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Man’s child molesting conviction upheld

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The Indiana Court of Appeals acknowledged that although a defendant did not receive a perfect trial, it is confident that Steven Malloch received a fair trial on a charge of Class A felony child molesting relating to his stepdaughter.

Malloch was accused of fondling C.P.’s breast and inserting a finger in her vagina in 2003 and 2004, which he claimed happened when he was sleeping and sharing a bed with the girl. The molestation allegations did not come to light until nearly five years later. Malloch was questioned by DeKalb County Sheriff’s detective Donald Lauer. The two interviews were videotaped. During the second interview, Malloch admitted to touching the girl’s vagina while he was awake and wrote an apology letter to C.P.

Malloch was originally charged with two counts of child molesting, but one was dismissed for statute of limitations. After a mistrial at his first trial, Malloch was convicted of the Class A felony in September 2011.

Malloch raised five issues on appeal, including whether the trial court abused its discretion in denying his motion for a continuance made three days before his second trial;  whether the court erred by admitting Malloch’s statements in the recorded interviews, in which he ultimately confessed; and whether the state committed prosecutorial misconduct amounting to fundamental error.

After his mistrial, Malloch wanted to call a doctor as a sleep expert who had treated Malloch, but the doctor would not be able to testify at the trial. The trial court denied the continuance. The record here is devoid of any indication that the doctor ever intended to appear and Malloch made no record as to when the doctor would be able to testify.

The judges found no abuse of discretion in admitting Malloch’s statements. He never unambiguously and unequivocally invocated the right to counsel and his statements in both interviews were voluntary.

The appellate court found the state did not predispose the jury against him and that the state’s improper impeachment of Malloch’s wife and C.P.’s mother did not place Malloch in grave peril.

“We have concluded, however, that at most, only two isolated, brief remarks during closing argument constituted prosecutorial misconduct. These instances must be viewed in light of the evidence at trial, which included C.P.’s testimony and Malloch’s confession. The jury was able to view the interactions between Malloch and Detective Lauer during both interviews and could thus evaluate the voluntariness of Malloch’s confession against his claim of coercion and sexsomnia. Although Malloch did not receive a perfect trial, we are confident that he received a fair trial,” Senior Judge John Sharpnack wrote in Steven E. Malloch v. State of Indiana, 17A03-1201-CR-37.

 

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  • Prosecutor immunity
    This is just one more example how the law and the courts favor prosecutors. There were only two incidents of prosecutorial conduct, brief remarks were made in closing arguments. Remarks no matter how brief can sway a jury to find a defendant guilty, when abscence of the remarks might have induced a not guilty verdict. Remarks like the ones in question are not made accidentally, they are made intentionally because we all know that the jury does not disregard remarks just because the judge says to. The prosecution knows this only too well! Please google the Infallible Prosecutor and you will have a different opinion of justice!

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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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