Steven E Malloch v. State of Indiana ( 2023 )

FILED
Nov 16 2023, 9:05 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lisa Johnson Theodore E. Rokita
Brownsburg, Indiana Indiana Attorney General
Indianapolis, Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven E. Malloch, November 16, 2023
Appellant-Petitioner, Court of Appeals Case No.
22A-PC-2053
v. Appeal from the DeKalb Superior
Court
State of Indiana, The Honorable Monte L. Brown,
Appellee-Respondent Judge
Trial Court Cause No.
17D02-1401-PC-000001
Opinion by Judge May
Chief Judge Altice and Judge Bradford concur.
May, Judge.
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 1 of 37
[1] Steven E. Malloch appeals following the denial of his petition for post-
conviction relief. Malloch presents one issue, which we revise and restate as
whether the post-conviction court erred when it determined Malloch’s trial
counsel did not provide ineffective assistance when he did not present expert
testimony regarding:
1. the susceptibility of individuals to give false confessions; and
2. a sleep disorder called sexsomnia.
We affirm.
Facts and Procedural History
[2] On direct appeal, we recited the pertinent facts regarding Malloch’s underlying
criminal conviction as follows:
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.
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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.” 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
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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.” 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.
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.” 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.” 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.’” Detective Lauer asked Malloch about a
polygraph test, and Malloch responded that he would be willing
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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.” 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.” 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.”
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.” 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.” 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
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 5 of 37
what we need to talk about, because, like I said, I’ve got to
figure out what kind of guy is Steve.
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.” 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., [sic] And, you were awake, don’t tell me
you—because, you—you—
MR. MALLOCH: I—I—the hand in the shirt, yes.
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.
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 6 of 37
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.
Later on, Detective Lauer asked Malloch how long his finger was
in C.P.’s vagina, which led to Malloch saying for the first time
that he was awake at the time, but which he then appeared to
take back:
DETECTIVE: How long was your finger inside of her?
MR. MALLOCH: Two seconds, three seconds.
DETECTIVE: Okay. And, how do you know that?
MR. MALLOCH: I just—well, I mean, because I—when
I—I still believe that I woke up from it. I—I understand
you don’t believe it, but—and—and, I don’t know how I
need-how I get that—or, how I get it out of myself, that I
wasn’t asleep.
DETECTIVE: Maybe you’ve tried to convince yourself all
these years that you—you were (sic) awake, that was a
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conscious decision. That doesn’t happen—that doesn’t
happen.
MR. MALLOCH: It happens to my wife, or with me and
my wife.
DETECTIVE: I’ve talked to your wife. It doesn’t happen
in your sleep. Your wife doesn’t believe it. I mean, I’m
sorry to tell you that—that she doesn’t. Nobody’s gonna
believe that—that story. And, what that—what that shows
is, a young man unwilling to accept responsibility, that’s
what that says to me, that’s what I recognize. And, all I
want you to do here is tell the truth.
MR. MALLOCH: Okay.
DETECTIVE: That’s all I want, is the truth. And—and we
investigate—
MR. MALLOCH: I laid down with her, and after she was
asleep for a while, put my hand down her pants and
touched her.
DETECTIVE: And, how long did you do that?
MR. MALLOCH: A few seconds.
DETECTIVE: Why just a few seconds?
MR. MALLOCH: Because, I—reality kicked in.
DETECTIVE: Was it that you woke up?
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MR. MALLOCH: Well, see that’s what—
DETECTIVE: Yeah, I—I think you’re just playing games
here.
MR. MALLOCH: Well, I—
DETECTIVE: I’m not trying—I’m not trying to tell you—
MR. MALLOCH:—you’re trying to tell me what I need to
say.
DETECTIVE: No, I’m not tell—I will not tell you what to
say. I am telling you, tell the truth.
Malloch claimed he was telling the truth. Detective Lauer stated
that he had to determine whether Malloch was a pedophile or a
pervert or whether he was a guy who made a mistake. When
Malloch continued to say he was asleep, Detective Lauer called
the claim “hogwash.” He also said that Malloch was “not man
enough to accept responsibility.” Soon after, Detective Lauer told
Malloch he could tell his story to a jury, and Malloch admitted
for a second time that he was awake when he put his finger in
C.P.’s vagina:
DETECTIVE: That may be what you’ve tried to convince
yourself all this time, but—and, I’ll tell you what, Steve,
I’m not gonna spend much more time here listen—
listening to this, because I will just arrest you and you can
go into court and you can tell 12 people—first of all, you
can make your daughter get up and testify against you,
and then you can tell 12 people, ‘Yes, I was sleeping, and I
woke up, and my hand was inside her vagina. Oh, and by
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the way, I also stuck my hand up her shirt to make sure
she had breasts.’
MR. MALLOCH: And, so I laid down with her, and
woke up, put my hand down her pants, realized it was
wrong, pulled my hand out, and she woke up at that point
and kicked me out of bed.
DETECTIVE: Is that true, or are you just trying to—I
want to know what the truth is. I don’t want to put words
in your mouth, I want to hear you tell me what happened,
what was going through your head when that happened.
Because, that’s what’s important, what’s going on up
here—
MR. MALLOCH: Right.
DETECTIVE: —and what’s going on right now are the
important things. Whether you’re man enough to accept
responsibility, and show a judge that you’re remorseful,
and how you show remorseful is by saying, ‘Yes, this is
what I did, it’s never gonna happen again, I learned my
lesson.’
