State v. L. Mikesell ( 2021 )

11/09/2021
DA 19-0666
Case Number: DA 19-0666
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 288STATE OF MONTANA,
Plaintiff and Appellee,
v.
LOUIS W. MIKESELL,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. DDC 2017-213
Honorable James P. Reynolds, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Carolyn Gibadlo, Assistant Appellant
Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Roy Brown, Assistant
Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Stephanie Robles, Ann
Penner, Deputy County Attorneys, Helena, Montana
Submitted on Briefs: October 6, 2021
Decided: November 9, 2021
Filed:
c ir-641.—if
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 A jury convicted Louis Mikesell in the First Judicial District Court, Lewis and Clark
County, of felony sexual intercourse without consent (SIWC) in violation of
§ 45-5-503(1), MCA. Mikesell appeals his conviction and presents the following issue for
review:
Did trial counsel render ineffective assistance when counsel allowed prior
consistent statements from a forensic interview into evidence without challenge?
¶2 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In 2017, the State charged Mikesell with one count of felony SIWC for conduct that
occurred between 2012 and 2017.1 The victim, D.T., was between five and ten years old
at the time of the offenses and twelve at the time of trial. Mikesell and his wife, Patricia,
are D.T.’s grandparents. D.T., her mother Jamie, and her two older brothers moved in with
Mikesell and Patricia after Jamie separated from her husband. The family lived in several
residences with Mikesell and Patricia.
¶4 Around Easter 2017, D.T. and Jamie went to Jamie’s friend’s house. D.T. disclosed
to Jamie’s friend that Mikesell touched her inappropriately. The friend relayed this
disclosure to Jamie, who packed the family up and left Mikesell’s residence. The following
day, police interviewed Jamie while D.T. had a forensic interview with Paula Samms
(Samms) of the Child Advocacy Center in Helena. D.T.’s medical exam by Dr. Erin Keefe
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The State charged Mikesell with two additional counts of felony assault on a minor for actions
toward D.T.’s brothers. These counts were later severed.
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came back with normal results, which Dr. Keefe testified did not rule out abuse. Mikesell
admitted to napping with D.T. in his police interview. When asked whether anything
sexual happened while napping, he replied, “I don’t know. I was in heaven.” Mikesell
admitted to kissing D.T. on the cheek and “pat[ting her] on the butt.” However, he
generally denied the allegations and blamed them on his poor relationship with Jamie. He
believed Jamie’s friend was “put[ting] words into [D.T.’s] mouth.”
¶5 At a pretrial conference, the parties discussed an agreement to play D.T.’s entire
forensic interview for the jury if D.T. testified inconsistently at trial:
[District Court]: Okay. Any other pretrial matters that we need to address?
[State]: I don’t think so. I guess the one thing I would ask of the Court is, I
think that [defense counsel] and I are in agreement about this, but should the
victim or any one of the other child witnesses be unable to testify consistently
at trial with what they’ve said in their forensic interviews, the State would be
seeking to admit and publish for the jury videotapes, copies of those forensic
interviews, of course with the proper foundation.
I think that [defense counsel] and I agree that should the child witnesses
testify inconsistently, that those are admissible and would come in under
current case law, but I have also presented cases for the Court’s reference. I
guess maybe just to address it if that’s an issue or for an agreement on the
case law on that issue.
[Defense counsel]: I think once I challenge her through cross, then the prior
consistent statements come in.
[District Court]: Okay.
[Defense counsel]: That’s my reading of the case law.
[State]: I would agree.
The State informed the District Court that Mikesell objected to edits of the forensic
interview. Mikesell did not dispute the State’s assertion and clarified that the only
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objection concerned D.T.’s forensic interview statements regarding the two severed
charges of alleged physical abuse of her brothers by Mikesell. The District Court ruled
that the forensic interview video would be admitted. Mikesell’s first trial resulted in a
mistrial due to juror misconduct.
¶6 Mikesell’s second jury trial occurred a year later. The record contains no indication
that the parties discussed D.T.’s forensic interview video again. D.T. testified that she
napped with Mikesell while her brothers and Patricia were home. She recounted that,
around Easter 2017, she and Mikesell were napping in his bedroom with the door closed
when he made her touch him and told her “he wanted his tongue to go in between [her]
legs and then he. . . grabbed [her] legs and pulled [her] like to the edge of the bed and then.
. . licked [her] vagina.” She testified that Mikesell also unzipped his pants and made her
touch his penis with her hand. She stated that nothing else happened on Easter and “[i]t was
the first time he licked” her. She recalled that he made her touch his penis before and
touched her on the vagina but could not remember specific details.
