1 p.m. 46A04-1607-C-01522. Lake County. In 2012, John Larkin’s wife was found dead from multiple gunshots in their home. At the police station, a conversation between Larkin and his attorneys was recorded. Larkin was later charged with voluntary manslaughter. Prior to trial, Larkin moved to dismiss the charges against him because recording the conversation with his attorneys violated his Sixth Amendment right to counsel; the trial court denied the motion for lack of prejudice. Larkin also filed a motion to disqualify the prosecutor’s office and requested appointment of a special prosecutor because members of the prosecutor’s office had viewed the recording and/or read a transcript of the confidential conversation; the trial court also denied this motion. The trial court’s order denying the motion to disqualify was certified for interlocutory appeal but this court held the question of disqualification was moot because the county prosecutor was defeated in the 2014 primary election and the new prosecutor who took office in January 2015 was not involved in listening to the confidential conversation. Larkin v. State, 43 N.E.3d 1281 (Ind. Ct. App. 2015).
After this court’s opinion was issued and the case returned to the trial court, a special prosecutor was appointed on the newly-elected prosecutor’s motion. Larkin then moved to disqualify the regular judge, who denied any reason for recusal but recused nonetheless. The special judge accepted his appointment in February 2016. Larkin then filed a motion for discharge pursuant to Criminal Rule 4(C) alleging the State failed to bring him to trial within one year and a motion to dismiss alleging continuing Sixth Amendment and Article 1, section 13 violations related to the recorded confidential conversation. The special judge granted both the motion to discharge and the motion to dismiss. The State now appeals, arguing 1) Larkin waived any Rule 4 violation and 2) the special judge abused his discretion in reversing the regular judge’s earlier orders and dismissing the case. With respect to Criminal Rule 4, the issue is when the clock began running after this court issued its opinion in the interlocutory appeal and whether the delay resulting from the defendant’s motion for change of judge is chargeable to him. With respect to the dismissal based on misconduct, the issue is whether the trial court erred in applying an irrebuttable presumption of prejudice and in denying the State a hearing on the issue.