John Larkin v. State of Indiana , 43 N.E.3d 1281 ( 2015 )

Sep 30 2015, 10:05 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Marce Gonzalez, Jr. Gregory F. Zoeller
Dyer, Indiana Attorney General of Indiana
James E. Foster Eric P. Babbs
James E. Foster, PC Deputy Attorney General
Hammond Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Larkin, September 30. 2015
Appellant-Defendant, Court of Appeals Cause No.
46A05-1411-CR-550
v. Appeal from the LaPorte Superior
Court
State of Indiana, The Honorable Michael S.
Appellee-Plaintiff. Bergerson, Judge
The Honorable Kathleen B. Lang,
Judge
Trial Court Cause No.
46D01-1212-FA-610
Barnes, Judge.
Case Summary
[1] In this interlocutory appeal, John Larkin appeals the denial of his motion to
disqualify the LaPorte County Prosecutor’s Office. We dismiss.
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Issue
[2] Larkin raises one issue, which we restate as whether the trial court properly
denied his petition to disqualify the LaPorte County Prosecutor’s Office with
respect to his pending voluntary manslaughter charge.
Facts
[3] On December 11, 2012, police were dispatched to Larkin’s residence following
a report of a shooting. When an officer arrived, he found Larkin’s wife, Stacy,
deceased in the closet. An autopsy later determined that she died from two
gunshot wounds. At the police station, Larkin agreed to talk to investigators if
he was charged with voluntary manslaughter in lieu of murder. Larkin, his
attorneys, an investigator, LaPorte County Prosecutor Bob Szilagyi, and Chief
Deputy Prosecutor Robert Neary were present during the interview, which was
videotaped. During a break in the interview, Larkin had a conversation with
his attorneys. However, the recording equipment was not turned off during the
break, and Larkin’s conversation with his attorneys was recorded.
[4] Within a week or so, the investigator watched the interview video. The
investigator or someone in his department also gave a copy of the video to
Neary. The investigator did not alert Neary that Larkin’s conversation with his
attorney was on the video. At some point, Neary made arrangements for court
reporter Jami Arnold to transcribe the video. As she was doing so, she
discovered Larkin’s conversation with his attorneys, stopped transcribing, and
contacted Neary. Neary advised Arnold not to transcribe that portion of the
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video. Arnold transcribed the other portions of the video and returned the
video and transcript to Neary.
[5] At the end of January 2013, Neary was preparing for trial and viewed the video,
including the discussion between Larkin and his attorney. During discovery,
the State sent Larkin’s counsel a copy of the video. 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.” Tr. p. 155. 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.
[6] 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.” App.
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p. 562. 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].” Id. at 670. 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].” Id. at 664.
[7] 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.
[8] In October 2014, the trial court suppressed the conversation between Larkin
and his attorneys, but not the remainder of the interview. 1 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 as
follows:
1
The trial court also suppressed statements made by Larkin on December 11, 2012, because of a separate
Fifth Amendment violation.
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Defendant points to the fact that CDPA Neary originally
informed the Court that four people from the Prosecutor’s Office
. . . viewed the tape or read the transcript of the conversation in
question. There was some confusion if affidavits had to be filed
from persons who did not view the tape or read the transcript.
Although not all affidavits were filed in a timely manner, all four
are now of record.
Defendant also relies on the fact that on July 31, 2014, the State
filed with the Court a Motion and Memorandum in Opposition
to the Motion to Dismiss. This filing included a transcript of the
recorded conversation between Defendant and his attorneys at
the LaPorte County Sheriff’s Department. The Motion and
memorandum was filed under the signatures of CDPA Neary,
and Deputy Prosecuting Attorney Kristina Armstrong.
Defendant points out that Deputy Prosecuting Attorney Kristina
Armstrong averred in her affidavit that she had not viewed the
tape or read the transcript. Although a question arises from this
dichotomy as in the Motion to Dismiss, Deputy Prosecuting
Attorney Kristina Armstrong filed her affidavit as an Officer of
the Court. The Court will take her affidavit as the best source to
resolve any conflicts.
It is true in this case that the Prosecutors have had access,
listened to, and read transcripts of a conversation between
Defendant and his attorneys. As noted in this Court’s Order
denying Defendant’s Motion to Dismiss, this was an intrusion
into the attorney-client relationship between Defendant and his
attorneys. The Court cannot condone this action. However, as
the Court also noted in the Order, this conversation did not
prejudice Defendant to the extent that charges must be dismissed.
Although the actions of law enforcement and the Prosecutor’s
Office were careless, none of the aggrieved behaviors were
intentional. The disclosure of the conversation that Defendant
had with his attorneys on December 13, 2012, did not give
Prosecutors information that they could not have obtained from
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another source or that was not a disclosure of well-known legal
principles. Additionally, the actual conversation between
Defendant and his attorneys is suppressed and therefore cannot
be used against Defendant at trial.
Id. at 819-21.
