Larkin v. State

• Decision Date: 14 September 2021
• Docket Number: Supreme Court Case No. 21S-CR-427
• Citation: 173 N.E.3d 662
• Court: Indiana Supreme Court
• Parties: John B. LARKIN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

173 N.E.3d 662

John B. LARKIN, Appellant (Defendant below),

v.STATE of Indiana, Appellee (Plaintiff below).

Supreme Court Case No. 21S-CR-427

Supreme Court of Indiana.

Filed September 14, 2021

ATTORNEYS FOR APPELLANT: Stacy R. Uliana, John H. Kenney, Bargersville, Indiana

ATTORNEYS FOR APPELLEE: Theodore E. Rokita, Attorney General of Indiana, Stephen R. Creason, Justin F. Roebel, Office of the Attorney General, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 19A-CR-2705

Massa, Justice.

This is the latest appeal from the prosecution of John Larkin for the 2012 death of his wife, Stacey. Charged with voluntary manslaughter, Larkin was convicted of involuntary manslaughter as a lesser included offense. He raised four issues on appeal. The Court of Appeals reversed his conviction after finding the jury should not have been instructed on involuntary manslaughter. Because we conclude this instruction was proper under the circumstances and reject Larkin's remaining arguments, we affirm.

Facts and Procedural History

On the evening of December 11, 2012, Larkin and Stacey engaged in a domestic altercation. Stacey was shot twice and died; either shot could have been fatal. Two days later, Larkin voluntarily spoke with the police in a lengthy, videotaped interview, providing the only complete first-person account of the incident. He stated that after the confrontation began, he saw Stacey reach for a handgun stored in their bedroom safe. He grabbed the handgun just as she put her hand on it and told her, among other things, that he was calling the police. Stacey ran at Larkin and knocked them both to the ground. The handgun discharged and shot Stacey, who began scratching Larkin's face. He pushed her into a corner with the handgun, which again discharged and shot Stacey. After the second shot, Stacey did not move.

Shortly after Larkin's interview, the State charged him with voluntary manslaughter as a Class A felony in violation of Indiana Code section 35-42-1-3(a)(1). Specifically, the information alleged Larkin "did knowingly or intentionally kill another human being, to-wit: Stacy [sic] Simon Larkin; while acting under sudden heat, such killing being committed by means of a deadly weapon, to-wit: a handgun." Appellant's App. Vol. IV, p.71.

As the case progressed, it developed a lengthy procedural history, primarily due to law enforcement and prosecutorial misconduct and Larkin's resulting motions. State v. Larkin , 100 N.E.3d 700 (Ind. 2018) ; State v. Larkin , 77 N.E.3d 237 (Ind. Ct. App. 2017), vacated ; Larkin v. State , 43 N.E.3d 1281 (Ind. Ct. App. 2015) ; see also In re Neary , 84 N.E.3d 1194 (Ind. 2017) (suspending the former lead prosecutor from the practice of law for at least four years due, in part, to his misconduct while prosecuting Larkin). In May 2019, Larkin filed his final motion to dismiss premised, in part, on the State's failure to disclose that the handgun was defective. After the court denied this motion, the case would proceed to trial in September. The week before trial, the State tendered a jury instruction on reckless homicide as a lesser included offense. The parties and court briefly discussed it at a pretrial hearing and acknowledged it would depend on the evidence presented at trial.

During the five-day trial, the jury heard evidence that included Larkin's videotaped interview. On the morning of the fourth day, the court rejected the tendered reckless homicide instruction. At the end of the day, the State asked whether it would "be permitted to ask about involuntary manslaughter." Tr. Vol. V, p.229. The trial court indicated this could occur the next morning. At the beginning of the fifth day, the State formally tendered an instruction on the lesser included offense of involuntary manslaughter based on a battery.¹ Over Larkin's objection that he lacked fair notice of that lesser included offense, the court gave the instruction.

At closing, the parties focused more on voluntary than involuntary manslaughter. On involuntary manslaughter, the State argued that Larkin committed the predicate battery by pushing Stacey, while Larkin argued self-defense.

The jury found Larkin guilty of involuntary manslaughter, a Class C felony, for killing his wife while committing a battery in violation of Indiana Code section 35-42-1-4(c)(3). During sentencing, the trial court found the handgun to be an aggravator before sentencing Larkin to two years of incarceration. Larkin appealed, challenging: (1) the involuntary manslaughter instruction; (2) the sufficiency of the State's evidence to negate his self-defense claim; (3) the denial of his most recent motion to dismiss; and (4) the handgun's status as an aggravator.

