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A man whose attorney failed to call two key experts in his child molesting trial failed to convince the Court of Appeals of Indiana that his attorney performed deficiently.
The case dates back to 1998, when appellant-petitioner Steven Malloch was living with Anita Malloch and her 4-year-old daughter, C.P.
C.P. had regular parenting time with her biological father, but she called Malloch her “dad.”
In 2003 and 2004, two incidents occurred in which Malloch sexually touched C.P. while he appeared to be sleeping.
When the incidents came to light, Malloch was charged with two counts of child molesting, one as a Class A felony and the other as a Class C felony. The Class C felony was later dismissed.
The DeKalb Superior Court held Malloch’s first jury trial in June 2011, but he didn’t present any expert testimony and the jury deadlocked. The trial court declared a mistrial and a new trial was rescheduled for September.
Before the rescheduled trial, the parties took a discovery deposition of Dr. Neeraj Kaplish, a physician and clinical assistant professor at the University of Michigan who testified that “sexsomnia” — sexual activity while a person is asleep — is a type of parasomnia, like sleepwalking.
When Malloch’s trial counsel, John Bohdan, learned that Kaplish couldn’t make it to the trial, he moved for a continuance. The trial court denied the motion because the attorney failed to follow the proper procedure for subpoenaing an out-of-state witness.
At the second trial, the defense focused on the arguments that Malloch was coerced into giving a false confession and that he was asleep when he inappropriately touched C.P.
The jury returned a guilty verdict, and Malloch was sentenced to 28 years in the Indiana Department of Correction plus two years suspended to probation.
Malloch’s conviction was upheld on direct appeal, so he filed a petition for post-conviction relief. He claimed he received ineffective assistance of counsel because Bohdan failed to investigate characteristics that made Malloch more vulnerable to a false confession and failed to procure an expert on sexsomnia.
At an evidentiary hearing, Dr. Michael Cramer Bornemann testified that sexsomnia is an internationally recognized parasomnia.
As for Malloch’s false confession argument, Dr. Deborah Davis of the University of Nevada testified that the Reid Technique, which had been used in Malloch’s interrogation, first came under heavy scrutiny in the 1990s. Davis opined that the officer who interrogated Malloch intended to make him feel hopeless and as though he only had two options.
Finally, Bohdan said he “used some of the information” he received from a coerced confession expert in Malloch’s defense, but he had never used a false confession expert in the 250 criminal cases he had tried. He also described Kaplish as “not terribly cooperative,” and he said Bornemann had indicated before trial that he wouldn’t be able to help.
The post-conviction court denied Malloch’s petition, prompting the instant appeal.
Malloch first argued that the post-conviction court erred when it determined Bohdan did not provide ineffective assistance when he did not present expert testimony regarding the susceptibility of individuals to give false confessions.
But according to the COA, “Attorney Bohdan placed before the jury the theory that Malloch’s confession was false and the result of police pressure. He made the strategic decision to advance this theory through his cross examination of Detective (Donald) Lauer and through Malloch’s own testimony rather than through proffering an expert witness,” Judge Melissa May wrote. “This was a reasonable tactical decision, and we hold that Attorney Bohdan did not perform deficiently in choosing not to call an expert witness on the subject of false confessions.”
As for Malloch’s argument that Bohdan should have called a sleep expert, the COA determined Bohdan was not deficient by failing to call Bornemann.
“Because Attorney Bohdan consulted with Dr. Bornemann and Dr. Bornemann indicated he could not provide a supportive opinion, we cannot say Attorney Bohdan performed deficiently by not calling Dr. Bornemann to testify at Malloch’s trial,” May wrote.
However, “Given that attempting to secure Dr. Kaplish’s testimony was the only strategic change between Malloch’s first trial and his second trial and that Attorney Bohdan recognized the need to secure Dr. Kaplish’s testimony soon after the end of the first trial, Attorney Bohdan should have immediately begun the process of attempting to either secure Dr. Kaplish’s testimony by subpoena or arranging an evidentiary deposition of Dr. Kaplish. Ultimately, neither of those two things happened.”
“However, we cannot say Attorney Bohdan’s unsuccessful effort to secure Dr. Kaplish’s testimony amounted to constitutionally deficient performance,” the COA continued. “… (G)iven Dr. Kaplish’s reluctance to testify and the limited value of his testimony, we hold Attorney Bohdan did not perform deficiently in not calling Dr. Kaplish to testify at Malloch’s trial.”
Chief Judge Robert Altice and Judge Cale Bradford concurred in Steven E. Malloch v. State of Indiana, 22A-PC-2053.
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