John Larkin, whose manslaughter charge in connection to the 2012 shooting death of his wife was dismissed, will once again face the trial court after Indiana Supreme Court justices found the dismissal to be “an extreme remedy” for police and prosecutorial misconduct and an abuse of the trial court’s discretion.
Justices reinstated the criminal charge in State of Indiana v. John B. Larkin, 46S04-1711-CR-701 at the request of the state. The Indiana Court of Appeals previously upheld the LaPorte Circuit Court’s dismissal of Larkin’s charges on misconduct and Criminal Rule 4(C) grounds.
Larkin had been charged after Long Beach Police Department officers found his 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 then-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 and stipulated Larkin would be tried within three months.
When the case was delayed due to a series of judicial and prosecutorial recusals, Larkin moved for dismissal. Criminal 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.
Larkin’s trial ultimately was set for June 2016, after an interlocutory appeal and a motion for change of judge. The state appealed to the higher court, questioning if the delay was a result of that appeal and attributable to Larkin.
Justices found that the period of delay during the pendency of Larkin’s interlocutory appeal is chargeable to him and ruled that the trial court did not have jurisdiction until the interlocutory appeal was certified.
“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),” Justice Steven David wrote for the court.
In regard to the state’s misconduct, justices found that while there was no disputing its mistakes, the state’s misconduct was not so severe that Larkin’s criminal charges should be dismissed because of it.
Justices also found that State v. Taylor, 49 N.E.3d 1019 (Ind. 2016), is applicable to Larkin’s case, therefore concluding that outright dismissal is not an appropriate remedy. The state argued that under Taylor, it was entitled to a hearing to a hearing to determine what, if any, evidence was tainted by the state’s misconduct.
“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,” David continued. “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.”
“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 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,” the panel concluded.
Both issues were reversed and remanded. At its discretion, the trial court may either hold a hearing during which the State can 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.
Both the Taylor and Larkin cases involved prosecutorial misconduct by Neary. In November 2017, the Indiana Supreme Court suspended him for four years, citing eavesdropping and other misconduct in both cases. Justices wrote in his suspension order that "Neary’s actions 'caused significant delays and evidentiary hurdles in the prosecutions of Taylor and Larkin, even assuming they still can be prosecuted at all.'
“We share the hearing officer’s view that ‘the egregious nature of respondent’s conduct cannot be overstated’ and warrants a sanction at the upper end of the disciplinary spectrum,” the justices wrote, noting the commission urged disbarment. But considering Neary’s lack of disciplinary history and the fact that he self-reported his conduct in Taylor’s case, the high court concluded “the door should not permanently be closed on (Neary's) legal career.”