                                                                     FILED
                                                                 Jun 07 2017, 5:35 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.                                        Stacy R. Uliana
Attorney General of Indiana                                Bargersville, Indiana
Eric P. Babbs                                              James E. Foster
Deputy Attorney General                                    Office of James E. Foster, P.C.
Indianapolis, Indiana                                      Hammond, Indiana
Stanley M. Levco
Special Prosecuting Attorney
Evansville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                          June 7, 2017
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           46A04-1607-CR-1522
        v.                                                 Appeal from the LaPorte Circuit
                                                           Court
John B. Larkin,                                            The Honorable Patrick B.
Appellee-Defendant.                                        Blankenship, Special Judge
                                                           Trial Court Cause No.
                                                           46C01-1212-FA-610



Robb, Judge.



Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017                  Page 1 of 50
                                Case Summary and Issues
[1]   Following the death of Stacey Larkin in 2012, the State charged her husband,

      John, with voluntary manslaughter as a Class A felony. In 2016, Larkin moved

      for discharge and dismissal, each of which the trial court granted. The State

      now appeals, raising two issues for our review, which we restate as: 1) whether

      the trial court erred in granting Larkin’s motion for discharge, and 2) whether

      the trial court erred in granting Larkin’s motion to dismiss. Concluding the

      trial court did not err in granting either motion, we affirm.



                            Facts and Procedural History                                1




[2]   In June 2012, Larkin contacted Detective Darren Kaplan of the Michigan City

      Police Department, a family friend, after Stacey sent a strange note to Larkin

      and left their home with a gun. Detective Kaplan contacted Stacey and

      requested she return home with the gun, which she did. Detective Kaplan

      never reported the incident. However, the following month, Detective Kaplan

      discussed the matter with Long Beach Police Officer Tobin Babcock after Long

      Beach police officers responded to a domestic situation at the Larkins’ home




      1
       We heard oral argument in this case on April 24, 2017, at the Hammond Academy of Science and
      Technology. We commend counsel for their advocacy and thank the faculty, staff, and students at the
      Academy for their participation.

      Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017                       Page 2 of 50
      during the same summer. Following the domestic incident, Long Beach Police

      Officers arrested Stacey.


[3]   On December 11, 2012, Larkin called 911 and informed the operator his wife

      had been shot. Officers from the Long Beach Police Department arrived at

      Larkin’s home and discovered Stacey deceased from two gunshot wounds.

      Larkin was taken to the police station and placed into an interview room. After

      being advised of his rights, Larkin immediately requested his attorney be

      present. Over the course of a couple hours, law enforcement, including

      Lieutenant Todd Bullis, continued to question Larkin despite Larkin’s requests

      for an attorney. At some point during the interview, Larkin told investigators

      of the incident occurring the previous summer, including how Detective Kaplan

      assisted him in getting Stacey home safely. Citing the Fifth Amendment, the

      trial court later suppressed the statements made during this interview.


[4]   On December 13, 2012, Larkin agreed to talk to investigators about the

      shooting so long as he was charged with voluntary manslaughter in lieu of

      murder. Larkin, his attorneys, a police investigator, LaPorte County

      Prosecutor Bob Szilagyi, and Chief Deputy Prosecutor Robert Neary were

      present during the videotaped interview. During a break, Larkin and his

      attorneys were left alone in the room and discussed defense strategy.

      Unbeknownst to them, however, the video recording equipment was not turned

      off and continued to record. During this time, Larkin explained the events

      leading to Stacey being shot. According to him, Stacey struggled with mental

      illness and addiction and he became concerned for Stacey, himself, and their

      Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 3 of 50
      children when Stacey opened a safe in the home in an attempt to retrieve a gun.

      A struggle then ensued between Stacey and Larkin, resulting in Stacey suffering

      two gunshot wounds. The safe’s door was later sent to the Federal Bureau of

      Investigation’s office (“FBI”) in Quantico, Virginia, for analysis.


[5]   At some point during the next week, Lieutenant Bullis reviewed the video of

      the December 13, 2012, interview and provided a copy to Neary. In January

      2013, Neary reviewed the video and then requested court reporter Jamie Arnold

      transcribe the entire video. In transcribing the video, Arnold observed the

      conversation with Larkin and his attorneys was recorded and asked Neary

      whether she should transcribe that portion of the interview. Despite Neary

      instructing Arnold not to transcribe that portion, the privileged communications

      were somehow later transcribed and distributed to prosecutors in the LaPorte

      County Prosecutor’s Office. Also in January 2013, Lieutenant Bullis

      interviewed Stacey’s hairdresser and audio recorded the conversation.