However, Malloch later indicated that he was asleep: “I
remember laying down, with my back to her, and I remember
waking up, pulling my hand out of her pants, and getting kicked
on to the floor, and then getting into my bed. I can’t remember
the—initiating it. I cannot remember that.”
When Malloch continued to insist that he could not remember
consciously putting his finger in C.P.’s vagina, Detective Lauer
said, “You know why you can’t remember it . . . it’s dawning on
me now, because you’re one of the one percenter guys.” He also
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said, “You don’t have the stones to say it, that’s the problem.” At
the conclusion of the interview, Detective Lauer arrested
Malloch and told him he would come back in if Malloch wanted
to talk further. The entire first interview was about an hour and
twenty-five minutes.
Detective Lauer turned Malloch over to Jeremy Heffelfinger, the
intake officer, and had nothing to do with where he was placed in
the jail. It took about an hour for Malloch to go through the
intake process and make a phone call. Heffelfinger then placed
Malloch twenty feet from his desk in a cell with Jeffrey Cain, an
accused murderer. Heffelfinger placed Malloch there so he could
monitor any shock Malloch might have from being in jail for the
first time and being charged with a severe crime. It was also the
only available space. Although one other holding cell had just
one man in it, that person was a trouble maker, which was in
stark contrast to Cain, who had never caused any problems in the
year and a half that he was at the jail.
Heffelfinger monitored Malloch the entire time he was in the cell.
He did not notice any problems or tension between Malloch and
Cain, and neither inmate indicated there were any problems.
About four hours after Malloch’s first interview ended, Cain got
Heffelfinger’s attention and said that Malloch wanted to speak
with him. Malloch asked to speak with Detective Lauer.
Malloch was escorted out of the jail and back to Detective
Lauer’s office. Detective Lauer again read Malloch his Miranda
rights, and Malloch indicated that he understood them. Malloch
then asked if he was “best advised to speak to a lawyer.”
Detective Lauer said that it was Malloch’s decision and that he
could not guide him one way or the other. After a brief
discussion, Malloch said, “I’ll talk.” Detective Lauer was not
accusatory during this second interview. Malloch said that he
had “not good thoughts” about C.P. since 2003. He then
admitted he was awake and consciously fingered C.P.:
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MR. MALLOCH: But, it happened to be—yeah, I didn’t
want to hurt her, she happened to be asleep, and I failed to
control myself.
DETECTIVE: So, can you tell me then what happened
that particular day?
MR. MALLOCH: I remember—yeah, laying down—
falling asleep, waking up, and this has come to me as I’m
laying out there, put my—curious, or whatever, put my
hand down there, she stirred, pulled my hand out, and
then had gotten kicked out of the bed.
Detective Lauer gave Malloch an opportunity to write C.P. a
letter of apology.
The State charged Malloch with two counts of child molesting,
one as a Class A felony and one as a Class C felony. In
December 2010, Malloch moved to dismiss the Class C felony on
the basis that it was filed beyond the statute of limitations period
and moved to suppress his statements to Detective Lauer on the
basis that they were involuntarily made. After a hearing, the trial
court dismissed the Class C felony and denied the motion to
suppress.
Malloch v. State, 980 N.E.2d 887, 892-97 (Ind. Ct. App. 2012) (internal Record
citations and footnote omitted), trans. denied. The trial court held Malloch’s first
jury trial in June 2011. Malloch did not present any expert testimony during
the first jury trial, and the jury deadlocked. The trial court declared a mistrial
and immediately scheduled Malloch’s retrial for September 12, 13, and 14,
2011.
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[3] On September 1, 2011, the parties took a discovery deposition of Dr. Neeraj
Kaplish, a physician and clinical assistant professor at the University of
Michigan, in Ann Arbor, Michigan. An associate general counsel with
University of Michigan Health Systems represented Dr. Kaplish during the
deposition. Dr. Kaplish testified regarding his curriculum vitae. He had
completed two fellowships in sleep medicine and published on the topics of
parasomnias and narcolepsy. He also explained that parasomnias “are
unprovoked, unpleasant, complex motor behaviors that can occur out of sleep.”
(D.A. State’s Ex. 1 at 38.) 1 For example, Dr. Kaplish observed that
sleepwalking is an example of a parasomnia, and he explained that certain
conditions, like sleep apnea, predispose someone to experience parasomnia.
He also stated that sexsomnia is another type of parasomnia, and he described
sexsomnia as “behavior at upper level sleep [that] has sexual connotation.” (Id.
at 10.) The activity “could range from sexual frantic moaning and groaning, to
self-stimulation, to sexual assault and sexual intercourse.” (Id. at 34.) Dr.
Kaplish also explained that while he had read peer-reviewed articles about
sexsomnia, he had not published on the topic, nor had he conducted any
studies regarding sexsomnia. Dr. Kaplish’s knowledge was limited to his
review of the literature, and he did not know whether scientists had observed
sexsomniac behavior in a lab setting or whether any rate of error had been
1
This citation refers to State’s Exhibit 1 in the record of Malloch’s direct appeal and entered into evidence by
the State during the September 9, 2011, hearing on Malloch’s motion to continue his trial. Page number
citations are to the page numbers listed on the deposition transcript.
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established for the diagnosis. Dr. Kaplish also was not aware of what
percentage of the general population had been diagnosed with sexsomnia.
