State v. McCaulou

• Docket Number: DA 20-0399
• Decision Date: 11 October 2022
• Citation: 518 P.3d 862
• Parties: STATE of Montana, Plaintiff and Appellee, v. Willard Dean MCCAULOU, Defendant and Appellant.
• Court: Montana Supreme Court

518 P.3d 862

STATE of Montana, Plaintiff and Appellee,

v.Willard Dean MCCAULOU, Defendant and Appellant.

DA 20-0399

Supreme Court of Montana.

Submitted on Briefs: August 17, 2022

Decided: October 11, 2022

For Appellant: Nick K. Brooke, Stephens Brooke, P.C., Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Josh Racki, Cascade County Attorney, Jennifer Quick, Deputy County Attorney, Great Falls, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 A jury convicted Willard Dean McCaulou (McCaulou) in the Eighth Judicial District Court, Cascade County, of one count of incest, in violation of § 45-5-507, MCA. McCaulou appeals.

¶2 We affirm and restate the issues as follows:

1. Were M.M.’s allegations against her four male relatives admissible under an exception to the Montana Rape Shield statute?

2. Was McCaulou's Sixth Amendment right to effective assistance of counsel violated when his own counsel elicited expert testimony about false reporting statistics in sexual assault cases dealing with minors?

3. Should this Court exercise plain error review to consider expert testimony about false reporting statistics in sexual assault cases?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In 2019, the State charged McCaulou with incest for conduct that occurred while the victim, M.M., was between ages four and seventeen. He has denied all allegations.

¶4 M.M. belongs to a Mennonite family consisting of her father, McCaulou, and mother, Katherine McCaulou. M.M. has nine other biological siblings. The first instance of abuse M.M. remembers was when she was 4 years old. McCaulou would lay M.M. in the bathtub and cover her face with a washcloth so she could not see anything. M.M. testified she did not know what was occurring but that during her "bath" her vagina would hurt and burn, and if she screamed, McCaulou would pour water over the washcloth. M.M. was afraid of water because McCaulou would throw her into ponds and canals to teach her to swim and, when she started to drown, he would pull her out, spank her, and throw her back in. McCaulou's abuse of M.M. continued for years, with McCaulou inserting foreign objects into M.M.’s vagina ("pens," "hammer handles," "plunger handle," and "stuff like that") to "help [her] grow." McCaulou killed M.M.’s pets in front of her as punishment. He called M.M. "Marg" when he assaulted her because that was the name of the woman who refused to marry him. When she struggled against his abuse, McCaulou would tell M.M. to be obedient and relax because it would not hurt as much. M.M. testified that on one occasion when she refused him, McCaulou got her sister, who was a baby, and "started poking her in her privates with a straight pin" because M.M. would not "let him do it to [M.M.]." To keep McCaulou from abusing her baby sister, whom M.M. was close to and took care of, M.M. told him to stop and that she would listen to him. McCaulou then hurt M.M.

¶5 When M.M. turned 12 years old, she testified "that was the age I was old enough for him to rape me." M.M. would try to confide in her mother, but Katherine refused to believe her and told her to be quiet and go to work. When McCaulou found out M.M. had told her mother, M.M. testified he would "make it worse the next time." McCaulou also forced his penis into her mouth until she would vomit. Since the age of 12, M.M. kept a diary of these incidents, describing how she felt when her father would rape and assault her. McCaulou burned her diary upon discovering it, but M.M. kept journaling in third person as if the abuse were happening to someone else.

¶6 In 2015, the family moved to Vaughn in Cascade County where they lived in a double-wide trailer. M.M. stated that McCaulou continued to sexually assault her "wherever he could find [her] alone" in places like her bedroom, the shower, the shop, or outside. M.M. explained that she would scream when McCaulou raped her, and he would respond telling her to "be quiet and imagine [she] wasn't there."

¶7 At 15 years old, M.M. became pregnant after McCaulou raped her. Upon finding out about the pregnancy, McCaulou caused M.M. to miscarry by repeatedly punching her in the stomach. After the miscarriage, McCaulou brought M.M. gifts for Mother's Day and wished her happy Mother's Day. He also began to track her menstrual cycle and use a condom for subsequent rapes.

¶8 M.M. began cutting herself because she felt she was "worthless and junk" and she "didn't want to keep on living." McCaulou noticed her cuts, so he also began to cut her inner and upper thighs with a knife. The cuts left serious scars because McCaulou usually did not wait for the cuts to heal until he cut her again. McCaulou warned M.M. that if she would tell anyone about the abuse, he would kill her siblings.

