Larkin v. State

• Decision Date: 30 September 2015
• Docket Number: No. 46A05–1411–CR–550.,46A05–1411–CR–550.
• Citation: 43 N.E.3d 1281
• Parties: John LARKIN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

43 N.E.3d 1281

John LARKIN, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 46A05–1411–CR–550.

Court of Appeals of Indiana.

Sept. 30, 2015.

Marce Gonzalez, Jr., Dyer, IN, James E. Foster, James E. Foster, PC, Hammond IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney

General, Indianapolis, IN, Attorneys for Appellee.

BARNES

, Judge.

Case Summary

[1] In this interlocutory appeal, John Larkin appeals the denial of his motion to disqualify the LaPorte County Prosecutor's Office. We dismiss.

Issue

[2] Larkin raises one issue, which we restate as whether the trial court properly denied his petition to disqualify the LaPorte County Prosecutor's Office with respect to his pending voluntary manslaughter charge.

Facts

[3] On December 11, 2012, police were dispatched to Larkin's residence following a report of a shooting. When an officer arrived, he found Larkin's wife, Stacy, deceased in the closet. An autopsy later determined that she died from two gunshot wounds

. At the police station, Larkin agreed to talk to investigators if he was charged with voluntary manslaughter in lieu of murder. Larkin, his attorneys, an investigator, LaPorte County Prosecutor Bob Szilagyi, and Chief Deputy Prosecutor Robert Neary were present during the interview, which was videotaped. During a break in the interview, Larkin had a conversation with his attorneys. However, the recording equipment was not turned off during the break, and Larkin's conversation with his attorneys was recorded.

[4] Within a week or so, the investigator watched the interview video. The investigator or someone in his department also gave a copy of the video to Neary. The investigator did not alert Neary that Larkin's conversation with his attorney was on the video. At some point, Neary made arrangements for court reporter Jami Arnold to transcribe the video. As she was doing so, she discovered Larkin's conversation with his attorneys, stopped transcribing, and contacted Neary. Neary advised Arnold not to transcribe that portion of the video. Arnold transcribed the other portions of the video and returned the video and transcript to Neary.

[5] At the end of January 2013, Neary was preparing for trial and viewed the video, including the discussion between Larkin and his attorney. During discovery, the State sent Larkin's counsel a copy of the video. In July 2014, Larkin filed a motion to dismiss the voluntary manslaughter charge. Larkin argued that the videotaping of his conversation with his attorney violated his Sixth Amendment right to effective assistance of counsel. On July 31, 2014, Neary and Deputy Prosecuting Attorney Kristina Armstrong filed the State's response to Larkin's motion to dismiss. The State argued that no new subjects were discussed during Larkin's conversation with his attorneys and that no evidence was disclosed or derived as a result of the conversation. Consequently, the State argued that Larkin was not prejudiced by the alleged Sixth Amendment violation. The State attached a transcript of the conversation to its response. At a hearing on Larkin's motion to dismiss, Neary stated that Szilagyi, Armstrong, an intern, and Neary had “all viewed the tape.” Tr. p. 155. The trial court ordered the Prosecutor's Office to submit affidavits from any person that viewed the video or read the transcript and detail when they first did so.

[6] Neary submitted an affidavit and stated that he viewed the video of the conversation between Larkin and his attorney at the end of January 2013. Neary stated that “After consulting with prosecutors in the office, I am the only Prosecutor who viewed this portion of the tape with conversation between the Defendant and [his attorney] and/or the transcript of his conversation.” App. p. 562. The intern also submitted an affidavit and stated that, in August 2014, he read a portion of the transcript of the conversation between Larkin and his counsel. Szilagyi submitted an affidavit and stated that he had “not viewed any portion of the videotape or read any portion of the transcript where a discussion took place between [Larkin] and [his attorney].” Id. at 670. Armstrong also submitted an affidavit and denied having “viewed any portion of the videotape or read any portion of the transcript where a discussion took place between [Larkin] and [his attorney].” Id. at 664.

[7] In September 2014, Larkin filed a motion to disqualify the LaPorte County Prosecutor's Office from prosecuting the case against him. Larkin pointed out the discrepancy between Armstrong's affidavit and the July 31st filing that she and Neary submitted to the trial court. Larkin requested that a special prosecutor be appointed.