      Following the interview, the audio recording captured a conversation between

      Lieutenant Bullis and Officer Babcock in which the pair discussed pressing

      Detective Kaplan for more information regarding the June 2012 incident with

      Stacey and the possibility of getting Detective Kaplan to change his story to

      damage any of Larkin’s potential defenses.


[6]   In December 2013, the State disclosed to Larkin during discovery it captured

      communications between Larkin and his attorneys by video. In January 2014,

      the FBI returned the safe’s door to the Michigan City Police Department in one

      piece and in an FBI-sealed bag. On March 18, 2014, the State and Larkin

      Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 4 of 50
      stipulated the State would have three months, or approximately ninety days,

      after November 5, 2014, to try its case pursuant to Indiana Criminal Rule 4(C).


[7]   In April 2014, Neary checked out the safe’s door from the evidence room to

      send to Larkin’s expert, Mark Songer. At the time, the safe’s door remained in

      one piece inside the FBI-sealed bag. When Songer received the safe’s door,

      however, it was broken into three pieces and was no longer housed in the FBI-

      sealed bag.

[8]           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.” 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.


              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.”
              The intern also submitted an affidavit and stated that, in August

      Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 5 of 50
        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].” 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].”


        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.


        In October 2014, the trial court suppressed the conversation
        between Larkin and his attorneys, but not the remainder of the
        interview. 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 . . . .


Larkin v. State, 43 N.E.3d 1281, 1283-85 (Ind. Ct. App. 2015) (“Larkin I”) (some

alterations in original) (internal citations and footnote omitted). On October

22, 2014, Larkin moved the trial court to certify the denial of his motion to

disqualify the prosecutor’s office and for the appointment of a special

prosecutor for interlocutory appeal. The trial court granted Larkin’s motion

and stayed the proceedings, and we thereafter accepted jurisdiction. On appeal,

the State argued the issue was moot, contending John Espar was elected as

LaPorte County Prosecutor in November 2014 (replacing Szilagyi), Espar was
Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017     Page 6 of 50
       not involved in the challenged conduct, and therefore a special prosecutor was

       unnecessary. We agreed the issue was moot and dismissed Larkin’s appeal. Id.

       at 1287. However, we recommended the trial court consider disqualifying

       prosecutors Neary and Armstrong. Larkin I was issued on September 30, 2015.


[9]    The following week, but prior to the certification of Larkin I, the State moved to

       withdraw the appearances of Neary and Armstrong. In addition, Espar moved

       for the appointment of a special prosecutor. The trial court promptly granted

       all three motions and appointed Stanley Levco as special prosecutor. On

       October 13, 2015, the trial court judge, Michael Bergerson, recused himself and

       the County Clerk appointed Judge Thomas Alevizos.


[10]   Larkin I was certified on November 20, 2015, but there is no order in the record

       showing when the stay on the proceedings was lifted. On November 23, 2015,

       Larkin moved to disqualify Judge Alevizos alleging the judge had a conflict of

       interest because he also presided over guardianship matters regarding Larkin’s

       children following his arrest. Judge Alevizos recused himself on December 31,

       2015, and after four additional judges either declined or recused themselves

       from appointment over the next two months, Judge Patrick Blankenship of

       Pulaski County accepted his appointment as special judge on February 29,

       2016.


[11]   On March 28, 2016, Larkin moved for discharge pursuant to Rule 4(C), alleging

       the State’s stipulated three-month period to bring him to trial had expired. At a

       hearing two days later, the trial court ordered the case files be redacted and


       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 7 of 50
       provided to Levco. Despite assurances from the LaPorte County Prosecutor’s

       Office that the case file would be redacted and then provided to Levco, the case

       file was not redacted prior to Levco receiving it. On April 7, 2016, the trial

       court held a hearing on Larkin’s motion for discharge (“April 7 Hearing”).

       There, the parties discussed the issue of whether the State complied with Rule

       4(C) and Larkin orally moved for discharge. On May 11, 2016, Larkin filed a

       second motion for discharge pursuant to Rule 4(C). On May 20, 2016, Larkin

       moved to dismiss the charge of voluntary manslaughter, contending he could

       not receive a fair trial.