¶7 D.T. recounted another instance where Mikesell licked and sucked on her neck and
gave her a hickey. When Jamie asked where the hickey came from, D.T. would not say
because she was afraid Mikesell would hurt her. She further testified that the abuse
occurred in other locations besides Mikesell’s bedroom, including an RV he previously
owned and during car rides. She also recounted an incident during a family reunion where
Mikesell touched her vagina and made her touch him in the tent where her brother was
sleeping.
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¶8 D.T.’s testimony contained several statements inconsistent with her forensic
interview. First, on direct, D.T. testified that Mikesell put his penis inside her on one
occasion. However, on cross-examination, D.T. stated that Mikesell’s penis never went
inside her. She clarified on redirect that Mikesell rubbed his penis against her vagina, but
his penis did not enter her vagina. However, during her forensic interview, D.T. repeatedly
stated that Mikesell put his penis in her vagina. Second, D.T.’s testimony on
cross-examination indicated that Mikesell did not abuse her anywhere else in the house
besides his bedroom, and she affirmed that she did not recall any other incidents than the
ones described in her testimony. However, her forensic interview contained statements
that Mikesell had abused her on the couch in the living room, in her bedroom in Lincoln,
in Mikesell’s bedroom, in the family’s RV, and in the bathroom. Third, only in D.T.’s
forensic interview did she say that Mikesell forced her to engage in anal sex.
¶9 Moreover, concerning the Easter incident specifically, D.T.’s accounts of details
differed. In her forensic interview, D.T. indicated Mikesell, after her brother accidentally
poked her in the eye, invited her into the bedroom and asked if she wanted to take a nap.
On direct examination at trial, D.T. testified she was already taking a nap when Mikesell
assaulted her and her testimony did not mention fighting with her brother. On
cross-examination, she denied that anyone told her to take a nap and testified she was
already in his bedroom watching television with him at the time. There were also
inconsistencies surrounding how D.T.’s clothes were removed. On direct examination,
D.T. testified that she was “pretty sure” she took her clothes off, but “[couldn’t] really
remember.” On cross-examination, she testified that she was not fully naked and that
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Mikesell took her pants off. During her forensic interview, D.T. stated that Mikesell pulled
her pants off and forced her to take off her shirt. D.T.’s account of what she was wearing
on Easter also differed. On direct, she testified that Mikesell pulled down her pants. On
cross-examination, she testified that she was wearing “a dress, a butterfly dress” on Easter.
A few minutes later, defense counsel had the following colloquy with D.T.:
[Defense counsel]: How did your pants get off?
[D.T.]: He took them off.
[Defense counsel]: But you told us you were wearing a butterfly dress?
[D.T.]: I did, didn’t I?
[Defense counsel]: Yeah.
[D.T.]: I can’t really remember.
On redirect, she explained that she may have changed out of the dress but was unsure. In
the forensic interview, she stated that she was wearing a “cowgirl shirt” and pants on
Easter.
¶10 After D.T.’s direct testimony, defense counsel explained her plan to cross-examine
D.T. about her statements made in the video:
[Defense counsel]: Are you intending on showing her video?
[State]: Yes.
[Defense counsel]: There are some questions I would like to ask her about
that video and some of the things that she said. I just want to make sure that
everybody knows that that’s where I’m going here.
[State]: Okay.
[District Court]: Are you going to show that video before cross-examination?
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[State]: No. I’ll lay the foundation with Paula Samms and call her after we
lay.
[Defense counsel]: If that’s acceptable, which I would assume it would be?
[District Court]: All right.
[Defense counsel]: Thank you.
¶11 D.T. was asked on cross-examination about her statement in the forensic interview
regarding how her body felt during the abuse:
[Defense counsel]: I believe the question that was asked to you is how did it
feel and the response was, you know, the body reacts. It likes it but you don’t
like it in real life. It feels good but it doesn’t.
. . .
[Defense counsel]: Do you recall making that statement?
[D.T.]: I can’t remember.
[Defense counsel]: You don’t remember, okay. Really, [D.T.], what I’m
wondering at is do you recall anyone ever telling you that or you hearing that
phrase somewhere else?
[D.T.]: No.
Defense counsel also asked D.T. if she recalled her statement in her forensic interview
about the duration of abuse by Mikesell:
[Defense counsel]: What did you say to [Samms], if you remember?
[D.T.]: I’m pretty sure I said about like five years.
[Defense counsel]: Okay. Do you remember telling her anything else?
[D.T.]: No, not that I recall.