[4] Dr. Kaplish reported he had consulted with Malloch for the first time in
February of 2010 after Malloch’s doctor in Fort Wayne referred Malloch to Dr.
Kaplish. Dr. Kaplish ordered that Malloch undergo two sleep studies and
found that Malloch had sleep apnea. Dr. Kaplish subsequently diagnosed
Malloch with sexsomnia. Dr. Kaplish explained that Malloch was the only
patient he had ever diagnosed with sexsomnia. Dr. Kaplish also acknowledged
he relied on the personal history Malloch relayed to him in diagnosing Malloch
and his diagnosis could be incorrect if Malloch had lied to him.
[5] Malloch’s trial counsel, John Bohdan, asked Dr. Kaplish if he received the
Indiana subpoena Attorney Bohdan had sent him regarding Malloch’s trial.
Dr. Kaplish acknowledged receipt of the subpoena, but he stated he was not
sure if he would be available to testify at the time of Malloch’s trial. Dr.
Kaplish’s attorney conveyed he would keep Attorney Bohdan apprised of Dr.
Kaplish’s availability.
[6] Once Attorney Bohdan definitively learned Dr. Kaplish was not available to
testify at Malloch’s trial, he filed a motion to continue the second trial. During
a hearing on the motion on September 9, 2011, Attorney Bohdan explained he
filed the continuance because Dr. Kaplish was unavailable to testify, and Dr.
Kaplish had “offered the diagnosis that Steven Malloch does experience
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parasomnia and specifically sexsomnia[.]” (D.A. Tr. Vol. I at 185.) 2 Attorney
Bohdan described Dr. Kaplish’s testimony as “critical[.]” (Id.) He observed:
[W]e had roughly ninety (90) days between the last trial and the
currently scheduled trial and very early on in that process . . . as
Mr. Malloch and I assessed what had happened in the first trial
and assessed how to approach it in the second trial it became
clear to us that the testimony of Dr. Kaplish . . . is more than
adjunct or some little corollary testimony, it has a real value and
a real importance in this case. He had been previously identified
as a potential witness. Obviously, he wasn’t called in the first
trial . . . but we made the decision then that we need to call him
in the second trial.
(Id. at 186.) Attorney Bohdan noted that Dr. Kaplish’s deposition for discovery
purposes occurred on September 1, 2011, and he stated that “at that time and
pretty much almost every business day since that deposition I have struggled . .
. to try to . . . get an answer as to availability for a live appearance at trial in this
cause or in the alternative to coordinate an evidentiary deposition.” (Id. at
187.) The State opposed Malloch’s motion to continue. The State summarized
the confession Malloch gave to Detective Lauer, and the State pointed to
portions of Dr. Kaplish’s deposition testimony where Dr. Kaplish admitted the
limits of his knowledge about sexsomnia. The State also noted that Dr. Kaplish
lived and practiced in Michigan and Attorney Bohdan failed to follow the
2
We will refer to the Transcript produced for Malloch’s direct appeal of his conviction as “D.A. Tr.” In
contrast, we will designate the Transcript produced from Malloch’s post-conviction proceedings as simply
“Tr.”
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proper procedure for subpoenaing an out-of-state witness. The trial court
denied Malloch’s motion to continue.
[7] Malloch’s second trial began on September 12, 2011. In his opening statement,
Attorney Bohdan laid out Malloch’s theory of the case, which was that Malloch
“was badgered, pressured, tricked, cajoled, and coerced” into giving a false
confession, (D.A. Tr. Vol. II at 351), and that he was asleep when his hand
penetrated C.P.’s vagina. Attorney Bohdan explained:
The evidence will show that the statements that the State seeks to
build its case around . . . were not voluntary, were not valid and
were not true and you’ll be able on seeing these to see the signs
that show you how that is possible, how that came to be. It will
show these statements to be products of a clever interviewing
technique. The State tells you well, this is generally referred to as
[Reid] techniques of interviewing. You’ll see the evidence that
whether intentionally done or not these techniques produce
unreliable, inaccurate and untrue statements.
(Id. at 357.)
[8] C.P. testified that when she was approximately eleven years old, she lay down
with Malloch in a twin bed after watching a scary movie and fell asleep. She
“woke up with his hand in [her] underwear and his finger in [her] vagina.” (Id.
at 374.) “[C.P.] looked at him and his eyes were shut and then [C.P.] removed
his hand from [her] underwear.” (Id. at 375.) C.P. then left the twin bed and
slept the rest of the night next to her brother in her brother’s bed.
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[9] Detective Lauer testified that he employed the Reid Technique in interrogating
Malloch. The State played videos of Detective Lauer’s interrogations of
Malloch for the jury, and Attorney Bohdan questioned Detective Lauer about
his interrogations of Malloch. During this questioning, Detective Lauer
admitted he challenged Malloch’s statements that he did not remember
inserting his finger into C.P.’s vagina or that he was asleep when it occurred,
but Detective Lauer did not challenge Malloch’s statements when Malloch
stated he was awake. Attorney Bohdan also questioned Detective Lauer about
discrepancies between what C.P. said happened and Malloch’s confession. In
addition, Attorney Bohdan asked Detective Lauer about his training in the Reid
Technique, and Detective Lauer explained: “To be honest, I don’t think in the
class we spent a whole lot of time on false confessions.” (Id. at 492.) Detective
Lauer also testified that his understanding was that “false confessions are
typically . . . done by people who are mentally ill or a very low IQ[.]” (Id.)