[12]   On June 9, 2016, the trial court held a hearing at which the State appeared by

       telephone. The State first argued a previous judge already denied Larkin’s

       motion to dismiss in 2014, and absent new facts, the trial court should adhere to

       the previous decision. In the alternative, the State also argued for an

       opportunity to appear in court and present evidence showing Larkin did not

       suffer prejudice from the way the case had been handled up to that point. On

       the same day, the trial court issued an order granting both the motion for

       discharge and motion to dismiss. In discharging Larkin pursuant to Rule 4(C),

       the trial court stated,


               1) That the parties agreed on March [18], 2014, that the State of
               Indiana would have three months (90 days) from November 5,
               2014 to try the Defendant herein, within the time limits of
               Criminal Rule 4.
               2) That prior to the expiration of the 90 day time limit, the
               Defense filed a Motion to Certify an Interlocutory Appeal on
               October 22, 2014.

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017     Page 8 of 50
        3) On September 30, 2015, almost one year later, the Court of
        Appeals issued its opinion.
        4) The Court of Appeals opinion was not certified until almost
        60 days later on November 20, 2015.
        5) On November 23, 2015, the Defendant moved to disqualify
        Judge Alevizos for cause, because that Judge had presided or was
        presiding over a probate matter involving the Defendant’s minor
        children.
        6) That the appointment of a Special Judge took until February
        29, 2016, when this Court accepted jurisdiction.
        7) This Court held a Status Hearing on April 7, 2016.
        8) At that Status Hearing, the Court was advised by the
        Defendant’s counsel that they would be filing a Criminal Rule 4
        Motion.
        9) The Defendant subsequently then did file its Criminal Rule 4
        Motion, and that motion along with several other motions were
        argued at the [April 7], 2016 Pretrial.
        10) At that [April 7] Pretrial, the Defendant objected to any trial
        dates as being past the time of the Criminal Rule 4 requirements.
        11) The Court did then go ahead after much discussions [sic]
        between counsels of both the State and the Defendant, set a trial
        setting in June, and the Defendant wished to make his record
        that if the Court determined that the Criminal Rule 4 time had
        not expired, that they could do the trial on June 20, 2016, but
        that they made the record that they still believed and were
        arguing Criminal Rule 4 time had spent.
        12) That the Court asked the Defense to come up with an
        ulterior theory of Criminal Rule 4, in the event the Court found
        that their original position and time line was incorrect, and there
        was much discussion on that, and the Defendant did.
        13) Then at the June 3, 2016 hearing, Criminal Rule 4 was
        discussed again, and therein the parties discussed if any Court
        currently has jurisdiction of this case, since the CCS does not
        show the Appellate Court certification as ever being filed as part
        of the CCS.
        14) The State’s position essentially, as I understand, it [sic] is the
        90 days could not have begun until the certification. The State

Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017      Page 9 of 50
        must waive that position in light of the fact that the State’s own
        attorneys, beginning with Deputy Armstrong, Deputy Neary,
        were filing motions to withdraw and recuse themselves on
        October 5, 2015 and October 6, 2015. Prosecutor Esbar [sic]
        recused himself on October 6, 2015, a month and a half before
        the State argues that a Judge had jurisdiction of that case. They
        were relying on [this] Court’s jurisdiction and authority to grant
        those withdraws [sic], and so that time has to run to the State.
        15) On October 13, 2015, Judge Bergerson recused himself,
        because Judge Bergerson, I believe, had been in the Prosecutor’s
        Office at the time and had worked some on the Larkin case, so
        Judge Bergerson did the right thing, and it didn’t take him very
        long to do it. He did it before the case even came back to him, so
        how does a man who currently doesn’t have jurisdiction over the
        case, if he doesn’t, recuse himself from that case before the
        Appellate Court has even certified, but he did it, and so the Court
        recognized that it had its own jurisdiction to do that.
        16) Judge Alevizos accepted the assignment and set it for a
        Status Hearing. He accepted the assignment on October 19,
        2015, again, one month before the Appellate Court certified their
        opinion. There would be no need for him to accept jurisdiction
        of a case that he didn’t have jurisdiction over, if the certification
        was the triggering date that gave him jurisdiction to begin with.
        But then he goes on, and he sets it for hearing on December 4,
        2015. From that point on, both parties act as though the Court in
        LaPorte County, Judge Alevizos, has jurisdiction.
        17) On December 10, 2015, there is a hearing held on a Motion
        to Recuse, and it is taken under advisement, so the Court, after
        hearing the Motion of Recusal, still is saying, I am still the Judge
        with jurisdiction, and I am taking it under advisement, so the
        clock is still ticking here.
        18) In the alternative, if Criminal Rule 4 did not begin until the
        certification, we still have from November 20, 2015 to December
        10, 2015, which is twenty days. And if we don’t start up again
        until this Court’s acceptance of jurisdiction on February 29,
        2016, Criminal Rule 4 would have expired on May 10, 2016.
        The only way we would get to May 29, 2016, is that the Court

Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017    Page 10 of 50
               didn’t get jurisdiction until certification, and all time from there
               forward ran against the Defendant.
               19) That puts the Defendant in a position of number one, having
               to go to trial with a judge who should have recused himself,
               should have never accepted it, which was Judge Alevizos, who
               knew he had a problem with that case. Number two, the
               Defendant is charged with the fact that no judge in LaPorte
               County wanted to get within a ten foot pole of this case, and to
               say that the Defendant should bear that, is correct as counsel has
               stated many times: It should not be a choice between speedy trial
               and fair trial. He is entitled to both, not one or the other. He is
               entitled to have both, and as the Court sees it, the only reason
               this case got to this point was because we had a prosecuting
               attorney in Mr. Neary and his staff, and we had a law
               enforcement agency in Long Beach Law Enforcement Agency,
               that 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.
               20) In regards to the State’s position that the Defendant waived
               Criminal Rule 4 at the May 3, 2016 hearing, the Defendant did
               not waive it, and in fact, the Defendant verified that he had made
               a proper record that his Criminal Rule 4 Motion would not effect
               that trial setting in June if the Court determined, in other words,
               he would not have waived it, if the Court found that the Criminal
               Rule 4 had not run, and clearly, in any scenario you get to, it had
               run.


       Appellant’s Appendix, Volume 4 at 83-86.


[13]   In granting the motion to dismiss, the trial court stated,


               1) The Defendant is entitled to a Motion to Dismiss because of
               the Article 1, Section 13, portion of the Indiana Constitution and
               the 6th Amendment of the United States Constitution. Because
               of the December 12, 2012 interview of the Defendant, where that
               recording included conversations between the Defendant and his

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 11 of 50
        attorney, and further, that was compounded by the State
        intentionally transcribing the twelve minute portion of that
        interview, even though the court reporter had done the proper
        thing in not transcribing it, and it was done only at the specific
        request of the State.
        2) That the State continually violated the 6th Amendment, not
        just once, by initially recording it, but multiple times. Every time
        they made a copy of that conversation is a separate and
        individual violation.
        3) Every time they disseminated the transcript containing that
        twelve minute portion was a separate violation of Defendant’s
        6th Amendment[ rights].
        4) The Court is going to further find that it is not the burden of
        the Defendant to prove that it caused him harm. The 6th
        Amendment violation is a per se violation [sic] Constitutional
        violation, and since Taylor issued by the Supreme Court, it would
        be the burden of the State to prove beyond a reasonable doubt
        that that violation has no adverse effect [on] this Defendant.
        5) The Court has discussed with the parties having a Taylor
        hearing. However, the Court believes that in light of the
        additional violations committed by Detective Bullis, Detective
        Babcock, and Detective McClintock, that their testimonies are all
        tainted and shaded by the fact that it has now become blatantly
        obvious to this Court that their conduct at that time and since,
        has demonstrated an animosity against this Defendant that
        overshadows everything that they do and say.
        6) They conducted three separate surreptitious interviews on
        December 11 at the Long Beach Police Department after the
        Defendant had requested an attorney. After that request,
        Detective McClintock continued to engage him in conversation,
        which should have immediately ceased, and then sent in a
        second officer to conduct administrative tasks that could have
        been assigned to any jailer, taking finger prints, taking a DNA
        swab, could have been attended to by any jailer who does that on
        an everyday basis, but instead, they sent in a second detective,
        who engaged in similar surreptitious interrogation of Mr. Larkin.
        7) While this was going on, Detective Bullis was recording and
Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 12 of 50
        watching the Defendant’s conduct and statements. Only then,
        after watching those two incidences, Detective Bullis took it upon
        himself to go in and tell the Defendant that his attorney was not
        available, and he engaged in further conversations with the
        Defendant.
        8) Those tapes were never destroyed. They continue to be
        viewed and monitored by the investigators and by the State.
        9) As a result of those conversations, the State learned about
        Detective Kaplan from the Michigan City Police Department
        and his possible knowledge of evidence that may be of assistance
        to the Defendant in his defense.
        10) As a result of learning about him, they subsequently took it
        upon themselves, Detective Bullis and Detective Babcock, to
        approach Detective Kaplan and tamper with his testimony in
        regards to incidences involving this case.
        11) In addition, there was a piece of State evidence that was sent
        to the FBI . . ., a safe, that the FBI conducted its investigation of
        that piece of evidence and returned it to Prosecutor Neary, who
        was then supposed to provide it to the Defense to send to their
        expert to examine the safe. By the time that safe had gotten to
        the Defense expert, that safe had been tampered with and
        damaged.
        12) That the last known hands that that safe was in was the
        State. The State was responsible for the chain of custody.
        13) While it may be possible for a Court to look at all of these
        things individually and find that each one may have a very small
        effect on the outcome of this trial, that is really not the analysis
        here. No one knows what piece of evidence will have what effect
        on the outcome of a trial. . . . And so for a Judge to predict at a
        jury trial whether any of those one single things would have an
        adverse effect, I have no way of knowing. The Court would have
        no way of knowing until a jury trial was actually conducted, and
        then interviewed the jury, and then it is too late.
        14) It is the Court’s obligation to guarantee a fair trial, and based
        upon the totality of misconduct on the part of the State, this
        Court cannot guarantee this Defendant a fair trial.


Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017    Page 13 of 50
       Id. at 86-88. This appeal ensued.



                                   Discussion and Decision
                                        I. Criminal Rule 4(C)
[14]   The State contends the trial court erred in granting Larkin’s motion for

       discharge under Rule 4(C). Specifically, it claims the period in which it could

       bring Larkin to trial continued at the very least to the April 7 Hearing, where it

       claims Larkin waived any objection to a future trial date. We disagree.


[15]   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).


               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) (emphasis added) (internal

       citations omitted).




       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017    Page 14 of 50
[16]   The standard for reviewing a ruling on a motion for discharge depends on

       whether the trial court resolved disputed facts or reached legal conclusions

       based on undisputed facts. Austin v. State, 997 N.E.2d 1027, 1039-40 (Ind.

       2013). If a trial court resolves disputed facts, those findings are reviewed for

       clear error. Id. at 1040. If a trial court reaches legal conclusions based on

       undisputed facts, we review those conclusions de novo. Id. at 1039.


[17]   Here, the parties stipulated the State would only have three months after

       November 5, 2014, to try Larkin. The following chart outlines the occurrences

       and their respective dates relevant to us determining whether this three-month

       period expired before the April 7 Hearing:


        March 18, 2014                                        The State and Larkin stipulate the
                                                              State will have three months after
                                                              November 5, 2014, to bring Larkin to
                                                              trial.
        October 29, 2014                                      The trial court certifies its order
                                                              denying Larkin’s motion to disqualify
                                                              the prosecutor’s office and stays
                                                              proceedings. Future trial date is
                                                              vacated.
        September 30, 2015                                    We issue Larkin I, affirming the trial
                                                              court, but recommending Neary and
                                                              Armstrong recuse themselves from
                                                              the case.
        October 2, 2015                                       Neary files a motion to withdraw
                                                              appearance, which the trial court
                                                              grants on the same day.
        October 5, 2015                                       Armstrong files a motion to withdraw
                                                              appearance, which is granted by the
                                                              trial court on the same day.
        October 6, 2015                                       On behalf of the State, Espar moves
                                                              for appointment of special
                                                              prosecutor.

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017             Page 15 of 50
 October 13, 2015                                      Judge Bergerson recuses.


 October 19, 2015                                      Judge Alevizos accepts appointment
                                                       as special judge and schedules a
                                                       status hearing for December 4, 2015.
 November 12, 2015                                     Trial court appoints Levco as special
                                                       prosecutor.
 November 20, 2015                                     Larkin I is certified.


 November 23, 2015                                     Larkin moves for change of judge.