[8] In October 2014, the trial court suppressed the conversation between Larkin and his attorneys, but not the remainder of the interview.¹ The trial court denied Larkin's motion to dismiss, finding no prejudice from the recording of the conversation between Larkin and his attorney. The trial court also denied Larkin's motion to disqualify the LaPorte County Prosecutor's Office as follows:

Defendant points to the fact that CDPA Neary originally informed the Court that four people from the Prosecutor's Office ... viewed the tape or read the transcript of the conversation in question. There was some confusion if affidavits had to be filed from persons who did not view the tape or read the transcript. Although not all affidavits were filed in a timely manner, all four are now of record.

Defendant also relies on the fact that on July 31, 2014, the State filed with the Court a Motion and Memorandum in Opposition to the Motion to Dismiss. This filing included a transcript of the recorded conversation between Defendant and his attorneys at the LaPorte County Sheriff's Department. The Motion and memorandum was filed under the signatures of CDPA Neary, and Deputy Prosecuting Attorney Kristina Armstrong. Defendant points out that Deputy Prosecuting Attorney Kristina Armstrong averred in her affidavit that she had not viewed the tape or read the transcript. Although a question arises from this dichotomy as in the Motion to Dismiss, Deputy Prosecuting Attorney Kristina Armstrong filed her affidavit as an Officer of the Court. The Court will take her affidavit as the best source to resolve any conflicts.

It is true in this case that the Prosecutors have had access, listened to, and read transcripts of a conversation between Defendant and his attorneys. As noted in this Court's Order denying Defendant's Motion to Dismiss, this was an intrusion into the attorney-client relationship between Defendant and his attorneys. The Court cannot condone this action. However, as the Court also noted in the Order, this conversation did not prejudice Defendant to the extent that charges must be dismissed. Although the actions of law enforcement and the Prosecutor's Office were careless, none of the aggrieved behaviors were intentional. The disclosure of the conversation that Defendant had with his attorneys on December 13, 2012, did not give Prosecutors information that they could not have obtained from another source or that was not a disclosure of well-known legal principles. Additionally, the actual conversation between Defendant and his attorneys is suppressed and therefore cannot be used against Defendant at trial.

Id. at 819–21.

[9] At Larkin's request, the trial court certified the denial of Larkin's motion to disqualify the LaPorte County Prosecutor's Office for interlocutory appeal and stayed the proceedings. The trial court declined to certify the other orders for interlocutory appeal. We accepted jurisdiction over this interlocutory appeal pursuant to Indiana Appellate Rule 14(B)

.

Analysis

[10] Larkin appeals the trial court's denial of his motion for the disqualification of the LaPorte County Prosecutor's Office and for the appointment of a special prosecutor. We will review a trial court's denial of a petition for special prosecutor for an abuse of discretion. Camm v. State, 957 N.E.2d 205, 209 (Ind.Ct.App.2011)

, trans. denied. “An abuse of discretion is an erroneous conclusion and judgment, one clearly against the logic and facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. An abuse of discretion also occurs when the trial court misinterprets the law. Id.

[11] The appointment of a special prosecutor in Indiana is governed by Indiana Code Section 33–39–10–2

(formerly Indiana Code Section 33–39–1–6² ). Indiana Code Section 33–39–10–2(b)(2) provides, in relevant part, that a trial court may appoint a special prosecutor if:

(A) a person files a verified petition requesting the appointment of a special prosecutor; and

(B) the court, after:

(i) notice is given to the prosecuting attorney; and

(ii) an evidentiary hearing is conducted at which the prosecuting attorney is given an opportunity to be heard;

finds by clear and convincing evidence that the appointment is necessary to avoid an actual conflict of interest or there is probable cause to believe that the prosecuting attorney has committed a crime[.]

[12] The petitioner has the burden of producing evidence in support of the motion. Camm, 957 N.E.2d at 210

(citing Kubsch v. State, 866 N.E.2d 726, 734 (Ind.2007), cert. denied ). The purpose of the special prosecutor statute is to protect the State's interest in preserving the public confidence in the criminal justice system and ensuring that the prosecutor serves the ends of justice. Id. (citing State ex rel. Kirtz v. Delaware Circuit Court No. 5, 916 N.E.2d 658, 659 (Ind.2009) ). “The public trust in the integrity of the judicial process requires that any serious doubt be resolved in favor of disqualification.” Williams v. State, 631 N.E.2d 485, 487 (Ind.1994).

[13] Larkin requests that the entire LaPorte County Prosecutor's Office be disqualified. It is well-settled that once the elected prosecuting attorney is disqualified, his...