Malloch v. State

• Decision Date: 21 December 2012
• Docket Number: No. 17A03–1201–CR–37.,17A03–1201–CR–37.
• Citation: 980 N.E.2d 887
• Parties: Steven E. MALLOCH, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

980 N.E.2d 887

Steven E. MALLOCH, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 17A03–1201–CR–37.

Court of Appeals of Indiana.

Dec. 21, 2012.

Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Richard Kammen, Mary Spears, Kammen Maryan & Moudy, Indianapolis, IN, Attorneys for Appellant.

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 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 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 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.

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 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

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