 December 10, 2015                                     Hearing on Larkin’s motion for
                                                       change of judge. Matter taken under
                                                       advisement.
 December 31, 2015                                     Judge Alevizos recuses.


 January 13, 2016                                      County Clerk selects a special judge.


 January 20, 2016                                      Special judge declines appointment.


 January 21, 2016                                      Clerk selects a special judge.


 January 28, 2016                                      Special judge recuses and the Clerk
                                                       attempts to select a special judge for a
                                                       third time.
 February 4, 2016                                      Special judge recuses.


 February 9, 2016                                      Clerk selects special judge.


 February 18, 2016                                     Special judge declines appointment.


 February 29, 2016                                     Judge Blankenship accepts
                                                       appointment.



Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017                 Page 16 of 50
        March 28, 2016                                        Larkin moves for discharge pursuant
                                                              to Rule 4(C), which the trial court
                                                              takes under advisement.
        March 30, 2016                                        Trial court holds hearing. Larkin
                                                              orally moves for discharge. The trial
                                                              court schedules pretrial hearing for
                                                              April 7, 2016, to discuss potential
                                                              trial dates.
        April 6, 2016                                         Larkin files timeline in support of
                                                              discharge.
        April 7, 2016                                         Hearing held.


        April 11, 2016                                        Larkin files brief in support of
                                                              discharge.
        May 3, 2016                                           Trial court holds hearing.


        May 11, 2016                                          Larkin files a second motion for
                                                              discharge.
        June 9, 2016                                          Trial court discharges Larkin.




[18]   There are three periods of delay where the parties dispute whether the delay is

       attributable to Larkin, court congestion, or emergency: the period for the

       interlocutory appeal, and if charged to Larkin, what date the delay was no

       longer attributable to him; the period between the trial court taking Larkin’s

       motion for change of judge under advisement and Judge Alevizos’ recusal; and

       the period between Judge Alevizos’ recusal and the appointment of Judge

       Blankenship. We address each in turn.




       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017               Page 17 of 50
                                   A. Interlocutory Appeal Delay
                                              1. Attribution of Delay

[19]   A week prior to November 5, 2014, the date the State’s three-month period was

       supposed to begin running, the trial court certified its order denying Larkin’s

       motion to disqualify the LaPorte County Prosecutor’s Office for interlocutory

       appeal and stayed the proceedings. The parties dispute whether the subsequent

       delay was caused by Larkin. The State argues an interlocutory appeal,

       regardless of whether it is brought on behalf of the State or the defendant, tolls

       the Rule 4(C) period. Larkin counters the period should be charged against the

       Rule 4(C) period because he would not have sought an interlocutory appeal but-

       for police and prosecutorial misconduct. Both arguments hold merit.


[20]   The State cites to Pelley where our supreme court was tasked with determining

       whether a delay resulting from the State’s interlocutory appeal was chargeable

       against the Rule 4(C) period.2 901 N.E.2d at 494. The court first acknowledged

       Rule 4(C) only provides exceptions for acts caused by the defendant,

       emergency, or court congestion, and clearly an interlocutory appeal brought on




       2
         Much of Indiana’s caselaw on Rule 4(C) properly phrases issues as whether delays can be attributed to acts
       caused by the defendant, court congestion, or emergency. However, many of these same cases also address
       the issue of whether the delay can be charged to the State. E.g., Harrington v. State, 588 N.E.2d 509, 510 (Ind.
       Ct. App. 1992). This phrasing makes some sense given the fact the State maintains the burden of timely
       trying a case against a defendant pursuant to Rule 4(C). However, we also note Rule 4(C) makes no
       reference to determining whether the State caused a delay, and as such, we think such phrasing appears to
       punish the State. The rule makes clear any delay not caused by the defendant, court congestion, or
       emergency is charged to the Rule 4(C) period, not the State. Therefore, we address any delay not caused by
       the acts of the defendant, court congestion, emergency, or any other common-law exception, see Pelley, 901
       N.E.2d at 499-500, as delays chargeable to the Rule 4(C) period.

