Larsen v. Williams

• Decision Date: 20 November 2019
• Docket Number: Civil Action No. 18-cv-02669-JLK
• Parties: EMMETT LARSEN, Applicant, v. DEAN WILLIAMS, Executive Director, Colorado Department of Corrections; and PHILIP J. WEISER, Attorney General of the State of Colorado, Respondents.
• Court: U.S. District Court — District of Colorado

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

Civil Action No. 18-cv-02669-JLK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

November 20, 2019

MEMORANDUM OPINION AND ORDER

Kane, J.

With his Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1), Emmett Larsen challenges his conviction for sexual assault on a child by one in a position of trust committed as a part of a pattern of sexual abuse. Mr. Larsen was charged in El Paso County District Court with three counts of sexually assaulting his twin granddaughters, AH and KH, when they were nine years old:

Count 1: Sexual Assault on a Child by One in a Position of Trust-Pattern of Sexual Abuse (AH the alleged victim);

Count 2: Sexual Assault on a Child by One in a Position of Trust (AH the alleged victim); and

Count 3: Sexual Assault on a Child by One in a Position of Trust (KH the alleged victim).

The jury's general verdicts found Mr. Larsen guilty on Counts 1 and 2 (those related to AH) and not guilty on Count 3 (that related to KH). The trial court "merged" the non-pattern count of conviction (Count 2)¹ into the pattern count of conviction (Count 1) and sentenced Mr. Larsen to the mandatory minimum sentence of 8 years to life in prison.

Mr. Larsen's direct appeals in state court ultimately proved unsuccessful, and he now seeks habeas relief from this Court on two separate grounds:

1. That his conviction is not supported by the required jury findings and that it therefore violates his right to trial by jury and to due process of law, which requires proof beyond a reasonable doubt of all elements required to support a conviction, and

2. That the trial court's total exclusion of evidence and limits on cross-examination concerning the government's efforts to take custody of the alleged victims away from their mother during an evening recess in the mother's testimony violated Mr. Larsen's rights to confrontation, to present a defense, and to a fair trial.

I find Mr. Larsen's conviction for the pattern count is not supported by the jury's findings and verdicts and grant relief on that basis.

I. Background²

In September 2011, AH and KH moved to Colorado Springs, Colorado, from California with their mother SL, who had lost her job and was unable to find other employment in California. In Colorado Springs, AH, KH, and SL moved in with SL's father, Emmett Larsen, and his wife. Larsen is a retired Federal Aviation Administration employee and used his federal benefits to provide insurance for his granddaughters, who had health issues requiring ongoing care.

AH and KH had been sexually abused by their paternal uncle in California. KH revealed her prior abuse to Larsen while they were living with him, and he sought counseling for her. When KH disclosed the sexual abuse by her uncle to her counselor, the counselor reported it to the authorities. As a result, Patricia Hartman, a social worker with the El Paso County Department of Human Services, visited Larsen's home on August 2, 2012, to speak with KH about her allegations regarding the uncle. Hartman was required to interview all members of the home, so she interviewed both KH and AH, separately. At trial, Hartman testified that, during those interviews, KH did not disclose any inappropriate contact other than that involving her uncle. 8/15/13 Trial Tr. at 63:2-17, ECF No. 7. AH, on the other hand, told Hartman that Larsen had touched her twice on her breast area and vaginal area and once on just her vaginal area. Id. at 65:17-22. Upon hearing AH's claims, Hartman arranged for SL to take her daughters to Safe Passage, a child advocacy center in Colorado Springs, in order for the girls to undergo forensic interviews and to protect them from continued contact with Larsen.

When KH was interviewed at Safe Passage, she again disclosed only the sexual abuse by her uncle and specifically denied any inappropriate touching by Larsen. See 8/13/13 Trial Tr. at 170:2-9,174:6-10, 205:4-206:18, 207:6-24, ECF No. 7. At trial, however, KH testified that her grandfather had touched her breast area once. Id. at 170:15-172:16.

AH told her interviewer at Safe Passage that it was hard to talk about what had happened with her grandfather, but eventually, she wrote down:

My grampa tached my in the down part of my boddy and the up part dut he did not mean it it was an asedent he is nice and fun

AH Note, Def. Trial Ex. B at 1, ECF No. 7. AH went on to tell the interviewer she had been touched three times by her grandfather—first, on her breasts, which she believed was an accident; second, over her underwear in the front for less than a second; and third, on her breastsover her clothes. See 8/14/13 Trial Tr. at 67:23-69:6, ECF No. 7. In contrast, AH testified at trial that she did not remember her grandfather touching her in the "down part" but that he had touched her in the "up part," meaning her breast. Id. at 30:3-31:9, 32:10-12, 50:16-22.

