ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS M. BREEN STEVE CARTER
TODD SELBY PUGH Attorney General of Indiana
Thomas M. Breen & Assoc.
JOHN E. MARTIN ARTHUR THADDEUS PERRY
Tsoutsouris & Bertig Deputy Attorney General
Valparaiso, Indiana Indianapolis, Indiana
DAVID F. MALINSKI, ) ) Appellant (Defendant Below ), ) ) 64S00-0004-CR-287 v. ) in the Supreme Court ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
September 3, 2003
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 counsels presence,
but conclude under the totality of the circumstances that this failure does not
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 Loris Explorer
backed up and left leaving the garage open.
When Loris 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, Theres a gun pointed
at your head. (R. at 2576-77.) Loris blood was found on
a butter knife and on the kitchen floor. The bedroom had been
ransacked and Loris underwear drawer emptied. The police found an earring under
the refrigerator, and a lens from one of Loris 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 Loris 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 Loris 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, Im sorry about your wife. She wouldnt 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 Loris 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 Malinskis desk in an office at his
workplace. On July 24th, Loris 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 Loris 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 Loris
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.
Malinskis 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, Malinskis 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
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 Malinskis hand and body, which were photographed.
Malinskis 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 Malinskis 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 Malinskis residence, which reflected a detailed plan to burglarize
the Kirkley house. The Macintosh note speaks of monitoring Loris activities, arranging
to take her garage door opener and the key to her house, surrepiticiously,
and learning to override the Kirkleys 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 Malinskis 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 Malinskis 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 Malinskis 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 Sheriffs Department removed and photocopied a number of documents from Malinskis
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 Malinskis rights under the U.S. Constitution. The motion
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
A. Current Status of a Custodial Suspects Right to be Informed About
Attorneys Presence. The Fifth and Fourteenth Amendments of the U.S. Constitution as
well as article I, section 14 of the Indiana Constitution guarantee a defendants
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.
In Moran v. Burbine, 475 U.S. 412 (1986), the Supreme Court examined the
validity of a defendants 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 defendants 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 defendants 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 attorneys 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 suspects 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
attorneys call. Id.
Ajabu contended that his section 14 privilege against self-incrimination was violated because the
police did not inform him of his attorneys efforts to speak to him
before the interrogation took place. Id. at 927. We adopted the
reasoning in Burbine and held that Indianas 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,
We addressed only obliquely the possible application of Indianas 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 13s 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 courts 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.
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 counsels in-person efforts to contact him in order for
there to be a knowing and fully voluntary waiver of the suspects 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)).
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 Connecticuts 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 counsels efforts. Id. at
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.
Burbine and Ajabu, the attorney telephoned the station. Malinskis attorney
was present at the station when he unsuccessfully made repeated attempts to reach
him. (Appellants 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. (Appellees 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. (Appellees Br. at 14.)
We have on other occasions concluded that section 13 affords Indianas 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).
In light of Indianas 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
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.
See footnote 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 attorneys 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 suspects 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 counsels 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
counsels request, conduct of the suspect, nature of counsels 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 Malinskis 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 lawyers request
than would be the case if the request came from someone he already
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 Loris disappearance. Such detailed accounts demonstrate
a willingness on Malinskis 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 Malinskis 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
Thus, numerous factors weigh in favor of finding a knowing, voluntary, and intelligent
waiver. In light of all the circumstances, we conclude that Malinskis ignorance
of Martins presence did not convert his waiver into one that was involuntary.
The trial court did not err in denying Malinskis motion to suppress
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 Malinskis constitutional claims despite a dispute about how the documents were
packaged when copied. Instead, the court found that the prosecutions actions amounted
to a blatant violation of the courts 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 Defendants 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.
While the trial court did not specifically address Malinskis 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
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 courts 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 courts 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 States 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.) Malinskis wife told the authorities
there was such a room covered with photographs. (R. at 1850-51.)
Prior to September 7th , the police recovered from Malinskis 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 Malinskis 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 prosecutions 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 Malinskis 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 Malinskis stuff. (R. at 1882.)
We conclude that the State did not gain any significant advantage from copying
Malinskis 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 courts 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.
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)
See footnote Federal case law interpreting the Federal Rules of Evidence
is not binding upon the determination of state evidentiary law.
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.
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. Prahlows testimony,
who intended to testify for the State regarding his opinion of Lori Kirkleys
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 Loris 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
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 womans 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. Prahlows 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 Malinskis 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. Prahlows testimony regarding Loris 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.
Prahlows 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.
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,
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. Loris 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 Malinskis 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 murderers finger, and dental examination of an injury to Malinskis finger confirmed a human bite, although the tip was not completely bitten off. The bite mark on Malinskis 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 Loris blood was in his house. One bloodstain from Malinskis
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 cellmates 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 Loris 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 Malinskis 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.
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.