[10] Malloch testified that he generally slept in the same bed as his wife, Anita
Malloch. He explained:
[Attorney Bohdan:] Specifically as to what you would have
personal knowledge, not what somebody else may have told you,
uh, what do you know about your own practice or habits when it
comes to touching your wife?
[Malloch:] I have woken up, uh, you know, again, I was messing
around with her vagina, uh, and when I would wake up to that I
[sic] would usually lead to intercourse or, um, and go back to
sleep.
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(D.A. Tr. Vol. III at 550.)
[11] With respect to the incident in which Malloch’s finger penetrated C.P.’s vagina,
Malloch testified:
Um, I recall waking up and my recollection is, uh, waking up
and my hand was, realizing that it was [C.P.] that I was next to,
my hand was down her pants and my finger was touching her
female sex area. Uh, and pulling my hand out and I remember
getting kicked out of bed.
(Id. at 553.) Malloch denied intentionally touching C.P.’s vagina. Malloch
stated that when he tried to explain to Detective Laurer that he was asleep
when he touched C.P., Detective Laurer did not believe him, and he described
the interrogation as “very emotionally draining and physically draining[.]” (Id.
at 563.) Malloch testified that he was “in shock” after being arrested and felt
“[h]umiliated.” (Id. at 567.) Malloch further explained:
[Attorney Bohdan:] Why did you ask to speak to [Detective
Lauer] again?
[Malloch:] Cause I didn’t want to be, I didn’t want to be
classified as this one percenter. I didn’t want, uh, I felt in order
to not be this one percenter, to because he wasn’t going to write
in a report that I was this good guy that, uh, made a mistake and
give that to the Prosecutor instead he’d write that I denied
everything and he’s this bad guy, um, I wanted my report to be
favorable.
(Id. at 572-73.) Malloch testified that he believed he suffered from sexsomnia.
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[12] Anita Malloch stated that Malloch “will fondle [her] vagina or [her] vaginal
area in the night while we are asleep.” (Id. at 636.) Anita Malloch testified that
she initially told Detective Lauer she was not sure she believed Malloch’s claim
that he was asleep when he fingered C.P. because she “was convinced that day
by [her] counselor that it cannot happen in your sleep and that [she] should be
concerned for [her] boys.” (Id. at 674.)
[13] The jury returned a guilty verdict, and the trial court held Malloch’s sentencing
hearing on November 28, 2011. The trial court sentenced Malloch to a term of
thirty years. The trial court ordered Malloch to serve twenty-eight years in the
Indiana Department of Correction, and the trial court suspended the remaining
two years of his sentence to probation.
[14] Malloch appealed his conviction and raised five issues in his direct appeal:
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.
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 19 of 37
V. Whether the State committed prosecutorial misconduct
amounting to fundamental error.
Malloch, 980 N.E.2d at 892. We held the trial court did not abuse its discretion
in denying Malloch’s motion to continue the trial because there was no
evidence Dr. Kaplish “was ever properly subpoenaed” and Dr. Kaplish “would
not commit to appearing at trial.” Id. at 898. We also noted the crime had
occurred seven years before the scheduled trial date and the trial court could not
easily reschedule the trial due to court congestion. Id. We further held
Detective Lauer properly advised Malloch of his rights pursuant to Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), prior to interrogating him and
Malloch did not make an unambiguous and unequivocal invocation of his right
for counsel. Malloch, 980 N.E.2d at 900-01. We concluded Malloch’s
statements were voluntary under both the federal and state constitutions. Id. at
903. Likewise, we held the trial court did not err in admitting the apology letter
Malloch wrote to C.P. Id. at 905. Lastly, we held two improper statements
made by the State during its closing argument did not constitute fundamental
error. Id. at 911.
[15] On January 31, 2014, Malloch filed a petition for post-conviction relief and he
filed an amended petition for post-conviction relief on April 18, 2019. Malloch
alleged he received ineffective assistance of trial counsel because his attorney
“failed to investigate the personal and psychological characteristics that made
Mr. Malloch more vulnerable than other individuals to having given a false
confession,” (App. Vol. II at 56), and “failed to hire or procure an expert able to
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 20 of 37
educate the jury regarding the sleep disorder that was Mr. Malloch’s principle
defense, particularly as that disorder related to Mr. Malloch’s interrogation.” 3
(Id. at 58.)
[16] The post-conviction court held a bifurcated evidentiary hearing regarding
Malloch’s petition on June 21, 2021, and January 28, 2022. Malloch called Dr.
Michael Cramer Bornemann as an expert witness at the evidentiary hearing.
Dr. Bornemann, a physician and former assistant professor of neurology and
internal medicine at the University of Minnesota, explained that parasomnias
are “the unwanted and inappropriate . . . experiences or behaviors that arise
from the platform of sleep.” (Tr. Vol. II at 11.) Common parasomnias include
nightmares, sleepwalking, and sleep talking, but they “can also involve a
complex set of behaviors that can have clinical or . . . forensic complications.”
(Id.) Parasomnias result from “electrical switching errors” in the brain. (Id. at
25.) A parasomnia is “essentially, a neurologic condition and not a psychiatric
condition as Freud might lead us to believe.” (Id. at 14.) Dr. Bornemann
testified that sexsomnia or “sleep related abnormal sexual behavior” is an
internationally recognized parasomnia. (Id. at 30.) He explained that “stress
and anxiety” and “sleep deprivation” make sexsomnia more likely, (id. at 32),
and an experienced health care provider is necessary to properly diagnose the
3
Malloch also asserted in his petition that his trial counsel was ineffective because he did not object to
statements made by the prosecutor during the State’s closing argument and that Malloch was entitled to post-
conviction relief because several jurors lied during voir dire. However, Malloch does not challenge on appeal
the post-conviction court’s rulings against Malloch on these claims.
