Malinski v. State

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

THOMAS M. BREEN STEVE CARTER
TODD SELBY PUGH Attorney General of Indiana
Thomas M. Breen & Assoc.
Chicago, Illinois

JOHN E. MARTIN ARTHUR THADDEUS PERRY
Tsoutsouris & Bertig Deputy Attorney General
Valparaiso, Indiana Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

DAVID F. MALINSKI, )
)
Appellant (Defendant Below), )
) 64S00-0004-CR-287
v. ) in the Supreme Court
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )

APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Roger V. Bradford, Presiding Judge
Cause No. 64D01-9907-CF-395
The Honorable Thomas W. Webber, Presiding Judge
Cause No. 64D02-9907-MI-1680

September 3, 2003

SHEPARD, Chief Justice.
A jury found David F. Malinski guilty of murdering Lori Kirkley, and
likewise convicted him on associated counts of arson, auto theft, criminal
confinement, criminal deviate conduct, and two counts of burglary.

In this direct appeal, Malinski contends that the police violated his
right to counsel under the Indiana Constitution by not informing him that a
lawyer hired by relatives was present at the police station and wished to
see him. We agree that the police should have told him of counsel’s
presence, but conclude under the totality of the circumstances that this
failure does not require reversal.

Facts and Procedural History

Viewed favorably to the jury’s verdict, the evidence revealed that on
July 21, 1999, Lori Kirkley (“Lori”) disappeared from her residence in
Valparaiso, and has not been heard from or seen since. The previous day,
July 20th one of the Kirkley’s neighbors saw someone on a bicycle raise
the garage door of the Kirkley residence, enter, and leave about 15 minutes
later. He could not tell if the person was male or female.

On the 21st, the same neighbor saw the bicyclist arrive, saw the
garage door go up, and the person go inside; then the door closed. The
neighbor subsequently saw Lori come home, go in and close the garage door.
About twenty minutes later, the garage door rose and Lori’s Explorer backed
up and left leaving the garage open.

When Lori’s husband Robert arrived home that night, the garage door
was open, all the lights in the house were on, and there was a note taped
to the wall in the kitchen that said, “There’s a gun pointed at your head.”
(R. at 2576-77.) Lori’s blood was found on a butter knife and on the
kitchen floor. The bedroom had been ransacked and Lori’s underwear drawer
emptied. The police found an earring under the refrigerator, and a lens
from one of Lori’s newer pairs of glasses that popped out and was knocked
under the oven. All the eyewear that she possessed in July 1999 was
accounted for. None of her luggage was missing.

Lori had two significant medical conditions: she was an asthma
patient, and she had her thyroid removed. She took medication for both
conditions, but her medication was still in the residence. An FBI search
for Lori determined that her prescriptions had not been refilled anywhere
in the United States. According to Lori’s pharmacist, records indicated
that she was very consistent about taking her medicine on a daily basis.
Nevertheless, there had been no request for transfer of Lori’s
prescription, as federal law would require if there were an attempt to fill
the prescription somewhere else.

On July 23rd, a boy found a plastic bag next to the dumpster in his
apartment complex; a note in the bag said: “Please give this letter to Mr.
Kirkley [sic]. His wife is missing.” (R. at 2260.) Inside the bag the
police found a set of keys that belonged to Lori. The dumpster note was
addressed to Mr. Kirkley and said, among other things, “I’m sorry about
your wife. She wouldn’t cooperate, even with a .44 Magnum pointed at her
head.” (R. at 2277.) The note also said, “I tackled her and attempted to
cover her mouth. She bit the tip of my finger off” … “I had no plans to
kill her, but unfortunately I had to. … You will never find the body.” Id.
In the dumpster, police found one of Lori’s biking shoes.

Malinksi and Lori knew each other as co-workers in the Cardiac
Rehabilitation Center of Porter Memorial Hospital. Written text similar to
that of the dumpster note resided in a computer near Malinski’s desk in an
office at his workplace. On July 24th, Lori’s Ford Explorer was found
completely burned in a cornfield, and numerous bullets were recovered from
the floor of the Explorer.

At about 10 p.m. on July 27th, police officers in Griffith, Indiana,
arrested Malinski in connection with Lori’s disappearance. Porter County
investigators arrived at the Griffith Police Department to interrogate him.
On July 28th, Malinski agreed to give a recorded statement.

Before Malinski gave the statement, investigators read him an
interrogation/advice of rights form in compliance with Miranda v. Arizona,
384 U.S. 436 (1966). Malinski signed a Miranda waiver form. After
acknowledging his signatures on the waiver, Malinski agreed to provide a
recorded statement to the police without an attorney present. In his
recorded statement, Malinski admitted committing the February 2nd burglary
of the Kirkley residence, but he denied any knowledge of or involvement in
Lori’s disappearance.

At 6:50 a.m. on July 28th, at the Porter County Jail, Malinski agreed
to give a second statement to agents of the Federal Bureau of
Investigation. Malinski was again advised of his Miranda rights, and he
further agreed to the questioning and to providing a statement, which was
also recorded.

