FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RICHARD KAMMEN GREGORY F. ZOELLER
MARY SPEARS Attorney General of Indiana
Kammen Maryan & Moudy
Indianapolis, Indiana NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
FILED
Dec 21 2012, 9:07 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
STEVEN E. MALLOCH, )
)
Appellant-Defendant, )
)
vs. ) No. 17A03-1201-CR-37
)
STATE OF INDIANA, )
)
Appellee-Plaintff. )
APPEAL FROM THE DEKALB SUPERIOR COURT
The Honorable Monte L. Brown, Judge
Cause No. 17D02-1001-FA-2
December 21, 2012
OPINION - FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Steven E. Malloch appeals his conviction for Class A felony child molesting, Ind.
Code § 35-42-4-3(a)(1) (1998), for an incident involving his stepdaughter. We affirm.
ISSUES
Malloch raises five issues, which we reorder and restate as:
I. Whether the trial court abused its discretion by denying Malloch’s motion
for a continuance made three days before trial.
II. Whether the trial court erred by admitting Malloch’s statements in two
videorecorded interviews, in which he ultimately confessed to the crime.
III. Whether it was fundamental error for the trial court to allow without
admonishment the interrogating detective’s repeated assertions during the
videorecorded interviews that Malloch was guilty.
IV. Whether the trial court erred by admitting Malloch’s apology letter to his
stepdaughter.
V. Whether the State committed prosecutorial misconduct amounting to
fundamental error.
FACTS AND PROCEDURAL HISTORY
In 1998, Malloch began living with Anita Malloch and her four-year-old daughter
C.P., who was born in 1993. Malloch and Anita married in 1999 and subsequently had
three sons. C.P. had regular parenting time with her biological father but primarily lived
in the Malloch home. She called Malloch “Dad.”
In 2003 and 2004, when C.P. was in fourth grade, the family lived in Auburn,
Indiana, next to a cemetery. C.P. was sometimes scared at night because of the cemetery
and would ask Anita or Malloch to lie down with her. On one occasion when Malloch
lay with C.P., she awoke with his hand underneath her shirt on her breast. Malloch
2
appeared to be asleep. C.P. removed his hand, rolled over, and went back to sleep. She
never talked with him about the incident.
In June 2004, the family moved to a ten-acre property in Garrett, Indiana. They
lived in a small apartment in a barn until March 2005, when construction of their house
was completed. At some point while they lived in the barn, C.P. watched a werewolf
movie and was scared to go to bed. She first asked Anita to lie down with her, but when
Anita told her she was busy, she asked Malloch. C.P. fell asleep in her bed with Malloch
beside her. When she woke up, Malloch’s hand was in her underwear and his finger was
in her vagina. Again, Malloch appeared to be asleep. C.P. pulled his hand out of her
pants, crawled over him, and slept with her then-six-year-old brother in his bed. The next
morning, Malloch asked C.P. why she ended up in her brother’s bed. C.P. answered,
“[B]ecause.” Tr. p. 376. She never asked him to lie down with her again.
At some point while the family still lived in the barn, Anita watched an episode of
“Dr. Phil” about child molesting and asked C.P. whether she had ever been touched. C.P.
told Anita what had happened with Malloch. When Anita confronted Malloch, he
claimed that he did not know what Anita was talking about and that if anything had
happened, it had happened while he was asleep.
Roughly five years later, Anita told her counselor about the two incidents. On
January 22, 2010, Anita’s counselor reported the matter to Jennifer Hupfer, a caseworker
for the Department of Child Services, who in turn notified Detective Donald Lauer of the
DeKalb County Sheriff’s Department. Later that day, Hupfer and Detective Lauer went
to the Malloch home and informed Malloch of the allegations. Malloch said he was
3
asleep and woke up to find his finger in C.P.’s vagina. He agreed to go to the Sheriff’s
Department for a formal interview and drove himself there.
Detective Lauer conducted two interviews with Malloch in his office. Before the
first interview, Detective Lauer read Malloch his Miranda rights, and Malloch indicated
that he understood them, had no questions about them, and wished to talk. During this
interview, Detective Lauer employed the two-part Reid Technique, which he later
described at trial as the “gold standard of . . . police interviewing.” Id. at 443. The first
phase of the Reid Technique consists of nonaccusatory questioning. The interview then
shifts to the second phase, where the questioner does most of the talking and claims that
the investigation clearly shows that the suspect committed the crime. A questioner using
the Reid Technique introduces “different minimizing themes,” in essence excuses or
justifications, to make it easier and more comfortable for the suspect to admit to the
crime. Id. at 445.
In the first phase here, Detective Lauer explained that his job was to separate the
“small percentage of people . . . who prey on people” from “average good guys, like you
and me, who make a mistake . . . and . . . accept responsibility.” Defendant’s Ex. A, p.
8.1 Malloch told Detective Lauer he was in bed with C.P. because she was scared, he
woke to find his hand in her pants and his finger in her vagina, he pulled his hand out,
and C.P. kicked him off the bed. He also admitted to the earlier incident, when his hand
1
Defendant’s Exhibit A, the transcript of the interviews, was not admitted into evidence at trial.
However, it was admitted at the suppression hearing. For ease of reference, we cite pages of Defendant’s
Exhibit A throughout this opinion instead of timestamps on the video recordings of the interviews, which
were admitted and viewed by the jury.
4
was underneath C.P.’s shirt on her breast, but claimed that he had woken up that way and
thought she was asleep when he got up and went to his room.
Detective Lauer said he had to determine whether Malloch was asleep or not and
whether he was a “bad guy” or “not so bad guy.” Id. at 17. Malloch claimed he was
being honest. Detective Lauer then asked if he had ever had sexual thoughts about C.P.
Malloch responded, “No. . . . I mean, she’s a pretty girl, and, you know--and she walks
around in--in her underwear at times, and stuff like that, but I--I’m always like, ‘Put your
clothes’--you know, ‘Get clothes on,’ I--you know, that ‘You don’t need to be doing
that.’” Id. at 18. Detective Lauer asked Malloch about a polygraph test, and Malloch
responded that he would be willing to take the test. Malloch said he felt responsible for
the incidents because he was the adult and being asleep was not an excuse.
Detective Lauer then said C.P. had told him that at some point she was “sitting
downstairs like in her underwear and bra and stuff, kind of inappropriate, I think, I mean
she shouldn’t of [sic] been doing that, I guess, I mean that’s on--that’s on her, I mean, she
should . . . know better than to . . . be doing that.” Id. at 25-26. Malloch later offered, “I
would suppress the thought. You know, if--see her standing at the sink, or whatever,
kind of a thing, you know, I--I would throw it out of my mind, I would say ‘That’s not
right,’ you know.” Id. at 26. Malloch explained how he would walk away from the
situation and offered this vignette: “[T]wo months ago, or something, walking upstairs, to
go to bed, and [C.P.]’s door is cracked, and she was standing there taking off her shirt,
and I mean, I saw her breasts, but then I went to my room.” Id. at 27.
5
Detective Lauer asked whether, assuming Malloch was awake, it was “kind of just
a spur of the moment type thing, or--some guys actually will sit and plot out a way[.] . . .