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017                           Page 18 of 50
       behalf of the State did not fall under any of these exceptions. Despite the fact

       the defendant did not cause the delay, the court concluded the delay could not

       be charged against the Rule 4(C) period, reasoning,


               When trial court proceedings have been stayed pending
               resolution of the State’s interlocutory appeal, the trial court loses
               jurisdiction to try the defendant and has no ability to speed the
               appellate process. As a practical matter, applying the Criminal
               Rule 4(C) one-year requirement to interlocutory appeals would
               render an appeal by the State impossible because it would in all
               likelihood trigger a mandatory discharge of the defendant.


       Id. at 499. The court further clarified in a general sense “that the time for

       interlocutory appeal is excluded from Rule 4(C)’s limitation only when the trial

       court proceedings have been stayed.” Id. at 500. Therefore, because the delay

       occasioned by the State’s interlocutory appeal was not caused by the

       defendant’s act, court congestion, or emergency, Pelley created at least a limited

       common-law exception to Rule 4(C): when trial court proceedings are stayed

       following certification of an interlocutory order, the subsequent delay cannot be

       charged to the Rule 4(C) period. Here, the trial court, at Larkin’s request,

       certified its order denying Larkin’s motion to disqualify the prosecutor’s office

       and stayed the proceedings pending appeal.


[21]   Larkin counters by citing to Harrington v. State, 588 N.E.2d 509 (Ind. Ct. App.

       1992). There, the parties disputed whether a 317-day delay, which commenced

       with the defendant moving for the appointment of a special prosecutor and a

       subsequent motion for a continuance, was caused by the defendant and


       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017     Page 19 of 50
       chargeable to him. The State argued this period was chargeable to the

       defendant because the delay was caused by the defendant’s acts. The defendant

       blamed the delay on the State, claiming a special prosecutor was necessary

       because the prosecutor had previously served as his counsel in a criminal

       matter.


[22]   At the outset, we noted,


               Any delay resulting from a prosecutor’s conflict, even if the delay
               technically results from a defendant’s motion to continue, is
               chargeable to the State. In Biggs v. State[, 546 N.E.2d 1271, 1274
               (Ind. Ct. App. 1989),] we acknowledged, in general, “a defendant
               is chargeable with delay occasioned by his own request for a
               continuance.” However, a defendant cannot be charged with
               the delay if the defendant made his motion because the State
               failed to comply with a discovery request. See id. at 1275. We
               offered the following explanation for this exception to the general
               rule: “[Putting] defendants in a position whereby they must either
               go to trial unprepared due to the State’s failure to respond to
               discovery requests or waive their rights to a speedy trial, is to put
               the defendants in an untenable situation.” Id.


       Harrington, 588 N.E.2d at 511 (some alteration in original). Relying on the

       rationale provided in Biggs, we concluded the delay was chargeable to the Rule

       4(C) period, reasoning,

               Just as a defendant should not have to choose between a speedy
               trial and a fair trial as a result of the State’s failing to comply with
               a discovery order, 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.


       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017       Page 20 of 50
       Id. Therefore, Harrington appears to create a limited common-law exception to

       acts caused by a defendant when the acts are necessary for a fair trial as a result

       of a prosecutor’s conflict. Here, prosecutors in the LaPorte County

       Prosecutor’s Office clearly had a conflict at the time Larkin moved to disqualify

       the office from the case.


[23]   As demonstrated above, Pelley and Harrington strongly support each parties’

       contentions and both cases are persuasive to an extent. On one hand, the State

       is correct the certification of an interlocutory order and stay of proceedings

       deprives a trial court of jurisdiction, and Pelley makes clear the delay cannot be

       charged against the Rule 4(C) period. On the other hand, however, prosecutors

       in the LaPorte County Prosecutor’s Office had a conflict they failed to timely

       identify and cure and Harrington appears to dictate any subsequent delay from a

       prosecutor’s conflict is chargeable to the Rule 4(C) period.


[24]   Ultimately, we find the rationale and underlying policy considerations provided

       in Pelley are controlling. The fact the proceedings were stayed at the request of

