COA affirms dismissal of manslaughter charges after police, prosecutorial misconduct

A northern Indiana man charged in connection with the shooting death of his wife will not be tried after a divided Indiana Court of Appeals ruled Wednesday that actions by state officials intentionally meant to hurt the man’s defense would make it impossible for the man to receive a fair trial.

In December 2012, Long Beach Police Department officers found John Larkin’s wife, Stacey, dead in their home from two gunshot wounds. Larkin agreed to speak with police about the shooting only on the condition that he be charged with voluntary manslaughter, not murder. The interview was videotaped, and during a break, the recording equipment captured Larkin telling his attorneys a struggle ensued between he and his wife after she attempted to retrieve a gun from a safe.

According to Larkin, who was unaware the recording devices were still on, the struggle led to his wife being shot twice.  Additionally, a separate recording captured a conversation in which two law enforcement officials discussed pressuring another officer to change his story to damage Larkin’s potential defenses.

Although Chief Deputy Prosecutor Robert Neary instructed the court reporter not to transcribe the portion of the video in which Larkin and his attorneys were speaking, the privileged communications were transcribed and distributed to the LaPorte County Prosecutor’s Office. The state disclosed to Larkin that it had captured the communications between him and his attorney, then stipulated the state would have three months after Nov. 5, 2014, to try the case pursuant to Indiana Criminal Rule 4(C).

Larkin moved to dismiss and disqualify the LaPorte County Prosecutor’s Office and requested that a special prosecutor be appointed, but the LaPorte Superior Court denied those motions. However, the court did suppress the recorded conversation between Larkin and his attorneys.  Larkin appealed the denials, but the Indiana Court of Appeals dismissed the appeal in September 2015 in light of the fact that a new prosecutor, John Espar, was elected in November 2014.

A week after the court’s decision in Larkin’s first appeal, but before the decision was certified, the state withdrew appearances of Neary and Armstrong, and Espar moved for the appointment of a special prosecutor. Then, the trial court judge recused himself and Judge Thomas Alevizos was appointed to the case. However, after Larkin moved to disqualify Alevizos, the judge also recused himself, and four additional judges either declined or recused themselves from appointment.

Pulaski County Judge Patrick Blankenship ultimately accepted his appointment to the case in February 2016. One month later, Larkin moved for discharge, arguing the state’s previously stipulated three-month period to try him had expired. Larkin then filed a second motion for discharge pursuant to Rule 4(C) and also moved to dismiss his voluntary manslaughter charge, arguing he could not receive a fair trial.

Blankenship granted both motions, finding local prosecutors and law enforcement “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.” The state appealed, arguing first that the Rule 4(C) argument failed because the state did not exceed its Rule 4(C) window to bring Larking to trial and because Larkin had waived his objection to a future trial date.

In a 50-page opinion Wednesday, Indiana Court of Appeals Judge Margaret Robb wrote for the majority that the state “submitted itself to the trial court” by moving for a special prosecutor before the appellate decision was certified, and “the trial court acted as if it had jurisdiction.” Thus, time began running against the Rule 4(C) period on Oct. 6, 2015, the same day a motion for a special prosecutor was filed, Robb said.

But in a dissenting opinion, Judge Michael Barnes wrote Larkin did not object to any premature actions by the state or trial court and, thus, “ratified” those actions. Further, the “premature” actions of the state were to Larkin’s benefit, and holding that the 4(C) clock began to run before the certification of the first appellate decision would improperly penalize the state.

The majority further held all other delays in the proceedings were charged to the Rule 4(C) period, not Larkin, including a delay from the time Larkin moved for a change of judge to the time the Alevizos recused himself.  Barnes also dissented on that point, writing “neither Larkin nor the majority have cited a case where recusal was required under circumstances similar to those here… .” From Barnes’ perspective, the last possible trial date was May 26, 2016, and Larkin waived any objection to a later trial date, he said.

Finally, the appellate panel affirmed the dismissal of Larkin’s charges, holding, “The State’s actions here threaten the public trust in our criminal justice system. This cannot and will not be tolerated.” But in his dissent on that point, Barnes wrote that under State v. Taylor, 49 N.E. 3d 1019 (Ind. 2016), the state was “entitled to rebut any presumption of prejudice associated with improprieties by prosecutors and police.”

The case is State of Indiana v. John B. Larkin, 46A04-1607-CR-1522.