Argued: December 19, 2017
from the LaPorte Circuit Court, No. 46C01-1212-FA-610 The
Honorable Patrick C. Blankenship, Special Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEYS FOR APPELLANT Curtis T. Hill, Jr. Attorney General
of Indiana Stephen R. Creason Chief Counsel Justin F. Roebel
Supervising Deputy Attorney General Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE Stacy R. Uliana James E. Foster
the death of his wife, John Larkin was charged with voluntary
manslaughter. However, this charge was later dismissed
because both of the lower courts found that: 1) the Criminal
Rule 4(C) period within which to bring Larkin to trial had
expired and the delays in bringing him to trial were not
attributable to him; and 2) the prosecutorial misconduct in
this case required dismissal. For reasons discussed herein,
we disagree with the lower courts on both issues.
Accordingly, we reverse and remand for the trial court to
hold a hearing or proceed to trial pursuant to this
Court's holding in State v. Taylor, 49 N.E.3d
1019 (Ind. 2016).
and Procedural History
December 2012, police were dispatched to the home of John and
Stacey Larkin for a reported shooting. Stacey Larkin
sustained two fatal gunshot wounds during a domestic dispute
involving her husband, John Larkin. Police took Larkin into
custody for questioning, and he invoked his right to counsel.
The police interrogated him anyway. Larkin's statements
to police during those sessions were later suppressed.
the State's preliminary charge was murder, Larkin agreed
to speak with police if the State would consider only
charging him with manslaughter. The police so charged Larkin,
and then conducted a recorded interview. During a break,
police left Larkin alone with his attorney, but kept the
video recording equipment running, capturing Larkin and his
attorney's privileged communications. Larkin and his
attorney discussed various aspects of the case including
insurance, motivation and motive, possible charges, filing
for divorce, the children, conditions of bond, the funeral,
possible defenses, and the sequence of events on the evening
of the shooting. Police and prosecutors viewed the video and,
therefore, saw and heard Larkin's privileged discussion
with counsel. A court reporter even transcribed the
discussion and distributed it to the prosecutor's office.
Nearly one year later (December 2013), the State disclosed to
Larkin that it had eavesdropped on privileged communications
between him and his attorney.
March 2014, following several continuances, the parties
stipulated that after November 5, 2014, the State would have
90 days to try Larkin pursuant to Indiana Criminal Rule 4(C).
Thereafter, in July 2014, Larkin moved to dismiss the
voluntary manslaughter charge, citing police and
prosecutorial misconduct that deprived him of his Sixth
Amendment right to effective counsel. He later moved to
disqualify the LaPorte County Prosecutor's Office on the
same grounds and requested a special prosecutor. He also
filed another motion to dismiss in September 2014, alleging
that the State's lead detective conspired to obstruct
justice by having another officer change his statement
regarding that officer's prior interaction with Stacey
Larkin. In October 2014, the trial court denied Larkin's
motions, but it suppressed: 1) statements Larkin made to
police after he invoked the right to counsel but before
counsel arrived; and 2) the recorded conversation between
Larkin and counsel.
Larkin's request, the trial court certified for
interlocutory appeal the denial of Larkin's motion to
disqualify the prosecutor's office, and stayed the
proceedings pending resolution from the Court of Appeals.
September 2015, the Court of Appeals dismissed Larkin's
appeal as moot since LaPorte County elected a new prosecutor
in November 2014. Larkin v. State, 43 N.E.3d 1281,
1286-87 (Ind.Ct.App. 2015). The court's opinion explained
that it addressed only the LaPorte Prosecutor's Office as
a whole and did not evaluate whether individual prosecutors
should withdraw from the case. Id. at 1287. The
court then opined, "if requested by Larkin, the trial
court should consider whether disqualification of [two deputy
prosecutors] would be appropriate in this situation."
Id. The Court did not certify its decision until
November 20, 2015.
six weeks between when the Court of Appeals issued and
certified its opinion, the State moved to withdraw the two
deputy prosecutors, Neary and Armstrong, named in the Court
of Appeals opinion. The State also moved for the appointment
of a special prosecutor. The trial court granted all motions.
Also during this time (in October 2015), the trial court
judge recused himself and the County Clerk appointed Judge
Thomas Alevizos to preside over the case going forward.
in December 2015, Larkin moved to disqualify Judge Alevizos,
alleging the judge had a conflict of interest. Following a
hearing, Judge Alevizos found no conflict that jeopardized
his impartiality, but nonetheless recused himself to save the
matter from further delays. The Clerk sought replacements,
but four other judges in the county either declined the
appointment or recused themselves. On February 29, 2016,
Pulaski County's Judge Patrick Blankenship accepted the
March 28, 2016, citing Rule 4(C), Larkin moved for discharge.
He orally renewed that motion in an April 7, 2016 hearing.
During that same hearing, the court and parties discussed
possible trial dates, should the court deny Larkin's 4(C)
motion. The court and State proposed trial dates in early May
2016, but Larkin declined those dates. Larkin agreed to a
June 20, 2016 trial date. The court clarified on the record
that Larkin waived his 4(C) argument regarding the June trial
date to the extent he already made a record that he believed
the period had run.
2016, Larkin filed another motion for discharge under
Criminal Rule 4(C). He also again moved to dismiss the
voluntary manslaughter charge, this time arguing the police
and prosecutorial misconduct made a fair trial impossible.
The court held a hearing on Larkin's motion to dismiss on
June 9, 2016. Due to last-minute scheduling, the State
appeared via telephone. The State argued against dismissal,
citing the denial of Larkin's first motion to dismiss
back in 2014. Alternatively, pursuant to this Court's
opinion in Taylor v. State, 49 N.E.3d 1019 (Ind.
2016), the State requested another hearing to present
evidence to prove Larkin did not suffer prejudice from the