State v. Larkin

• Citation: 77 N.E.3d 237
• Decision Date: 07 June 2017
• Docket Number: Court of Appeals Case No. 46A04-1607-CR-1522
• Parties: STATE of Indiana, Appellant-Plaintiff, v. John B. LARKIN, Appellee-Defendant.
• Court: Court of Appeals of Indiana

77 N.E.3d 237

STATE of Indiana, Appellant-Plaintiff,

v.John B. LARKIN, Appellee-Defendant.

Court of Appeals Case No. 46A04-1607-CR-1522

Court of Appeals of Indiana.

June 7, 2017

Rehearing Denied August 25, 2017

Attorneys for Appellant : Curtis T. Hill, Jr., Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, Stanley M. Levco, Special Prosecuting Attorney, Evansville, Indiana

Attorneys for Appellee : Stacy R. Uliana, Bargersville, James E. Foster, Office of James E. Foster, P.C., Hammond, Indiana

Robb, Judge.

Case Summary and Issues

[1] Following the death of Stacey Larkin in 2012, the State charged her husband, John, with voluntary manslaughter as a Class A felony. In 2016, Larkin moved for discharge and dismissal, each of which the trial court granted. The State now appeals, raising two issues for our review, which we restate as: 1) whether the trial court erred in granting Larkin's motion for discharge, and 2) whether the trial court erred in granting Larkin's motion to dismiss. Concluding the trial court did not err in granting either motion, we affirm.

Facts and Procedural History¹

[2] In June 2012, Larkin contacted Detective Darren Kaplan of the Michigan City Police Department, a family friend, after Stacey sent a strange note to Larkin and left their home with a gun. Detective Kaplan contacted Stacey and requested she return home with the gun, which she did. Detective Kaplan never reported the incident. However, the following month, Detective Kaplan discussed the matter with Long Beach Police Officer Tobin Babcock after Long Beach police officers responded to a domestic situation at the Larkins' home during the same summer. Following the domestic incident, Long Beach Police Officers arrested Stacey.

[3] On December 11, 2012, Larkin called 911 and informed the operator his wife had been shot. Officers from the Long Beach Police Department arrived at Larkin's home and discovered Stacey deceased from two gunshot wounds

. Larkin was taken to the police station and placed into an interview room. After being advised of his rights, Larkin immediately requested his attorney be present. Over the course of a couple hours, law enforcement, including Lieutenant Todd Bullis, continued to question Larkin despite Larkin's requests for an attorney. At some point during the interview, Larkin told investigators of the incident occurring the previous summer, including how Detective Kaplan assisted him in getting Stacey home safely. Citing the Fifth Amendment, the trial court later suppressed the statements made during this interview.

[4] On December 13, 2012, Larkin agreed to talk to investigators about the shooting so long as he was charged with voluntary manslaughter in lieu of murder. Larkin, his attorneys, a police investigator, LaPorte County Prosecutor Bob Szilagyi, and Chief Deputy Prosecutor Robert Neary were present during the videotaped interview. During a break, Larkin and his attorneys were left alone in the room and discussed defense strategy. Unbeknownst to them, however, the video recording equipment was not turned off and continued to record. During this time, Larkin explained the events leading to Stacey being shot. According to him, Stacey struggled with mental illness and addiction and he became concerned for Stacey, himself, and their children when Stacey opened a safe in the home in an attempt to retrieve a gun. A struggle then ensued between Stacey and Larkin, resulting in Stacey suffering two gunshot wounds

. The safe's door was later sent to the Federal Bureau of Investigation's office ("FBI") in Quantico, Virginia, for analysis.

[5] At some point during the next week, Lieutenant Bullis reviewed the video of the December 13, 2012, interview and provided a copy to Neary. In January 2013, Neary reviewed the video and then requested court reporter Jamie Arnold transcribe the entire video. In transcribing the video, Arnold observed the conversation with Larkin and his attorneys was recorded and asked Neary whether she should transcribe that portion of the interview. Despite Neary instructing Arnold not to transcribe that portion, the privileged communications were somehow later transcribed and distributed to prosecutors in the LaPorte County Prosecutor's Office.

Also in January 2013, Lieutenant Bullis interviewed Stacey's hairdresser and audio recorded the conversation. Following the interview, the audio recording captured a conversation between Lieutenant Bullis and Officer Babcock in which the pair discussed pressing Detective Kaplan for more information regarding the June 2012 incident with Stacey and the possibility of getting Detective Kaplan to change his story to damage any of Larkin's potential defenses.

[6] In December 2013, the State disclosed to Larkin during discovery it captured communications between Larkin and his attorneys by video. In January 2014, the FBI returned the safe's door to the Michigan City Police Department in one piece and in an FBI-sealed bag. On March 18, 2014, the State and Larkin stipulated the State would have three months, or approximately ninety days, after November 5, 2014, to try its case pursuant to Indiana Criminal Rule 4(C).

[7] In April 2014, Neary checked out the safe's door from the evidence room to send to Larkin's expert, Mark Songer. At the time, the safe's door remained in one piece inside the FBI-sealed bag. When Songer received the safe's door, however, it was broken into three pieces and was no longer housed in the FBI-sealed bag.

[8] 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." 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.

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." 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]." 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]."

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.

In October 2014, the trial court suppressed the conversation between Larkin and his attorneys, but not the remainder of the interview. 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....

Larkin v. State , 43 N.E.3d 1281, 1283-85 (Ind. Ct. App. 2015) ("Larkin I ") (some alterations in original) (internal citations and footnote omitted). On October 22, 2014, Larkin moved the trial court to certify the denial of his motion to disqualify the prosecutor's office and for the appointment of a special prosecutor for interlocutory appeal. The trial court granted Larkin's motion and stayed the proceedings, and we thereafter accepted jurisdiction. On appeal, the State argued the issue was moot, contending John Espar was elected as LaPorte County Prosecutor in November 2014 (replacing Szilagyi), Espar was not involved in the challenged conduct, and therefore a special prosecutor was unnecessary. We agreed the issue was moot and dismissed Larkin's appeal. Id . at 1287. However, we recommended the trial court consider disqualifying prosecutors Neary and Armstrong. Larkin I was issued on September 30, 2015.

[9] The following week, but prior to the certification of Larkin I , the State moved to withdraw the appearances of Neary and Armstrong. In addition, Espar moved for the appointment of a special prosecutor. The trial court promptly granted all three motions and appointed Stanley Levco as special prosecutor. On October 13, 2015, the trial court judge, Michael Bergerson, recused himself and the County Clerk appointed Judge Thomas Alevizos.

[10] Larkin I was certified on November 20, 2015, but there is no order in the record showing when the stay on the proceedings was lifted. On November 23, 2015, Larkin moved to disqualify Judge Alevizos alleging the judge had a conflict of interest because he also presided over guardianship matters regarding Larkin's children following his arrest. Judge Alevizos recused himself on December 31, 2015, and after four additional judges either declined or recused...