Malinski’s second statement was inconsistent with his first. In the
second statement, Malinski told the agents that he had been romantically
involved with Lori, that she was unhappy in her marriage, and that he and
Lori planned to run away together. He said Lori helped plan the February
2nd burglary and the burglary and disappearance on July 21st. Malinski
stated that he had a change of heart and decided not to run away with Lori,
and that Lori ran away on her own. At no point during the questionings did
Malinski request the assistance of a lawyer.

At about 8:30 a.m. on the 28th, Malinski’s wife and brother sought
legal help for Malinski by meeting with local attorney John E. Martin.
Martin arrived at the Porter County Jail around 9:45 a.m. and asked to
speak with Malinski. He was first told that Malinski was not in the jail.
Another officer also denied Martin access to Malinski informing Martin that
Malinski was giving a statement to the FBI. Martin made two additional
attempts to speak to Malinski, including speaking with the prosecuting
attorney of Porter County. Martin was repeatedly denied access to Malinski
and was informed that Malinski had waived his rights. Malinski was not
informed that Martin was trying to reach him. Martin petitioned to the
trial court for access to Malinski and for an end to the interrogation, but
these requests were denied.

After charges were filed, Malinski sought to suppress his statements,
claiming among other things that denying him access to his attorney
violated his right to counsel under the Indiana Constitution, article I,
section 13. The trial court denied the motion, finding that Malinksi was
advised of his rights, acknowledged that he understood them, and freely and
voluntarily spoke to the police. It also found that Malinski had not
requested an attorney at any time.

The police observed injuries on Malinski’s hand and body, which were
photographed. Malinski’s co-workers observed scratches and bruises on him
in the days after Lori disappeared. Malinski told one person that his
injuries were sustained helping his brother move some cabinets, but
Malinski’s brother testified that this was not true.

A forensic dentist examined Malinski and determined that an injury on
the middle finger of the right hand was caused, to a reasonable medical
certainty, by a human bite.

On July 28, the FBI recovered a document from the hard drive of a
Macintosh computer in Malinski’s residence, which reflected a detailed plan
to burglarize the Kirkley house. The Macintosh note speaks of monitoring
Lori’s activities, arranging to take her garage door opener and the key to
her house, surrepiticiously, and learning to override the Kirkley’s home
security system. It also talks about alibis to use if Malinski becomes a
suspect, the property he planned to take from the house, and planting
evidence at the scene to mislead investigators. Personal property
belonging to the Kirkleys was recovered from Malinski’s attic.

While in jail, Malinski told a cellmate about some photographs he had
taken of Lori and asked the cellmate, who expected to get out of jail soon,
to find the pictures and destroy them. The inmate told a jailer, who
turned the information over to the investigators. On August 26, 1999, the
police found several Polaroid photographs of a partially nude woman in
bondage on the bed in Malinski’s master bedroom. The police determined
that the woman was Lori Kirkley. In some photos, a sexual device is
inserted in her body.

On September 7, 1999, and November 2, 1999, the police gathered
Malinski’s personal property and placed it in a cardboard container for
safekeeping while Malinski was in solitary confinement for disciplinary
reasons. On both occasions investigators from the Porter County Sheriff’s
Department removed and photocopied a number of documents from Malinski’s
belongings. The original documents were returned to the cardboard
container. The deputy prosecuting attorney was aware of these events.

When the criminal charges were filed, the court ordered the State to
turn over to the defense the discovery as it was received on a weekly
basis. On December 31, 1999, the deputy Prosecutor informed the defense of
the photocopying that occurred during September and November and provided
copies of the documents. Malinski moved to dismiss all charges or, in the
alternative, to suppress all evidence illegally obtained and their fruits.
He claimed that items the investigators copied were “legal documents” and
that the seizure of such documents constituted a violation of Malinski’s
rights under the U.S. Constitution. The motion was denied.

A jury found Malinski guilty on all seven counts. The court ordered
that the counts of burglary, murder, and criminal deviate conduct run
consecutive to each other for a total of 125 years, and consecutive to a
thirty-year sentence on the remaining counts, for an aggregate sentence of
155 years in prison.

I. Motion to Suppress: Right to Counsel

Malinski argues that the trial court erroneously denied his motion to
suppress his statements because his right to counsel under Indiana
Constitution, article I, section 13 was violated. He claims that the
police had an affirmative duty to inform him that an attorney was present
and actively trying to speak with him while he was being interrogated.

A. Current Status of a Custodial Suspect’s Right to be Informed About
Attorney’s Presence. The Fifth and Fourteenth Amendments of the U.S.
Constitution as well as article I, section 14 of the Indiana Constitution
guarantee a defendant’s right against self-incrimination. The amendments
also afford the rights to remain silent and to be represented by an
attorney. The Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 444
(1966), that a defendant may waive these rights so long as the waiver is
made “voluntarily, knowingly, and intelligently.” In other words, there is
a right not to be forced to speak, “but there is no right to bar a
confession freely given after appropriate warnings and waivers.” Ajabu v.
State, 693 N.E.2d 921, 930 (Ind. 1998).

In Moran v. Burbine, 475 U.S. 412 (1986), the Supreme Court examined
the validity of a defendant’s waiver of his right to counsel under
circumstances similar to those presented here. In Burbine, the defendant
confessed to a murder after being informed of his Miranda rights. Id. at
415. While he was in custody, the defendant’s sister retained an attorney
to represent him. Id. at 416. The attorney telephoned the police station
and was assured that all questioning would cease until the following
morning. Id. Nevertheless, the police interrogated the defendant later
that evening, and he confessed. Id. at 417.

