By KEVIN NEVERS

The Indiana Supreme Court has upheld David Malinski’s conviction of the murder of Lorraine Kirkley.

Malinski, formerly a Westchester Township resident, was found guilty in February 2000 of Kirkley’s murder and six other charges connected to her disappearance from her Center Township home on July 21, 1999. Her body has never been found.

Malinski—who was also convicted of two counts of burglary and one count each of criminal deviate conduct, criminal confinement, auto theft, and arson—is currently serving a term of 155 years at the Indiana State Prison in Michigan City.

Malinski’s appeal—a 77-page document filed jointly by the Chicago law firm of Thomas M. Breen & Associates and the lead defense attorney at Malinski’s trial, John Martin of the Valparaiso firm of Tsoutsoris & Bertig—has been hanging fire for more than two and a half years. But on Wednesday the Supreme Court unanimously affirmed the conviction in a 14-page ruling.

Much of that ruling addresses the first of six issues raised by Malinski, namely, whether Porter Superior Judge Roger Bradford erred when he denied Malinski’s motion to suppress two statements made to investigators in the hours after his arrest on July 27, 1999.

Although Malinski himself waived his Miranda rights and voluntarily gave investigators those two tape-recorded statements, Malinski argued in his appeal that he was denied his constitutional right to counsel because investigators failed to inform him, while he was being interrogated, that Martin had arrived at the Porter County Jail to speak with him, and because Porter Superior Court Judge Thomas Webber rejected a petition filed by Martin later that morning seeking access to Malinski.

As the Indiana Supreme Court noted in its ruling, the U.S. Supreme Court has previously ruled that the U.S. Constitution does not require federal law enforcement officers to notify custodial suspects of the presence of an attorney. Other courts, however, have ruled that their state constitutions do require such notification, and in this case, the Indiana Supreme Court ruled, the Indiana Constitution did require investigators to inform Malinski that Martin was present at the jail, that Martin had been retained to represent him, and that Martin was seeking to speak with him.

Nevertheless, the Indiana Supreme Court added, the “totality of the circumstances” indicates that Malinski made “a voluntary and intelligent waiver,” that “police repeatedly read Malinski his rights and he consistently waived them and agreed to talk,” and that in any event neither of his two statements to investigators “constituted a confession.”

“In light of all the circumstances,” the Indiana Supreme Court ruled, “we conclude that Malinski’s ignorance of Martin’s presence did not convert his waiver into one that was involuntary. The trial court did not err in denying Malinski’s motion to suppress his statements.”

Other Issues

•Investigators did not violate Malinski’s right to effective counsel—as his appeal argues—when they surreptitiously removed documents from his jail cell. Prosecutors later reviewed those documents, which the appeal contends led investigators to discover the hidden “porno room” in Malinski’s home as well as the 17 Polaroid photographs of a nude and bound Kirkley. As the Indiana Supreme Court observed, Bradford barred prosecutors from using any of the documents as trial evidence. More to the point, though, “(t)here is ample evidence suggesting the authorities would have discovered the hidden room without the information contained in those documents,” while the discovery of the Polaroid photos actually occurred prior to the removal of those documents and as a result of information received from another jail inmate.

•Prosecutors did not improperly introduce evidence of Kirkley’s good character and Christian faith, as Malinski’s appeal argues, but rather to rebut Malinski’s claim that he and Kirkley had been having a sexual relationship. “We agree with the State that the evidence in question was offered to prove that, contrary to Malinski’s assertions, Lori was happy in her marriage and in her relationship with her family,” the Indiana Supreme Court ruled. “The evidence of her church activities was not prohibited character evidence either, but evidence of her ties in the community and the type of activities she engaged in with her husband. It served to rebut Malinski’s theory that Lori was engaged in an adulterous relationship with him.”

•Prosecutors did not improperly refer twice in their closing argument to Malinski’s failure to testify on his own behalf, as his appeal argues. The Indiana Supreme Court dismissed this issue summarily: “Malinski did not object to either of these statements, and thus has not preserved any issue for appeal.”

•Bradford did not err when he permitted Dr. Joseph Prahlow, a forensic pathologist, to testify that Kirkley was an unwilling and possibly unconscious subject in the Polaroid photos, as Malinski’s appeal argues. Malinski contended that Prahlow’s provided “scientific testimony” and as such needed to meet a higher burden of admissibility in accordance with federal rules of evidence. The Indiana State Supreme Court ruled that the state’s rules of evidence differ from federal rules, that the latter are not binding on the former, and that in any case Prahlow provided not “scientific testimony” but “expert testimony.” Prahlow’s testimony fell “into the area of specialized knowledge of anatomy and physiology,” and such specialized knowledge “was within his scope of expertise.”

•Prosecutors did not fail to meet their burden of proof and establish Kirkley’s death, as Malinski’s appeal argues. The Indiana Supreme Court took note of a variety of evidence introduced at the trial, including her blood found spattered in her kitchen, the so-called dumpster note which Malinski admitted leaving and which stated that Kirkley was dead and would never be found, the fact that investigators had accounted for all of Kirkley’s eyewear and daily medications and that her prescriptions had never been refilled, and the testimony of Prahlow that the Polaroids “demonstrate that Lori was an unwilling participant and that she appeared to be incapacitated, unconscious, or dead in the pictures.” As the Indiana Supreme Court ruled, “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.”

Reaction

Chief Deputy Prosecuting Attorney Brian Gensel told the Chesterton Tribune today that his office is satisfied but not surprised by the Indiana Supreme Court’s ruling. “We’re pleased,” he said. “It’s what we expected, and (Lorraine Kirkley’s husband) Bob Kirkley is relieved by the ruling.”

Nevertheless, Gensel added, “it’s a big hurdle but it’s just a hurdle.” Malinski does have two options available to him now. One would be to seek “post-conviction relief” or PCR, beginning at the level of the original trial court. Under PCR the case would not be re-litigated but certain state constitutional issues could be addressed.

Or, Gensel said, Malinski could file a habeas corpus petition at the federal trial level and try his luck there, as convicted shotgun killer Chris Peterson did with some success.

Gensel did note that—though his office has recently come under fire for resolving several high-profile cases by plea agreements—when defendants do plead, “that’s pretty much it.” Malinski, on the other hand, could conceivably keep his case alive for years. “Plea agreements bring closure,” he said.

On the one bone which the Indiana Supreme Court did pick—investigators’ failure to inform Malinski that Martin was at the jail and wished to speak with him—Gensel observed that the court’s ruling will have a direct impact on the “small percentage of cases” where an attorney seeks to confer with a client under interrogation. “That’s the rule now,” he said.

Gensel took a moment to praise again the team effort involving the Porter County Sheriff’s Police, the Federal Bureau of Investigation, and the Indiana State Police—among other law enforcement agencies—which led to Malinski’s successful prosecution.

Two of those investigators, who served on the six-member Kirkley Task Force—told the Tribune this morning that they weren’t surprised by the Indiana Supreme Court’s ruling.

Jim Reeder, who retired from the PCSP after the trial, said that the ruling “is a validation of everything that was done on the case by the entire team.”

Jim Bonfield, who retired from the ISP after the trial and now serves as director of transportation for the Duneland School Corporation, concurred with Reeder. “I’m pleased but I had no doubt that would be the outcome,” he said. “No doubt whatsoever. . . . I’m elated.”

Posted  9/5/2003