... him coming over." (T II, 119.) At that point, [C.B.] did not realize that the police were going to get involved. (T II, 121.) She had told her friends that saw [Petitioner] shining the laser and exposing himself not to tell because she thought they would get in trouble for looking. (T II, 122,156.)

63-year-old James Brashear lived at 2633 Mott Avenue in Waterford Township. (T, 311-312.) [Petitioner] was one of Brashear's neighbors. (T, 313.) [Petitioner's] home could be seen from the back rooms of the Brashear home. (T, 316.) Brashear had met [Petitioner's] wife and children in the 17 years that they ([Petitioner] and his family) lived in the neighborhood. (T, 317.) There were never ever any problems between [Petitioner's] children and Brashear's children. (T, 318.) He recalled [C.B.] getting a new bike when she was seven or eight years old. (T, 327.)

When [C.B.] was between the age of five and ten, she would go over to [Petitioner's] home. (T, 319.) At that time, Brashear was working the "third shift" at General Motors meaning that he was working from 10:30 in the evening to 7:00 in the morning. (T, 319.) At that time, Brashear's wife worked days at Kohl's (7:00 a.m. to 5:00 p.m.) and he looked after [C.B.]. (T, 320.) [C.B.'s] bedroom had a door and, when she would go into there, Brashear had no idea what went on in there. (T, 347-348.)

On April or May of 2007, Brashear learned some disturbing information from his daughter [C.B.], involving her and [Petitioner]. (T, 323.) A personal friend of the family, Connie Landry gave Brashear some information about [C.B.] and [Petitioner] in a conversation that lasted about 45 minutes. (T, 324.) He later spoke with [C.B.], who was upset, "her face was red and her eyes were swelled up". (T, 326.) Brashear then called Detective Palombo. (T, 325.)

17-year-old Micki Miller attended Waterford Mott High School. (T II, 5.) She had been friends with [C.B.] since kindergarten. (T II, 6.) When she used to go to [C.B.'s] house, she used to see Evan LaRose, [Petitioner's] son. (T II, 6-7.) When visiting [C.B.'s] home, she used to go inside her bedroom. (T II, 8.) While they were in the seventh or eighth grade, Micki saw something in [C.B.'s] room that bothered her. (T II, 8.) Sometimes, while spending the night with [C.B.] in her bedroom, she would see a laser shine through the bedroom window onto her closet door. (T II, 8,17-18.)

One time Micki and [C.B.] looked out the bedroom window and saw [Petitioner] shining the laser through a back window of his house. (T II, 10, 25-26, 28.) Micki and [C.B.] then hid under the covers of the bed because they were afraid. (T II, 11, 19.) Micki never told anyone about what she saw. (T II, 11, 20.) In May of 2007, Micki spoke with Sergeant Palombo at the police station at the request of the police. (T II, 11,15,22.)

17-year-old Danielle Schomer was a senior at Clarkston Renaissance School. (T II, 30.) She went to

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