The Court held that the waiver of Miranda rights was valid, despite
the police failure to inform the defendant that his attorney tried to
contact him and the false assurances that police gave the defendant’s
attorney. Id. at 423-24. The Court concluded that neither the Fifth nor
the Fourteenth Amendment guarantees of due process were violated. Id. at
419-20.

Though federal law does not require that police inform a custodial
suspect about an attorney’s efforts to contact him, the Burbine Court
observed that states have leeway to adopt different requirements for the
conduct of their employees and officials as a matter of state law. Id. at
428. Malinski thus urges us to hold that the Indiana Constitution was
violated.

In Ajabu v. State, 693 N.E.2d 921 (Ind. 1998), we addressed this issue
under state constitutional grounds. As in Burbine, the police in Ajabu did
not inform a custodial suspect that an attorney, retained by the suspect’s
father, had called the police station and requested that the interrogation
cease until the attorney could meet with his client. Id. at 926. The
police told the lawyer that “the information would be passed along to the
appropriate people.” Id. The suspect later waived his Miranda rights and
gave a full confession to the murder, without ever having been told of the
attorney’s call. Id.

Ajabu contended that his section 14 privilege against self-
incrimination was violated because the police did not inform him of his
attorney’s efforts to speak to him before the interrogation took place.
Id. at 927. We adopted the reasoning in Burbine and held that Indiana’s
privilege against self-incrimination did not afford custodial suspects any
more protection than the Fifth Amendment. Id. at 934-35. We held that a
clear request for counsel is a prerequisite for invocation of the right
under section 14. Id. at 935. A “suspect who knowingly and voluntarily
waives his right to counsel after having that right explained to him has
indicated his willingness to deal with the police unassisted.” Id. at 933
(citing Davis v. United States, 512 U.S. 452, 460-61 (1994)).

We addressed only obliquely the possible application of Indiana’s
section 13 right to counsel to the facts in Ajabu because Ajabu relied
solely on section 14. Ajabu, 693 N.E.2d at 928. Malinski bases his claim
directly on section 13’s guarantee that an accused has the right “to be
heard by himself and counsel” in all criminal prosecutions.

B. Other State Approaches to the “Duty to Inform”. Several other
state courts have construed similar constitutional provisions in
considering a “duty to inform”. Those courts that have recognized an
affirmative duty to inform have often relied on a factual distinction:
whether the attorney seeking access to his client is present at the police
station where the suspect is being held, or whether the attorney is simply
calling the station.

For instance, in Dennis v. State, 990 P.2d 277, 284 (Okla. 1999), the
court held that under state law a defendant cannot knowingly and
intelligently waive his rights to counsel and against self-incrimination
where he does not know that retained counsel is present and actively trying
to consult with him. The court specifically distinguished between attempts
to contact a client in person and attempts over the phone. Id. The
court’s holding applies only where an attorney is present while a defendant
is questioned and actively trying to see the defendant, who is not told the
attorney is there. Id.[1]

Similarly, in People v. Wright, 490 N.W.2d 351, 357 (Mich. 1992), the
court believed “if the defendant knew that a retained attorney was waiting
for him, he would not have waived his right to silence or to counsel.” It
held that under the Michigan Constitution a suspect has the right to be
informed of retained counsel’s in-person efforts to contact him in order
for there to be a knowing and fully voluntary waiver of the suspect’s Fifth
Amendment rights. Id. at 356-57. To hold otherwise, it said, would
suggest “that a State has a compelling interest, not simply in custodial
interrogation, but in lawyer-free, incommunicado custodial interrogation.”
Id. at 357 (citing Burbine, 475 U.S. at 437 (Stevens, J., dissenting)).[2]

In State v. Stoddard, 537 A.2d 446, 452 (Conn. 1988), the court
concluded that under the Connecticut due process and right to counsel
clauses police must promptly inform a suspect of “timely efforts by counsel
to render pertinent legal assistance.” It noted Connecticut’s history of
recognizing the significance of the right to counsel. Id. The duty to
inform, however, applied even when the attorney simply calls the police
station. Id. at 454. The court reasoned that the police are not entitled
to prevent a suspect from exercising the choice to which he is
constitutionally entitled by being dishonest with counsel or by keeping a
suspect uninformed of counsel’s efforts. Id. at 452.[3]

Besides urging that the Indiana right to counsel commands greater
protection than the federal Bill of Rights, Malinski bases his claim on
this same factual distinction. In Burbine and Ajabu, the attorney
telephoned the station. Malinski’s attorney was present at the station
when he unsuccessfully made repeated attempts to reach him. (Appellant’s
Br. at 40.)

The State properly replies that an express request for counsel is
required to trigger the Indiana constitutional right to counsel and
preclude further questioning of the suspect in custody. (Appellee’s Br. at
15); see Ajabu, 693 N.E.2d at 928, n. 4. Adopting the reasoning in
Burbine, the State argues that the presence of the attorney at the station
would not affect the constitutional result because such distinction would
not change the reasoning that events occurring outside the presence of the
suspect and unknown to him could not affect the validity of his waiver.
(Appellee’s Br. at 14.)

