FILED
Jun 07 2017, 5:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr. Stacy R. Uliana
Attorney General of Indiana Bargersville, Indiana
Eric P. Babbs James E. Foster
Deputy Attorney General Office of James E. Foster, P.C.
Indianapolis, Indiana Hammond, Indiana
Stanley M. Levco
Special Prosecuting Attorney
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, June 7, 2017
Appellant-Plaintiff, Court of Appeals Case No.
46A04-1607-CR-1522
v. Appeal from the LaPorte Circuit
Court
John B. Larkin, The Honorable Patrick B.
Appellee-Defendant. Blankenship, Special Judge
Trial Court Cause No.
46C01-1212-FA-610
Robb, Judge.
Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017 Page 1 of 50
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 History 1
[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
1
We heard oral argument in this case on April 24, 2017, at the Hammond Academy of Science and
Technology. We commend counsel for their advocacy and thank the faculty, staff, and students at the
Academy for their participation.
Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017 Page 2 of 50
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
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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
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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
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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
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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 themselves
from appointment over the next two months, Judge Patrick Blankenship of
Pulaski County accepted his appointment as special judge on February 29,
2016.
[11] On March 28, 2016, Larkin moved for discharge pursuant to Rule 4(C), alleging
the State’s stipulated three-month period to bring him to trial had expired. At a
hearing two days later, the trial court ordered the case files be redacted and
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provided to Levco. Despite assurances from the LaPorte County Prosecutor’s
Office that the case file would be redacted and then provided to Levco, the case
file was not redacted prior to Levco receiving it. On April 7, 2016, the trial
court held a hearing on Larkin’s motion for discharge (“April 7 Hearing”).
There, the parties discussed the issue of whether the State complied with Rule
4(C) and Larkin orally moved for discharge. On May 11, 2016, Larkin filed a
second motion for discharge pursuant to Rule 4(C). On May 20, 2016, Larkin
moved to dismiss the charge of voluntary manslaughter, contending he could
not receive a fair trial.
[12] On June 9, 2016, the trial court held a hearing at which the State appeared by
telephone. The State first argued a previous judge already denied Larkin’s
motion to dismiss in 2014, and absent new facts, the trial court should adhere to
the previous decision. In the alternative, the State also argued for an
opportunity to appear in court and present evidence showing Larkin did not
suffer prejudice from the way the case had been handled up to that point. On
the same day, the trial court issued an order granting both the motion for
discharge and motion to dismiss. In discharging Larkin pursuant to Rule 4(C),
the trial court stated,
1) That the parties agreed on March [18], 2014, that the State of
Indiana would have three months (90 days) from November 5,
2014 to try the Defendant herein, within the time limits of
Criminal Rule 4.
2) That prior to the expiration of the 90 day time limit, the
Defense filed a Motion to Certify an Interlocutory Appeal on
October 22, 2014.
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3) On September 30, 2015, almost one year later, the Court of
Appeals issued its opinion.
4) The Court of Appeals opinion was not certified until almost
60 days later on November 20, 2015.
5) On November 23, 2015, the Defendant moved to disqualify
Judge Alevizos for cause, because that Judge had presided or was
presiding over a probate matter involving the Defendant’s minor
children.
6) That the appointment of a Special Judge took until February
29, 2016, when this Court accepted jurisdiction.
7) This Court held a Status Hearing on April 7, 2016.
8) At that Status Hearing, the Court was advised by the
Defendant’s counsel that they would be filing a Criminal Rule 4
Motion.
9) The Defendant subsequently then did file its Criminal Rule 4
Motion, and that motion along with several other motions were
argued at the [April 7], 2016 Pretrial.
10) At that [April 7] Pretrial, the Defendant objected to any trial
dates as being past the time of the Criminal Rule 4 requirements.
11) The Court did then go ahead after much discussions [sic]
between counsels of both the State and the Defendant, set a trial
setting in June, and the Defendant wished to make his record
that if the Court determined that the Criminal Rule 4 time had
not expired, that they could do the trial on June 20, 2016, but
that they made the record that they still believed and were
arguing Criminal Rule 4 time had spent.
12) That the Court asked the Defense to come up with an
ulterior theory of Criminal Rule 4, in the event the Court found
that their original position and time line was incorrect, and there
was much discussion on that, and the Defendant did.
13) Then at the June 3, 2016 hearing, Criminal Rule 4 was
discussed again, and therein the parties discussed if any Court
currently has jurisdiction of this case, since the CCS does not
show the Appellate Court certification as ever being filed as part
of the CCS.
14) The State’s position essentially, as I understand, it [sic] is the
90 days could not have begun until the certification. The State
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must waive that position in light of the fact that the State’s own
attorneys, beginning with Deputy Armstrong, Deputy Neary,
were filing motions to withdraw and recuse themselves on
October 5, 2015 and October 6, 2015. Prosecutor Esbar [sic]
recused himself on October 6, 2015, a month and a half before
the State argues that a Judge had jurisdiction of that case. They
were relying on [this] Court’s jurisdiction and authority to grant
those withdraws [sic], and so that time has to run to the State.
15) On October 13, 2015, Judge Bergerson recused himself,
because Judge Bergerson, I believe, had been in the Prosecutor’s
Office at the time and had worked some on the Larkin case, so
Judge Bergerson did the right thing, and it didn’t take him very
long to do it. He did it before the case even came back to him, so
how does a man who currently doesn’t have jurisdiction over the
case, if he doesn’t, recuse himself from that case before the
Appellate Court has even certified, but he did it, and so the Court
recognized that it had its own jurisdiction to do that.
16) Judge Alevizos accepted the assignment and set it for a
Status Hearing. He accepted the assignment on October 19,
2015, again, one month before the Appellate Court certified their
opinion. There would be no need for him to accept jurisdiction
of a case that he didn’t have jurisdiction over, if the certification
was the triggering date that gave him jurisdiction to begin with.
But then he goes on, and he sets it for hearing on December 4,
2015. From that point on, both parties act as though the Court in
LaPorte County, Judge Alevizos, has jurisdiction.
17) On December 10, 2015, there is a hearing held on a Motion
to Recuse, and it is taken under advisement, so the Court, after
hearing the Motion of Recusal, still is saying, I am still the Judge
with jurisdiction, and I am taking it under advisement, so the
clock is still ticking here.
18) In the alternative, if Criminal Rule 4 did not begin until the
certification, we still have from November 20, 2015 to December
10, 2015, which is twenty days. And if we don’t start up again
until this Court’s acceptance of jurisdiction on February 29,
2016, Criminal Rule 4 would have expired on May 10, 2016.
The only way we would get to May 29, 2016, is that the Court
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didn’t get jurisdiction until certification, and all time from there
forward ran against the Defendant.
19) That puts the Defendant in a position of number one, having
to go to trial with a judge who should have recused himself,
should have never accepted it, which was Judge Alevizos, who
knew he had a problem with that case. Number two, the
Defendant is charged with the fact that no judge in LaPorte
County wanted to get within a ten foot pole of this case, and to
say that the Defendant should bear that, is correct as counsel has
stated many times: It should not be a choice between speedy trial
and fair trial. He is entitled to both, not one or the other. He is
entitled to have both, and as the Court sees it, the only reason
this case got to this point was because we had a prosecuting
attorney in Mr. Neary and his staff, and we had a law
enforcement agency in Long Beach Law Enforcement Agency,
that did everything in their power to intentionally violate this
Defendant’s constitutional rights and civil rights, and make it as
difficult as possible for him to obtain a speedy trial.
20) In regards to the State’s position that the Defendant waived
Criminal Rule 4 at the May 3, 2016 hearing, the Defendant did
not waive it, and in fact, the Defendant verified that he had made
a proper record that his Criminal Rule 4 Motion would not effect
that trial setting in June if the Court determined, in other words,
he would not have waived it, if the Court found that the Criminal
Rule 4 had not run, and clearly, in any scenario you get to, it had
run.
