FILED
                                                              Jun 27 2018, 2:42 pm

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




                                IN THE

       Indiana Supreme Court
             Supreme Court Case No. 46S04-1711-CR-701

                           State of Indiana
                        Appellant (Plaintiff below),

                                    –v–

                            John B. Larkin
                        Appellee (Defendant below).


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

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

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



                         Opinion by Justice David
Chief Justice Rush, Justice Massa, Justice Slaughter, and Justice Goff concur.
David, Justice.

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


Facts and Procedural History
   In December 2012, police were dispatched to the home of John and
Stacey Larkin for a reported shooting. Stacey Larkin sustained two fatal
gunshot wounds during a domestic dispute involving her husband, John
Larkin. Police took Larkin into custody for questioning, and he invoked
his right to counsel. The police interrogated him anyway. Larkin’s
statements to police during those sessions were later suppressed.

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




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State disclosed to Larkin that it had eavesdropped on privileged
communications between him and his attorney.

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

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

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

   In the six weeks between when the Court of Appeals issued and
certified its opinion, the State moved to withdraw the two deputy
prosecutors, Neary and Armstrong, named in the Court of Appeals
opinion. The State also moved for the appointment of a special
prosecutor. The trial court granted all motions. Also during this time (in



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October 2015), the trial court judge recused himself and the County Clerk
appointed Judge Thomas Alevizos to preside over the case going forward.

  Thereafter, in December 2015, Larkin moved to disqualify Judge
Alevizos, alleging the judge had a conflict of interest. Following a hearing,
Judge Alevizos found no conflict that jeopardized his impartiality, but
nonetheless recused himself to save the matter from further delays. The
Clerk sought replacements, but four other judges in the county either
declined the appointment or recused themselves. On February 29, 2016,
Pulaski County’s Judge Patrick Blankenship accepted the appointment.

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

   In May 2016, Larkin filed another motion for discharge under Criminal
Rule 4(C). He also again moved to dismiss the voluntary manslaughter
charge, this time arguing the police and prosecutorial misconduct made a
fair trial impossible. The court held a hearing on Larkin’s motion to
dismiss on June 9, 2016. Due to last-minute scheduling, the State appeared
via telephone. The State argued against dismissal, citing the denial of
Larkin’s first motion to dismiss back in 2014. Alternatively, pursuant to
this Court’s opinion in 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 State’s prior misconduct. The trial court denied
that request and on the same day and granted Larkin’s motions,
discharging him pursuant to 4(C) and dismissing the voluntary
manslaughter charge.

   The State appealed, raising two issues: 1) whether the trial court erred
in granting Larkin’s 4(C) discharge motion; and 2) whether the trial court
erred in granting Larkin’s motion to dismiss. In a split published opinion,
the Court of Appeals affirmed on both issues. State v. Larkin, 77 N.E.3d 237


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(Ind. Ct. App.), reh'g denied (Aug. 25, 2017)(“Larkin I”), transfer granted,
opinion vacated, 94 N.E.3d 700 (Ind. 2017). Judge Barnes dissented; he
would have reversed and remanded on both issues. The State sought
transfer which we granted, thereby vacating the Court of Appeals’
opinion. Indiana Appellate Rule 58(A). Additional facts are set forth
below.


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

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


Discussion and Decision

    I.      Discharge pursuant to Criminal Rule
            4(C)
   The State bears the burden of bringing the defendant to trial within one
year. Bowman v. State, 884 N.E.2d 917, 919 (Ind. Ct. App. 2008), trans.
denied. Rule 4(C) provides a defendant may not be held to answer a
criminal charge for greater than one year, unless the delay is caused by the
defendant, emergency, or court congestion. Curtis v. State, 948 N.E.2d
1143, 1148-49 (Ind. 2011).




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      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) (internal citations
omitted).

   In this case, the parties stipulated that the State would have 3 months
from November 5, 2014 to try Larkin. Trial was ultimately set for June 20,
2016 after an interlocutory appeal and a motion for change of judge. At
issue is whether the delay as a result of the interlocutory appeal and the
motion for change of judge are attributable to Larkin or not.