We have on other occasions concluded that section 13 affords Indiana’s
citizens greater protection than its federal counterpart. Ajabu, 693
N.E.2d at 929. Depending on the circumstances, the section 13 right to
counsel, unlike the Sixth Amendment, attaches prior to the filing of formal
charges against the accused. Id.; Suter v. State, 227 Ind. 648, 88 N.E.2d
386, 390 (1949); see also Taylor v. State, 689 N.E.2d 699, 703-04 (Ind.
1997). Moreover, our precedents have often interpreted the section 13 right
expansively. See e.g., Bolkovac v. State, 229 Ind. 294, 98 N.E.2d 250
(Ind. 1951) (recognizing an unqualified right to counsel in both felony and
misdemeanor cases under section 13). [4]

In light of Indiana’s history of an expansive state right to counsel,
we agree with Malinski that an incarcerated suspect has a right under
section 13 to be informed that an attorney hired by his family to represent
him is present at the station and wishes to speak to him. As we noted in
Ajabu, most section 13 cases turn on whether the defendant made a clear
request for counsel. When the case involves a claim that police continued
to interrogate in the face of a request for counsel, that bright line is
appropriate and we re-affirm it. Here the issue seems different: is the
waiver of counsel knowing and intelligent when made in ignorance of the
fact that a lawyer hired by the family is nearby and asking to see you? As
put by the Illinois Supreme Court, “The day is long past … where attorneys
must shout legal advice to their clients, held in custody, through the
jailhouse door.” McCauley, 645 N.E.2d at 929.

The Court in Escobedo v. Illinois, 378 U.S. 478 (1964), and Miranda
384 U.S. at 436, condemned the scenario where such practice is likely to
result in an incommunicado interrogation and surrounding coercive
environment.[5] “Just as the government cannot conceal from a suspect
material and exculpatory evidence, so too the government cannot conceal
from a suspect the material fact of his attorney’s communication.”
Burbine, 475 U.S. at 467 (Stevens, J., dissenting).

We hold that law enforcement officials have a duty to inform a
custodial suspect immediately when an attorney hired by the suspect’s
family to represent him is present at the station seeking access to him.

C. Effect of Failure to Inform. Obviously, a suspect may waive his
right to counsel and give a statement while in custody. Such a valid
waiver must be voluntary and intelligent Thus, the question becomes whether
withholding information about counsel’s presence made the waiver invalid.

Courts faced with similar claims have adopted two different
approaches. Some have employed a per se rule of exclusion in order to
enforce the duty to inform. See e.g., People v. Bender, 551 N.W.2d 71, 80-
81 (Mich. 1996); State v. Haynes, 602 P.2d 272, 278-79 (Or. 1979); People
v. Houston, 724 P.2d 1166, 1174-75 (Cal. 1986). Other courts have adopted
a totality of the circumstances approach. See Stoddard, 537 A.2d at 456;
Dennis, 990 P.2d at 285; People v. Wright, 490 N.W.2d at 356.

The Stoddard court said that “reliance on the totality of the
circumstances is consistent with existing rules for the evaluation of the
validity of a waiver.” Id., 537 A.2d at 456. In applying this test, it
considered factors such as the extent to which the police had reasonable
notice of counsel’s request, conduct of the suspect, nature of counsel’s
request, and relationship of the suspect to the attorney. Id. The Dennis
court used similar factors. Dennis, 990 P.2d at 284-85. We adopt a
“totality of the circumstances” approach as articulated by the courts in
Stoddard and Dennis, and turn to the case before us.

Taken as a whole, the record suggests a voluntary and intelligent
waiver. First, there is no indication that attorney Martin, retained by
Malinski’s family, had a previous relationship with Malinski himself.
While hardly dispositive, this fact makes it seem less likely that Malinski
would have responded to the lawyer’s request than would be the case if the
request came from someone he already knew.

Second, the police repeatedly read Malinski his rights and he
consistently waived them and agreed to talk. Third, Malinski signed a
written waiver of his Miranda rights. Indeed, before taking a second
recorded statement, the FBI agents showed Malinksi his signed waiver and
asked him once again whether he understood his rights. Malinski
acknowledged his rights and signature on the waiver form, and again chose
to provide a statement. Finally, at no time during the interrogations did
Malinski request counsel, a fact more supportive of a knowing waiver than
would be the case if the record reflected some indecision.

The record does not suggest any hesitation. In fact, Malinski
provided two detailed statements of the events surrounding Lori’s
disappearance. Such detailed accounts demonstrate a willingness on
Malinski’s part to cooperate with law enforcement officers. The fact that
neither statement constituted a confession further suggests the lack of any
likely effect that contact with counsel would have had on Malinski’s
decision to talk. The only effect that resulted from the two statements
Malinski provided was that of two inconsistent statements. In both
statements he maintained his innocence.

Thus, numerous factors weigh in favor of finding a knowing, voluntary,
and intelligent waiver. In light of all the circumstances, we conclude
that Malinski’s ignorance of Martin’s presence did not convert his waiver
into one that was involuntary. The trial court did not err in denying
Malinski’s motion to suppress his statements.