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 21 of 37
condition. Dr. Bornemann also testified on cross-examination by the State that
he would be “concerned” if someone claiming to have suffered from sexsomnia
had admitted to previously touching an underage girl’s bare breast. (Id. at 44.)
[17] Dr. Deborah Davis, a psychology professor at the University of Nevada and
faculty member at the National Judicial College, also testified at the evidentiary
hearing regarding her research into the psychology behind false confessions.
Dr. Davis explained DNA evidence has exonerated many individuals who gave
false confessions and, more than once, multiple individuals confessed to a crime
that only one person committed. She described how certain interrogation
tactics lead to false confessions. She explained that an individual might falsely
confess because of feelings of stress and a need to escape. In addition, someone
might make a false confession if the interrogator convinces the person that
confession is in the person’s best interest or if the person is overly deferential
toward authority figures. Dr. Davis explained that the Reid Technique was at
one time the most popular interrogation technique used by law enforcement,
but that psychologists began heavily criticizing the method in the 1990s. Dr.
Davis explained that while the characteristics of youth, low intelligence, and
mental illness may make an individual more vulnerable to giving a false
confession, even people with “IQ’s [sic] higher than Einstein” have been proven
to have falsely confessed. (Id. at 133.)
[18] Dr. Davis opined that Detective Lauer intended to make Malloch feel hopeless
by characterizing Malloch’s claim to have been asleep as “ridiculous” and
saying “nobody’s gonna (sic) believe it.” (Id. at 89) (parenthetical in original).
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 22 of 37
Dr. Davis noted that Detective Lauer presented Malloch with two options and
that each option assumed Malloch was guilty – “Steve the nice guy who made a
mistake” versus “Steve the one percenter (1%) molester who doesn’t care about
anybody and, you know, uh, [is] basically an evil person.” (Id. at 90.) Dr.
Davis also discussed how an interrogator employing the Reid Technique will
try to give a suspect “the illusion that this is a negotiation between the suspect
and the interrogator that’s gonna (sic) determine his fate.” (Id. at 92-93)
(parenthetical in original). Dr. Davis pointed out that Detective Lauer
suggested throughout the interrogation that he believed “Mr. Malloch is a nice
guy who made a mistake. Um, but he also refers to the threat part . . . you
know if you’re not gonna (sic) tell me the truth and just keep telling me this
ridiculous story, I’m just outta (sic) here[.]” (Id. at 99-100) (parentheticals in
original).
[19] Attorney Bohdan also testified during the evidentiary hearing. He explained
that he consulted with two experts regarding Malloch’s confession. Gerald
Ofshe, a person “widely recognized as a coerced confession . . . expert,” did not
produce a written opinion, but Attorney Bohdan “used some of the information
that he gave . . . as it related to responding to the confession issues in the case.”
(Id. at 153.) After the first trial ended in a hung jury, Attorney Bohdan
attempted to get Dr. Kaplish to testify at the second trial, but the trial court
refused Attorney Bohdan’s motion to continue and, ultimately, Attorney
Bohdan did not call any expert to testify during the second trial. Attorney
Bohdan testified:
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 23 of 37
[Malloch:] Um, did you believe, um, that having [an expert]
would have been in Mr. Malloch’s best interest?
[Attorney Bohdan:] Well, if you’re referring to Dr. Kaplish, um,
I don’t believe it would have harmed Mr. Malloch’s case, um, I
can only speculate as to how much it would have assisted us.
That particular witness was-I would characterize as a hybrid, uh,
fact expert witness. Um, he certainly has expertise in the
administration of sleep studies, um, but in terms of the, the
ultimate issue as to a diagnosis of parasomnia and sexsomnia,
which was, uh, the core argument in our defense, I don’t think he
was gonna (sic) be able to deliver that to us. But, but he could
assist in getting the ball closer to the goal.
(Id. at 155-56) (parenthetical in original). Attorney Bohdan also characterized
Dr. Kaplish as “not terribly cooperative.” (Id. at 156.)
[20] In addition, Attorney Bohdan consulted with Dr. Bornemann, but Attorney
Bohdan decided not to call him to testify. Regarding Dr. Bornemann, Attorney
Bohdan explained:
Um, there was- Mr. Malloch and I had enthusiasm for this
witness, uh, I would credit Steve with finding this gentleman.
Um, Steve was very involved in, uh, his defense and as I
understood it, he had actually located this gentleman, uh, had
communicated with him, um, and a [sic] preliminary indicators,
um, were good for us. Um, this doctor was aware of the results
of the sleep study, uh, which were supportive of a parasomnia
diagnosis. Uh, this doctor was provided, uh, by my office, at his
request, with copies of discovery materials, particularly, uh, the
interviews that were conducted by local law enforcement of Mr.
Malloch. Subsequent to his review of those, uh, records, um, I
had at least one (1) communication with him by phone and he
was indicating during that call, that he wasn’t gonna (sic) be able
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 24 of 37
to assist us given the nature of the statements in these interviews.