Appellant’s Appendix, Volume 4 at 83-86.
[13] In granting the motion to dismiss, the trial court stated,
1) The Defendant is entitled to a Motion to Dismiss because of
the Article 1, Section 13, portion of the Indiana Constitution and
the 6th Amendment of the United States Constitution. Because
of the December 12, 2012 interview of the Defendant, where that
recording included conversations between the Defendant and his
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attorney, and further, that was compounded by the State
intentionally transcribing the twelve minute portion of that
interview, even though the court reporter had done the proper
thing in not transcribing it, and it was done only at the specific
request of the State.
2) That the State continually violated the 6th Amendment, not
just once, by initially recording it, but multiple times. Every time
they made a copy of that conversation is a separate and
individual violation.
3) Every time they disseminated the transcript containing that
twelve minute portion was a separate violation of Defendant’s
6th Amendment[ rights].
4) The Court is going to further find that it is not the burden of
the Defendant to prove that it caused him harm. The 6th
Amendment violation is a per se violation [sic] Constitutional
violation, and since Taylor issued by the Supreme Court, it would
be the burden of the State to prove beyond a reasonable doubt
that that violation has no adverse effect [on] this Defendant.
5) The Court has discussed with the parties having a Taylor
hearing. However, the Court believes that in light of the
additional violations committed by Detective Bullis, Detective
Babcock, and Detective McClintock, that their testimonies are all
tainted and shaded by the fact that it has now become blatantly
obvious to this Court that their conduct at that time and since,
has demonstrated an animosity against this Defendant that
overshadows everything that they do and say.
6) They conducted three separate surreptitious interviews on
December 11 at the Long Beach Police Department after the
Defendant had requested an attorney. After that request,
Detective McClintock continued to engage him in conversation,
which should have immediately ceased, and then sent in a
second officer to conduct administrative tasks that could have
been assigned to any jailer, taking finger prints, taking a DNA
swab, could have been attended to by any jailer who does that on
an everyday basis, but instead, they sent in a second detective,
who engaged in similar surreptitious interrogation of Mr. Larkin.
7) While this was going on, Detective Bullis was recording and
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watching the Defendant’s conduct and statements. Only then,
after watching those two incidences, Detective Bullis took it upon
himself to go in and tell the Defendant that his attorney was not
available, and he engaged in further conversations with the
Defendant.
8) Those tapes were never destroyed. They continue to be
viewed and monitored by the investigators and by the State.
9) As a result of those conversations, the State learned about
Detective Kaplan from the Michigan City Police Department
and his possible knowledge of evidence that may be of assistance
to the Defendant in his defense.
10) As a result of learning about him, they subsequently took it
upon themselves, Detective Bullis and Detective Babcock, to
approach Detective Kaplan and tamper with his testimony in
regards to incidences involving this case.
11) In addition, there was a piece of State evidence that was sent
to the FBI . . ., a safe, that the FBI conducted its investigation of
that piece of evidence and returned it to Prosecutor Neary, who
was then supposed to provide it to the Defense to send to their
expert to examine the safe. By the time that safe had gotten to
the Defense expert, that safe had been tampered with and
damaged.
12) That the last known hands that that safe was in was the
State. The State was responsible for the chain of custody.
13) While it may be possible for a Court to look at all of these
things individually and find that each one may have a very small
effect on the outcome of this trial, that is really not the analysis
here. No one knows what piece of evidence will have what effect
on the outcome of a trial. . . . And so for a Judge to predict at a
jury trial whether any of those one single things would have an
adverse effect, I have no way of knowing. The Court would have
no way of knowing until a jury trial was actually conducted, and
then interviewed the jury, and then it is too late.
14) It is the Court’s obligation to guarantee a fair trial, and based
upon the totality of misconduct on the part of the State, this
Court cannot guarantee this Defendant a fair trial.
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Id. at 86-88. This appeal ensued.
Discussion and Decision
I. Criminal Rule 4(C)
[14] The State contends the trial court erred in granting Larkin’s motion for
discharge under Rule 4(C). Specifically, it claims the period in which it could
bring Larkin to trial continued at the very least to the April 7 Hearing, where it
claims Larkin waived any objection to a future trial date. We disagree.
[15] 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
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 limit. However, a defendant has no
duty to object to the setting of a belated trial date if the setting
occurs after the year has expired.
Pelley v. State, 901 N.E.2d 494, 498-99 (Ind. 2009) (emphasis added) (internal
citations omitted).
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[16] The standard for reviewing a ruling on a motion for discharge depends on
whether the trial court resolved disputed facts or reached legal conclusions
based on undisputed facts. Austin v. State, 997 N.E.2d 1027, 1039-40 (Ind.
2013). If a trial court resolves disputed facts, those findings are reviewed for
clear error. Id. at 1040. If a trial court reaches legal conclusions based on
undisputed facts, we review those conclusions de novo. Id. at 1039.
[17] Here, the parties stipulated the State would only have three months after
November 5, 2014, to try Larkin. The following chart outlines the occurrences
and their respective dates relevant to us determining whether this three-month
period expired before the April 7 Hearing:
March 18, 2014 The State and Larkin stipulate the
State will have three months after
November 5, 2014, to bring Larkin to
trial.
October 29, 2014 The trial court certifies its order
denying Larkin’s motion to disqualify
the prosecutor’s office and stays
proceedings. Future trial date is
vacated.
September 30, 2015 We issue Larkin I, affirming the trial
court, but recommending Neary and
Armstrong recuse themselves from
the case.
October 2, 2015 Neary files a motion to withdraw
appearance, which the trial court
grants on the same day.
October 5, 2015 Armstrong files a motion to withdraw
appearance, which is granted by the
trial court on the same day.
October 6, 2015 On behalf of the State, Espar moves
for appointment of special
prosecutor.
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October 13, 2015 Judge Bergerson recuses.
October 19, 2015 Judge Alevizos accepts appointment
as special judge and schedules a
status hearing for December 4, 2015.
November 12, 2015 Trial court appoints Levco as special
prosecutor.
November 20, 2015 Larkin I is certified.
November 23, 2015 Larkin moves for change of judge.
December 10, 2015 Hearing on Larkin’s motion for
change of judge. Matter taken under
advisement.
December 31, 2015 Judge Alevizos recuses.
January 13, 2016 County Clerk selects a special judge.
January 20, 2016 Special judge declines appointment.
January 21, 2016 Clerk selects a special judge.
January 28, 2016 Special judge recuses and the Clerk
attempts to select a special judge for a
third time.
February 4, 2016 Special judge recuses.
February 9, 2016 Clerk selects special judge.
February 18, 2016 Special judge declines appointment.
February 29, 2016 Judge Blankenship accepts
appointment.
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March 28, 2016 Larkin moves for discharge pursuant
to Rule 4(C), which the trial court
takes under advisement.
March 30, 2016 Trial court holds hearing. Larkin
orally moves for discharge. The trial
court schedules pretrial hearing for
April 7, 2016, to discuss potential
trial dates.
April 6, 2016 Larkin files timeline in support of
discharge.
April 7, 2016 Hearing held.
April 11, 2016 Larkin files brief in support of
discharge.
May 3, 2016 Trial court holds hearing.
May 11, 2016 Larkin files a second motion for
discharge.
June 9, 2016 Trial court discharges Larkin.
[18] There are three periods of delay where the parties dispute whether the delay is
attributable to Larkin, court congestion, or emergency: the period for the
interlocutory appeal, and if charged to Larkin, what date the delay was no
longer attributable to him; the period between the trial court taking Larkin’s
motion for change of judge under advisement and Judge Alevizos’ recusal; and
the period between Judge Alevizos’ recusal and the appointment of Judge
Blankenship. We address each in turn.