The Court of Appeals reversed Larkin's conviction after addressing only two of his arguments. It found the information did not allege Larkin shot Stacey "with an intent to batter rather than with an intent to kill" or that he "committed [a] battery by pushing Stacey." Larkin v. State , 159 N.E.3d 976, 986–87 (Ind. Ct. App. 2020), vacated. And there was, "at a minimum, reasonable doubt as to whether the State's charging instrument provided Larkin with fair notice of the charge of which he was eventually convicted." Id. at 987. The panel also briefly concluded there was insufficient evidence to contradict Larkin's self-defense claim. Id. at 988 n.9.

The State sought transfer, which we now grant. See Ind. Appellate Rule 58(A).

Standards of Review

The existence of a lesser included offense is a question of law, which we review de novo. Young v. State , 699 N.E.2d 252, 255 (Ind. 1998). When the trial court makes an express finding on the existence of an evidentiary dispute between the charged and lesser included offenses or does not make such a finding when the specific issue was not raised, we review for an abuse of discretion. Brown v. State , 703 N.E.2d 1010, 1020 (Ind. 1998). Such abuse occurs when the trial court "misinterprets the law," Yao v. State , 975 N.E.2d 1273, 1276 (Ind. 2012), or its "decision is clearly against the logic and effect of the facts and circumstances before it," Hoglund v. State , 962 N.E.2d 1230, 1237 (Ind. 2012). If a defendant objects to an instruction on the lesser included offense based on his lack of fair notice, he raises a constitutional claim, which we review de novo. Young v. State , 30 N.E.3d 719, 728 (Ind. 2015) ; Hendricks v. State , 162 N.E.3d 1123, 1135 (Ind. Ct. App. 2021), trans. denied.

When a defendant alleges the State did not sufficiently rebut his self-defense claim, we do not reweigh evidence or assess witness credibility, and only look "to the evidence most favorable to the judgment." Miller v. State , 720 N.E.2d 696, 699 (Ind. 1999). "[W]here such evidence and reasonable inferences constitute substantial evidence of probative value sufficient to support the judgment," we affirm. Id. We review the denial of a motion to dismiss a charging instrument for an abuse of discretion. Yao , 975 N.E.2d at 1276. Likewise, we review sentencing decisions for an abuse of discretion. Smallwood v. State , 773 N.E.2d 259, 263 (Ind. 2002).

Discussion and Decision

Larkin raises four issues: (1) whether the trial court appropriately instructed the jury on involuntary manslaughter; (2) whether the State presented sufficient evidence to overcome his self-defense claim; (3) whether the trial court erred by denying his most recent motion to dismiss; and (4) whether the trial court improperly considered the handgun as an aggravator. We discuss each issue and, in doing so, reject Larkin's arguments.

I. The trial court appropriately instructed the jury on involuntary manslaughter.

During a criminal trial, either party can request a jury instruction on a lesser included offense.² Webb v. State , 963 N.E.2d 1103, 1108 (Ind. 2012). When this occurs, the court must engage in the analysis we set forth in Wright v. State , 658 N.E.2d 563, 566–67 (Ind. 1995). First, the court must determine whether the lesser offense is inherently or factually included in the charged offense. Id. If it is either, the court must then determine whether "a serious evidentiary dispute" exists between the elements that distinguish the offenses. Id. at 567. In other words, there must be sufficient evidence for the jury to find the defendant committed the lesser offense but not the charged offense. Id. If a dispute exists, the court must give the instruction. Id. When the State makes the request, however, the defendant must have been on fair notice that he could have been convicted of the offense. Young , 30 N.E.3d at 725. Here, we find that involuntary manslaughter was a factually included lesser offense, there was a serious evidentiary dispute, and Larkin had fair notice. We discuss each in turn.

A. Involuntary manslaughter was a factually included lesser offense.

A lesser offense can be either inherently or factually included in the charged offense. Wright , 658 N.E.2d at 566–67. Here, both parties correctly recognize that involuntary manslaughter is not an inherently included lesser offense of voluntary manslaughter (or murder, for that matter).³ However, it may be a factually included lesser offense if the charging document alleged all of its elements. Id. at 567.

The information alleged that Larkin knowingly or intentionally killed Stacey with a handgun. The State sought the involuntary manslaughter instruction on the basis of a battery. A battery is a knowing or intentional touching "in a rude, insolent, or angry manner." Ind. Code § 35-42-2-1(a) (2012). A knowing or intentional killing with a handgun can be classified as a battery. See Lynch v. State , 571 N.E.2d 537, 538–39 (Ind. 1991). The necessary physical contact occurs when the defendant shoots the victim, id. , or otherwise uses the handgun to cause a rude, insolent, or angry touching, see Fisher v. State , 541 N.E.2d 520, 522 (Ind. 1989). Here, by alleging Larkin knowingly or intentionally killed Stacey with a...