[9] At Larkin’s request, the trial court certified the denial of Larkin’s motion to
disqualify the LaPorte County Prosecutor’s Office for interlocutory appeal and
stayed the proceedings. The trial court declined to certify the other orders for
interlocutory appeal. We accepted jurisdiction over this interlocutory appeal
pursuant to Indiana Appellate Rule 14(B).
Analysis
[10] Larkin appeals the trial court’s denial of his motion for the disqualification of
the LaPorte County Prosecutor’s Office and for the appointment of a special
prosecutor. We will review a trial court’s denial of a petition for special
prosecutor for an abuse of discretion. Camm v. State, 957 N.E.2d 205, 209 (Ind.
Ct. App. 2011), trans. denied. “An abuse of discretion is an erroneous
conclusion and judgment, one clearly against the logic and facts and
circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id. An abuse of discretion also occurs
when the trial court misinterprets the law. Id.Court of Appeals of Indiana | Opinion 46A05-1411-CR-550| September 30, 2015 Page 6 of 12
[11] The appointment of a special prosecutor in Indiana is governed by Indiana
Code Section 33-39-10-2 (formerly Indiana Code Section 33-39-1-62). Indiana
Code Section 33-39-10-2(b)(2) provides, in relevant part, that a trial court may
appoint a special prosecutor if:
(A) a person files a verified petition requesting the
appointment of a special prosecutor; and
(B) the court, after:
(i) notice is given to the prosecuting attorney; and
(ii) an evidentiary hearing is conducted at which the
prosecuting attorney is given an opportunity to be
heard;
finds by clear and convincing evidence that the
appointment is necessary to avoid an actual conflict of
interest or there is probable cause to believe that the
prosecuting attorney has committed a crime[.]
[12] The petitioner has the burden of producing evidence in support of the motion.
Camm, 957 N.E.2d at 210 (citing Kubsch v. State, 866 N.E.2d 726, 734 (Ind.
2007), cert. denied). The purpose of the special prosecutor statute is to protect
the State’s interest in preserving the public confidence in the criminal justice
system and ensuring that the prosecutor serves the ends of justice. Id. (citing
2
Repealed by Pub. L. No. 57-2014, § 4 (eff. July 1, 2014).
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State ex rel. Kirtz v. Delaware Circuit Court No. 5, 916 N.E.2d 658, 659 (Ind.
2009)). “The public trust in the integrity of the judicial process requires that
any serious doubt be resolved in favor of disqualification.” Williams v. State,
631 N.E.2d 485, 487 (Ind. 1994).
[13] Larkin requests that the entire LaPorte County Prosecutor’s Office be
disqualified. It is well-settled that once the elected prosecuting attorney is
disqualified, his or her whole office is disqualified from representing the State in
a particular case. Banton v. State, 475 N.E.2d 1160, 1164 (Ind. Ct. App. 1985).
If the “elected prosecutor (as opposed to a deputy prosecutor) is disqualified
from a case and special prosecutor is appointed, the elected prosecutor’s ‘entire
staff of deputies must be recused in order to maintain the integrity of the process
of criminal justice.’” Jones v. State, 901 N.E.2d 655, 658 (Ind. Ct. App. 2009)
(quoting State ex rel. Goldsmith v. Superior Court of Hancock County, 270 Ind. 487,
491, 386 N.E.2d 942, 945 (1979)). When an elected prosecutor is disqualified,
his or her entire staff of deputies must be recused because “a prosecuting
attorney exercises authority over and speaks through his deputies.” Goldsmith,
270 Ind. at 491, 386 N.E.2d at 945.
[14] It is not, however, necessary to disqualify a prosecutor’s entire staff or to
dismiss an indictment because a deputy prosecutor has a conflict of interest.
Williams, 631 N.E.2d at 487. The conflict of one deputy prosecutor will not
have an impact on other deputy prosecutors in the office. Goldsmith, 270 Ind. at
490, 386 N.E.2d at 945. Accordingly, the conflict of a deputy prosecutor does
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not require the recusal of the entire staff of the prosecutor. Id., 386 N.E.2d at
945.
[15] The State argues that this issue is moot because the elected prosecutor, Szilagyi,
was defeated by John Espar in the May 2014 primary election, and Espar was
elected the new prosecuting attorney in November 2014. According to the
State, Espar had no involvement in the challenged conduct, and a special
prosecutor is unnecessary. An issue is deemed moot when it is no longer “live”
or when the parties lack a legally cognizable interest in the outcome of its
resolution. Jones v. State, 847 N.E.2d 190, 200 (Ind. Ct. App. 2006), trans.
denied. “[W]hen we are unable to provide effective relief upon an issue, the
issue is deemed moot, and we will not reverse the trial court’s determination
‘where absolutely no change in the status quo will result.’” Id. (quoting In re
Utley, 565 N.E.2d 1152, 1154 (Ind. Ct. App. 1991)). However, a public interest
exception may be invoked where: (1) the issue involves a question of great
public importance; (2) the factual situation precipitating the issue is likely to
recur; and (3) the issue arises in a context that will continue to evade review.