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A. Interlocutory Appeal Delay
1. Attribution of Delay
[19] A week prior to November 5, 2014, the date the State’s three-month period was
supposed to begin running, the trial court certified its order denying Larkin’s
motion to disqualify the LaPorte County Prosecutor’s Office for interlocutory
appeal and stayed the proceedings. The parties dispute whether the subsequent
delay was caused by Larkin. The State argues an interlocutory appeal,
regardless of whether it is brought on behalf of the State or the defendant, tolls
the Rule 4(C) period. Larkin counters the period should be charged against the
Rule 4(C) period because he would not have sought an interlocutory appeal but-
for police and prosecutorial misconduct. Both arguments hold merit.
[20] The State cites to Pelley where our supreme court was tasked with determining
whether a delay resulting from the State’s interlocutory appeal was chargeable
against the Rule 4(C) period.2 901 N.E.2d at 494. The court first acknowledged
Rule 4(C) only provides exceptions for acts caused by the defendant,
emergency, or court congestion, and clearly an interlocutory appeal brought on
2
Much of Indiana’s caselaw on Rule 4(C) properly phrases issues as whether delays can be attributed to acts
caused by the defendant, court congestion, or emergency. However, many of these same cases also address
the issue of whether the delay can be charged to the State. E.g., Harrington v. State, 588 N.E.2d 509, 510 (Ind.
Ct. App. 1992). This phrasing makes some sense given the fact the State maintains the burden of timely
trying a case against a defendant pursuant to Rule 4(C). However, we also note Rule 4(C) makes no
reference to determining whether the State caused a delay, and as such, we think such phrasing appears to
punish the State. The rule makes clear any delay not caused by the defendant, court congestion, or
emergency is charged to the Rule 4(C) period, not the State. Therefore, we address any delay not caused by
the acts of the defendant, court congestion, emergency, or any other common-law exception, see Pelley, 901
N.E.2d at 499-500, as delays chargeable to the Rule 4(C) period.
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behalf of the State did not fall under any of these exceptions. Despite the fact
the defendant did not cause the delay, the court concluded the delay could not
be charged against the Rule 4(C) period, reasoning,
When trial court proceedings have been stayed pending
resolution of the State’s interlocutory appeal, the trial court loses
jurisdiction to try the defendant and has no ability to speed the
appellate process. As a practical matter, applying the Criminal
Rule 4(C) one-year requirement to interlocutory appeals would
render an appeal by the State impossible because it would in all
likelihood trigger a mandatory discharge of the defendant.
Id. at 499. The court further clarified in a general sense “that the time for
interlocutory appeal is excluded from Rule 4(C)’s limitation only when the trial
court proceedings have been stayed.” Id. at 500. Therefore, because the delay
occasioned by the State’s interlocutory appeal was not caused by the
defendant’s act, court congestion, or emergency, Pelley created at least a limited
common-law exception to Rule 4(C): when trial court proceedings are stayed
following certification of an interlocutory order, the subsequent delay cannot be
charged to the Rule 4(C) period. Here, the trial court, at Larkin’s request,
certified its order denying Larkin’s motion to disqualify the prosecutor’s office
and stayed the proceedings pending appeal.
[21] Larkin counters by citing to Harrington v. State, 588 N.E.2d 509 (Ind. Ct. App.
1992). There, the parties disputed whether a 317-day delay, which commenced
with the defendant moving for the appointment of a special prosecutor and a
subsequent motion for a continuance, was caused by the defendant and
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chargeable to him. The State argued this period was chargeable to the
defendant because the delay was caused by the defendant’s acts. The defendant
blamed the delay on the State, claiming a special prosecutor was necessary
because the prosecutor had previously served as his counsel in a criminal
matter.
[22] At the outset, we noted,
Any delay resulting from a prosecutor’s conflict, even if the delay
technically results from a defendant’s motion to continue, is
chargeable to the State. In Biggs v. State[, 546 N.E.2d 1271, 1274
(Ind. Ct. App. 1989),] we acknowledged, in general, “a defendant
is chargeable with delay occasioned by his own request for a
continuance.” However, a defendant cannot be charged with
the delay if the defendant made his motion because the State
failed to comply with a discovery request. See id. at 1275. We
offered the following explanation for this exception to the general
rule: “[Putting] defendants in a position whereby they must either
go to trial unprepared due to the State’s failure to respond to
discovery requests or waive their rights to a speedy trial, is to put
the defendants in an untenable situation.” Id.
Harrington, 588 N.E.2d at 511 (some alteration in original). Relying on the
rationale provided in Biggs, we concluded the delay was chargeable to the Rule
4(C) period, reasoning,
Just as a defendant should not have to choose between a speedy
trial and a fair trial as a result of the State’s failing to comply with
a discovery order, a defendant should not be forced to choose
between a speedy trial and a fair trial as a result of the
prosecutor’s failure to identify and cure his conflicts.
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Id. Therefore, Harrington appears to create a limited common-law exception to
acts caused by a defendant when the acts are necessary for a fair trial as a result
of a prosecutor’s conflict. Here, prosecutors in the LaPorte County
Prosecutor’s Office clearly had a conflict at the time Larkin moved to disqualify
the office from the case.
[23] As demonstrated above, Pelley and Harrington strongly support each parties’
contentions and both cases are persuasive to an extent. On one hand, the State
is correct the certification of an interlocutory order and stay of proceedings
deprives a trial court of jurisdiction, and Pelley makes clear the delay cannot be
charged against the Rule 4(C) period. On the other hand, however, prosecutors
in the LaPorte County Prosecutor’s Office had a conflict they failed to timely
identify and cure and Harrington appears to dictate any subsequent delay from a
prosecutor’s conflict is chargeable to the Rule 4(C) period.
[24] Ultimately, we find the rationale and underlying policy considerations provided
in Pelley are controlling. The fact the proceedings were stayed at the request of
Larkin removes from the State and Larkin and the trial court the opportunity to
proceed with the case. Stated differently, following Harrington would make it
impossible for the State to timely bring Larkin to trial. Sensibly, one could
counter this point by noting it is the State’s burden to bring a defendant to trial,
and if we were to follow Harrington in this case, it would send a clear message
to prosecutor’s offices they must identify and cure conflicts or risk losing their
opportunities to try cases. However, following Harrington in this case would
have additional consequences. We first note there is no ability to predict the
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amount of time an appeal may take and neither the trial court nor parties to a
case have control over that delay. Here, it was nearly a year from the time the
trial court certified its order for interlocutory appeal until Larkin I was issued
and if we charged delays from interlocutory appeals to the Rule 4(C) period,
defendants could often successfully seek discharge regardless of the merit of
their interlocutory claim.3 This, in turn, would influence the exercise of a trial
court’s discretion to certify interlocutory orders for appeal and would likely
deprive defendants of the opportunity for an immediate appeal of an adverse
ruling. We conclude Pelley is controlling of the issue regarding Larkin’s
interlocutory appeal and therefore the delay is chargeable to Larkin.
2. Extent of Delay
[25] The parties next dispute the length of the delay. Specifically, the parties agree
the tolling commenced on November 5, 2014, but disagree as to when the Rule
4(C) period resumed running. In determining the extent of a delay caused by a
defendant, we proceed on a case-by-case basis. Curtis, 948 N.E.2d at 1150.
[26] The State argues the delay ended on November 20, 2015, the date Larkin I was
certified. In support, the State cites to Indiana Appellate Rule 65(E), which
provides, “The trial court, Administrative Agency, and parties shall not take
any action in reliance upon the opinion or memorandum decision until the
3
In such a case, it would likely be necessary for courts to then determine whether the claim of conflict was
meritorious, and as our case law makes clear, the application of Rule 4(C) is not dependent on whether “the
act causing the delay was justifiable or meritorious.” State v. Grow, 255 Ind. 183, 185, 263 N.E.2d 277, 278
(1970).
Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017 Page 22 of 50
opinion or memorandum decision is certified.” See also Rogers Grp., Inc. v.
Diamond Builders, LLC, 833 N.E.2d 475, 477 (Ind. Ct. App. 2005) (“[T]he
Clerk’s certification of appellate decisions signals the parties that such a
decision is ‘final.’”).
[27] Larkin acknowledges the date of certification would typically be the earliest
date the trial court should reassume jurisdiction and lift the stay of proceedings.
However, he counters this is not a typical case and cites to numerous actions by
the State and the trial court occurring shortly after we issued Larkin I, but before
it was certified; actions he believes indicate the trial court reassumed
jurisdiction and the State submitted itself to the trial court’s jurisdiction. In
addition, he also cites to actions by the State prior to certification that
essentially conceded any issues the parties could raise on rehearing or transfer.
Therefore, Larkin claims the clock began running at some point in early
October 2015. We agree with Larkin.
[28] In Larkin I, Larkin appealed the denial of his motion to disqualify the
prosecutor’s office and for the appointment of a special prosecutor. On
September 30, 2015, we dismissed Larkin’s appeal after determining the issue
was moot because while the case was pending on appeal, Espar was elected as
the new county prosecutor, replacing Szilagyi. Thereafter, the following events
occurred in the trial court and prior to the certification of Larkin I on November
20, 2015:
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October 2, 2015 Neary files a motion to withdraw
appearance, which the trial court
grants on the same day.
October 5, 2015 Armstrong files a motion to withdraw
appearance, which is granted by the
trial court on the same day.
October 6, 2015 On behalf of the State, Espar moves
for appointment of special
prosecutor.
October 13, 2015 Judge Bergerson recuses.
October 19, 2015 Judge Alevizos accepts appointment
as special judge and schedules a
status hearing for December 4, 2015.
November 12, 2015 Trial court appoints Levco as special
prosecutor.
[29] In light of these events, it is clear the State immediately submitted itself to the
trial court and the trial court immediately acted under the impression it had
jurisdiction. Although there is no date in the record indicating when the stay of
proceedings was explicitly lifted, it is clear the State’s and the trial court’s acts
amount to a constructive lift of the stay. And more importantly, the State, not
Larkin, moved for the appointment of a special prosecutor on October 6, 2015,
approximately six weeks prior to certification. This act, in effect, resolved any
issues Larkin may have raised on rehearing or transfer and satisfied the purpose
of finality underlying Appellate Rule 65(E). Thus, by October 6, 2015, the State
submitted itself to the trial court, the trial court acted as if it had jurisdiction,
and the State moved to appoint a special prosecutor thereby resolving any
further appellate issues. We conclude this delay ended on October 6, 2015, and
thereafter the time began running against the Rule 4(C) period.
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[30] The dissent disagrees with this conclusion on three bases. First, it believes the
actions by the State and the trial court in early October are voidable and
susceptible to ratification. The dissent therefore believes Larkin essentially
ratified these actions by failing to object. However, in an October 14, 2015,
motion, Larkin explained to the trial court the State’s motions were premature
and any action by the trial court addressing the merits of the State’s motions
would also be premature. Although the motion does not specifically mention
the word “objection,” it is clear Larkin was objecting to the State’s and the trial
court’s actions.
[31] Second, the dissent believes the delay could not have ended on October 6, 2015,
because in the same October 14 motion noted above, Larkin explained he was
contemplating filing a petition for transfer. However, the issues raised in Larkin
I only addressed the denial of Larkin’s motion to disqualify the LaPorte County
Prosecutor’s Office and to appoint a special prosecutor. Larkin’s motion to
disqualify the prosecutor’s office was moot because in the interim a new
prosecuting attorney had been elected. Therefore, this would not be an issue to
raise on transfer. The only issue potentially available to Larkin on transfer
would have been the denial of his motion to appoint a special prosecutor. But
on October 6, 2015, the State removed all likelihood Larkin would seek transfer
on this issue because it—not Larkin—moved to appoint a special prosecutor.
Our review of the record indicates the State’s and the trial court’s actions
satisfied Appellate Rule 65(E).
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[32] Third, the dissent asserts our conclusion that the delay ended on October 6,
2015, appears to “improperly penalize the State” when in fact the State’s act of
moving for a special prosecutor benefitted Larkin because such an act
“expedited the progress of the case once [Larkin I] was certified.” Slip op. at ¶
54. We disagree. As noted Rule 4(C) is not written to help or punish the State.
The rule only addresses whether a delay stops the Rule 4(C) time from running.
In addition, the rule plainly provides the State maintains the burden of bringing a
defendant to trial to ensure timeliness. See supra note 2. Therefore, the dissent’s
assertion that our decision penalizes the State is not in accord with the plain
language of Rule 4(C). See id. As to the dissent’s assertion the State’s actions
expedited the case thereby benefitting Larkin, we reemphasize the inquiry is not
whether the State was harmed or the defendant incurred a benefit, but rather is
when the Rule 4(C) time stopped.
[33] In sum, the State proceeded after Larkin I was issued as if under the impression
the clock was running against the Rule 4(C) period and the act of filing the
motions early limited the impact on the period. The State cannot have its cake
and eat it too in now claiming this time should be chargeable to Larkin. Based
solely on the unique set of facts and circumstances in this case, we conclude the
period for the interlocutory appeal was charged against Larkin between
November 5, 2014, and October 6, 2015, and for the next sixty-five days (until
the change of judge hearing) the clock ran against the Rule 4(C) period.
Therefore, even assuming the other periods of delay in dispute are chargeable to
Larkin, the Rule 4(C) period expired on March 26, 2016, two days before
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Larkin moved for discharge. For this reason, we need not address whether
Larkin waived his claim at the April 7 Hearing because the Rule 4(C) time
period had already run by that date. The trial court did not err in concluding
Larkin was entitled to discharge pursuant to Rule 4(C). This conclusion is
sufficient to affirm the trial court. However, we opt to delve further into Rule
4(C) analysis given the complicated nature of this appeal. We therefore proceed
under the assumption the State is correct the interlocutory appeal tolled the
Rule 4(C) period until certification on November 20, 2015.
B. Motion for Change of Judge Delay
[34] The parties do not dispute the period between November 20, 2015, and
December 10, 2015, or twenty days, ran against the Rule 4(C) period thereby
bringing the State’s remaining period to try Larkin to approximately seventy
days.4 The parties do dispute, however, whether the period beginning with the
hearing on Larkin’s motion for change of judge on December 10, 2015, and
Judge Alevizos’ recusal on December 31, 2015, is chargeable to Larkin. The
4
The dissent does not agree this issue is undisputed and cites to both the Appellant’s Brief and the Reply
Brief of the Appellant where the State appears to assert the delay resulting from Larkin’s motion for change
of judge began on November 23, 2015, the date he filed the motion. We acknowledge Larkin filed his
motion on this date and further note the caselaw cited by the dissent supports the notion the delay should be
charged from the date the defendant files its motion for change of judge. However, because of the unique
facts of this case, we cannot agree. The trial court found the delay did not begin until December 10, 2015,
the day the trial court held a hearing on the motion and took the matter under advisement. In its briefs, the
State does not specifically challenge this finding, nor does the State cite to any circumstances in the record
showing the filing of the motion caused any delay prior to the trial court taking the matter under advisement
on December 10, 2015. Yet, even assuming the delay began on November 23, 2015, the discussion below
reveals the delay is chargeable to the Rule 4(C) period and therefore the State still failed to meet the Rule
4(C) deadline.