I call those people . . . the one percenters, those luckily are the--the people that are few
and far between.” Id. at 29-30. Malloch claimed it would have been spur of the moment.
Detective Lauer then left the room. This portion of the interview was about thirty
minutes.
When Detective Lauer returned, he sat closer to Malloch and said, “[M]y
investigation clearly shows that you touched her, and you were awake when you did that,
this was a conscious thing that you did.” Id. at 31. Malloch said that he woke up to it,
but Detective Lauer said:
No, you were awake when you did it, . . . that was a conscious thing, . . .
you were awake when you did that. Now, what I need to find out is certain
other things like, was this a spur of the moment thing, you know, and that’s
what we need to talk about, because, like I said, I’ve got to figure out what
kind of guy is Steve.
Id. Detective Lauer offered many minimizing themes, including that it was good that the
incidents occurred when C.P. was asleep because maybe she would not remember what
happened, that C.P. was a pretty girl and was “walking around half naked,” that Malloch
was a guy and was “gonna have those thoughts,” that maybe there were “tough things
going on” in Malloch’s life at the time, and that maybe his wife “turned off the faucet and
there wasn’t any, you know, sexual activity or something.” Id. at 33-34. Malloch
admitted that he was awake when he put his hand on C.P.’s breast:
DETECTIVE: So, what I want to know, I guess, is--is--I mean, I can just
keep babbling here, but I need to know what’s going on--what was going
6
on in your head when that happened., And, you were awake, don’t tell me
you--because, you--you--
MR. MALLOCH: I--I--the hand in the shirt, yes.
Id. at 36. Malloch claimed he touched C.P.’s breast to see if she was developing and said
he was not sure if he was awake when he put his finger in her vagina:
MR. MALLOCH: I--with the hand thing, it was a--I mean, does she have
boobs, kind of a thin[g], you know, at--at this age, and--
DETECTIVE: So, you were curious if she had breasts, or--
MR. MALLOCH: Yeah.
DETECTIVE: What about the hands in the pants thing? You were not
asleep.
MR. MALLOCH: Okay, maybe I was--I--
DETECTIVE: There’s no “maybe”--
MR. MALLOCH: No, no--
DETECTIVE: --you were either awake, you weren’t awake, that--I don’t
want to dance around playing this game.
Id. at 38. Later on, Detective Lauer asked Malloch how long his finger was in C.P.’s
vagina, which led to Malloch saying for the first time that he was awake at the time, but
which he then appeared to take back:
DETECTIVE: How long was your finger inside of her?
MR. MALLOCH: Two seconds, three seconds.
DETECTIVE: Okay. And, how do you know that?
MR. MALLOCH: I just--well, I mean, because I--when I--I still believe
that I woke up from it. I--I understand you don’t believe it, but--and--and, I
don’t know how I need--how I get that--or, how I get it out of myself, that I
wasn’t asleep.
DETECTIVE: Maybe you’ve tried to convince yourself all these years that
you--you were (sic) awake, that was a conscious decision. That doesn’t
happen--that doesn’t happen.
MR. MALLOCH: It happens to my wife, or with me and my wife.
DETECTIVE: I’ve talked to your wife. It doesn’t happen in your sleep.
Your wife doesn’t believe it. I mean, I’m sorry to tell you that--that she
doesn’t. Nobody’s gonna believe that--that story. And, what that--what
that shows is, a young man unwilling to accept responsibility, that’s what
that says to me, that’s what I recognize. And, all I want you to do here is
tell the truth.
7
MR. MALLOCH: Okay.
DETECTIVE: That’s all I want, is the truth. And--and we investigate--
MR. MALLOCH: I laid down with her, and after she was asleep for a
while, put my hand down her pants and touched her.
DETECTIVE: And, how long did you do that?
MR. MALLOCH: A few seconds.
DETECTIVE: Why just a few seconds?
MR. MALLOCH: Because, I--reality kicked in.
DETECTIVE: Was it that you woke up?
MR. MALLOCH: Well, see that’s what--
DETECTIVE: Yeah, I--I think you’re just playing games here.
MR. MALLOCH: Well, I--
DETECTIVE: I’m not trying--I’m not trying to tell you--
MR. MALLOCH: --you’re trying to tell me what I need to say.
DETECTIVE: No, I’m not tell--I will not tell you what to say. I am telling
you, tell the truth.
Id. at 42-43. Malloch claimed he was telling the truth. Detective Lauer stated that he had
to determine whether Malloch was a pedophile or a pervert or whether he was a guy who
made a mistake. When Malloch continued to say he was asleep, Detective Lauer called
the claim “hogwash.” Id. at 52. He also said that Malloch was “not man enough to
accept responsibility.” Id. at 57. Soon after, Detective Lauer told Malloch he could tell
his story to a jury, and Malloch admitted for a second time that he was awake when he
put his finger in C.P.’s vagina:
DETECTIVE: That may be what you’ve tried to convince yourself all this
time, but--and, I’ll tell you what, Steve, I’m not gonna spend much more
time here listen--listening to this, because I will just arrest you and you can
go into court and you can tell 12 people--first of all, you can make your
daughter get up and testify against you, and then you can tell 12 people,
‘Yes, I was sleeping, and I woke up, and my hand was inside her vagina.
Oh, and by the way, I also stuck my hand up her shirt to make sure she had
breasts.’
MR. MALLOCH: And, so I laid down with her, and woke up, put my hand
down her pants, realized it was wrong, pulled my hand out, and she woke
up at that point and kicked me out of bed.
8
DETECTIVE: Is that true, or are you just trying to--I want to know what
the truth is. I don’t want to put words in your mouth, I want to hear you tell
me what happened, what was going through your head when that happened.
Because, that’s what’s important, what’s going on up here--
MR. MALLOCH: Right.
DETECTIVE: --and what’s going on right now are the important things.
Whether you’re man enough to accept responsibility, and show a judge that
you’re remorseful, and how you show remorseful is by saying, ‘Yes, this is
what I did, it’s never gonna happen again, I learned my lesson.’
Id. at 58-59. However, Malloch later indicated that he was asleep: “I remember laying
down, with my back to her, and I remember waking up, pulling my hand out of her pants,
and getting kicked on to the floor, and then getting into my bed. I can’t remember the--
initiating it. I cannot remember that.” Id. at 62-63.
When Malloch continued to insist that he could not remember consciously putting
his finger in C.P.’s vagina, Detective Lauer said, “You know why you can’t remember it .
. . it’s dawning on me now, because you’re one of the one percenter guys.” Id. at 66. He
also said, “You don’t have the stones to say it, that’s the problem.” Id. at 67. At the
conclusion of the interview, Detective Lauer arrested Malloch and told him he would
come back in if Malloch wanted to talk further. The entire first interview was about an
hour and twenty-five minutes.
Detective Lauer turned Malloch over to Jeremy Heffelfinger, the intake officer,
and had nothing to do with where he was placed in the jail. It took about an hour for
Malloch to go through the intake process and make a phone call. Heffelfinger then
placed Malloch twenty feet from his desk in a cell with Jeffrey Cain, an accused
murderer. Heffelfinger placed Malloch there so he could monitor any shock Malloch
might have from being in jail for the first time and being charged with a severe crime. It
9
was also the only available space. Although one other holding cell had just one man in it,
that person was a trouble maker, which was in stark contrast to Cain, who had never
caused any problems in the year and a half that he was at the jail.