Id.[16] Larkin argues that we should not determine that the issue is moot because it
would require us to take judicial notice of the election results. Indiana
Evidence Rule 201(a)(1) allows us to judicially notice a fact that: “(A) is not
subject to reasonable dispute because it is generally known within the trial
court’s territorial jurisdiction, or (B) can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” We conclude
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that well-known and readily ascertainable election results are subject to judicial
notice pursuant to Evidence Rule 201(a)(1). See Harden v. Whipker, 676 N.E.2d
19, 19-20 (Ind. 1997) (holding that election results were subject to judicial
notice). Consequently, we will take judicial notice that Espar is now the elected
prosecutor of LaPorte County.
[17] We agree with the State that the appointment of a special prosecutor is moot
here because Szilagyi is no longer the prosecutor. The new prosecutor Espar
was not involved in listening to Larkin’s confidential conversation with his
attorney. Because there is no basis to disqualify Espar, there is no basis to
disqualify the entire LaPorte County Prosecutor’s Office as Larkin is
requesting. We also conclude that the public interest exception is not applicable
here. Although the issues involve a question of great public importance, i.e.,
improper interference with an attorney-client relationship by at least one deputy
prosecutor, the circumstances here are unusual enough that they are not likely
to recur or continue to evade review. Larkin’s request to disqualify the entire
LaPorte County Prosecutor’s Office is moot. Consequently, we dismiss the
appeal of the trial court’s denial of Larkin’s motion to disqualify the
Prosecutor’s Office and appoint a special prosecutor.3
3
In its brief, the State relied in part upon Sixth Amendment violation of right to counsel cases, which we do
not find relevant in this situation. See, e.g., Appellee’s Br. pp. 16-20 (relying on State v. Taylor, 35 N.E.3d 287(Ind. Ct. App. 2015), trans. granted, and Ingram v. State, 760 N.E.2d 615 (Ind. Ct. App. 2001), trans. denied).
The issue in Taylor was a motion to suppress evidence as a result of a Sixth Amendment violation and the
issue in Ingram was the dismissal of charges against the defendant as a result of a Sixth Amendment
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[18] The State also argues that the “only order which the trial court certified
addressed whether then-Prosecutor Szilagyi and his deputies should be
disqualified.” Appellee’s Br. p. 13. The State contends that the trial court has
not addressed whether Espar’s deputies should be disqualified and that we
cannot address whether Neary or Armstrong should be individually
disqualified. Only issues that were properly raised in the trial court in ruling on
the trial court’s order are available on interlocutory appeal. Indiana Dep’t of
Envtl. Mgmt. v. NJK Farms, Inc., 921 N.E.2d 834, 841 (Ind. Ct. App. 2010), trans.
denied. Larkin’s motion and the trial court’s order addressed only the
disqualification of the entire Prosecutor’s Office and appointment of a special
prosecutor, not the disqualification of individual deputy prosecutors. Despite
our concerns regarding the conduct here, we are constrained to agree with the
State. However, if requested by Larkin, the trial court should consider whether
disqualification of Neary and/or Armstrong would be appropriate in this
situation.4 In doing so, we note that “[p]ublic trust in the integrity of the
judicial process requires us to resolve serious doubt in favor of a prosecutor’s
disqualification.” Kirtz, 916 N.E.2d at 661. Further, “sometimes an attorney,
violation. Neither case addressed the disqualification of an entire prosecutor’s office or an individual deputy
prosecutor. Consequently, we find neither case persuasive here.
4
We note that it is possible to disqualify individual attorneys rather than the entire prosecutor’s office. Our
supreme court has described a trial court’s authority to disqualify an attorney “as necessary to prevent ‘insult
and gross violations of decorum.’” Cincinnati Ins. Co. v. Wills, 717 N.E.2d 151, 154 (Ind. 1999) (citations
omitted). A trial court may disqualify an attorney for a violation of the Rules of Professional Conduct that
arises from the attorney’s representation before the court. State v. Romero, 578 N.E.2d 673, 676-77 (Ind. 1991)
(disqualifying a former prosecutor who attempted to represent a defendant in a matter substantially related to
a prior prosecution without the State’s consent in violation of Professional Conduct Rule 1.11's duty to
maintain confidences of the State, his former client).
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guiltless in any actual sense, nevertheless is required to stand aside for the sake
of public confidence in the probity of the administration of justice.”5 Id.Conclusion
[19] Whether the trial court erred by denying Larkin’s motion to disqualify the
LaPorte County Prosecutor’s Office from this case is moot. Consequently, we
dismiss.
[20] Dismissed.
Kirsch, J., and Najam, J., concur.
5
Indiana Code Section 33-39-10-2(b)(3) also allows the appointment of a special prosecutor if “(A) the
prosecuting attorney files a petition requesting the court to appoint a special prosecutor; and (B) the court
finds that the appointment is necessary to avoid the appearance of impropriety.”
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