I told him that our contention was that-uh, particularly the, what
I’ll call the third interview, uh, which was the most damaging
interview, uh, that that was – our contention was that was a
coerced confession. That we were working, uh, to suppress that,
um, that particular statement, uh, was deemed problematic for
him to, to support us with an opinion. And that pretty much
colored my thinking in terms of the ability or inability to use him
as an expert witness in our case.
(Id. at 156-57.) Attorney Bohdan did not consult with Dr. Davis about false
confessions prior to either of Malloch’s trials. Attorney Bohdan testified that he
had never used a false confession expert in trying approximately 250 criminal
cases over the course of his career. On August 8, 2022, the post-conviction
court issued an order with findings of fact and conclusions of law denying
Malloch’s petition for post-conviction relief because Malloch had not received
ineffective assistance from Attorney Bohdan.
Discussion and Decision
[21] Our standard of review following the denial of a petition for post-conviction
relief is well-settled:
A post-conviction petition is not a substitute for an appeal, nor
does it afford a petitioner a super appeal. Post-conviction
proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct
appeal. As post-conviction proceedings are civil in nature, the
petitioner must prove his grounds for relief by a preponderance of
the evidence. A party appealing a post-conviction judgment
must establish that the evidence is without conflict and, as a
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 25 of 37
whole, unmistakably and unerringly points to a conclusion
contrary to that reached by the post-conviction court. Where, as
here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post-Conviction
Rule 1(6), we do not defer to the court’s legal conclusions, but
the findings and judgment will be reversed only upon a showing
of clear error—that which leaves us with a definite and firm
conviction that a mistake has been made.
Johnson v. State, 103 N.E.3d 704, 706-07 (Ind. Ct. App. 2018) (internal
quotation marks and citations omitted), trans. denied.
[22] The Sixth Amendment to the United States Constitution provides that in all
criminal prosecutions, a defendant is entitled “to have the assistance of counsel
for his defense.” U.S. Const., Am. VI. This constitutional protection requires
counsel’s assistance be effective. Strickland v. Washington, 466 U.S. 668, 686,
104 S. Ct. 2052 (1984), reh’g denied. We presume trial counsel provided
effective assistance, and the petitioner must present strong evidence to rebut
that presumption. McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012),
trans. denied. “Isolated poor strategy, inexperience, or bad tactics does not
necessarily constitute ineffective assistance of counsel.” Id. Rather, the
petitioner must show both that his trial counsel’s performance was deficient and
that he was prejudiced by the deficiency. Id. at 75. “When evaluating a
defendant’s ineffective-assistance-of-counsel claim, we apply the well-
established, two-part Strickland test. The defendant must prove: (1) counsel
rendered deficient performance, meaning counsel’s representation fell below an
objective standard of reasonableness as gauged by prevailing professional
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 26 of 37
norms; and (2) counsel’s deficient performance prejudiced the defendant[.]”
Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019) (internal citation omitted).
“To demonstrate prejudice, the defendant must show a reasonable probability
that, but for counsel’s errors, the proceedings below would have resulted in a
different outcome.” Gibson v. State, 133 N.E.3d 673, 682 (Ind. 2019), reh’g
denied, cert. denied, 141 S. Ct. 553 (2020).
1. False Confession Expert
[23] Malloch asserts he was deprived of effective assistance of counsel when
Attorney Bohdan failed to call an expert witness on false confessions. He notes
that such expert witnesses were utilized by the defendants in both Miller v. State,
770 N.E.2d 763, 774 (Ind. 2002) (holding trial court committed reversible error
by excluding testimony from a psychological expert on coerced confessions),
and Shelby v. State, 986 N.E.2d 345, 369 (Ind. Ct. App. 2013) (observing “that
experts may testify on the general subjects of coercive police interrogation and
false or coerced confessions”). Malloch contends “most lay people are not
aware that false confessions happen. They do not understand the psychology
behind modern police interrogation tactics or the ways in which those tactics
can produce false confessions.” (Appellant’s Br. at 43) (internal footnote
omitted). Therefore, he asserts “the jury was likely to view Malloch’s
confession as extremely compelling proof of guilt. Expert testimony, regarding
false confessions and the reasons they occur, was essential to Malloch’s
defense.” (Id. at 44) (internal footnote omitted).
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 27 of 37
[24] However, when we evaluate a petition for post-conviction relief, we afford trial
counsel “considerable discretion in choosing strategy and tactics, and these
decisions are entitled to deferential review.” Bradbury v. State, 180 N.E.3d 249,
252 (Ind. 2022), cert. denied, 143 S. Ct. 261 (2022). The Sixth Amendment
requires reasonable competence, not a perfect trial strategy judged with the
benefit of hindsight. Id. “A decision regarding what witnesses to call is a
matter of trial strategy which an appellate court will not second-guess[.]” Brown
v. State, 691 N.E.2d 438, 447 (Ind. 1998). “Rare are the situations in which the
wide latitude counsel must have in making tactical decisions will be limited to
any one technique or approach.” Harrington v. Richter, 562 U.S. 86, 106, 131 S.
Ct. 770, 789 (2011) (internal quotation marks omitted).
[25] Attorney Bohdan explained in his opening statement that Malloch’s defense
was going to be that his confession was false. He stated: “Who would confess
to a crime they did not commit? Well, the evidence in this case is going to
show ladies and gentlemen, Steve Malloch did just that.” (Tr. Vol. II at 351.)