II. Seizure of Documents in Jail

Malinski claims that the police violated his Sixth Amendment right to
counsel by seizing from his jail cell documents he categorizes as
confidential communications between him and his lawyer.

On September 7, 1999, and again on November 2, 1999, personal
property from Malinski’s cell was gathered and placed in a cardboard
container for safe keeping while Malinski was put in solitary confinement
for disciplinary reasons. On both occasions, detectives photocopied papers
from these belongings. The deputy prosecutor was made aware that this had
occurred, but Malinski’s lawyers did not learn about it until January 3,
2000, when counsel received a letter from the deputy prosecutor apprising
him of the copying.

Malinski moved to dismiss, alleging that the State interfered with his
Sixth Amendment rights by surreptitiously copying his legal documents. The
trial court observed that the detectives’ actions were, to say the least,
“suspicious,” but found it unnecessary to address Malinski’s constitutional
claims despite a dispute about how the documents were packaged when copied.
Instead, the court found that the prosecution’s actions amounted to “a
blatant violation of the court’s discovery order.” (R. at 626.) It
treated the matter as a discovery violation and proceeded to determine what
sanction was appropriate.

After examining the documents, the court found that “while those
documents contain some details of Defendant’s defense that may not have
been previously known by the State, they do not contain any major
revelations of defense strategy from which the State would gain a
significant advantage by having advance knowledge.” Id. Consequently, it
concluded the proper sanction was to prohibit the State from using any of
the copied documents for any purpose whatsoever during the course of the
trial, including cross-examination of Malinski if he chose to testify. Id.

While the trial court did not specifically address Malinski’s Sixth
Amendment claim, its factual conclusions support a similar outcome under
the Sixth Amendment.

There is no per se rule that every intrusion by the prosecution into
the relationship between a criminal defendant and his attorney constitutes
a Sixth Amendment violation. Weatherford v. Bursey, 429 U.S. 545, 550-51
(1977). Rather, some showing of prejudice is a necessary element of a
Sixth Amendment claim based on an invasion of the attorney-client
relationship. United States v. Chavez, 902 F.2d 259, 267 (4th Cir. 1990),
citing Weatherford, 429 U.S. at 558. In cases of Sixth Amendment
violations, “absent demonstrable prejudice, or substantial threat thereof,
dismissal of the indictment is plainly inappropriate, even though the
violation may have been deliberate.” United States v. Morrison, 449 U.S.
361, 365 (1981) (footnote omitted).

Malinski contends that he was prejudiced by the detectives’ actions in
photocopying his legal documents because the information contained in the
documents led to the discovery of a hidden room (also called the “porn
room”) in the attic of his house and several Polaroid photos of Lori in
bondage. He notes the prosecution used this evidence at trial and thus,
gave them an advantage. We conclude that the trial court’s sanction for
discovery violation was adequate to shield Malinski from any prejudice.

There is dispute about how the documents were packaged, one that may
reflect on whether they could be considered “legal” or not. Nevertheless,
in reviewing the documents in question, we agree with the trial court’s
assessment that they would not have revealed anything major that would have
given the prosecution a significant advantage in the investigation. We
also agree with the State’s contention that based on the evidence, the
hidden room and the photographs could have been discovered by means other
than the copied documents.

There is ample evidence suggesting the authorities would have
discovered the hidden room without the information contained in the
documents. For one thing, in his second statement to the police, Malinski
told about the “porn room.” (R. at 2537.) The police had a map drawn by
Malinski indicating the location of it. (R. at 1851-53.) Malinski’s wife
told the authorities there was such a room covered with photographs. (R.
at 1850-51.) Prior to September 7th , the police recovered from Malinski’s
house a letter that described a room with electricity, dry wall,
carpeting, and air conditioning, which led them to believe that they had
not yet discovered the hidden room. (R. at 1853.)

The police also had the transcript of a monitored telephone call
Malinski made from jail to his brother on August 25th , in which the
brother refers to the room. (R. at 1857.) They likewise had a September
3rd statement taken from an inmate who recited Malinski’s description of a
room with a floor and a dummy hallway with a hidden wall. (R. at 1866.)

As to the Polaroid photos, the police recovered them on August 26th
before either of the document removal events. (R. at 1829-30.) The police
recovered these based on information received from an inmate. Malinski
told an inmate that he discarded some photographs alongside a county road
and that the pictures would incriminate him if found. (R. at 1819, 1822.)

Malinski urges that there is evidence that the police rifled through
and removed some of his documents prior to September 7th. He says this
earlier intrusion came days before the prosecution’s discovery of the
photographs. Such evidence does not show, however, that this earlier
intrusion led to the discovery of the photos. In fact, the testimony does
not make any reference to the photographs: an inmate had seen jailers go
into Malinski’s cell after having been removed, and “proceeded on looking
through his house and removed his paperwork then.” (R. at 1614.) Another
inmate who testified said he never saw the jailers looking through
Malinski’s “stuff.” (R. at 1882.)

We conclude that the State did not gain any significant advantage from
copying Malinski’s documents. The trial court made sure that the documents
themselves were not used at trial for any purpose and Malinski appears not
to have suffered any other demonstrable prejudice.