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[Defense counsel]: All right. Did you have discussions -- after you made the
disclosure, did you have discussions with your mom about the abuse?
[D.T.]: No.
[Defense counsel]: Okay. Did your mom ever tell you how long she thought
it had been going on?
[D.T.]: Not until after Paula.
[Defense counsel]: After you had your discussion with Paula?
[D.T.]: Yeah.
[Defense counsel]: So you didn’t have that discussion with your mom before
your Paula interview?
[D.T.]: Yeah.
[Defense counsel]: You’re sure?
[D.T.]: Yes.
In her forensic interview, D.T. explained to Samms:
[D.T.]: And mommy thinks she said it’s been going on to I was five . . .
[Samms]: Uh-huh.
[D.T.]: When I was five and older, so. . .
[Samms]: Well, what do you think? How old do you remember being the first
time that happened?
[D.T.]: I can’t remember. But it felt like he’d done it my whole life.
Aside from the above noted inconsistencies, D.T.’s testimony concerning the Easter
incident, the hickey, and an incident in Mikesell’s RV was generally consistent with her
forensic interview statements.
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¶12 Samms testified immediately after D.T. She provided information on the forensic
interview process, her method of asking open-ended questions, and how she observes body
language. Samms also testified about D.T.’s demeanor, body language, and how D.T.
relayed information during the interview. Samms provided foundation for the forensic
interview video, which the State introduced and played for the jury. Defense counsel did
not object. The State also presented testimony from the following witnesses: Dr. Wendy
Dutton, Dr. Keefe, D.T.’s brother Trevor, Jamie, Patricia, and Detective Joshua Van Dyke.
Mikesell presented testimony from his doctor, Dr. Todd Wampler, and Matthew Mikesell.
¶13 During closing argument, both the State and Mikesell focused on D.T.’s testimony
and credibility. The State pointed out the consistency between D.T.’s forensic interview
and her testimony at trial, arguing, “That’s exactly what [D.T.] said in the forensic
interview. That’s exactly how she described it in the forensic interview when she testified
about it way back in April of 2017.”
¶14 Conversely, Mikesell’s closing argument focused on inconsistencies between her
forensic interview statements and her trial testimony. Defense counsel discussed D.T.’s
statement made during her forensic interview that Jamie told her the abuse began when she
was five years old, arguing that Jamie’s discussion with D.T. “should raise some concerns.
The whole reason we do the forensic interview is to prevent that exact thing. So when it’s
already occurred . . . I would suggest to you that the process has been tainted from that
point forward.” Defense counsel also pointed out the inconsistencies between D.T.’s
testimony and her interview statements regarding her clothing and the details around the
incidents:
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In this case we do have [D.T.] changing some of the details. Suggestive, I’m
not saying that’s sort of a deal killer, but it is suggestive. I would suggest to
you that the big issues, the things like anal penetration, [D.T.] would
remember, and I don’t believe that she relayed that. Rely on your own notes,
but I don’t think she relayed that in her testimony today like she did in her
interview. And in her interview it was, oh, yeah. She says, oh, yeah. I forgot
about the anal penetration.
Defense counsel further argued that Samms’s techniques tainted D.T.’s interview and
concluded by arguing “the State hasn’t proved its case beyond a reasonable doubt.
Particularly the fact that [D.T.’s] testimony is at least somewhat inconsistent with her
original forensic interview.”
¶15 After a four-day trial, the jury convicted Mikesell. The District Court sentenced
Mikesell to 100 years in prison, with 75 years suspended, along with a 25-year parole
restriction. Mikesell appeals.
STANDARD OF REVIEW
¶16 Claims of ineffective assistance of counsel constitute mixed questions of law and
fact which we review de novo. State v. Rodriguez, 2021 MT 65, ¶ 16, 403 Mont. 360,
483 P.3d 1080 (citations omitted).
DISCUSSION
¶17 Did trial counsel render ineffective assistance when counsel allowed prior
consistent statements from a forensic interview into evidence without challenge?
¶18 Mikesell argues that counsel provided ineffective assistance of counsel and
misunderstood the application of the hearsay rule when she allowed the State to present
D.T.’s entire forensic interview video without objection. The State contends that
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Mikesell’s claim of ineffective assistance of counsel is inappropriate for direct appeal and
cannot be resolved on the record before us.