He argued the statements Malloch made in the second recorded interview
“were not voluntary, were not valid and were not true[.]” (Id. at 357.)
Attorney Bohdan described them as the “products of a clever interviewing
technique.” (Id.) Attorney Bohdan also used information he learned after
consulting with experts on coerced confessions to frame his cross-examination
of Detective Lauer. His questioning of Detective Lauer highlighted that even
though Detective Lauer challenged Malloch’s account when Malloch stated he
was asleep when he touched C.P., Detective Lauer did not challenge Malloch’s
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 28 of 37
account when Malloch said he intentionally touched C.P. Attorney Bohdan’s
cross-examination of Detective Lauer also emphasized that while there is no
legal distinction between a “good child molester” and a “bad child molester,”
Detective Lauer’s interrogation of Malloch implied that there was one. (Id. at
496.) Malloch himself testified that it was very upsetting to him when
Detective Lauer accused him of being “a one percenter.” (Tr. Vol. III at 564.)
Malloch believed that if he did not say that he “made a mistake” and
consciously touched C.P., he would be classified as a “one percenter who goes
around and prays [sic] on little children.” (Id. at 565.) Malloch believed he
would benefit from not being labeled a “one percenter[.]” (Id.) Finally, in his
closing argument, Attorney Bohdan argued Detective Lauer used manipulative
interrogation tactics to illicit a false confession from Malloch.
[26] “[W]e do not second-guess strategic decisions requiring reasonable professional
judgment even if the strategy or tactic, in hindsight, did not best serve the
defendant’s interests.” State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997), reh’g
denied, cert. denied, 118 S. Ct. 1528 (1998). 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 Lauer and through Malloch’s own testimony
rather than through proffering an expert witness. 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. See,
e.g., Troutman v. State, 730 N.E.2d 149, 154-55 (Ind. 2000) (holding trial
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 29 of 37
counsel’s decision not to call a rebuttal expert witness after cross-examining the
State’s expert witness was a reasonable strategic decision).
2. Sleep Expert
[27] Second, Malloch asserts Attorney Bohdan provided ineffective assistance in
failing to call an expert witness to testify about sexsomnia. He argues that a
“minimally competent defense attorney would have secured the testimony of a
qualified expert.” (Appellant’s Br. at 58.) In Liao v. Junious, the United States
Ninth Circuit Court of Appeals held that the petitioner was entitled to federal
habeas corpus relief when the petitioner’s trial counsel failed to arrange for the
petitioner to undergo a sleep study when the petitioner’s principal defense was
that he was sleepwalking at the time of the alleged criminal act. 817 F.3d 678,
695 (9th Cir. 2016). Malloch contends he likewise is entitled to post-conviction
relief.
[28] An attorney may perform deficiently by failing to present necessary expert
witness testimony. See, e.g., Carew v. State, 817 N.E.2d 281, 288 (Ind. Ct. App.
2004) (holding appellate counsel performed deficiently by failing to challenge
on appeal the trial court’s exclusion of expert testimony), trans. denied. “Expert
testimony is appropriate when it addresses issues not within the common
knowledge and experience of ordinary persons and would aid the jury.” Miller,
770 N.E.2d at 773. “When [jurors] are faced with evidence that falls outside
common experience, we allow specialists to supplement the jurors’ insight.”
Carter v. State, 754 N.E.2d 877, 882 (Ind. 2001), reh’g denied. Yet, the decision
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 30 of 37
whether to call an expert witness is still generally a strategic decision that we
will not second guess. Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009),
trans. denied. We “will not declare counsel ineffective for failure to call a
particular witness absent a clear showing of prejudice.” Ben-Yisrayl v. State, 729
N.E.2d 102, 108 (Ind. 2000), cert. denied, 122 S. Ct. 73 (2001).
[29] Attorney Bohdan consulted with two sleep specialists – Dr. Bornemann and Dr.
Kaplish – before Malloch’s second trial. Attorney Bohdan explained during the
evidentiary hearing on Malloch’s petition for post-conviction relief that he
decided not to call Dr. Bornemann as a witness because Dr. Bornemann
indicated he could not be of assistance to Malloch in light of Malloch’s
confession during the second recorded interrogation. Attorney Bohdan
explained those statements were “deemed problematic for [Dr. Bornemann] to,
to support [Malloch] with an opinion.” (Tr. Vol. II at 157.) 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. See, e.g.,
Reeves v. State, 174 N.E.3d 1134, 1142 (Ind. Ct. App. 2021) (holding trial
counsel made reasonable strategic decision not to call an unfavorable witness),
trans. denied.
[30] Unlike with Dr. Bornemann, Attorney Bohdan attempted to secure Dr.
Kaplish’s testimony for Malloch’s second trial, but he failed to properly
subpoena him. Malloch, 980 N.E.2d at 897. When denying Attorney Bohdan’s
motion to continue Malloch’s trial, the trial court even noted that it was
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 31 of 37
“troubled” by Attorney Bohdan’s failure to properly subpoena Dr. Kaplish.
(D.A. Tr. Vol. I at 210.) 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.
[31] However, we cannot say Attorney Bohdan’s unsuccessful effort to secure Dr.
Kaplish’s testimony amounted to constitutionally deficient performance.
