from the LaPorte Circuit Court The Honorable Patrick B.
Blankenship, Special Judge Trial Court Cause No.
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,
Summary and Issues
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.
and Procedural History
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.
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.
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.
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
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).
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.
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.
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.
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.
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.
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 , 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
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
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
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.
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 ...