¶9 Two local ministers reported to the Cascade County Sheriff's Office (CCSO) in late September 2017 that they suspected McCaulou had sexually abused someone. Detective Blue Corneliusen opened an investigation. However, McCaulou learned that M.M. had told someone that he abused her so he arranged for M.M. to move to Pennsylvania to live with his brother, Robert, and his wife. When M.M. arrived at their home, Robert testified that he observed M.M.’s "unusual behavior." She slept often, was afraid of the dark, and had night terrors. She was unable to verbalize that McCaulou had abused her, in part because it involved topics and words forbidden in her Mennonite home and because M.M. herself did not know the anatomical names for parts of the human body. Robert thus encouraged M.M. to write in her journal. It took several months before M.M. could talk to Robert and his wife about McCaulou's abuse. They encouraged her to report the abuse to law enforcement.

¶10 In February 2018, M.M. wrote to her Aunt Julie, describing her pregnancy and miscarriage. Julie contacted a counselor in a Mennonite facility in Idaho and M.M. started counseling in April 2018. M.M., now 18 years old, learned through counseling the correct anatomical names for penis and vagina and began to understand the concept of rape. In May 2018, M.M. began living with Julie and Julie's husband, Sammy, in Florida because she wanted to help Julie with her pregnancy, and because she no longer wanted to be affiliated with the strict Mennonite Church that Robert and his wife attended in Pennsylvania, fearing that she would not recover from the abuse if unable to discuss freely what had occurred. After therapy, M.M. finally felt she could talk about the years of abuse by her father.

¶11 Sammy McCaulou then contacted Detective Angel Creech from CCSO to advise that M.M. had been in therapy and was now able to talk about what happened. Detective Creech arranged for Lisa Sickels, a forensic interviewer in Florida, to interview M.M. Sickels interviewed M.M. twice. During these interviews M.M. discussed being abused and regressed into childlike behaviors, rocking back and forth in a fetal position. Sickels noted that M.M. was uncomfortable referencing genitalia, so they used anatomical drawings to depict the abuse that M.M. had experienced. Sickels explained that she had to stop the first interview after M.M. exhibited extreme signs of stress and anxiety, which indicated to Sickels that M.M. had undergone complex trauma from physical and sexual abuse.

¶12 After M.M.’s first interview with Sickels, Dr. Cameron Rosenthal, a pediatrician and medical director of the University of Florida Child Protection Team, examined M.M. M.M. told Dr. Rosenthal that McCaulou had inserted foreign objects into her vagina since she was four years old, had penial intercourse, and caused her to miscarry his baby. Rosenthal testified that she had performed several hundred examinations of child sexual assault victims and explained that 95% of the time the exams do not reveal evidence of physical abuse. Nonetheless, Rosenthal noted scars on M.M.’s forehead and her left inner thigh that were consistent with being cut with a knife. She also described that M.M.’s injuries were "very significant, and that's representative of a traumatic event" and were not made by consensual sexual intercourse. Dr. Rosenthal, in her final report, concluded that "the medical examination supports the disclosure that [M.M.] has provided detailing the recurrent egregious abuse that she suffered by her father over many years." Dr. Rosenthal testified that M.M.’s "medical examination unequivocally supports her history of repeated episodes of significant genital and physical trauma over the course of her entire childhood."

McCaulou's Motion in Limine

¶13 McCaulou filed a motion in limine arguing that he should be allowed to present evidence of M.M.’s allegedly false accusations against four male relatives: her brother O.M., her uncle Joshua, her adopted uncle Daniel, and her brother V.M. M.M. told law enforcement in a recorded interview that O.M., Joshua, and Daniel touched her sexually and that O.M. committed oral sex acts against her. M.M. also recorded these accusations in her diary. M.M. allegedly told V.M.’s fiancée that V.M. and McCaulou were "peeping" through M.M.’s window. The State maintained M.M.’s statements were not false, that they constituted improper evidence under the Rape Shield statute, § 45-5-511(2), MCA, and that the assaults occurred because McCaulou authorized and facilitated the sexual contact with M.M.

¶14 The District Court conducted a Mazurek¹ hearing wherein M.M. testified that the accusations she made during the interview were true. Defense counsel declined to cross-examine M.M. at the hearing and agreed with the court that he did not think there was any basis for him to cross examine M.M. as to the truthfulness of her accusations. V.M. testified at the hearing and confirmed M.M.’s allegation that he peeped through M.M.’s window. V.M. claimed that McCaulou did not encourage this conduct but rather admonished it. McCaulou elicited testimony from...