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State argues it was Larkin’s act of moving for change of judge that caused the
delay. Similar to his argument above, Larkin counters Harrington should
control and dictates any delay from his motion for change of judge be charged
to the Rule 4(C) period because Larkin should not be placed in a position of
choosing between a fair or timely trial. We agree with Larkin.
[35] Below, the trial court found Judge Alevizos never should have accepted
appointment as special judge and at the very least should have immediately
recused himself due to a conflict. Although the trial court did not note details
of the conflict in its findings, the record is revealing. Following Stacey’s death
and Larkin’s arrest, Larkin’s sister, Dorothy Denise Carroll, a licensed attorney
in Illinois, was granted legal and physical custody of Larkin’s children and
acted as guardian of the children’s estates and trustee of their trusts. At some
point, Carroll sought approval from Judge Alevizos, the presiding judge over
the familial matters, to purchase Larkin’s home with money from the children’s
trusts for the purpose of allowing the children to continue to live in the home.
We previously summarized the relevant portions of a hearing on Carroll’s
petition:
Carroll presented the testimony of Toni Henke-Wheeler
(“Henke-Wheeler”), who provided family and individual
counseling to the Children. Henke-Wheeler testified that the
Children were dealing with grief stemming from the death of
their mother, their father’s alleged role in the death of their
mother, and the perceived “loss” of their mother during the latter
part of her life due to her substance abuse problems. When
Henke-Wheeler referred to the “alleged” role Larkin played in
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the death of the Children’s mother, the trial court interrupted her
and stated:
[“]So is the—the involvement isn’t alleged. The nature of the
involvement is what’s at issue. Is that my understanding of the
criminal case? So you don’t need to [use] alleged there.[”]
Henke-Wheeler was then cross-examined by Larkin’s counsel,
who asked the question, “Given the fact that the children now
only have one parent, their father, in your opinion, if he is
removed from their presence, what impact would his absence
have on the children?” Before Henke-Wheeler could respond,
the trial court objected sua sponte, stating “It's irrelevant. You
don't have to object. It's irrelevant.”
In re Guardianship of K.K.L., No. 46A04-1507-GU-921, slip op. ¶ 10 (Ind. Ct.
App. Apr. 26, 2016) (alterations in original) (emphasis added) (citations
omitted). Judge Alevizos then denied Carroll’s petition. Carroll did not appeal
this order.
[36] A week later, the trial court sua sponte ordered Carroll to appear and show cause
as to why she should not be removed as the guardian of the Children’s estates.
The trial court cited the following reasons for its order:
1. It appears from the Chronological Case Summary that
[Carroll] has not filed an accounting;
2. [Carroll] caused to be filed a petition to have the wards’ trust
purchase her brother, John Larkin’s, house. The Court finds this
as evidence that she was more interested in her brother's fiduciary
interest than the fiduciary interests of the wards.
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3. More importantly, [Carroll] did not, in her capacity as
personal representative/Guardian, file a lawsuit against (her
brother) John Larkin, who is the individual charged with the
homicide of the wards’ mother (and the Estate’s decedent). It
appears that the statute of limitations has now passed for her to
attempt to bring suit at this time.
Id. at ¶ 12 (alterations in original) (citation omitted). Following the show cause
hearing, Judge Alevizos entered an order removing Carroll as guardian of the
children’s estates and trustee of the children’s trusts. On appeal, we reversed
the trial court’s order in its entirety. Id. at ¶ 30. Judge Alevizos also later
reported Carroll to an Illinois Disciplinary Commission alleging Carroll made
false misrepresentations, but the record is unclear as to the circumstances
surrounding Judge Alevizos’ allegations. See Transcript, Volume II at 5.
[37] As noted above, the general rule is acts by a defendant causing delay are
charged to him, and here, Larkin moved for change of judge and a delay
followed as the trial court took the matter under advisement. Alternatively,
Harrington dictates a “defendant should not be forced to choose between a
speedy trial and a fair trial as a result of the prosecutor’s failure to identify and
cure his conflicts.” Harrington, 588 N.E.2d at 511. The difference between this
case and Harrington is this case also addresses a judicial conflict. Despite this
factual difference, we find the reasoning in Harrington persuasive. To be clear,
Rule 4(C) only provides exceptions to the State’s burden of bringing a
defendant to trial in a timely manner. Those exceptions merely speak to acts by
a defendant, emergency, or court congestion, and the rule does not include any
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language pertaining to prosecutorial or judicial conflicts of interest; Harrington
recognizes an exception for prosecutorial conflicts, and this case recognizes an
exception for judicial conflicts.5 Just as a prosecutor has a duty to identify and
cure conflicts, Canon 2.11 of the Indiana Code of Judicial Conduct provides in
relevant part, “A judge shall disqualify himself or herself in any proceeding in
which the judge’s impartiality might reasonably be questioned . . . .” And in
light of the record before us, an objective person could have reasonably
questioned Judge Alevizos’ impartiality. Therefore, like the defendant in
Harrington, Larkin was placed in an untenable situation. Larkin was forced to
choose between a timely trial and a trial presided over by a judge with a taint of
prejudice and bias. Our federal and state constitutions demand defendants
receive timely trials by impartial judges. As noted above, we merely address
this delay arguendo, but we conclude the delay of twenty-one days between
December 10, 2015, to December 31, 2015, is chargeable to the Rule 4(C)
period, not Larkin, leaving the State forty-nine days in the Rule 4(C) period to
bring Larkin to trial.
5
We acknowledge the decision to follow Harrington may appear at first blush to be contradictory since we
opted not to follow Harrington when addressing the interlocutory delay. To be clear, the delay from the
interlocutory appeal completely deprived the trial court of jurisdiction and therefore Pelley controlled. Here,
there was no stay of proceedings; rather, the delay resulted from a conflict through no fault of Larkin and
therefore Harrington is controlling as to the present issue.
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C. Appointment of Special Judge Delay
[38] The parties next dispute the fifty-nine day delay from December 31, 2015, to
February 29, 2016, in appointing a special judge. In light of our conclusion the
delay resulting from Larkin’s motion for change of judge is chargeable to the
Rule 4(C) period, the State contends this fifty-nine-delay is not chargeable to the
Rule 4(C) period because the delay falls under the court congestion exception.
Specifically, it cites to Henderson v. State, 647 N.E.2d 7 (Ind. Ct. App. 1995),
trans. denied, where we held a “delay due to the unavailability of a judge who
can properly hear a case is an exigent circumstance which qualifies as court
congestion and tolls the running the Crim.R. 4(C) time period.” Id. at 13
(relying on our supreme court’s decision in Morrison v. State, 555 N.E.2d 458
(Ind. 1990)). Larkin believes this delay should be charged to the Rule 4(C)
period because the delay “was caused by circumstances beyond Larkin’s
control, i.e., the trial court’s erroneous procedure for selecting a new judge and
the conflicts created by the State’s misconduct, not Larkin.” Appellee’s Brief at
34. Larkin cites to Young v. State, 521 N.E.2d 671, 673 (Ind. 1988), where our
supreme court was tasked with attributing delay occasioned by the defendant’s
counsel’s resignation from the public defender’s office and concluded the
defendant could not be charged with the delay because he did not cause his
attorney’s resignation. Given the facts of this case, we agree with Larkin.
[39] At the December 10 hearing on Larkin’s motion for change of judge, Judge
Alevizos warned the parties every remaining LaPorte County judge had a
conflict of interest and would not be able to preside over the case if he recused.
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He further explained this would require the County Clerk to seek a senior judge
or a judge from another county. Judge Alevizos’ statements were consistent
with LaPorte County’s Local Rule 46-CR 2.2, which provides if no LaPorte
County judge is able to hear a case, the County Clerk shall select a judge from
contiguous counties. However, Rule 46-CR 2.2 further provides,
In cases in which no full-time judicial officer is eligible to serve as
special judge, or the particular circumstances of a case warrants
selection of a special judge by the Indiana Supreme Court, the
regular sitting judge under Criminal Rule 13(D) may certify the
case to the Supreme Court for appointment of a special judge.