During the hearing on the motion to continue Malloch’s second trial, Attorney
Bohdan acknowledged he had not started the process of attempting to properly
subpoena Dr. Kaplish as an out-of-state witness, 4 but he had been in frequent
contact with Dr. Kaplish regarding Dr. Kaplish’s availability. At the post-
conviction relief hearing, Attorney Bohdan described Dr. Kaplish as a “not
terribly cooperative” witness. (Tr. Vol. II at 156.) “Competence does not
require an attorney to browbeat a reluctant witness into testifying[.]” Knowles v.
Mirzayance, 556 U.S. 111, 125, 129 S. Ct. 1411, 1421 (2009) (holding petitioner
failed to establish his trial counsel performed deficiently in advising him to
withdraw his insanity plea after petitioner’s parents refused to testify).
4
See, e.g., Ind. Code § 35-37-5-5 (2004) (statute concerning summoning of witnesses from another state to
testify in this state).
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 32 of 37
[32] Further, putting a reluctant witness on the stand runs the risk that the witness
will give unfavorable testimony. See, e.g., Guertin v. State, 533 S.E.2d 159, 161
(Ga. Ct. App. 2000) (holding post-conviction relief petitioner’s trial counsel was
not ineffective for choosing not to call a witness to testify because “as a
reluctant witness, any beneficial testimony that [she] could have provided might
have been offset with testimony that could hurt [defendant’s] case”). Dr.
Kaplish would have been able to offer general information to the jury about
sexsomnia, and as a credentialed expert, his testimony that the scientific
community recognized sexsomnia likely would have carried more weight than
Malloch’s testimony about the condition. However, Dr. Kaplish also likely
would have testified that a child molester attempting to avoid conviction might
falsely assert he suffered from sexsomnia, and in diagnosing Malloch with
sexsomnia, Dr. Kaplish assumed Malloch and his wife were telling the truth.
In his deposition, Dr. Kaplish testified:
[State:] But you can make a diagnosis strictly about what your
patient and their families tell you?
[Dr. Kaplish:] Yes.
[State:] If those—if that patient or their families are lying to you,
would you agree that your diagnosis could be incorrect?
[Dr. Kaplish:] Could be.
(D.A. State’s Ex. 1 at 20-21.) Dr. Kaplish further testified:
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 33 of 37
[State:] Did you determine that [Malloch] suffered from
sexsomnia?
[Dr. Kaplish:] Yes.
[State:] Okay. What did you rely upon to make that
determination?
[Dr. Kaplish:] I relied on the behavior as something that is
necessarily sexual activity occurring out of sleep.
[State:] Which behavior?
[Dr. Kaplish:] The sexual behavior.
[State:] There’s a lot. Describe which behavior.
[Dr. Kaplish:] I’d say the complex behavior in which he was
fondling his stepdaughter.
[State:] Okay. Well, you know some people molest children
intentionally and they’re not asleep. So, what told you that he
was asleep then?
[Dr. Kaplish:] His - - I don’t know.
*****
[State:] But you can understand how somebody charged with
molesting a child at night, in bed together, might claim to be
suffering from sexsomnia. Correct?
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 34 of 37
[Dr. Kaplish:] Yes.
[State:] And it might be false?
[Dr. Kaplish:] May be.
[State:] Okay. So, why is it you think we should believe him
when he says he was asleep?
[Dr. Kaplish:] I don’t know if I’m qualified to answer that
question.
(Id. at 28-29.)
[33] When the State confronted Dr. Kaplish with details from Malloch’s confession,
Dr. Kaplish did not steadfastly hold to his sexsomnia diagnosis. The State
asked:
[State:] If you read a statement by your patient where he
admitted that he woke up, looked at his 11-year-old stepdaughter,
and thought he could stick his hands down there and she
wouldn’t notice it because she was asleep. Would that change
your diagnosis?
[Dr. Kaplish:] I don’t know.
[State:] If your patient had admitted that he was sexually
attracted to his stepdaughter for the two years before that, from
the time she was 8 or 9 until she was 11, would that change your
diagnosis?
[Dr. Kaplish:] I don’t know.
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 35 of 37
*****
[State:] If the patient admitted that he pretended to be asleep after
she pulled his hand out of her vagina, would that change your
diagnosis?
[Dr. Kaplish:] I don’t know.
(Id. at 35-36.) Just as Dr. Bornemann testified at the post-conviction relief
hearing that it would concern him if someone claiming to have sexsomnia
admitted to intentionally sexually touching an underage girl, Dr. Kaplish likely
would have testified that Malloch’s confession to waking up and intentionally
inserting his finger into C.P.’s vagina cut against a sexsomnia diagnosis. Thus,
given 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. See, e.g., White v. State, 25 N.E.3d 107, 134-35 (Ind.
Ct. App. 2014) (holding trial counsel did not perform deficiently in choosing
not to call witnesses who likely would have provided unfavorable testimony),
reh’g denied, trans. denied, cert. denied, 136 S. Ct. 595 (2015).
Conclusion
[34] Attorney Bohdan did not perform deficiently by not calling an expert witness
about false confessions at Malloch’s trial because Attorney Bohdan pursued
other strategies calculated to sow doubt regarding the veracity of Malloch’s
confession. Nor did Attorney Bohdan perform deficiently when he did not call
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 36 of 37
a sleep expert who could not provide an opinion supportive of Malloch or a
sleep expert who would have been a reluctant and equivocal witness at best.
We accordingly affirm the post-conviction court’s denial of Malloch’s petition
for post-conviction relief.
[35] Affirmed.
Altice, C.J., and Bradford, J., concur.
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