Heffelfinger monitored Malloch the entire time he was in the cell. He did not
notice any problems or tension between Malloch and Cain, and neither inmate indicated
there were any problems. About four hours after Malloch’s first interview ended, Cain
got Heffelfinger’s attention and said that Malloch wanted to speak with him. Malloch
asked to speak with Detective Lauer.
Malloch was escorted out of the jail and back to Detective Lauer’s office.
Detective Lauer again read Malloch his Miranda rights, and Malloch indicated that he
understood them. Malloch then asked if he was “best advised to speak to a lawyer.” Id.
at 74. Detective Lauer said that it was Malloch’s decision and that he could not guide
him one way or the other. After a brief discussion, Malloch said, “I’ll talk.” Id. at 75.
Detective Lauer was not accusatory during this second interview. Malloch said
that he had “not good thoughts” about C.P. since 2003. He then admitted he was awake
and consciously fingered C.P.:
MR. MALLOCH: But, it happened to be--yeah, I didn’t want to hurt her,
she happened to be asleep, and I failed to control myself.
DETECTIVE: So, can you tell me then what happened that particular day?
MR. MALLOCH: I remember--yeah, laying down--falling asleep, waking
up, and this has come to me as I’m laying out there, put my--curious, or
whatever, put my hand down there, she stirred, pulled my hand out, and
then had gotten kicked out of the bed.
Id. at 77. Detective Lauer gave Malloch an opportunity to write C.P. a letter of apology.
10
The State charged Malloch with two counts of child molesting, one as a Class A
felony and one as a Class C felony. In December 2010, Malloch moved to dismiss the
Class C felony on the basis that it was filed beyond the statute of limitations period and
moved to suppress his statements to Detective Lauer on the basis that they were
involuntarily made. After a hearing, the trial court dismissed the Class C felony and
denied the motion to suppress.
Malloch had a trial in June 2011, but the jury deadlocked. The court declared a
mistrial and immediately scheduled a second jury trial for September 12, 13, and 14,
2011. On September 9, 2011, Malloch moved for a continuance in order to secure the
attendance of Dr. Neeraj Kaplish, a sleep expert from Ann Arbor, Michigan, who had
treated Malloch. At a hearing on the same day, the trial court denied the continuance.
At trial, C.P., Detective Lauer, and Heffelfinger testified for the State. During the
State’s direct examination of Detective Lauer, the video recordings of Malloch’s two
interviews at the Sheriff’s Department as well as his letter of apology were admitted over
objection. The State played both video recordings during trial.
Malloch, Anita, Cain, and a variety of character witnesses testified for the defense.
Malloch’s defense was that he suffered from sexsomnia, which caused him to engage in
sexual behavior while asleep, that he was asleep when he put his finger in C.P.’s vagina,
and that his confession was coerced.
During deliberations, the jury requested to watch the first interview again in its
entirety. After discussing the matter with the parties, the trial court permitted the jury to
do so. The jury found Malloch guilty, and the trial court sentenced him to twenty-eight
11
years executed and two years suspended to probation. Malloch now appeals his
conviction.
DISCUSSION AND DECISION
I. MOTION FOR CONTINUANCE
Malloch first contends that the trial court abused its discretion by denying his
motion for continuance. He does not argue that he was entitled to a continuance by
statute. See Ind. Code § 35-36-7-1 (1981). We review a trial court’s ruling on a
continuance not required by statute for an abuse of discretion. Carter v. State, 686
N.E.2d 1254, 1261 (Ind. 1997). The denial of a motion for continuance is reversible only
when it constitutes an abuse of discretion and the record demonstrates that the defendant
was prejudiced. Beverly v. State, 543 N.E.2d 1111, 1113 (Ind. 1989).
After the mistrial, Malloch notified the State that he intended to call Dr. Kaplish as
a witness on retrial. At a discovery deposition on September 1, 2011, Dr. Kaplish
acknowledged that he had been served a subpoena for trial but did not know whether he
would be able to attend or whether he could be available for an evidentiary deposition to
preserve his testimony in advance of trial. Malloch later learned that Dr. Kaplish was out
of his office and would not return until September 13, 2011. He spoke with a
representative from Dr. Kaplish’s office about getting a firm commitment but was not
told until late September 8, 2011, that Dr. Kaplish would be unavailable on the morning
of September 14, 2011.
On September 9, 2011, Malloch moved for a continuance in order to secure the
attendance of Dr. Kaplish. After arguments at a hearing on the same day, the trial court
12
denied the continuance, noting several reasons: (1) that the parties agreed on the second
trial date at a conference immediately following the mistrial; (2) that Dr. Kaplish, from
Michigan, was served with an unenforceable Indiana subpoena despite the fact that the
trial court at a previous conference sua sponte raised the issue of whether the Uniform
Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings
was followed; (3) that Dr. Kaplish was consulted as early as February 2010 yet no
evidentiary deposition of him existed for trial; and (4) that the court’s calendar was too
congested to reset trial for 2011, and further delay was unacceptable considering the case
was filed almost two years before and involved an incident occurring seven years ago.
On the first day of trial, Malloch renewed his objection and again noted that Dr.
Kaplish would return to his Ann Arbor office the next day. However, he gave the court
no assurances that Dr. Kaplish would actually appear or any indication that he had been
properly subpoenaed. The court noted the objection but declined to change its ruling.
During trial, Malloch made no attempt to have Dr. Kaplish declared unavailable so that
he could enter his discovery deposition testimony into evidence.
Malloch claims that Dr. Kaplish would have been “potentially” available upon his
anticipated September 13, 2011, return to his office. Appellant’s Br. p. 39. He then cites
Flowers v. State, 654 N.E.2d 1124 (Ind. 1995), where the Supreme Court concluded that
the denial of a one-day continuance was an abuse of discretion. The crimes in Flowers
occurred in May 1991, and trial occurred in November 1992. After the defendant’s DNA
expert withdrew from the case in early November 1992, the defendant secured a new
DNA expert; however, the new expert would not be prepared for trial until November 20,
13
1992. On the afternoon of November 19, 1992, just prior to the conclusion of the defense
presentation, save for the new expert’s testimony, the trial court denied the defendant’s
request for a one-day continuance. The Supreme Court concluded that the denial was an
abuse of discretion.
Flowers is distinguishable for two reasons. First, the expert in Flowers was ready
to testify the day after the defense presentation. In contrast, the record here is devoid of
any indication that Dr. Kaplish ever intended to appear. There is no evidence that he was
ever properly subpoenaed, and at the September 1, 2011, discovery deposition, he would
not commit to appearing at trial. He was out of the office until September 13, 2011, and
was further unavailable on the morning of September 14, 2011. When Malloch renewed
his objection on the first day of trial, he made no record as to when Dr. Kaplish would be
available to testify. Second, Flowers involved a one-day continuance for a crime that
was eighteen months old. Here, the crime was seven years old, and the trial court could
not reset the case for trial until the following year.
Given all of the circumstances before it, the trial court was well within its
discretion in denying the motion for continuance.
