State v. Larkin

• Decision Date: 27 June 2018
• Docket Number: Supreme Court Case No. 46S04–1711–CR–701
• Citation: 100 N.E.3d 700
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. John B. LARKIN, Appellee (Defendant below).
• Court: Indiana Supreme Court

100 N.E.3d 700

STATE of Indiana, Appellant (Plaintiff below),
v.
John B. LARKIN, Appellee (Defendant below).

Supreme Court Case No. 46S04–1711–CR–701

Supreme Court of Indiana.

Argued: December 19, 2017
Decided: June 27, 2018

ATTORNEYS FOR APPELLANT: Curtis T. Hill, Jr., Attorney General of Indiana, Stephen R. Creason, Chief Counsel, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: Stacy R. Uliana, James E. Foster, Bargersville, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 46A04–1607–CR–1522

David, Justice.

Following the death of his wife, John Larkin was charged with voluntary manslaughter. However, this charge was later dismissed because both of the lower courts found that: 1) the Criminal Rule 4(C) period within which to bring Larkin to trial had expired and the delays in bringing him to trial were not attributable to him; and 2) the prosecutorial misconduct in this case required dismissal. For reasons discussed herein, we disagree with the lower courts on both issues. Accordingly, we reverse and remand for the trial court to hold a hearing or proceed to trial pursuant to this Court's holding in State v. Taylor , 49 N.E.3d 1019 (Ind. 2016).

Facts and Procedural History

In December 2012, police were dispatched to the home of John and Stacey Larkin for a reported shooting. Stacey Larkin sustained two fatal gunshot wounds during a domestic dispute involving her husband, John Larkin. Police took Larkin into custody for questioning, and he invoked his right to counsel. The police interrogated

100 N.E.3d 702

him anyway. Larkin's statements to police during those sessions were later suppressed.

While the State's preliminary charge was murder, Larkin agreed to speak with police if the State would consider only charging him with manslaughter. The police so charged Larkin, and then conducted a recorded interview. During a break, police left Larkin alone with his attorney, but kept the video recording equipment running, capturing Larkin and his attorney's privileged communications. Larkin and his attorney discussed various aspects of the case including insurance, motivation and motive, possible charges, filing for divorce, the children, conditions of bond, the funeral, possible defenses, and the sequence of events on the evening of the shooting. Police and prosecutors viewed the video and, therefore, saw and heard Larkin's privileged discussion with counsel. A court reporter even transcribed the discussion and distributed it to the prosecutor's office. Nearly one year later (December 2013), the State disclosed to Larkin that it had eavesdropped on privileged communications between him and his attorney.

In March 2014, following several continuances, the parties stipulated that after November 5, 2014, the State would have 90 days to try Larkin pursuant to Indiana Criminal Rule 4(C). Thereafter, in July 2014, Larkin moved to dismiss the voluntary manslaughter charge, citing police and prosecutorial misconduct that deprived him of his Sixth Amendment right to effective counsel. He later moved to disqualify the LaPorte County Prosecutor's Office on the same grounds and requested a special prosecutor. He also filed another motion to dismiss in September 2014, alleging that the State's lead detective conspired to obstruct justice by having another officer change his statement regarding that officer's prior interaction with Stacey Larkin. In October 2014, the trial court denied Larkin's motions, but it suppressed: 1) statements Larkin made to police after he invoked the right to counsel but before counsel arrived; and 2) the recorded conversation between Larkin and counsel.

At Larkin's request, the trial court certified for interlocutory appeal the denial of Larkin's motion to disqualify the prosecutor's office, and stayed the proceedings pending resolution from the Court of Appeals.

In September 2015, the Court of Appeals dismissed Larkin's appeal as moot since LaPorte County elected a new prosecutor in November 2014. Larkin v. State , 43 N.E.3d 1281, 1286–87 (Ind. Ct. App. 2015). The court's opinion explained that it addressed only the LaPorte Prosecutor's Office as a whole and did not evaluate whether individual prosecutors should withdraw from the case. Id. at 1287. The court then opined, "if requested by Larkin, the trial court should consider whether disqualification of [two deputy prosecutors] would be appropriate in this situation." Id. The Court did not certify its decision until November 20, 2015.