    A. Interlocutory Appeal
   In Pelley, this Court said, “[w]hen trial court proceedings have been
stayed pending resolution of the . . . interlocutory appeal, the trial court
loses jurisdiction to try the defendant and has no ability to speed the
appellate process.” 901 N.E.2d at 500. See also Wood v. State, 999 N.E.2d
1054, 1063 (Ind. Ct. App. 2013) (citing Pelley for the principle that “in the
absence of jurisdiction in the trial court, the Criminal Rule 4(C) . . . was
tolled“).

   As for when the trial court resumes jurisdiction, Indiana Appellate Rule
65(E), provides in relevant part: “[t]he trial court . . . and parties shall not
take any action in reliance upon the opinion or memorandum decision
until the opinion or memorandum decision is certified.” Case law clarifies
that if a trial court acts before certification, the action is considered a
nullity—as if the trial court lacked jurisdiction. Hancock v. State, 786 N.E.2d
1142, 1143 n.1 (Ind. Ct. App. 2003) (explaining that trial court’s action pre-
certification was “premature and should be considered as a nullity”);
Jallaili v. National Bd. of Osteopathic Medical Examiners, Inc., 908 N.E.2d 1168,
1176 n.4 (Ind. Ct. App. 2009) (labeling a motion filed before certification


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“premature”); Montgomery v. Montgomery, 59 N.E.3d 343, 355 n.8 (Ind. Ct.
App. 2016) (“We remind the parties and the trial court that no action
should be taken in reliance on [the Court of Appeals] opinion until it is
certified as final under Indiana Appellate Rule 65(E)”).

   Here, Larkin I was not certified until November 20, 2015, but prior to
that, the State filed several motions including one for appointment of a
special prosecutor. Pursuant to Pelley and App. R. 65, the trial court did
not yet have jurisdiction. Nevertheless, the Court of Appeals majority
found that the trial court reassumed jurisdiction and the State submitted
itself to the trial court’s jurisdiction due to a “constructive” lift of the stay
when the State moved for appointment of a special prosecutor. It found
that the purpose of App. R. 65 was satisfied by the trial court and the
State’s actions; that is, they were acting in accord with the decision being
final. But as Judge Barnes noted in his dissent, there are three problems
with this: 1) any action taken by the court prior to certification was
potentially voidable; 2) the parties could have petitioned for transfer; and
3) the majority’s outcome punishes the State for trying to move the case
forward prior to the stay being lifted. The State further notes that any date
prior to the date of certification is an inappropriate measure of when the
clock restarts for 4(C) purposes, as it injects uncertainly and allows for
potential game-playing by defendants.

   We agree with the State and Judge Barnes that until the interlocutory
appeal was certified, the trial court did not have jurisdiction. As such, the
period of delay during the pendency of Larkin’s interlocutory appeal
through the time the Court of Appeals opinion was certified is chargeable
to Larkin.


    B. Motion for Change of Judge
  On November 23, 2015, Larkin moved for a change of Judge. Judge
Alevizos took the matter under advisement and later recused himself.
Then, several special judges declined appointment until finally, on
February 29, 2016, Judge Blankenship accepted appointment.




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   This Court has held that “a delay occasioned by a defendant’s filing of a
motion for change of judge is chargeable to him and that the time begins
to run anew when the new judge qualifies and assumes jurisdiction.”
State ex rel. Brown v. Hancock County Superior Court, 372 N.E.2d 169, 170
(Ind. 1978); See also, Wedmore v. State, 143 N.E.2d 649, 650 (Ind. 1957); State v.
Grow, 263 N.E.2d 277, 278 (Ind. 1970). As Judge Barnes notes in his dissent,
the delay between the filing of the motion and appointment of a qualified
judge in Grow was six months and in Brown, sixteen months; both
chargeable to the defendant. Thus, under this line of cases, Larkin should be
charged with the delay from the filing of his motion until Judge Blankenship
accepted appointment.

