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Larmour v. Clark

June 27, 2010

PATRICK MICHAEL LARMOUR, PETITIONER,
v.
KEN CLARK, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition before the court challenges petitioner's 2006 conviction in the Shasta County Superior Court for first degree murder in violation of California Penal Code §§ 187, 189, and for forcible rape in violation of California Penal Code § 261(a)(2). Petitioner seeks relief on the grounds that the trial court's denial of his change of venue motion violated his right to a fair trial.

Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

PROCEDURAL BACKGROUND

On March 3, 2006, a jury found petitioner guilty of the first degree murder of victim H. C. and of the forcible rape of victim K. W. (Notice of Lodging Documents on Feb. 11, 2009 (Doc. No. 15), Clerk's Transcript on Appeal ("CT") Vol. VII at 1874, 1880.) The jury found petitioner not guilty of the attempted forcible rape of victim H. C. and of the rape of an unconscious victim, L. C. (CT Vol. I at 237; Vol. VII at 1873, 1877-78.) The jury also found a special allegation that petitioner murdered H. C. during the commission or attempted commission of a rape, not true. (CT Vol. I at 237; Vol. VII at 1873, 1877-78.) Pursuant to the jury's verdicts, on April 3, 2006, petitioner was sentenced to an aggregate state prison term of thirty-three years to life. (Reporter's Transcript on Appeal ("RT") Vol. XIII at 3664.)

Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. On November 14, 2007, the judgment of conviction was affirmed in a reasoned opinion. (Resp't's Lod. Doc. 4.) Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 5.) On January 23, 2008, the California Supreme Court summarily denied that petition. (Resp't's Lod. Doc. 6.)

On July 2, 2008, petitioner filed the federal habeas petition now pending before the court. (Doc. No. 1.) Respondent filed an answer on January 23, 2009. (Doc. No. 14.) Petitioner has not filed a traverse.*fn1

FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

At the time of trial, defendant was 20 years old. At about age 13, during the transition from middle school to high school, defendant became sexually active. On two or three occasions, defendant covered the mouth of one of his high school girlfriends while they were having sex. He told the same girlfriend he could "kill someone and get away with it," and he could hide a body "off road" "No. 4" and "no one would ever find it."FN[] That same girlfriend also saw defendant looking on his computer at videos of a man strangling a woman while having sex and at photographs of dead, unclothed women. She knew that defendant had cut off the heads of "road kill" and kept the skulls.

FN. Defendant made similar statements to another girlfriend.

A. Forcible Rape Of K. W.

K. W. was 17 years old at the time of trial. In August 2002, when she was 14 years old, she began her freshman year of high school in Redding. Within a few weeks, she met defendant on the school bus and developed a crush on him. Twice, early in the school year, he asked her to go to lunch with him and took her to McDonald's. The third time, he took her to his parents' house because he said he did not have any lunch money.

When they got to the house, K. W. sat on the couch, and defendant went into the bathroom. About five minutes later, defendant emerged from the bathroom and sat next to K. W. on the couch. He put his hand on her inner thigh and moved his hand toward her "crotch." K. W. told defendant, "'don't,'" and tried to remove his hand. Defendant shoved her, and K. W. fell back onto the couch. He held her down by her neck and shoulders and removed her pants and underwear. K. W. was crying and telling him to stop. Defendant told her to be quiet and said if she did not, she "would end up like the bear on the wall." Defendant took off his pants, revealing an erect penis covered with a condom. He penetrated her with his penis for a few minutes, but stopped when a car with two boys pulled into the driveway. K. W. went to the bathroom and discovered she was bleeding.

After the boys left, defendant drove K. W. back to school and told her that he would kill her if she told anyone.

About a year later, defendant, laughing, told an ex-girlfriend that he had taken a 14-year-old girl's virginity on his parents' couch.

K. W. reported the rape after defendant was arrested for H. C.'s murder.

B. Alleged Rape Of L. C. While She Was Unconscious FN[]

FN. Although the jury acquitted defendant of this offense, as defendant points out, the allegation still could have been used as evidence of intent under Evidence Code section 1101 or as evidence of propensity under Evidence Code section 1108.