SL was interviewed by Detective Kory Dabb at Safe Passage. She was then directed by Officer Rebecca Arndt to make a "pretext call" to her father in an effort to obtain a confession or to corroborate what AH and KH had described. 8/15/13 Trial Tr. at 98:23-101:23; Call Tr., CF³ at 70-81, ECF No. 7. During the call, SL repeatedly stated that she was afraid her children would be taken from her and explained that she needed to know anything Larsen had done. Larsen responded that the single incident that had occurred was the one they had previously discussed in which KH had placed his hand on her boob for a second. Id. at 73-75. He claimed the only touching of AH he had done was in rubbing her back and tickling her. Id. Notably, the call records SL asking Larsen, "why did you ever molest me?" and him answering, "I explained that to you once." Id. at 78-79.

Larsen was interviewed by Officer Arndt later that same day. See Larsen Interview, People's Ex., ECF No. 7. Throughout the interview, he maintained that any touching of his granddaughters was not for sexual gratification. Id. at 76:25-77:9, 80:17-24, 84:14-16, 101:10-11, 102:17-22. He did, however, admit to touching his daughter in a sexual manner. Id. at 88:7-91:22, 99:6-100:5.

There was conflicting evidence at trial on whether SL had previously been told by both of her daughters that Larsen had touched them inappropriately. SL testified that KH had told her about an incident, but she did not recall knowing about any incident with AH until Hartman came to the house. 8/14/13 Trial Tr. at 123:15-124:13, 141:15-142:4. In contrast, Hartman andDetective Dabb, the officer who interviewed SL at Safe Passage, both testified that SL said she was previously aware of touching involving AH and had confronted Larsen, who acknowledged he had done it and said he was sorry and would not do it again. 8/15/13 Trial Tr. at 66:8-18, 83:3-85:25.

The parties also elicited testimony at trial regarding SL's motivations as Hartman and the officers were investigating. SL testified that she was initially hesitant in speaking with them but acceded to their requests, including by making the pretext phone call, because she felt they were threatening to take her children from her. 8/14/13 Trial Tr. at 142:22-143:11; 8/15/13 Trial Tr. at 39:5-41:6. Hartman and Detective Dabb denied making any such threats. Id. at 67:25-68:2, 86:25-87:6. And Officer Arndt stated that she made clear to SL that her cooperation was not determinative of whether she would retain custody of her children as it was "a [Department of Human Services] issue and not a law enforcement issue." Id. at 101:24-102:22. Still, Hartman admitted that she told SL that the children would need to be removed if SL did not act to keep them safe, and she acknowledged that SL was "very cooperative, very protective. Very scared, but willing to do what she needed to do to keep the kids safe." Id. at 68:20-69:2. Along those same lines, Officer Arndt testified that she informed SL that the Department was working on court orders to take custody of her daughters because SL had instructed them not to disclose anything in their interviews. Id. at 102:3-17.

During the trial, KH and AH testified that they had periodically been staying with Larsen while the criminal proceedings against him were ongoing. 8/13/13 Trial Tr. at 176:3-23, 186:4-187:1; 8/14/13 Trial Tr. at 24:15-20, 41:6-45:13. SL confirmed this fact and claimed she did not have to leave her daughters with Larsen if she thought they were in danger with him. 8/15/13 Trial Tr. at 46:3-48:5. An individual in the courtroom heard the girls' testimony and feltcompelled to report their continued contact with Larsen to the Department of Human Services. 8/15/13 Trial Tr. at 4:10-16. A custody order for SL's daughters was then obtained from a magistrate judge. Id. at 8:17-18. Hartman was sent out during the evening recess in SL's testimony to take custody of the children but was unsuccessful in locating them. She did encounter SL, who reportedly stated that Hartman was "making a big mistake," that her daughters were not sexually abused by Larsen, and that she was forced to say everything in the last investigation. Def. 2/11/14 Ex. A at 1, ECF No. 7.

The next morning, before SL was slated to retake the stand, Larsen's counsel advised the court that he anticipated questioning her about the events of the previous evening. 8/15/13 Trial Tr. at 10:21-11:4. The judge ordered that defense counsel "not to go into that" and stated that he would not allow counsel "to cross-examine in that area." Id. at 11:5-6. Defense counsel objected on the grounds that prohibiting him from eliciting such testimony would deny Mr. Larsen his constitutional rights to present a defense, to counsel, and to appropriate cross-examination. Id. at 12:18-25. He explained that the testimony would bolster the defense's argument that SL made the pretext phone call, the...