In the six weeks between when the Court of Appeals issued and certified its opinion, the State moved to withdraw the two deputy prosecutors, Neary and Armstrong, named in the Court of Appeals opinion. The State also moved for the appointment of a special prosecutor. The trial court granted all motions. Also during this time (in October 2015), the trial court judge recused himself and the County Clerk appointed Judge Thomas Alevizos to preside over the case going forward.

Thereafter, in December 2015, Larkin moved to disqualify Judge Alevizos, alleging the judge had a conflict of interest. Following a hearing, Judge Alevizos found no conflict that jeopardized his impartiality,

100 N.E.3d 703

but nonetheless recused himself to save the matter from further delays. The Clerk sought replacements, but four other judges in the county either declined the appointment or recused themselves. On February 29, 2016, Pulaski County's Judge Patrick Blankenship accepted the appointment.

On March 28, 2016, citing Rule 4(C), Larkin moved for discharge. He orally renewed that motion in an April 7, 2016 hearing. During that same hearing, the court and parties discussed possible trial dates, should the court deny Larkin's 4(C) motion. The court and State proposed trial dates in early May 2016, but Larkin declined those dates. Larkin agreed to a June 20, 2016 trial date. The court clarified on the record that Larkin waived his 4(C) argument regarding the June trial date to the extent he already made a record that he believed the period had run.

In May 2016, Larkin filed another motion for discharge under Criminal Rule 4(C). He also again moved to dismiss the voluntary manslaughter charge, this time arguing the police and prosecutorial misconduct made a fair trial impossible. The court held a hearing on Larkin's motion to dismiss on June 9, 2016. Due to last-minute scheduling, the State appeared via telephone. The State argued against dismissal, citing the denial of Larkin's first motion to dismiss back in 2014. Alternatively, pursuant to this Court's opinion in State v. Taylor , 49 N.E.3d 1019 (Ind. 2016), the State requested another hearing to present evidence to prove Larkin did not suffer prejudice from the State's prior misconduct. The trial court denied that request and on the same day granted Larkin's motions, discharging him pursuant to 4(C) and dismissing the voluntary manslaughter charge.

The State appealed, raising two issues: 1) whether the trial court erred in granting Larkin's 4(C) discharge motion; and 2) whether the trial court erred in granting Larkin's motion to dismiss. In a split published opinion, the Court of Appeals affirmed on both issues. State v. Larkin , 77 N.E.3d 237 (Ind. Ct. App.), reh'g denied (Aug. 25, 2017)(" Larkin I "), transfer granted, opinion vacated , 94 N.E.3d 700 (Ind. 2017). Judge Barnes dissented; he would have reversed and remanded on both issues. The State sought transfer which we granted, thereby vacating the Court of Appeals' opinion. Indiana Appellate Rule 58(A). Additional facts are set forth below.

Standards of Review

When evaluating a Criminal Rule 4 motion for discharge, "in cases where the issue is a question of law applied to undisputed facts, the standard of review—like for all questions of law—is de novo." Austin v. State , 997 N.E.2d 1027, 1039 (Ind. 2013). However, in cases where a trial court makes a factual finding of congestion or emergency based on disputed facts, the standard of review for appellate courts is not abuse of discretion, but the clearly erroneous standard. Id. at 1040.

We review a trial court's ruling on a motion to dismiss a charging information for an abuse of discretion. State v. Thakar , 82 N.E.3d 257, 259 (Ind. 2017). A trial court abuses its discretion when it misinterprets the law. Id .

Discussion and Decision

I. Discharge pursuant to Criminal Rule 4(C)

The State bears the burden of bringing the defendant to trial within one year. Bowman v. State , 884 N.E.2d 917, 919 (Ind. Ct. App. 2008), trans. denied . Rule 4(C) provides a defendant may not be held to answer a criminal charge for greater than one year, unless the delay is caused by the defendant, emergency, or

100 N.E.3d 704

court congestion. Curtis v. State , 948 N.E.2d 1143, 1148–49 (Ind. 2011).

A defendant extends the one-year period by seeking or acquiescing in delay resulting in a later trial date. A defendant waives his right to be brought to trial within the period by failing to raise a timely objection if, during the period, the trial court schedules trial beyond the

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