¶19 We have adopted the two-pronged test of Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984), to judge ineffective assistance of counsel claims. Whitlow v. State,
2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. To show ineffective assistance of counsel,
“a defendant must prove both (1) that counsel’s performance was deficient, and (2) that
counsel’s deficient performance prejudiced the defense.” State v. Ward, 2020 MT 36, ¶ 18,
399 Mont. 16, 457 P.3d 955 (citations and internal quotations omitted). In analyzing
prejudice, the defendant must show “a reasonable probability that the result of the
proceeding would have been different but for counsel’s deficient performance.”
State v. Brown, 2011 MT 94, ¶ 12, 360 Mont. 278, 253 P.3d 859. A strong presumption
exists that counsel’s performance was “within a broad range of reasonable professional
assistance.” Brown, ¶ 12.
¶20 However, before addressing the two prongs of Strickland, we first assess whether
the claims are more appropriately addressed in a postconviction relief proceeding.
State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095. Absent a complete record,
we will not speculate on counsel’s alleged errors. State v. Dyfort, 2000 MT 338, ¶ 11,
303 Mont. 153, 15 P.3d 464. The “definitive question” that clarifies which actions are
record and which are non-record is “why counsel took the particular course of action?”
State v. White, 2001 MT 149, ¶ 20, 306 Mont. 58, 30 P.3d 340 (emphasis in original). If
the record explains “why,” we will address the issue on appeal. Kougl, ¶ 14. If the claim
arises from matters outside the record on appeal, we will not address the issue on appeal
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and allow the defendant to file a postconviction proceeding that develops a record as to
why counsel acted as alleged, thus allowing the court to determine whether counsel’s
performance was ineffective or merely a tactical decision. Kougl, ¶ 14.
¶21 Generally, “an alleged failure to object to the introduction of evidence . . . [or] the
testimony of a witness . . . has been deemed record-based[.]” White, ¶ 15. However,
decisions regarding the timing and number of objections lie within counsel’s tactical
discretion and indicate that non-record based information may be involved. State v. Brown,
228 Mont. 209, 212, 741 P.2d 428, 430 (1987) (citations omitted). We have also
recognized that a non-record based act or omission by counsel may include a failure to
object to the admission of evidence which is evidenced by the record. White, ¶ 16. As
such, “if the record does not fully explain why counsel failed to object to the admission of
evidence, the matter is best-suited for post-conviction proceedings . . . .” State v. Notti,
2003 MT 296, ¶ 8, 318 Mont. 146, 79 P.3d 289 (citing White, ¶¶ 15, 20). Accordingly,
claims involving alleged omissions of trial counsel are often ill-suited for consideration on
direct appeal. State v. Hinshaw, 2018 MT 49, ¶ 21, 390 Mont. 372, 414 P.3d 271.
¶22 Of course, we may consider a claim not based on the trial record if no plausible
justification exists for counsel’s action or inaction. State v. Wittal, 2019 MT 210, ¶ 13,
397 Mont. 155, 447 P.3d 1039 (citing Kougl, ¶ 15). We have recognized the existence of
“a multitude of outside factors that may influence” an attorney’s decision making.
Kougl, ¶ 19 (citing State v. Herrman, 2003 MT 149, ¶ 29, 316 Mont. 198, 70 P.3d 738(discussing factors influencing when an attorney challenges or does not challenge the
selection of a juror)). We have also previously recognized that an insufficient record may
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preclude us from determining whether counsel’s actions were due to a misunderstanding
of the law or were simply a tactical decision. See Rodriguez, ¶ 35.
¶23 The record before us implies at least a plausible justification for counsel’s actions.
The evidence underscores inconsistencies in D.T.’s story and could reasonably undermine
her credibility. The record further indicates that defense counsel may have viewed D.T.’s
forensic interview as a strategic key to Mikesell’s defense. Defense counsel elicited
responses highlighting these inconsistencies during D.T.’s cross-examination and
reiterated the inconsistencies at closing argument. The record fails to fully explain defense
counsel’s understanding of hearsay and failure to object to the forensic interview video and
does not shed light on counsel’s decisions. The record also contains no indication which
statements in D.T.’s interview would be objectionable because defense counsel declined to
object. Nor does the record provide the basis for counsel’s conclusion that D.T.’s
consistent statements were admissible upon cross-examination. Because of the general
indications that defense counsel may have had specific tactical intentions regarding D.T.’s
forensic interview video, we cannot determine, without more evidence, whether defense
counsel did not perform effectively for Mikesell. We decline to speculate as to the
reasoning for counsel’s actions.
CONCLUSION
¶24 We conclude Mikesell’s ineffective assistance of counsel claims cannot be reviewed
on direct appeal and are dismissed without prejudice. Mikesell’s conviction is affirmed.
/S/ LAURIE McKINNON
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We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
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