   However, the Court of Appeals majority found Harrington v. State, 588
N.E.2d 509 (Ind. Ct. App. 1992), disapproved by Cook v. State, 810 N.E.2d
1064 (Ind. 2004) dispositive. In Harrington, the defendant moved for a
special prosecutor because the current prosecutor had a conflict of interest
(the prosecutor had previously represented the defendant). 588 N.E.2d at
510. A 317-day delay resulted from the defendant’s motion. When the
defendant moved for discharge under Criminal Rule 4(C), the State argued
the delay should be charged to the defendant, since he made the special
prosecutor motion. Id. at 510-11. Harrington countered that the delay should
be charged to Rule 4(C) since the prosecutor knew of the conflict and it
would be unfair to charge the delay to him. The Court of Appeals concluded
the delay was attributable to the State because “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.” Id. at 511.

   In Cook, this Court disapproved Harrington. We held “delays caused by
action taken by the defendant are chargeable to the defendant regardless
of whether a trial date has been set.” 810 N.E.2d at 1067. We also expressly
disapproved a string of cases (including Harrington) to the extent they
were inconsistent with that holding. Id. The Court of Appeals majority
here relied heavily on Harrington’s language that a defendant should not
be forced to choose between a fair and speedy trial. Admittedly,
Harrington’s language about choosing between a fair and speedy trial was
not explicitly disapproved in Cook.



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   However, there are a few problems with applying Harrington in this
case. First, adopting this approach would allow for a defendant to file for
change of judge preventing the case from moving forward but allowing
the 4(C) period to run. Just as interlocutory appeals toll the 4(C) period
despite who filed because the case cannot practically move forward, the
same is true when a motion for change of judge is filed.

   Also, the Court of Appeals majority assumes that Judge Alevizos’ conflict
that caused his recusal was something he should have just known from the
outset. It’s not clear that this is the case. While he previously presided over
a matter involving Larkin’s sister and children and the outcome was less
than desirable for Larkin’s sister, we presume our trial judges are unbiased.
Patterson v. State, 926 N.E.2d 90, 93 (Ind. Ct. App. 2010). Further, practically
speaking, there are times when it will take time to find a suitable special
judge depending on the circumstances, and it’s not clear why this delay is
not akin to court congestion. Accordingly, we apply Cook and find that the
delay in finding a special judge is attributable to Larkin. Because the
delays that occurred as a result of Larkin’s interlocutory appeal and his
motion for change of judge are attributable to him and he agreed to a June
2016 trial date in May, prior to expiration of the 4(C) period, he is not
entitled to discharge pursuant to Criminal Rule 4(C).

    II. Motion to dismiss due to inability to get
        a fair trial

    A. The State committed misconduct.

  In this case, there is no dispute that the State committed misconduct
and on numerous occasions. First, police continued to question Larkin
after he invoked his right to counsel. Then, Larkin’s private conversation
with his attorney was recorded and listened to by several individuals at
the prosecutor’s office. The situation was compounded when the
conversation was transcribed and further distributed. Additionally, there
is evidence in the record reflecting potential evidence tampering. That is,
one officer instructed another to change his statement about his prior



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interaction with Larkin’s wife. There is also evidence that a piece of
physical evidence, the safe containing the gun used to shoot Stacey, was
tampered with while in the State’s custody and prior to allowing Larkin
an opportunity to examine it.

   It is especially troubling to this Court that one of the prosecuting
attorneys involved in this matter was also involved in the misconduct in
Taylor. However, the discipline of attorneys is a separate matter than the
matter at hand. As we noted in Taylor: “what constitutes an effective remedy
for [defendant] is not necessarily what would constitute a proportionate
punishment for the State. Our concern is to ensure the State’s egregious
misconduct does not actually prejudice [defendant]. . . .” Taylor at 1024.
Accordingly, here we must decide whether the State’s misconduct is so
severe that Larkin’s criminal charges should be dismissed over it. Balancing
Larkin’s rights with the public’s interest in seeking justice for victims and
applying our precedent, we find that outright dismissal is not the
appropriate remedy in this case.