The trial court’s remedy seems to have innoculated Malinski from any
governmental misconduct. Absent a demonstrable or substantial threat of
prejudice on the criminal proceedings, there is no basis for imposing a new
trial as a remedy.

III. Character Evidence – Evidence Rule 404

Malinski insists that the court violated Indiana Evidence Rule
404(a)(2) by allowing the State to present evidence about Lori’s good
character. The State replies that the evidence in question is not
character evidence at all.

Indiana Evidence Rule 404(a) provides that “[e]vidence of a person's
character or a trait of character is not admissible for the purpose of
proving action in conformity therewith on a particular occasion....” An
exception allows admission of “[e]vidence of a pertinent trait of character
of the alleged victim of the crime offered by an accused, or by the
prosecution to rebut the same… .” Evid. R. 404(a)(2).

The present claim hinges on the definition of the terms “character”
and “character evidence.” “Character is a generalized description of a
person's disposition, or of the disposition in respect to a general trait,
such as honesty, temperance or peacefulness.” United States v. Matias, 39
Fed. Appx. 550, 552 (9th Cir. 2002) citing John W. Strong, McCormick on
Evidence (5th ed. 1999). “‘Character evidence’ is evidence regarding
someone’s personality traits.” Black’s Law Dictionary 576 (7th ed. 1999).

The State called witnesses at trial who testified about Lori’s church
activities, good work ethic and ability, close relationships with family
and friends, her “supportive” nature, and love for animals. They also
testified about Lori’s habit of picking out clothing for her husband,
taking her parents out for Mother’s Day and Father’s Day, playing the
piano, playing with her dog, and not wanting to disturb a nest of bunnies
in her yard.

Malinski claims that this was “character evidence” prohibited by Rule
404(a)(2). According to the State, the evidence was offered to rebut
Malinski’s claim that Lori was unhappy in her marriage, was engaged in a
sexual relationship with Malinski, and planned to run away with him.

The theory of the defense was that Lori and Malinski were involved in
a sexual relationship before she disappeared, and that they were planning
to run away together. In Malinski’s second statement to the police, he
said he began to have doubts about the whole situation and then decided not
to leave with her. He said Lori grew very angry at his decision so she
left his house, purchased a car, returned to his house with the car and a
map of the United States, declaring she was going to “just take off.” He
said he has not heard of or seen Lori since. Malinski claimed he loved his
wife and that Lori was just a “sexual convenience.” According to
Malinski, Lori did not like her husband, where she lived, or her job. (R.
at 959.)

Malinski and his lawyers have maintained a fairly consistent posture:
he and Lori had an affair, planned to disappear together, and staged a
burglary to make it appear as if Lori was abducted. This theory was
advanced in Malinski’s second statement to the police, opening statement,
and pretrial pleadings like in his motion in limine.

We agree with the State that the evidence in question was offered to
prove that, contrary to Malinski’s assertions, Lori was happy in her
marriage and in her relationship with her family. The evidence of her
church activities was not prohibited character evidence either, but
evidence of her ties in the community and the type of activities she
engaged in with her husband. It served to rebut Malinski’s theory that
Lori was engaged in an adulterous relationship with him.[6]

We conclude that the evidence at issue here was not prohibited by Rule
404.

Malinski also contends that the trial court erred in allowing the
State to introduce evidence of Lori’s credibility regarding the February
2nd burglary. He says this violated Evidence Rule 704(b) by introducing
witness testimony about Lori’s credibility.

The State called several witnesses to testify as to whether, in their
opinion, Lori was genuinely upset by the February 2nd burglary. Rule
704(b) prohibits testimony about the truthfulness of a witness. Rule
704(b) does not apply because Lori was not a witness. Moreover, the
witnesses were testifying about Lori’s demeanor: she appeared upset.
They did not offer any opinion about whether any particular statement of
Lori was true or not. This claim is without merit.

IV. Comments on Failure to Testify

Malinski alleges prosecutorial misconduct, saying that during final
argument the prosecution made two improper comments on Malinski’s failure
to testify. Malinski further alleges that the comments had a prejudicial
impact that was fundamental, warranting a new trial.

The first comment referred to a typed letter the police recovered from
Malinski’s residence that appeared to be from Lori to David. Prosecutor
Douglas stated: “Folks, the defendant isn’t going to tell you Lori wrote
that letter. And you know she didn’t write that letter because it’s
absolutely nonsense…” (R. at 4918.) The second comment mentioned a broken
camcorder taken in the February 2nd burglary of the Kirkley home. Deputy
prosecutor Shellenbarger stated: “There’s never been a really full
explanation for what the motive of taking the property was in either of the
defendant’s statements, but if it was to raise money for them to run away
together, it’s absurd to steal a broken camcorder.” (R. at 4920.)

Malinski did not object to either of these statements, and thus has
not preserved any issue for appeal.

V. Admission of Expert Testimony

Malinski contends that the testimony of Dr. Prahlow was inadmissible
under Indiana Evidence Rule 702 because it did not meet the foundation
requirements of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579,
593-95 (1993). Malinski further urges that Daubert should be applied in
this case because the Supreme Court in Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137 (1999), extended the Daubert principles to all types of expert
testimony.

