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State v. Larkin

Court of Appeals of Indiana

June 7, 2017

State of Indiana, Appellant-Plaintiff,
John B. Larkin, Appellee-Defendant.

         Appeal from the LaPorte Circuit Court The Honorable Patrick B. Blankenship, Special Judge Trial Court Cause No. 46C01-1212-FA-610

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

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

          Robb, Judge.

         Case Summary and Issues

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

         Facts and Procedural 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 during the same summer. Following the domestic incident, Long Beach Police Officers arrested Stacey.

         [¶3] On December 11, 2012, Larkin called 911 and informed the operator his wife had been shot. Officers from the Long Beach Police Department arrived at Larkin's home and discovered Stacey deceased from two gunshot wounds. Larkin was taken to the police station and placed into an interview room. After being advised of his rights, Larkin immediately requested his attorney be present. Over the course of a couple hours, law enforcement, including Lieutenant Todd Bullis, continued to question Larkin despite Larkin's requests for an attorney. At some point during the interview, Larkin told investigators of the incident occurring the previous summer, including how Detective Kaplan assisted him in getting Stacey home safely. Citing the Fifth Amendment, the trial court later suppressed the statements made during this interview.

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

         [¶5] At some point during the next week, Lieutenant Bullis reviewed the video of the December 13, 2012, interview and provided a copy to Neary. In January 2013, Neary reviewed the video and then requested court reporter Jamie Arnold transcribe the entire video. In transcribing the video, Arnold observed the conversation with Larkin and his attorneys was recorded and asked Neary whether she should transcribe that portion of the interview. Despite Neary instructing Arnold not to transcribe that portion, the privileged communications were somehow later transcribed and distributed to prosecutors in the LaPorte County Prosecutor's Office. Also in January 2013, Lieutenant Bullis interviewed Stacey's hairdresser and audio recorded the conversation. Following the interview, the audio recording captured a conversation between Lieutenant Bullis and Officer Babcock in which the pair discussed pressing Detective Kaplan for more information regarding the June 2012 incident with Stacey and the possibility of getting Detective Kaplan to change his story to damage any of Larkin's potential defenses.

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

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

         [¶8] In July 2014, Larkin filed a motion to dismiss the voluntary

manslaughter charge. Larkin argued that the videotaping of his conversation with his attorney violated his Sixth Amendment right to effective assistance of counsel. On July 31, 2014, Neary and Deputy Prosecuting Attorney Kristina Armstrong filed the State's response to Larkin's motion to dismiss. The State argued that no new subjects were discussed during Larkin's conversation with his attorneys and that no evidence was disclosed or derived as a result of the conversation. Consequently, the State argued that Larkin was not prejudiced by the alleged Sixth Amendment violation. The State attached a transcript of the conversation to its response. At a hearing on Larkin's motion to dismiss, Neary stated that Szilagyi, Armstrong, an intern, and Neary had "all viewed the tape." The trial court ordered the Prosecutor's Office to submit affidavits from any person that viewed the video or read the transcript and detail when they first did so.
Neary submitted an affidavit and stated that he viewed the video of the conversation between Larkin and his attorney at the end of January 2013. Neary stated that "After consulting with prosecutors in the office, I am the only Prosecutor who viewed this portion of the tape with conversation between the Defendant and [his attorney] and/or the transcript of his conversation." The intern also submitted an affidavit and stated that, in August 2014, he read a portion of the transcript of the conversation between Larkin and his counsel. Szilagyi submitted an affidavit and stated that he had "not viewed any portion of the videotape or read any portion of the transcript where a discussion took place between [Larkin] and [his attorney]." Armstrong also submitted an affidavit and denied having "viewed any portion of the videotape or read any portion of the transcript where a discussion took place between [Larkin] and [his attorney]."
In September 2014, Larkin filed a motion to disqualify the LaPorte County Prosecutor's Office from prosecuting the case against him. Larkin pointed out the discrepancy between Armstrong's affidavit and the July 31st filing that she and Neary submitted to the trial court. Larkin requested that a special prosecutor be appointed.
In October 2014, the trial court suppressed the conversation between Larkin and his attorneys, but not the remainder of the interview. The trial court denied Larkin's motion to dismiss, finding no prejudice from the recording of the conversation between Larkin and his attorney. The trial court also denied Larkin's motion to disqualify the LaPorte County Prosecutor's Office . . . .

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

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

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

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