II. MALLOCH’S STATEMENTS
Malloch next contends that the trial court erred by admitting into evidence his
statements to Detective Lauer during the two videorecorded interviews. Specifically, he
claims that the Miranda warnings before the first interview were inadequately
administered, that he invoked his right to counsel before the second interview, and that
14
his statements in both interviews were involuntary under the state and federal
constitutions.
A. Miranda Warnings Before First Interview
Malloch argues that Detective Lauer minimized the importance of the Miranda
warnings by characterizing them as a mere formality to be recited only because Malloch
was at the Sheriff’s Department. He also argues that they were “administered in an
offhand fashion.” Appellant’s Br. p. 28.
As established in Miranda v. Arizona, before questioning a person taken into
custody, “the person must be warned that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed.” 384 U.S. 436, 444, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966). In determining whether a defendant has received a clear,
understandable warning of his rights, we must examine the words in the context used,
considering the age, background, and intelligence of the individual being interrogated.
Sotelo v. State, 264 Ind. 298, 342 N.E.2d 844, 847 (1976). “[A]ny evidence that the
accused was threatened, tricked, or cajoled into a waiver will, of course, show that the
defendant did not voluntarily waive his privilege.” Miranda, 384 U.S. at 476.
Detective Lauer read Malloch his Miranda rights before the first interview as
follows:
DETECTIVE: Okay, just to let you know, you’re not under arrest, you
came here voluntarily, but since we’re here at the Sheriff’s Department I
have to read you this form in here.
MR. MALLOCH: Okay.
DETECTIVE: You work for Nucor do you?
15
MR. MALLOCH: Yeah.
DETECTIVE: And, Monday through Friday type thing?
MR. MALLOCH: Yeah.
DETECTIVE: So you’re not in the factory end of it?
MR. MALLOCH: No.
DETECTIVE: In the office.
DETECTIVE: You know Tyler Leffler?
MR. MALLOCH: Yes.
DETECTIVE: He’s in the reserves here.
MR. MALLOCH: Uh-huh (affirmative).
DETECTIVE: Okay. You have the right to remain silent. Anything you
say can and will be used against you in a court of law. You have the right
to talk to a lawyer and have him present with you while you’re being
questioned. If you cannot afford to hire a lawyer one will be appointed to
represent you at County expense before questioning, if you wish. If you
give up your right to remain silent and later wish to stop answering
questions, no further questions will be asked. Do you understand all that?
MR. MALLOCH: Yes.
DETECTIVE: Any questions about that at all?
MR. MALLOCH: No.
DETECTIVE: Okay. Having those rights in mind, do you wish to talk to
me?
MR. MALLOCH: Yes.
Defendant’s Ex. A, pp. 4-5.
We cannot agree that Detective Lauer characterized the Miranda warnings in any
improper way. Instead, he simply told Malloch that he was informing him of his rights
even though Malloch voluntarily came in for the interview and was not under arrest.
Then, after a brief exchange about Malloch’s employment, Detective Lauer gave him a
full advisement of his Miranda rights. Malloch indicated that he understood them, had
no questions about them, and wished to waive them.
Malloch nonetheless claims in a footnote that “and will” in the phrase “can and
will be used against you” was barely audible and, combined with the other facts of this
case, requires reversal. See Appellant’s Br. p. 28 n.30. This argument acknowledges that
16
“and will” was not left out of the language of the advisement and challenges only the
volume at which it was said. However, Malloch does not argue that he did not hear it or
did not understand the advisement.
We find nothing improper in Detective Lauer’s presentation of Malloch’s rights.
Moreover, Malloch claims no deficiency in his understanding and knowing waiver of his
rights. We therefore find no error.
B. Right to Counsel
Malloch argues that he unambiguously and unequivocally invoked his right to
counsel before the second interview and that he resignedly agreed to talk only after
Detective Lauer improperly dissuaded him from that right.
Pursuant to Miranda, any person subject to a custodial interrogation has the right
to counsel. Sauerheber v. State, 698 N.E.2d 796, 801 (Ind. 1998). If an accused requests
counsel, the interrogation must cease until an attorney is present. Carr v. State, 934
N.E.2d 1096, 1102 (Ind. 2010). The request for counsel, however, must be unambiguous
and unequivocal. Id. “[I]f a suspect makes a reference to an attorney that is ambiguous
or equivocal in that a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to counsel,” the interrogation
need not cease. Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d
362 (1994).
Before the second interview, Detective Lauer again read Malloch his Miranda
rights, and Malloch again indicated that he understood them. The following exchange
then occurred:
17
MR. MALLOCH: I--is it--this is what I wanted to ask when you initially
came down. Is it best advised to speak to a lawyer?
DETECTIVE: I can’t answer that for you, that’s a decision that you have
to--I can’t guide you one way or the other on that.
MR. MALLOCH: (No response.)
DETECTIVE: Did you talk to your wife, at all?
MR. MALLOCH: Yes. Yeah, and I--I asked her to--you know, to get a
hold of an attorney. But, I just--
DETECTIVE: You just can’t really do that on a Friday night.
MR. MALLOCH: Well, right. And, I--I just--I--stuff’s--I--I--I guess I
really shouldn’t, should I--I mean, if--either I’m gonna, or I’m not talk,
right. I mean--
DETECTIVE: Yeah, either you’re gonna, or you’re not. I mean, you--
you’ve, in essence, told what happened--
MR. MALLOCH: Right.
DETECTIVE: --I mean, we’re just that far away. But, you’re--it’s your
decision, your call.
MR. MALLOCH: I’ll talk.
Defendant’s Ex. A, pp. 74-75.
Malloch’s question of whether it was “best advised” to speak with a lawyer does
not signify that he wanted counsel. Instead, he merely solicited an opinion as to whether
he should get one. See Bean v. State, 913 N.E.2d 243, 251 (Ind. Ct. App. 2009) (“What
about an attorney?” not invocation of right to counsel), trans. denied; Collins v. State,
873 N.E.2d 149, 156 (Ind. Ct. App. 2007) (“Do I need an attorney?” and “I probably need
an attorney” not invocation of right to counsel), trans. denied.
After Detective Lauer told him he could not guide him one way or the other, they
both sat silent. Detective Lauer then asked whether Malloch had spoken to his wife.
Malloch responded, “Yes. Yeah, and I--I asked her to--you know, to get a hold of an
attorney. But, I just--” In this statement, Malloch said that he asked his wife to contact
an attorney. However, his indecision and uncertainty is evident both by the fact that he
18
had just asked whether he should get an attorney and by the fact that he followed his
statement with “But, I just--” Although Malloch appears to argue that Detective Lauer
somehow swayed him into equivocating by saying that he would not be able to get an
attorney on a Friday night, Detective Lauer testified at trial that he was merely finishing
Malloch’s sentence. In any event, it is clear that Malloch was equivocal before Detective
Lauer interjected.
After some stuttering, Malloch then laid out his choices as either talking or not
talking. Detective Lauer agreed with this. After another pause, Detective Lauer noted
that Malloch had already told him “in essence” what had occurred but reiterated that the
question of counsel was “your decision, your call.” After another pause, Malloch made a
clear choice: “I’ll talk.”
None of Malloch’s utterances amounted to an unambiguous and unequivocal
invocation of the right to counsel. His claim in this regard therefore fails.