(Emphasis added.) In his December 31 Order granting Larkin’s motion for
change of judge, Judge Alevizos directed the County Clerk to “select a
successor judge pursuant to Local Rules.” Appellant’s App., Vol. 2 at 89. The
County Clerk then, through no fault of his or her own, proceeded to select five
different judges over a two-month period.
[40] Upon review of this unique record, Judge Alevizos should have certified this
case for the appointment of a special judge. Even as Judge Alevizos wrote in
the December 31 order,
[T]his is a matter full of circumstances to be known for which a
reasonable person, competent enough to appreciate all the above,
would be hard to find; in fact, it is quite likely that only those
with authority to review the decision of this court today would be
so competent. Therefore, to save this matter any further delays and to
ensure that any sense of bias is removed from this overly complicated set
of circumstances, the Court will GRANT the motion for recusal.
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Id. at 88 (emphasis added). Thus, even Judge Alevizos recognized in his own
words, albeit implicitly, the particular circumstances in this case warranted
special treatment. In addition, he based his ruling in part on his desire to save
the matter from further delay; however, this did not occur. The appropriate
action would have been to certify the case to our supreme court to appoint a
special judge, and although we may only speculate, we have little doubt the
supreme court would have promptly selected a special judge given the nature of
this case. Judge Alevizos, however, selected a more inefficient route, a route he
knew or should have known would cause an abnormal delay. We conclude the
particular circumstances of this case do not warrant a finding that the fifty-nine-
day delay falls under the court congestion exception. Again, we merely address
this delay arguendo, but we conclude the delay of fifty-nine days between
December 31, 2015, and February 29, 2016, is chargeable to the Rule 4(C)
period, not Larkin, leaving the State with no more time.
[41] In sum, the crux of the State’s contention is the Rule 4(C) period had not yet
expired by the April 7 Hearing. The delay from the interlocutory appeal is
chargeable to Larkin, but the time began running against the Rule 4(C) period
again on October 6, 2015, leaving the State with ninety days. Although we
conclude to the contrary, even assuming the following delays were chargeable
to Larkin, the Rule 4(C) period expired March 26, 2016. On the other hand, if
by chance the Rule 4(C) period did not begin to run until November 20, 2015,
the Rule 4(C) period expired in the middle of February as we already concluded
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the latter delays are charged to the Rule 4(C) period. The trial court properly
discharged Larkin.
II. Motion to Dismiss 6
A. Standard of Review
[42] We review a trial court’s ruling on a motion to dismiss a charging
information for an abuse of discretion. An abuse of discretion
occurs when the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before it. A trial court
also abuses its discretion when it misinterprets the law.
An-Hung Yao v. State, 975 N.E.2d 1273, 1276 (Ind. 2012) (citations and internal
quotation marks omitted).
B. Fair Trial
[43] The State contends the trial court abused its discretion in dismissing the charge
against Larkin on the basis Larkin could not receive a fair trial. Specifically, it
acknowledges a presumption of prejudice attached due to the eavesdropping,
but claims the trial court erred in not holding a hearing at which the State could
present evidence to rebut the presumption pursuant to State v. Taylor, 49 N.E.3d
1019 (Ind. 2016). Larkin asserts Taylor is not controlling because the
6
We note this case is resolved by the outcome of the discharge issue, but we opt to address the State’s
misconduct as well.
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misconduct in this case is far greater and more akin to State v. Schmitt, 915
N.E.2d 520, 521 (Ind. Ct. App. 2009), trans. denied. We agree with Larkin.
[44] In Taylor, police officers and prosecutors eavesdropped on a conversation
between a defendant and his attorney and the police officers pleaded the Fifth
Amendment when questioned about the eavesdropping. The issue for our
supreme court was whether blanket suppression of the police officers’ testimony
was the proper remedy to cure the constitutional violation. The court first
explained in such circumstances there is a presumption of prejudice, but this
presumption is rebuttable. 49 N.E.3d at 1024. Because the officers learned of
both tangible (location of evidence) and intangible (defense strategy) evidence
while eavesdropping, the court noted as follows:
The eavesdropping here gives the State two unfair advantages.
One is learning the whereabouts of evidence it would not
otherwise discover, like the handgun. The trial court here
addressed that prejudice by applying the exclusionary rule, under
which unconstitutionally seized evidence “is generally not
admissible in a prosecution . . . absent evidence of a recognized
exception” to the rule. One such exception is the “ultimate
discovery exception,” which applies when the State can show
“by a preponderance of the evidence” that it had an independent
source for discovering the evidence. Here the court applied that
exception to the other various exhibits and neither party
challenges the court’s “independent source” findings.
The State’s second unfair advantage, however—learning defense
strategy—is more insidious and therefore warrants a unique and
more stringent remedy. Having stolen Taylor’s strategic
“playbook,” tainted witnesses can preemptively shade their
testimony to undermine that strategy. Shading testimony based
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on ill-gotten strategic insight is more difficult to detect, but just as
damaging to the fairness of an adversarial proceeding.
Unfortunately, the extent to which the State actually prejudiced
Taylor by capitalizing on both these advantages is, in the State’s
words, “shrouded in a fog of uncertainty,” especially considering
the officers’ refusal to reveal what was overheard and by whom.
Id. at 1027-28 (alteration and emphasis in original) (citations omitted).
Therefore, in addressing the fact the State learned the defendant’s defense
strategy, the court held the State should bear the burden of disproving prejudice
from testimonial, or intangible, evidence stemming from that misconduct
beyond a reasonable doubt. Id. at 1028. In addition, the State must be given a
full opportunity to meet that burden. Id. Therefore, the State here claims the
trial court erred in not giving it a full opportunity to meet its burden of
disproving prejudice to Larkin.
[45] Comparatively, Larkin cites to Schmitt. There, the State appealed the trial
court’s decision to sanction the State by dismissing charges against the
defendant because the State failed to comply with a discovery order. On
appeal, the State argued dismissal of the charges was not the proper remedy.
We noted,
A trial judge has the responsibility to direct the trial in a manner
that facilitates the ascertainment of truth, ensures fairness, and
obtains economy of time and effort commensurate with the rights
of society and the criminal defendant. Where there has been a
failure to comply with discovery procedures, the trial judge is
usually in the best position to determine the dictates of
fundamental fairness and whether any resulting harm can be
eliminated or satisfactorily alleviated. . . . The trial court must be
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given wide discretionary latitude in discovery matters since it has
the duty to promote the discovery of truth and to guide and
control the proceedings, and will be granted deference in
assessing what constitutes substantial compliance with discovery
orders.
***
Where the State’s actions were deliberate and the conduct
prevented a fair trial, a more extreme remedial measure, such as
the exclusion of evidence, may be employed. Dismissal of
charges is also a sanction within the arsenal of the trial judge in
dealing with the failure of the prosecution to afford the defense
access to evidentiary materials as ordered. In determining
whether dismissal was proper, the court should consider whether
the breach was intentional or in bad faith and whether substantial
prejudice resulted.