The Indiana Evidence Rules differ from the Federal rules in that,
“[e]xpert scientific testimony is admissible only if the court is satisfied
that the scientific principles upon which the expert testimony rests are
reliable.” Ind. Evidence Rule 702(b) (emphasis added). [7] “Federal case
law interpreting the Federal Rules of Evidence is not binding upon the
determination of state evidentiary law.” See McGrew v. State, 682 N.E.2d
1289, 1290 (Ind. 1997) (citing Steward v. State, 652 N.E.2d 490, 498 (Ind.
1995)). “The concerns driving Daubert coincide with the express
requirement of Indiana Rule of Evidence 702(b) that the trial court be
satisfied of the reliability of the scientific principles involved.” Id.
When analyzing Indiana Evidence Rule 702(b), we find Daubert helpful, but
not controlling. Id.

Reliability may be established by judicial notice or sufficient
foundation to convince the trial court that the relevant scientific
principles are reliable. Id. The trial court held a hearing to determine
the admissibility of Dr. Prahlow’s testimony, who intended to testify for
the State regarding his opinion of Lori Kirkley’s medical condition and
degree of willingness in various Polaroid photographs of her in bondage.
Dr. Prahlow had been a forensic pathologist for about four years. He
testified that he deals with investigations of death that are sudden,
unexpected, or unnatural and that a majority of his study and research is
involved with autopsy.

Having reviewed the photographs, Dr. Prahlow testified that, based on
his forensic training and the photographs taken as a whole, it was his
opinion that Lori was an unwilling participant and that she was
incapacitated, unresponsive or unconscious in many of the photos.

He noted handcuffs on the right wrist, and he also noted red lines,
marks, and bruises on the right wrist that appeared to be contusions. In
his opinion, such marks were consistent with somebody trying to get out of
restraints. He had seen similar marks at the autopsy of individuals who
struggled trying to get out of handcuffs, and on individuals who have been
bound against their will and attempted to get out of ligatures.

Dr. Prahlow noted a contusion or bruise on Lori’s lip, which he
attributed to blunt force trauma, and an abrasion on the upper lip. He
also noted a mark on the buttock, which appeared to be a bruise. In
addition, he testified that a mark on the right thigh in one photograph
corresponded to the location in another picture of two black hooks holding
a strap around the thighs.

Dr. Prahlow also opined that the woman in one photograph is alive
because her left hand has the fingers extended covering the anus. That
picture also shows a gloved hand on one of the buttocks. Dr. Prahlow noted
that in other photos there seemed to be very little if any movement or
purposeful change in hand and body position other than what might have been
done by someone else. He also noted what appeared to be a wet mark on the
bed sheets that could represent urine from a loss of bladder control.
Although the stain could be water or another liquid, it was located where
urine would be if the person in the picture lost bladder control. These
facts along with the other photos showing contusions, bruises, or other
signs that suggest a struggle, led Dr. Prahlow to conclude that the woman
in the photographs was an unwilling participant.

Dr. Prahlow could not base his opinion on a single picture. Instead,
he based his opinion on all the photographs taken together as a whole. In
several, he observed that either the woman’s fingers do not move from one
pose to another or her whole body position does not move from one photo to
the next. In other photos, a vibrator appears to be in the anus and the
hands and fingers are not moved. In Dr. Prahlow’s opinion, there appears
to be no response to the vibrator within the anus.

After this preliminary examination of Dr. Prahlow, Malinski moved to
exclude his testimony as not based on reliable scientific principles. The
court denied Malinski’s motion, concluding that the testimony that the
State wished to elicit was not scientific testimony governed by Rule
702(b). Instead, it was expert testimony based on his specialized
knowledge. We agree.

The evidence before us does not appear to be a matter of “scientific
principles” governed by Evidence Rule 702(b). Rather, it is more a “matter
of the observations of persons with specialized knowledge” than “a matter
of ‘scientific principles’ governed by Indiana Evidence Rule 702(b),” as we
said in Jervis v. State, 679 N.E.2d 875, 881 (Ind. 1997).

As a four-year veteran forensic pathologist, Dr. Prahlow was qualified
to make such observations. Doctors often testify about the injuries
depicted in photographs even though they were not present when the pictures
were taken and did not personally examine the injuries depicted. Cf.
Wright v. State, 363 N.E.2d 1221, 1228-29 (Ind. 1977) (testimony of
properly qualified pathologist based on autopsy report and photographs was
proper where physician who conducted autopsy was deceased).

Dr. Prahlow’s testimony regarding Lori’s state falls into the area of
specialized knowledge of anatomy and physiology. Such area of specialized
knowledge was within his scope of expertise and beyond the knowledge
generally held by lay observers. Prahlow’s expertise in examining and
evaluating wounds, such as those depicted in the photos, was undoubtedly an
aid to the jury.

The trial court did not abuse its discretion in admitting this
testimony.

VI. Proof of Corpus Delicti and General Sufficiency

Finally, Malinski insists that the State failed to prove corpus
delicti and produced insufficient evidence to support his convictions.