C. Voluntariness of Statements
Malloch argues that his statements in both interviews were involuntary under the
state and federal constitutions. He claims that his confession was the result of promises
of leniency or mitigated punishment and that his will was overborne.
If a defendant challenges the voluntariness of a confession under the United States
Constitution, the State must prove the statement was voluntarily given by a
preponderance of the evidence. Pruitt v. State, 834 N.E.2d 90, 114 (Ind. 2005). The
Indiana Constitution, however, requires the State to prove beyond a reasonable doubt that
19
the defendant voluntarily waived his rights and that the confession was voluntarily given.
Id. at 114-15.
When evaluating a claim that a statement was not given voluntarily, the trial court
is to consider the totality of the circumstances, including whether there is police coercion,
the length, location, and continuity of the interrogation, and the maturity, education,
physical condition, and mental health of the defendant. Id. at 115. On appeal, we do not
reweigh the evidence but instead examine the record for substantial, probative evidence
of voluntariness. Id. We examine the evidence most favorable to the State, together with
the reasonable inferences that can be drawn therefrom. Id. If there is substantial
evidence to support the trial court’s conclusion, it will not be set aside. Id.
Malloch argues that Detective Lauer obtained a false confession with promises of
leniency or mitigated punishment. A confession is inadmissible if it is obtained by
promises of mitigation or immunity; however, vague and indefinite statements by the
police that it would be in a defendant’s best interest if he cooperated do not render a
subsequent confession inadmissible. Clark v. State, 808 N.E.2d 1183, 1191 (Ind. 2004).
Here, Malloch claims that Detective Lauer promised leniency or mitigated
punishment by comparing an employed person who steals a cell phone accessory to an
unemployed person who steals a can of chicken to feed his family and then indicating
that the latter was the kind of person “you’re gonna want to work [with].” Defendant’s
Ex. A, p. 32. He also claims that Detective Lauer indicated that he would let him off the
hook if he confessed: “I don’t want you to walk out of here, I don’t want to go to bed
tonight thinking, I just let this . . . guy go out, who’s gonna go out and--and victimize
20
other people, okay? The only way I can know that it’s done, and over with, is by you
[confessing and saying it was a mistake].” Id. at 37. Malloch further points to Detective
Lauer’s response after the second time Malloch admitted to being awake at the time he
fingered C.P. At that time, Detective Lauer said he wanted to be sure that Malloch was
telling the truth and that “what’s going on right now are the important things. Whether
you’re man enough to accept responsibility, and show a judge that you’re remorseful, and
how you show remorseful is by saying, ‘Yes, this is what I did, it’s never gonna happen
again, I learned my lesson.’” Id. at 59.
These statements are too vague and indefinite to constitute promises of leniency or
mitigated punishment. See Clark, 808 N.E.2d at 1191 (statements by detective that
“there’s a way you can work around this” and that defendant would not have a future
unless he was honest about what happened did not constitute promises or threats that
rendered confession involuntary); Turner v. State, 682 N.E.2d 491, 494-95 (Ind. 1997)
(officer’s statement that defendant should tell the truth to help himself did not constitute
promise of leniency); Martin v. State, 779 N.E.2d 1235, 1241-42 (Ind. Ct. App. 2002)
(statement by authorities that defendant would probably go home if he just told the truth
did not render statement involuntary), trans. denied.
Malloch also argues that his will was overborne by Detective Lauer’s interrogation
tactics. A confession is voluntary if it is the product of a rational intellect and not the
result of physical abuse, psychological intimidation, or deceptive interrogation tactics that
have overcome the defendant’s free will. Scalissi v. State, 759 N.E.2d 618, 621 (Ind.
2001). The critical inquiry is whether the defendant’s statements were induced by
21
violence, threats, promises, or other improper influence. Id. While deceptive police
interrogation tactics weigh heavily against the voluntariness of a confession, Henry v.
State, 738 N.E.2d 663, 665 (Ind. 2000), they do not automatically render a confession
inadmissible, Clark, 808 N.E.2d at 1191. Rather, they must be considered in light of the
totality of the circumstances. Id.
Here, Malloch notes that Detective Lauer asserted forty-nine times that Malloch
was awake and consciously touched C.P., that he urged Malloch to tell the truth but then
dismissed him when he claimed to be asleep, and that he frequently challenged Malloch’s
manhood in light of his failure to take responsibility. Malloch also claims that he was
bullied by Detective Lauer when he was sarcastically told that he was a “great guy,” an
“[o]utstanding individual,” and a “sleep fondler” who “just need[ed] some kind of sleep
test.” Defendant’s Ex. A, pp. 51, 67. Malloch further asserts that he was worn down by
Detective Lauer’s accusations of other disturbing acts, for example, that maybe Malloch
had married Anita to gain access to C.P., and that he may one day fall asleep with his son,
wake up, and “just fondle the heck out of [his] penis.” Id. at 60.
Detective Lauer asserted, repeatedly and falsely, that his investigation clearly
established that Malloch intentionally touched C.P. However, his deception does not
necessarily render the confession involuntary. See Henry, 738 N.E.2d at 664-65 (officers
falsely telling defendant that his fingerprints were found at crime scene and that a witness
identified him did not render confession inadmissible); Light v. State, 547 N.E.2d 1073,
1078-79 (Ind. 1989) (officer lying to defendant, who asserted mental slowness, that
incriminating letter existed and using technique of persistently positing defendant’s guilt
22
in every question did not render confession inadmissible even where interrogation lasted
four hours).
We have examined each of Detective Lauer’s statements that Malloch highlights
on appeal. In considering the totality of the circumstances, we also note that Malloch
was thirty-five years old at the time of the interviews, had an associate’s degree in
architectural engineering, and supported his family with a job as a network engineer.
Before each interview, he was read his Miranda rights and indicated that he understood
them. As we concluded above, Malloch did not request an attorney, and Detective Lauer
made no promises in order to get the confession. Further, there is no indication, nor does
Malloch suggest, that he was intoxicated or sleep-deprived. The second phase of the first
interview, the only portion in which Detective Lauer was confrontational in his
questioning, lasted just under an hour.
We acknowledge that Detective Lauer’s interrogation of Malloch was
confrontational and intense in light of the serious offenses being investigated.
Nonetheless, after our own careful review of the video recordings and consideration of
the totality of the circumstances, we conclude that there is substantial evidence to support
the trial court’s conclusion that Malloch’s statements in both interviews were voluntary
under federal and state standards of review. See Henry, 738 N.E.2d at 665 (despite
officer’s obvious deception, State showed beyond reasonable doubt that confession was
voluntary where defendant was of average intelligence, worked as a carpenter, was
informed of Miranda rights, indicated he understood them, did not ask for attorney, was
23
not intoxicated or sleep-deprived, and where interrogation lasted about an hour and police
made no threats or promises).
In spite of this substantial evidence, Malloch argues that his statements in the
second interview were involuntary for two additional reasons. First, he points to Cain’s
trial testimony, in which he said he had been molested as a child and had “very little use”
for child molesters. Tr. p. 536. Malloch argues that he was deliberately placed in a cell
with Cain to pressure him into confessing. The record, however, clearly indicates that
Detective Lauer had nothing to do with his placement, and Heffelfinger placed Malloch
with Cain only because the cell was in a location that could be easily monitored and
because no other space was available. Heffelfinger monitored Malloch while he was in
the cell and escorted him back to Detective Lauer’s office, and not once was there any
indication that Cain’s presence threatened Malloch. Moreover, while Malloch’s self-
serving testimony was that Cain had told him he did not like child molesters, Cain barely
remembered Malloch at trial and did not say whether he had told Malloch that he disliked
child molesters.