915 N.E.2d at 522-23 (alteration in original) (citations omitted).
[46] At the outset, we emphasize the misconduct identified in Taylor was
eavesdropping, and only eavesdropping, and our supreme court was tasked
with establishing a limited framework to allow the State the opportunity to
disprove taint from eavesdropping. Here, and in stark contrast: 1) law
enforcement initially deprived Larkin of the opportunity to speak to his
attorney, 2) Neary and law enforcement recorded Larkin’s privileged
communications with his attorney, 3) after learning the communications had
been recorded, Neary had the recording transcribed and disseminated, 4) Neary
and Armstrong made conflicting statements about who had seen the video
and/or transcript of the video, 5) the safe’s door was tampered with prior to
Larkin having an opportunity to examine it, 6) Detective Babcock expressed an
intent to force Detective Kaplan to change his story regarding Stacey’s alleged
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suicidal episode in the summer of 2014, and 7) a non-redacted case file was
provided to newly appointed Special Prosecutor Levco despite the trial court
ordering Special Prosecutor Levco only receive a redacted case file. Clearly, the
misconduct here far exceeds that found in Taylor, and given this disparity,
Taylor cannot control. Even assuming Taylor is controlling, the State’s
argument still fails. As the State acknowledges, “On June 9, 2016, the trial
court held a hearing at which the State appeared by telephone.” Brief of
Appellant at 20. During the hearing, the parties discussed Larkin’s motion to
dismiss. At one point, the State noted its desire to have the court hold an
additional hearing so it could present evidence to disprove prejudice. However,
we express two concerns relevant to this issue. First, at oral argument, Levco
suggested he had not viewed the recording of the privileged communications,
but in the same breath argued a Taylor hearing was necessary because he did
not believe there was prejudicial information contained on the recording that
was not already known from other sources. In light of these comments, it is
apparent Levco, one way or another, learned of the information because there
is no other way he could confidently make these statements. Therefore, the fact
Levco had knowledge of the contents of the communications is even more
prejudicial to Larkin as it extends the taint of the State’s misconduct to the man
tasked with prosecuting Larkin in a tribunal free of taint. Second, our review of
the record shows the State made no offer to prove after the trial court declined
the State’s request to hold a Taylor hearing. “An offer to prove is the method by
which counsel places before the trial court (and ultimately the reviewing court)
the evidence he or she wishes to present, to allow the court to determine the
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relevancy and admissibility of the proposed testimony.” Arhelger v. State, 714
N.E.2d 659, 664 (Ind. Ct. App. 1999). We think under the circumstances of
this case, the State was required to make an offer to prove regarding the
additional evidence it wished to present. Because the State did not make an
offer to prove, we have not been provided an adequate record to determine
whether the State suffered prejudice even if the trial court erred in not holding a
Taylor hearing.
[47] We further acknowledge Schmitt is also not directly on point as it only
addressed sanctions for deliberate violations of discovery orders. Despite this,
we find its language persuasive and relevant to the question at hand. Here, the
trial court was in the best position to ensure a fair trial, and as it clearly stated in
its order granting Larkin’s motion to dismiss, “It is the Court’s obligation to
guarantee a fair trial, and based upon the totality of misconduct on the part of
the State, this Court cannot guarantee this Defendant a fair trial.” Appellant’s
App., Vol. 4 at 88. And although the trial court did not enter specific findings
as to whether the misconduct was done deliberately or in bad faith or whether
substantial prejudice resulted, it is clear to us the several acts of misconduct
were done, at the very least, in bad faith, and such acts severely prejudiced
Larkin to the extent he could not receive a fair trial. The State’s actions here
threaten the public trust in our criminal justice system. This cannot and will
not be tolerated. We conclude the trial court did not abuse its discretion in
granting Larkin’s motion to dismiss.
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Conclusion
[48] The trial court did not err in granting Larkin’s motion for discharge and motion
to dismiss. Accordingly, we affirm the trial court’s judgment.
[49] Affirmed.
Riley, J., concurs.
Barnes, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
State of Indiana,
Appellant-Plaintiff,
Court of Appeals Case No.
v. 46A04-1607-CR-1522
John B. Larkin,
Appellee-Defendant.
Barnes, Judge, dissenting.
[50] I respectfully dissent. I am well aware of the highly-questionable conduct
engaged in by members of the LaPorte County Prosecutor’s Office and law
enforcement community on more than one occasion, having authored this
court’s opinions in both Larkin I and Taylor. However, I cannot conclude that
Larkin’s speedy trial rights under Criminal Rule 4(C) were violated, nor that the
trial court properly granted his motion to dismiss on constitutional grounds.
I. Criminal Rule 4(C)
[51] I differ from the majority regarding its attribution of several periods of time to
the Rule 4(C) clock rather than to Larkin. First, while I fully agree with the
majority’s analysis that the time in which the interlocutory appeal for Larkin I
was pending was attributable to Larkin, I conclude that time did not expire
until the clerk of this court certified our decision as final on November 20, 2015.
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[52] Indiana Appellate Rule 65(E) states in part:
The Clerk shall certify the opinion or memorandum decision to
the trial court or Administrative Agency only after the time for all
Petitions for Rehearing, Transfer, or Review has expired, unless
all the parties request earlier certification. If the Supreme Court
grants transfer or review, the Clerk shall not certify any opinion
or memorandum decision until final disposition by the Supreme
Court. The trial court, Administrative Agency, and parties shall
not take any action in reliance upon the opinion or
memorandum decision until the opinion or memorandum
decision is certified.
It has been said that trial courts lack “jurisdiction” to perform any action in a
case while an appeal of a final judgment is pending, except for ministerial tasks
such as reassessing costs, correcting the record, or enforcing a judgment. In re
Paternity of V.A., 10 N.E.3d 65, 67-68 n.1 (Ind. Ct. App. 2014). See also Pflederer
v. Kesslerwood Lake Ass’n, Inc., 878 N.E.2d 510, 514 (Ind. Ct. App. 2007)
(holding that issue of costs and fees to be imposed based on wrongful issuance
of injunction was not ripe until appellate decision was certified as final);
Hancock v. State, 786 N.E.2d 1142, 1143, n.1 (Ind. Ct. App. 2003) (holding trial
court’s action in resentencing defendant following remand on appeal before
appellate decision was certified as final “was premature and should be
considered as a nullity”).
[53] I concede that our supreme court in recent years has narrowed the definition of
appellate “jurisdiction.” See, e.g., In re D.J. v. Indiana Dep’t of Corr., 68 N.E.3d
574, 579 (Ind. 2017); In re Adoption of O.R., 16 N.E.3d 965, 970 (Ind. 2014). It is
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possible that a trial court’s actions while an appeal is pending may not raise a
“jurisdictional” problem and such actions may not be “void.” See K.S. v. State,
849 N.E.2d 538, 541 (Ind. 2006) (holding that judgments entered by a court
having subject matter and personal jurisdiction are not void). However, I still
believe such actions are at least “voidable” based on clear procedural error. An
action that is “voidable” has a defect or imperfection that can be cured by the
ratification or confirmation of a party who could have taken advantage of the
defect. In re Guardianship of A.J.A., 991 N.E.2d 110, 114 (Ind. 2013).
[54] Had Larkin decided to object to any of the premature actions by the State or
trial judge, I believe there would have been no choice but to sustain such
objections. He did not do so, but rather essentially ratified the premature
actions. In any case, the actions of the prosecutors and trial judge in
withdrawing or recusing and seeking appointment of a special prosecutor before
our decision in Larkin I was certified inured to Larkin’s benefit, in terms of the
Rule 4(C) time period: they expedited the progress of the case once our opinion
was certified. It would improperly penalize the State to say that it restarted the
Rule 4(C) clock before certification of our Larkin I opinion. I also note that, if
the parties were in agreement that no one would seek transfer or rehearing, they
could have jointly asked this court to certify our opinion before the official time
period for certification had passed, but they did not do so. Perhaps Larkin was
considering filing a rehearing or transfer petition after we dismissed his appeal
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as moot and wanted the full amount of time to consider whether to do so. 7
Additionally, it would have been highly inadvisable for the trial court to have
attempted to schedule a new trial date before it was clear that our decision in
Larkin I was final. Consequently, I believe the time period until November 20,
2015, was chargeable to Larkin for Rule 4(C) purposes.