Our corpus delicti rule holds that a crime may not be proven based
solely on a confession. Sweeney v. State, 704 N.E.2d 86 (Ind. 1998).
“Admission of a confession requires some independent evidence of the crime
including evidence of the specific kind of injury and evidence that the
injury was caused by criminal conduct.” Workman v. State, 716 N.E.2d 445,
447 (Ind.1999). “This evidence need not prove that a crime was committed
beyond a reasonable doubt, but merely ‘provide an inference that a crime
was committed,’… ‘an inference that may be established by circumstantial
evidence.’” Id. at 447-48.

Of course, this is not a confession case. In fact, Malinski
maintained his innocence at all times. Thus, the question is whether the
evidence is sufficient to allow a jury to find that Lori is dead and that
Malinski killed her.

The evidence shows that on July 21, 1999, a neighbor saw an unknown
person enter the Kirkley residence, that Lori later came home, and that a
short time later her Ford Explorer left the residence. Lori has not been
seen since. Police found her blood spattered in the kitchen and on a
butter knife. They also found her eyeglasses broken. Lori’s eyewear and
her daily medication were left behind. Her prescriptions had not been
refilled. Such evidence provides an inference that a crime was committed,
that is, that Lori was abducted and murdered.

Then there is the dumpster note. It states that Lori was killed and
that the body would never be found. The note was produced on a computer
near Malinski’s desk at his place of employment, and Malinski admitted
leaving the note at the dumpster. The note said the victim bit off the tip
of the murderer’s finger, and dental examination of an injury to Malinski’s
finger confirmed a human bite, although the tip was not completely bitten
off. The bite mark on Malinski’s finger and the injuries observed by his
coworkers, together with his false explanation that he sustained the
injuries helping his brother, all supply an inference that he murdered
Lori, and sustained injuries during her attempts to defend herself.

Other evidence corroborated the dumpster note. In his second
statement, Malinski told police that Lori’s blood was in his house. One
bloodstain from Malinski’s bedroom carpet was determined to be human blood.
It appeared the stain had been washed.

The Polaroids also suggest that Lori was murdered and that Malinski
was the person who killed her. In those pictures, Lori is partially nude,
handcuffed, and has her legs tied up. The expert testimony of Dr. Prahlow
was that the photos demonstrate that Lori was an unwilling participant and
that she appeared to be incapacitated, unconscious, or dead in the
pictures.

There is also the cellmate’s testimony that Malinski asked him to
destroy some pictures of Lori when he got out of jail because they were bad
photos and he would get in trouble if anybody saw them. Malinski told him
that they showed Lori in handcuffs. If believed, the note and the
circumstantial evidence were sufficient to convict Malinski of murder.

Malinski says he provided an innocent explanation for Lori’s
disappearance--that Lori and he planned to run away together, but that she
ultimately left on her own because Malinski had a change of heart. The
jury was not required to believe Malinski’s account of the events.

Malinski further argues that there is insufficient evidence to support
his convictions because the body of the alleged victim has never been
recovered. But production of the victim's body is not required in a murder
prosecution if circumstantial evidence shows that death did occur.
Campbell v. State, 500 N.E.2d 174, 179 (Ind. 1986). There was ample
evidence from which the jury could determine that Lori had in fact been
killed. The circumstantial evidence was adequate to allow a jury to
conclude beyond a reasonable doubt that Malinski murdered Lori Kirkley.

Conclusion

We affirm the judgment of the trial court.

DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] See also State v. Reed, 627 A.2d 630 (N.J. 1993) (when attorney is
present or readily available to assist suspect, communication of that
information to suspect is essential to making valid waiver); People v.
Bender, 551 N.W.2d 71 (Mich. 1996) (Michigan constitution requires police
to inform suspect that retained attorney is immediately available to
consult with him; duty to inform serves as an effective prophylactic rule
protecting Michigan’s constitutional privilege against self-incrimination
and right to counsel).
[2] See also People v. McCauley, 645 N.E.2d 923 (Ill. 1994) (Illinois due
process and right to counsel clauses violated where police refused to allow
attorney to speak with client in custody or failed to inform suspect that
his attorney was present).
[3] See also Haliburton v. State, 514 So.2d 1088 (Fla. 1987), cert. denied
(failure to notify a suspect of attorney’s calls and presence at the police
station violates the due process clause of the Florida Constitution).
[4] See also Batchelor v. State, 189 Ind. 69, 125 N.E. 773 (1920)
(endorsing defendant’s right to counsel in pretrial proceedings); Speight
v. State, 239 Ind. 157, 155 N.E.2d 752 (1959) (right to counsel in juvenile
cases).
[5] See Escobedo, 378 U.S. at 487 (“it ‘would be highly incongruous if our
system of justice permitted the district attorney, the lawyer representing
the State, to extract a confession from the accused while his own lawyer,
seeking to speak with him, was kept from him by the police’”); Miranda, 384
U.S. at 457 (“[t]his atmosphere carries its own badge of intimidation”).
[6] It is contradictory to say that evidence that Lori was unhappy in her
marriage and surroundings does not raise character issues, but that
evidence that she was happy does so. If it is true that Malinski’s claims
do not implicate Lori’s character, then neither does the State’s evidence.
[7] Ind. Evidence Rule 702. Testimony by Experts:
(a) If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training or education, may testify thereto in the form of
an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is
satisfied that the scientific principles upon which the expert
testimony rests are reliable.