Second, Malloch argues that his confession consisted of information that was
“fed” to him by Detective Lauer. He says that Detective Lauer introduced to him the idea
that he was awake when he fingered C.P. and that he had had sexual thoughts about her.
We disagree that Malloch was “fed” information such that his confession was
involuntary. Malloch admitted from the start that he put his finger in C.P.’s vagina but
claimed that he was asleep when he did so. Whether he was awake was therefore not
“fed” to him but rather the central question in the case. As to sexual thoughts about C.P.,
24
Detective Lauer only asked if he had them. Malloch then offered multiple specific
statements indicating that he did: that C.P. was a pretty girl, that she walked around in her
underwear, that he would suppress thoughts when he saw her standing at a sink, and that
he saw her breasts when he looked into the crack of her bedroom door as she was taking
off her shirt. None of these details were provided by Detective Lauer.
Neither Malloch’s placement with Cain nor his claim that he was “fed”
information changes our conclusion that there is substantial evidence supporting the trial
court’s determination that his statements in both interviews were voluntary.
III. DETECTIVE LAUER’S REPEATED ASSERTIONS OF GUILT
Malloch then contends that the trial court erred by allowing, without
admonishment, Detective Lauer’s repeated assertions of Malloch’s guilt during the
videorecorded interviews. He argues that the jury would likely assume the truth of
Detective Lauer’s assertions, particularly since they came from a law enforcement
officer.
Because Malloch did not object to or request an admonishment regarding
Detective Lauer’s assertions of guilt, he argues that they constitute fundamental error.
See Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011) (“Failure to object to the
admission of evidence at trial normally results in waiver and precludes appellate review
unless its admission constitutes fundamental error.”). The fundamental error exception is
extremely narrow and applies only when the error constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process. Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010).
25
The error claimed must either make a fair trial impossible or constitute clearly blatant
violations of basic and elementary principles of due process. Id. This exception is
available only in egregious circumstances. Id. Such circumstances are not present here,
as Malloch used those very assertions of guilt to try to persuade the jury that his
confession was coerced.
The admissibility of a confession depends upon a determination by the trial judge
that the confession was voluntary. Morgan v. State, 648 N.E.2d 1164, 1169-70 (Ind. Ct.
App. 1995), vacated on other grounds by Morgan v. State, 675 N.E.2d 1067, 1072 (Ind.
1996) (incorporating by reference this Court’s discussion and decision regarding the
admissibility of the confession). Once the confession has been admitted, it is evidence
for the jury to consider. Id. The jury is the final arbiter of the value of the confession as
evidence and may conclude that the confession was involuntary and reject it as evidence
of guilt. Id. at 1170.
Here, although there was no specific court instruction to the jury of its
prerogatives in considering the confession, the preliminary and final instructions both
stated that the jurors were the “exclusive judges of the evidence” and that it was the
jury’s duty to decide the value of the exhibits and testimony. Tr. pp. 338, 776. Both the
State and defense hotly contested the voluntariness of the confession before the jury.
During closing arguments, Malloch played for the jury an eleven-minute
condensed video of the interviews, in which Detective Lauer repeatedly asserted his guilt
as fact. See Defendant’s Ex. R. He then argued:
26
How many times over the course of that interrogation did Detective Lauer
tell Steve, hammer Steve that this was a[]waking, intentional act. How
many times did he stress that point, beat on that point, pound on that point.
It can tell you not asleep or awake, you weren’t asleep Steve, you were
awake, he said that seventeen (17) times. It was a conscious decision
Steve, you did this consciously twenty[-]one (21) times. It was an
intentional thing Steve four (4) times. That’s over forty (40) times that he
hammered on that point.
Tr. p. 757. Having relied on Detective Lauer’s statements, he cannot now claim error,
much less fundamental error, in the trial court’s admission of those assertions without an
admonishment he never requested. See Baugh v. State, 933 N.E.2d 1277, 1280 (Ind.
2010) (“Under the invited error doctrine, a party may not take advantage of an error that
she commits, invites, or which is the natural consequence of her own neglect or
misconduct.” (internal quotation omitted)).
Moreover, the jury did not view the interviews in a vacuum. Before the jury
watched the interviews, Detective Lauer testified that he used the Reid Technique, which
he explained as nonaccusatory questioning followed by an accusatory phase in which the
interrogator does most of the talking and claims that the investigation clearly shows that
the suspect committed the crime. When asked if he “mean[t] all those things [he] sa[id]
in the interrogation,” he responded in the negative. Tr. p. 445. The jury was therefore
apprised of the fact that Detective Lauer’s assertions were not evidence of Malloch’s
guilt but representations made to elicit information. It was therefore not fundamental
error for the trial court to admit those statements without an admonishment.
27
IV. APOLOGY LETTER
Malloch also contends that the trial court erred by admitting his apology letter to
C.P. He argues that his statements in the letter, like those in the interviews, were
obtained as a result of the allegedly coercive interrogation. He also claims that asking
him whether he wanted to write the letter was itself coercive because Detective Lauer
presented it as a way to make amends but intended to use it as evidence against him.
Detective Lauer read Malloch his Miranda rights twice. He was thus informed
twice that any of his statements could be used as evidence against him. For the same
reasons noted in our discussion of the voluntariness of his interview statements, the
totality of the circumstances also shows that the statements in his letter were voluntary.
The trial court did not err by admitting this evidence.
V. PROSECUTORIAL MISCONDUCT
Malloch finally contends that the State committed prosecutorial misconduct
throughout the course of the trial. Specifically, he argues that the State improperly used
voir dire to indoctrinate the jury, improperly impeached Anita, and made improper
statements in closing arguments.
In reviewing a properly preserved claim of prosecutorial misconduct, we
determine whether the prosecutor engaged in misconduct, and if so, whether the
misconduct, under all of the circumstances, placed the defendant in a position of grave
peril to which he would not have been otherwise subjected. Castillo v. State, 974 N.E.2d
458, 468 (Ind. 2012). To preserve a prosecutorial misconduct claim, the defendant must
ask the trial court, at the time the misconduct occurs, to admonish the jury or move for a
28
mistrial if admonishment is inadequate. Id. Failure to request an admonishment or a
mistrial waives the claim unless the defendant can demonstrate that the misconduct rises
to the level of fundamental error. Id.
Malloch did not request an admonishment or a mistrial after any of the alleged
instances of prosecutorial misconduct. He therefore operates under the heavy burden of
showing fundamental error.
A. Voir Dire
Malloch argues that the State committed misconduct by using voir dire to
indoctrinate the jury. The purpose of voir dire is to discover whether any prospective
juror has an opinion, belief, or bias that would affect or control his determination of the
issues to be tried, thus providing a basis for a challenge. Holmes v. State, 671 N.E.2d
841, 854 (Ind. 1996), abrogated on other grounds by Wilkes v. State, 917 N.E.2d 675,
692-93 (Ind. 2009). The Supreme Court has condemned the practice of “permitting
counsel to ‘brainwash’ or attempt to condition the jurors to receive the evidence with a
jaundiced eye.” Robinson v. State, 266 Ind. 604, 365 N.E.2d 1218, 1222 (1977).