L. C. and her friend T. S. had known defendant "[o]ff and on" since they were teenagers. In May 2003, when L. C. was 17 years old and living in the same Redding apartment complex as T. S., defendant came over to T. S.'s apartment while the two girls were "[s]moking pot." A half an hour later, the girls decided to "ditch" defendant and "do some drugs."

L. C. and T. S. went to L. C.'s apartment, but defendant followed. They all drank brandy, and then defendant offered them a little bit of cocaine, which they all snorted. After they ran out of cocaine, T. S. got a phone call and walked outside of the apartment. Defendant asked L. C. if she "wanted to do more" and offered her an off-white powdery substance that was packaged the same way as the cocaine. L. C. ingested some of the drug and "felt pretty numb." She was unable to move, speak, or feel any part of her body, but could still see and hear. She saw defendant's head above her and heard him say he "felt good." L. C. could not see what defendant was doing and whether they were still wearing clothes. According to T. S., she reentered L. C.'s apartment about 20 to 25 minutes after she had left and saw L.C. and defendant having sex on the couch. T. S. was mad because she "didn't expect to see that," and went to her parents' house where she summoned her brother and his friends to kick defendant out of L. C.'s apartment. Back at the apartment, L. C., scared and numb, wanted to tell defendant "'no'" but was unable to speak. At some point, L. C. "came to" and was able to feel her body again. She was on the floor with her clothes on, and defendant was lying by the couch. She thought she had been vaginally penetrated because her vaginal area was wet, her thighs were bruised, and "[she] hurt." L. C. "[f]reaked out" and started yelling.

When T. S.'s brother and friends arrived at L. C.'s apartment, they told defendant to leave. Defendant complied. L. C. "was kind of hysterical," appeared intoxicated, and looked as though she had been crying. L. C. came out of her apartment, and T. S. heard her say that she had been raped.

L. C. reported to police what had happened after defendant was arrested for H. C.'s murder.

C. Murder Of H. C.

In the evening on August 3, 2003, defendant and H. C. were guests at a house party in Redding attended by about 25 people. Prior to the party, the two did not know each other. By about 1:00 or 2:00 a.m., approximately nine people remained, including defendant and H. C. They both were drinking, H. C. heavily, and they appeared happy. They danced together, but there was no "groping" or "inappropriate" touching. A few hours later, they were "hanging out" and "flirting."

One of H. C.'s friends decided it was not safe for H. C. to drive, so he hid her car keys. H. C.'s friend left at 6:00 or 6:30 a.m. By that point, defendant and H. C. were the only remaining guests who were awake.

On August 4, 2003, H. C. did not show up at work for either her morning job or evening job, which was very unusual.

Around the time H. C. disappeared, defendant told police that he had driven a person named "Kathleen" to her apartment complex after the party and helped her to her door. She told defendant she had lost or misplaced her key and was going to find the maintenance man so she could get into her apartment. Defendant offered to help, but "Kathleen" declined, and he left.

Four months later, in December 2003, defendant confessed to his childhood friend C. M. that he had killed H. C. Defendant explained that he had taken H. C. home after the party, and when she could not find her key, he took her back to his parents' house.

H. C. wanted to have sex, but he did not. H. C. threatened to tell a co-worker that defendant was a "faggot." Defendant backhanded her, she started fighting and scratching him, he pushed her, and she tripped over the coffee table and fell onto the couch. Defendant jumped on top of her and started choking her. "[H]er eyes filled with blood vessels and ... she lost all bowel functions." He continued choking her for a couple more minutes "to make sure that she was dead." Defendant got a tarp from the garage and tied up H. C.'s body in the tarp. He put her in the passenger seat of his truck. He heard her "'groaning'" or "'moaning.'" He drove four miles up "Trail 4" and buried H. C. in a shallow grave about 15 feet from the road. He took $150 from her purse and disposed of her purse and cellular phone. Defendant said H. C. "was a stupid bitch and ...


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