    B. The appropriate remedy for the State’s
       misconduct is suppression of the tainted
       evidence for which the State cannot rebut the
       presumption of prejudice pursuant to Taylor.
   In Taylor, when considering a motion to suppress, this Court
announced a rule that when the State eavesdrops on a defendant’s
privileged communications with counsel, there arises a rebuttable
presumption of prejudice. This Court instructed the State may rebut that
presumption only by proof beyond a reasonable doubt. 49 N.E.3d at 1019.
We noted that it would be a windfall to Taylor if all statements were
suppressed because this would be disproportionate to the prejudice Taylor
actually suffered. Id. at 1029. We further noted that there may be other
circumstances where the taint would be so pervasive and insidious that no
remedy short of barring the tainted witnesses would suffice but we did not
address “that larger question” at that time. Id. Taylor considered a motion to
suppress only and not a motion to dismiss.


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    Larkin argues, and the Court of Appeals found that the prosecutorial
misconduct in this case is more severe than in Taylor and thus, Taylor does
not apply. That is, they argue that Taylor only involved eavesdropping1
whereas here, the misconduct did not end there. Judge Barnes disagreed
with the majority, believing the facts in Taylor were not so much more
egregious than the ones here as to require dismissal.

   However, even acknowledging that the prosecutorial misconduct may be
worse here, we find Taylor is applicable to this case, and as such, outright
dismissal is not an appropriate remedy. Pursuant to Taylor, the State must
be given a chance (even though it may not be possible) to demonstrate by
proof beyond a reasonable doubt that some untainted and admissible
evidence exists. Further, Taylor does not require that the State make an offer
of proof in order to rebut the presumption of prejudice.

   The trial court already suppressed statements made by Larkin after he
invoked his right to counsel when the police continued to question him as
well as his recorded conversation with his attorney. Testimony or
portions of testimony from certain officers may also need to be suppressed
and the safe may need to be excluded from evidence. However, the State
cites other evidence which may not be tainted at all. For instance, Larkin’s
911 call, a physical description of the shooting scene, pathologist
testimony and Larkin’s statement to police may be used to bring Larkin to
trial. The trial court will need to look at each piece of evidence and
testimony and determine first, whether it is tainted and next, if so,
whether the State can rebut prejudice beyond a reasonable doubt.

   Finally, we note again that Taylor involved blanket suppression and not
a motion to dismiss. Dismissal is an extreme remedy. As the U.S.
Supreme Court has held, for constitutional violations committed by the
government, “the remedy characteristically imposed is not to dismiss the




1 Taylor involved more than eavesdropping as well. After eavesdropping, police used
information gained from what they overheard to go find the murder weapon. Further, police
invoked their Fifth Amendment rights during their depositions when Taylor sought to learn
the extent of the prejudice from the eavesdropping.



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indictment but to suppress the evidence” gained from the violation. U.S.
v. Morrison, 449 U.S. 361, 365 (1981). To the extent the prosecutorial
misconduct in this case has caused prejudice which the State cannot rebut
beyond a reasonable doubt, the appropriate remedy is suppression of the
tainted evidence, not outright dismissal without taking into account other
untainted evidence or giving the State an opportunity to rebut the
presumption of prejudice. It may be that the State has no case without the
suppressed evidence. Regardless, the trial court abused its discretion in
not applying Taylor to this case.


Conclusion
  We find that the delays associated with Larkin’s interlocutory appeal
and motion for change of judge are chargeable to Larkin. As such, the
Criminal Rule 4(C) period had not expired before Larkin agreed to a June
2016 trial date. Thus, his motion for discharge should have been denied.

   We further find that Taylor applies to this case and outright dismissal is
not the appropriate remedy for the State’s misconduct. Instead, the trial
court is to assess each piece of evidence to determine whether it is tainted
by the State’s misconduct. If it is, the State shall be afforded the
opportunity to rebut the presumption of prejudice by proof beyond a
reasonable doubt. Failing that, the testimony or evidence at issue will be
suppressed.

   Accordingly, we reverse the trial court on both issues and remand. The
trial court, at its discretion, may either hold a hearing during which the
State is given an opportunity to rebut the presumption of prejudice for
any tainted evidence or proceed to trial at which the State may attempt to
meet its burden through offers of proof outside the presence of the jury.


Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.




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A TT O RN E YS FO R A P PELL A N T

Curtis T. Hill, Jr.
Attorney General of Indiana

Stephen R. Creason
Chief Counsel

Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana


A TT O RN E YS FO R A P PELL EE

Stacy R. Uliana
James E. Foster
Bargersville, Indiana




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