[55] Next, I address the delay associated with Larkin requesting the recusal of Judge
Alevizos from the case and the eventual appointment of Judge Blankenship as
special judge on February 29, 2016.8 I find that the caselaw is well-settled on
this point: any delay occasioned by a defendant’s motion for change of judge is
chargeable to the defendant under Rule 4(C). See State ex rel. Brown v. Hancock
Cty. Superior Court, 267 Ind. 546, 547-48, 372 N.E.2d 169, 170 (1978); State v.
Grow, 255 Ind. 183, 185, 263 N.E.2d 277, 278 (1970); Henderson v. State, 647
N.E.2d 7, 13-14 (Ind. Ct. App. 1995) (describing delay caused by finding special
judge qualified to hear case as due to “court congestion”), trans. denied. It does
not matter that the defendant’s request for a change of judge is “justifiable or
meritorious.” Grow, 255 Ind. at 185, 263 N.E.2d at 278. In Grow, the period of
delay in finding a qualified special judge was six months; in Brown, it was
7
In an October 13, 2015 response to the State’s request to appoint a special prosecutor, Larkin’s attorney did
in fact represent that he was still considering filing a transfer petition.
8
The majority states, “The parties do not dispute the period between November 20, 2015, and December 10,
2015, or twenty days, ran against the Rule 4(C) period . . . .” Slip op. p. 27. However, the State in its
opening and reply briefs appears to take the position that Larkin tolled the Rule 4(C) period beginning on
November 23, 2015, when he filed his motion for change of judge.
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sixteen months. In both cases, our supreme court found the entirety of the
delays chargeable to the defendants.
[56] Larkin also contends that Judge Alevizos never should have agreed to accept
presiding over this case, or at least should have immediately recused himself
after the December 10, 2015 hearing regarding recusal, and the delay in Judge
Alevizos not agreeing to step aside until December 31, 2015, should not be
chargeable to him. In essence, Larkin argues and the majority agrees that
Judge Alevizos had a patently-obvious reason for recusing based on his having
presided over a guardianship case involving Larkin’s children and his sister.
However, neither Larkin nor the majority have cited a case where recusal was
required under circumstances similar to those here, nor any Rule of Judicial
Conduct that unequivocally mandated Judge Alevizos’s recusal. “The law
presumes a judge is unbiased and unprejudiced.” Patterson v. State, 926 N.E.2d
90, 93 (Ind. Ct. App. 2010). In the absence of such clear precedent or rule, I
would not say Judge Alevizos had to immediately and automatically recuse
himself. In any case, as previously noted, it does not matter whether Larkin
had good reason for asking for Judge Alevizos’s recusal; the time associated
with that request is chargeable to Larkin. In sum, I conclude the time period
between Larkin’s motion for change of judge on November 23, 2015, and Judge
Blankenship’s acceptance of the case on February 29, 2016, did not count
against the Rule 4(C) time period.
[57] The State concedes that, per the parties’ agreement before the interlocutory
appeal, it had ninety days from the date of certification of our Larkin I opinion
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in which to try Larkin, aside from delays attributable to him or court
congestion. By my calculations, this results in a latest possible trial date of May
26, 2016—with the Rule 4(C) clock recommencing on November 20, 2015 and
then being tolled between November 23, 2015 and February 29, 2016. The trial
court eventually scheduled trial to begin on June 20, 2016. The question is
whether Larkin waived any objection to this trial date. I agree with the State
that he did.
[58] On April 7, 2016, the trial court conducted a pre-trial hearing. Before this,
Larkin had already filed a motion for discharge under Rule 4(C), contending
the time for trial already had passed. This motion was discussed at the hearing
but not ruled upon. Also, defense counsel and the special prosecutor discussed
possible trial dates. The special prosecutor offered possible trial dates in early-
to-mid May 2016. Defense counsel, however, represented to the trial court
that, if in fact it eventually ruled against Larkin’s discharge motion, he would
rather begin the trial on June 20, 2016. Defense counsel further indicated that
he was waiving any speedy trial argument as to a trial on that date. The trial
court clarified for the record, to which defense counsel agreed: “He waives it,
he waives it to the extent, as I understand, that he has already made a record
that the time has run.” 4/7/2016 Tr. p. 85.
[59] “As a general rule, when a defendant seeks or acquiesces in a delay, the time
limitations set by Criminal Rule 4 are extended by the length of the delay.”
State v. Black, 947 N.E.2d 503, 507 (Ind. Ct. App. 2009). When a defendant
agrees to a trial date outside the Rule 4(C) time limit before that time limit has
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expired, the defendant waives his or her right to be discharged. Id. at 509.
Here, defense counsel, at the April 7, 2016 hearing, made it quite clear to the
trial court both that (1) he believed the Rule 4(C) time period had expired, but
(2) if it had not, he waived any Rule 4(C) complaint as to trial beginning on
June 20, 2016. My analysis is that the Rule 4(C) time period did not expire
until May 26, 2016; hence, Larkin waived any claim that a trial beginning on
June 20, 2016 exceeded the Rule 4(C) period.
[60] I emphasize that, although Criminal Rule 4 places an affirmative duty on the
State to speedily bring a defendant trial, it is not intended to provide defendants
with a technical means to avoid trial. Cundiff v. State, 967 N.E.2d 1026, 1028
(Ind. 2012). I think Larkin may be doing just that. I would hold that the trial
court’s proferred trial date of June 20, 2016, did not violate Larkin’s rights
under Criminal Rule 4(C).
II. Motion to Dismiss
[61] Next, I address the trial court and majority’s alternative conclusion that the
misconduct of police and prosecutors warrants outright dismissal of the case
against Larkin. No one disputes that certain prosecutors and law enforcement
officers egregiously violated Larkin’s constitutional rights. However, our
supreme court addressed extremely similar misconduct in Taylor and refused to
conclude that outright dismissal or suppression of all the State’s evidence was
required.
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[62] In Taylor, the trial court had suppressed all testimony from any officer who had
eavesdropped on the defendant’s privileged communications with his lawyer,
which communications revealed the location of the murder weapon. Our
supreme court reversed this ruling, ultimately holding:
We conclude that a presumption of prejudice, rebuttable only by
proof beyond a reasonable doubt, adequately protects Taylor
from prejudice caused by the officers’ eavesdropping and their
assertion of the Fifth Amendment privilege about their actions.
Thus, prospectively imposing blanket suppression of all
testimony from witnesses pleading the Fifth Amendment is
inappropriate.
We reverse the blanket suppression of testimony from witnesses
who invoke the Fifth Amendment and remand with instructions
to determine as to each presumptively tainted witness whether
the State has proven beyond a reasonable doubt an independent
source for that witness’s testimony without implicating the
witness’s Fifth Amendment privilege—and therefore without
derogating Taylor’s right of confrontation. The trial court may,
in its discretion, either hold a new suppression hearing or
proceed directly to a new trial at which the State may attempt to
meet its burden through offers to prove outside the presence of
the jury.
Taylor, 49 N.E.3d at 1029.
[63] In my view the State was entitled to attempt to rebut any presumption of
prejudice associated with improprieties by prosecutors and police. It may in
fact be unable to rebut that presumption, but per Taylor it is allowed to at least
try. I am quite familiar with the facts of both this case and Taylor, and I cannot
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say the facts here are so much more egregious than they were in Taylor that
outright dismissal is an appropriate remedy. In any event, Taylor spoke of the
possibility that a case of eavesdropping could be so egregious that outright
suppression of any eavesdropper’s testimony would be warranted; it did not
mention the possibility of dismissal of a case as an appropriate remedy.
[64] I vote to reverse the granting of Larkin’s motion for discharge under Criminal
Rule 4(C) and his motion to dismiss on constitutional grounds, and to remand
for trial.
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State of Indiana v. John B. Larkin
Combined Opinion