However, proper examination may include questions designed to disclose the jurors’
attitudes about the type of offense charged. Perryman v. State, 830 N.E.2d 1005, 1008
(Ind. Ct. App. 2005).
Malloch asserts that the State predisposed the jury against him by asking the jury
pool if they would be surprised to learn that child molesters will often get away with their
crime by telling a complicit victim that the molestation is a secret. Tr. pp. 241-42.
Malloch argues that the alleged misconduct became even clearer when the State later
29
noted that the case involved “the finger in the vagina of an eleven (11) year old five (5)
[years] previous to us getting the case.” Id. at 254.
We find no misconduct here. The case involved a molestation that occurred seven
years before, so it was reasonable for the State to question whether the jury pool would
believe a witness who had not revealed the abuse. Further, there is absolutely no
indication that the State was trying to create an inference that, since the case involved an
incident that occurred five years before charges were filed, Malloch must have forced
C.P. to keep the molestation a secret. In fact, at the time the State said that the case
involved “the finger in the vagina of an eleven (11) year old five (5) [years] previous to
us getting the case,” it was discussing the kind of evidence the jury pool might expect in a
sex case.
Malloch also asserts that the State predisposed the jury against him by saying that
they would have to discuss paraphilias like sadomasochism or frotteurism. The record
shows that the State told the jury pool that the selected jurors would “have to talk about
sexual things.” Id. at 284. After listing exhibitionism, sadism, masochism, and fetishism,
sexual behaviors of which the jury pool might have known, the State asked if they had
heard of frotteurism, or “getting excited about secret touching.” Id. at 285. Malloch says
that this discussion had no evidentiary support.
We disagree. The State presented evidence at trial that Malloch touched C.P.
twice while she was asleep. It was thus reasonable for the State to tell the jury pool that
they might have to discuss sexual topics such as frotteurism. We acknowledge that the
State noted other sexual behaviors that are more commonly known. Although we do not
30
condone the State’s brief reference to these other behaviors, it did not place Malloch in
grave peril.
In sum, the prosecutor’s statements reflect permissible attempts to reveal the jury
pool’s ability to evaluate the child molesting case before them. We therefore conclude
that the State did not commit prosecutorial misconduct in this regard.
B. Impeachment
Malloch also argues that the State committed misconduct by improperly
impeaching Anita twice during trial. Although a witness may be impeached with a prior
inconsistent statement, once a witness has admitted having made such a statement, he has
impeached himself and further evidence is unnecessary for impeachment purposes.
Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001).
On direct, Anita testified that she did not know Malloch put his finger in C.P.’s
vagina until December 2009. On cross, the State showed Anita a transcript of her
statements to Detective Lauer on the day he began the investigation and asked if it was
correct that she had just testified that C.P. did not tell her that Malloch had fingered her
until 2009. Anita said it was correct. The following exchange occurred:
Q But that’s not really what you told Detective Lauer back in January
of 2010 is it?
A I did not go into detail with Detective Lauer at the time.
Q You certainly left him with the impression though that you knew
about the two (2) incidents since 2005 when [C.P.] told you that
Steve had touched her.
A I guess he could have had that impression, yes. I did not state
specifically when she told me about what incident, I lumped it
altogether and, uh, yeah, and that’s what it states.
Q That’s what it looks like?
A That’s what it looks like.
31
Tr. p. 665. Thus, Anita made a statement, the State confronted her with a prior
inconsistent statement, and Anita admitted the prior inconsistent statement when she said,
“[T]hat’s what it states.” This should have been the end of the matter; however, the State
then asked her to read the prior statement, and the following exchange occurred:
A Um, she, you want me to read it correct?
Q Yes, please.
A Okay, um, she, well I went to [C.P.] and asked if anything had
happened or anything and she said yes, there were two (2) incidents.
That was, that the one was, details are a little sketchy, it’s been
awhile since we talked exactly about what happened but I believe
one time was up her shirt, one time was down below where he had
gone in her pants and described that it hurt. Well, she asked me
should that have hurt and that’s when I knew.
Q The implication being that’s when you knew it had happened, right?
A December 26th is when I learned of, that’s when she asked me
should it hurt and that’s when I knew.
Q You’re saying you didn’t know about this until Christmas of 2009?
A I knew of the second incident December of 2009.
Id. at 666-67.
Because Anita admitted she made a prior inconsistent statement, the State should
not have made her read it. However, she was able to, in effect, rehabilitate herself when
she read the statement and the State questioned her further. That is, while she told
Detective Lauer in the prior statement that she learned of both incidents, she clarified on
the stand that she did not realize that the second incident specifically involved Malloch
putting his finger in C.P.’s vagina until C.P. asked her if it should hurt. We cannot say
the State’s improper impeachment placed Malloch in grave peril.
Later, the State elicited testimony that, around the time Anita learned of the
incidents, Malloch had a good job that allowed her to stay at home to care for the
32
children, she had two boys with Malloch, including one with Down syndrome, and was
six months pregnant with her third, and the family was getting ready to move into a nice
rural home. Anita also testified that she was currently pregnant with her fourth child with
Malloch. The following exchange then occurred:
Q You didn’t turn in the allegations from [C.P.] because it would have
been pretty disruptive to your family, wouldn’t it?
A It would have been pretty disruptive but it’s more disruptive five (5)
year, five (5) years after the incident and going through all of this
and there was no problem.
Q But your excuse when you talked to Detective Lauer was exactly
what I’ve just laid out for you, wasn’t it? As to why you didn’t turn
it in back in 2005.
A Um, that’s in that paragraph here, yes.
Q Would you like to read that for the jury, what you told him.
A See I guess for me at that point I had just left my job and I mean it
was just less than a week after I left my job to stay home and I was, I
don’t know, six (6) months pregnant and just not in a good, I was
just devastated, I didn’t know what to do but you know it was never
left, it, it has never left me and now I am worrying about the boys,
especially [N.], I mean he could never tell.
Id. at 690.
In this instance, Anita did not even make a statement at trial that was inconsistent
with the prior statement. Instead, Anita confirmed what was going on in her life at the
time she learned of the incidents, and the State then asked if she failed to report the
incidents because it would have been disruptive to her family. Anita answered that it
would have been disruptive, which is consistent with the prior statement the State then
asked her to read. Thus, the State should not have made her read the prior statement. We
note, though, that the paragraph the State asked her to read merely summed up the
testimony she had just given and constituted but one paragraph in nearly seventy-four
33
pages of testimony. Having Anita read the prior statement therefore did not place
Malloch in a position of grave peril, and any error was harmless. See Appleton, 740
N.E.2d at 126-27 (error in the State’s line-by-line recitation of two witnesses’ pretrial
statements, consuming twelve pages of the trial transcript, was harmless where
essentially the same evidence was already properly before the jury).
C. Closing Arguments
Malloch next argues that the State committed misconduct by making improper
statements in closing arguments.
First, Malloch claims that the State improperly repeated the false statement that no
innocent person would give a false confession. The State opened its closing argument
with, “Why would anyone confess to child molesting if they were not guilty?” and ended
its closing argument with, “Who would confess if they are not guilty.” Tr. pp. 729, 746.
These statements were merely rhetorical questions serving as bookends to the State’s
closing argument, which maintained that the confession was voluntary and pointed out
how Malloch’s and Anita’s testimony did not add up. Neither of these statements
constitutes misconduct.
Malloch then made his closing argument, in which he urged the jury to conclude
that his confession was coerced. In its final reply, the State said, “[N]obody, nobody who
is not guilty is going to confess, it’s not going to happen,” and later said, “[H]e confessed
as no person would do to child molesting unless they did it.” Id. at 770, 773.
The State concedes that these are false statements but notes that the jury was also
instructed that “[s]tatements made by the attorneys are not evidence.” Appellant’s App.
34
p. 286. Malloch replies that such an instruction is not a cure-all for all instances of
misconduct. Indeed, in Carter v. State, 956 N.E.2d 167 (Ind. Ct. App. 2011), trans.
denied, we rejected the State’s argument that such an instruction necessarily cures a
prosecutor’s misconduct because it would mean that “nothing in a prosecutor’s argument,
no matter how egregious, inappropriate, unfair, prejudicial, or otherwise objectionable,
could ever amount to ‘misconduct’” as long as the jury was so instructed. Id. at 172.
We agree with Carter that the fact that a jury is instructed that statements by
attorneys are not evidence does not necessarily preclude a finding of prosecutorial
misconduct in the State’s closing argument. However, in this case, the opening
statements, the evidence presented at trial, and the closing arguments all made clear that
the main controversy to be decided by the jury was whether Malloch’s confession was
voluntary or involuntary. Under these circumstances, the State saying that no one would
confess unless they were guilty was more in the way of vigorous advocacy than a
statement to be taken as truth. Malloch was not placed in a position of grave peril as a
result of these statements; thus, there is no prosecutorial misconduct here.
Second, Malloch claims that the State improperly invited the jury to convict based
on statements that had no basis in the evidence. Generally, a prosecutor must confine
closing argument to comments based upon the evidence presented in the record. Lambert
v. State, 743 N.E.2d 719, 734 (Ind. 2001). The prosecutor may argue both law and facts
and propound conclusions based upon his analysis of the evidence. Id.
Malloch challenges several statements. The State said, “[Malloch] thought [C.P.]
wouldn’t know because she was asleep, that is what frotteurism is, copping a feel when
35
you don’t know.” Tr. p. 745. Malloch argues that there was no evidence that he indulged
in frotteurism or that frotteurism was even the type of behavior the State claimed it was.
We agree that any definition of frotteurism was not in evidence. However, the gist of the
statement was that Malloch intentionally touched C.P. while she was asleep. This is a
fair comment on the evidence, which included Malloch’s confession that he put his finger
in her vagina while she was asleep. See Cooper v. State, 854 N.E.2d 831, 837 (Ind. 2006)
(prosecutor’s remarks in closing that defendant was a “back shooter” and “woman
beater” were fair commentary on the facts introduced at trial); Wrinkles v. State, 749
N.E.2d 1179, 1197 (Ind. 2001) (prosecutor’s references to defendant as a “psychopath”
and “sociopathic” were fair characterizations of the evidence). The prosecutor’s
statement does not constitute misconduct.
The State also told the jury that the Reid Technique causes anxiety in the accused,
causing visible signs “like stroking hair,” “twitching,” and being unable to “keep their
hands still.” Tr. p. 739. Detective Lauer did not testify about the visible signs of anxiety
caused by the Reid Technique. We note, though, that it is evident from the statements
that followed that the prosecutor was commenting on her perception of the technique’s
effect on Malloch: “[M]alloch went back to that cell and he couldn’t live with it and [he]
was too antsy that it boiled up in him and he had to get it out. That’s effectively how
Reid technique works, a pressure cooker and the truth comes boiling out.” Id. To the
extent the State engaged in misconduct, it does not rise to the level of fundamental error.
Malloch also challenges the statements that “there was brainwashing in this case
but not by Steve Malloch. You don’t have to believe what Anita Malloch told you,” and
36
that Malloch was a “control person” who controlled both C.P. and Anita. Id. at 738, 771.
These statements can be characterized as conclusions based on the prosecutor’s analysis
of the evidence. Malloch fingered C.P. when she was young, C.P. told Anita soon
thereafter, and Anita immediately confronted Malloch. However, Anita and Malloch did
not talk to C.P. about the incident and nothing was reported for five years. This silence
could reasonably be inferred as a control mechanism supporting the State’s argument.
These arguments do not constitute prosecutorial misconduct.
Malloch also points to the State’s claim that “we think [sex is] a physical act but
for women it’s largely a psychological act.” Id. at 737. We see no basis in the evidence
for this comment; however, its brief mention does not constitute fundamental error.2
Third, Malloch claims that the State improperly made inflammatory statements
about Anita that invited the jurors to convict Malloch based on her conduct. For
example, the State called Anita a “poor . . . mother,” id., pointed out the “ridiculousness
[of] not getting help for [C.P.],” id., and implied that she chose her husband over her
daughter to protect “her meal ticket,” id. at 771.
A prosecutor may comment on the credibility of a witness as long as the assertions
are based on reasons arising from the evidence. Lopez v. State, 527 N.E.2d 1119, 1127
(Ind. 1988). This is precisely what the State did here. It permissibly argued that Anita’s
failure to report the incident or obtain any counseling for C.P. was based on wanting to
keep Malloch at her side and that these motivations remained the same at trial.
2
Malloch says the State argued that stepfathers were more likely than biological fathers to be guilty of
child molesting and cites a page of the trial transcript. See Appellant’s Br. p. 32. We find no such
assertion in the State’s closing argument.
37
Malloch nonetheless argues that the State cannot now claim on appeal that it was
merely challenging her credibility because it relied on her credibility “when she talked
about what she did and did not do with regard to C.P.’s initial claim.” Appellant’s Reply
Br. p. 12. We agree with Malloch that the State did not intend the jury to disbelieve
everything Anita said. The larger point, though, is that the State was entitled to argue
that Anita’s testimony supporting Malloch was not credible because her motivation was
to keep him out of prison. This assertion is clearly based on the evidence, which showed
that she stayed at home with their three sons, lived in a nice home, and was expecting a
fourth child with Malloch at the time of trial. The State’s actions do not constitute
prosecutorial misconduct.
Finally, Malloch argues that the State’s misconduct permeated the case and
cumulatively amounts to fundamental error. We have concluded, however, that at most,
only two isolated, brief remarks during closing argument constituted prosecutorial
misconduct. These instances must be viewed in light of the evidence at trial, which
included C.P.’s testimony and Malloch’s confession. The jury was able to view the
interactions between Malloch and Detective Lauer during both interviews and could thus
evaluate the voluntariness of Malloch’s confession against his claim of coercion and
sexsomnia. Although Malloch did not receive a perfect trial, we are confident that he
received a fair trial.
CONCLUSION
For the reasons stated, we affirm Malloch’s conviction.
Affirmed.
38
KIRSCH, J., and PYLE, J., concur.
39