       Larkin removes from the State and Larkin and the trial court the opportunity to

       proceed with the case. Stated differently, following Harrington would make it

       impossible for the State to timely bring Larkin to trial. Sensibly, one could

       counter this point by noting it is the State’s burden to bring a defendant to trial,

       and if we were to follow Harrington in this case, it would send a clear message

       to prosecutor’s offices they must identify and cure conflicts or risk losing their

       opportunities to try cases. However, following Harrington in this case would

       have additional consequences. We first note there is no ability to predict the

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 21 of 50
       amount of time an appeal may take and neither the trial court nor parties to a

       case have control over that delay. Here, it was nearly a year from the time the

       trial court certified its order for interlocutory appeal until Larkin I was issued

       and if we charged delays from interlocutory appeals to the Rule 4(C) period,

       defendants could often successfully seek discharge regardless of the merit of

       their interlocutory claim.3 This, in turn, would influence the exercise of a trial

       court’s discretion to certify interlocutory orders for appeal and would likely

       deprive defendants of the opportunity for an immediate appeal of an adverse

       ruling. We conclude Pelley is controlling of the issue regarding Larkin’s

       interlocutory appeal and therefore the delay is chargeable to Larkin.


                                                 2. Extent of Delay

[25]   The parties next dispute the length of the delay. Specifically, the parties agree

       the tolling commenced on November 5, 2014, but disagree as to when the Rule

       4(C) period resumed running. In determining the extent of a delay caused by a

       defendant, we proceed on a case-by-case basis. Curtis, 948 N.E.2d at 1150.


[26]   The State argues the delay ended on November 20, 2015, the date Larkin I was

       certified. In support, the State cites to Indiana Appellate Rule 65(E), which

       provides, “The trial court, Administrative Agency, and parties shall not take

       any action in reliance upon the opinion or memorandum decision until the



       3
         In such a case, it would likely be necessary for courts to then determine whether the claim of conflict was
       meritorious, and as our case law makes clear, the application of Rule 4(C) is not dependent on whether “the
       act causing the delay was justifiable or meritorious.” State v. Grow, 255 Ind. 183, 185, 263 N.E.2d 277, 278
       (1970).

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017                          Page 22 of 50
       opinion or memorandum decision is certified.” See also Rogers Grp., Inc. v.

       Diamond Builders, LLC, 833 N.E.2d 475, 477 (Ind. Ct. App. 2005) (“[T]he

       Clerk’s certification of appellate decisions signals the parties that such a

       decision is ‘final.’”).


[27]   Larkin acknowledges the date of certification would typically be the earliest

       date the trial court should reassume jurisdiction and lift the stay of proceedings.

       However, he counters this is not a typical case and cites to numerous actions by

       the State and the trial court occurring shortly after we issued Larkin I, but before

       it was certified; actions he believes indicate the trial court reassumed

       jurisdiction and the State submitted itself to the trial court’s jurisdiction. In

       addition, he also cites to actions by the State prior to certification that

       essentially conceded any issues the parties could raise on rehearing or transfer.

       Therefore, Larkin claims the clock began running at some point in early

       October 2015. We agree with Larkin.


[28]   In Larkin I, Larkin appealed the denial of his motion to disqualify the

       prosecutor’s office and for the appointment of a special prosecutor. On

       September 30, 2015, we dismissed Larkin’s appeal after determining the issue

       was moot because while the case was pending on appeal, Espar was elected as

       the new county prosecutor, replacing Szilagyi. Thereafter, the following events

       occurred in the trial court and prior to the certification of Larkin I on November

       20, 2015:




       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017       Page 23 of 50
        October 2, 2015                                       Neary files a motion to withdraw
                                                              appearance, which the trial court
                                                              grants on the same day.
        October 5, 2015                                       Armstrong files a motion to withdraw
                                                              appearance, which is granted by the
                                                              trial court on the same day.
        October 6, 2015                                       On behalf of the State, Espar moves
                                                              for appointment of special
                                                              prosecutor.
        October 13, 2015                                      Judge Bergerson recuses.


        October 19, 2015                                      Judge Alevizos accepts appointment
                                                              as special judge and schedules a
                                                              status hearing for December 4, 2015.
        November 12, 2015                                     Trial court appoints Levco as special
                                                              prosecutor.



[29]   In light of these events, it is clear the State immediately submitted itself to the

       trial court and the trial court immediately acted under the impression it had

       jurisdiction. Although there is no date in the record indicating when the stay of

       proceedings was explicitly lifted, it is clear the State’s and the trial court’s acts

       amount to a constructive lift of the stay. And more importantly, the State, not

       Larkin, moved for the appointment of a special prosecutor on October 6, 2015,

       approximately six weeks prior to certification. This act, in effect, resolved any

       issues Larkin may have raised on rehearing or transfer and satisfied the purpose

       of finality underlying Appellate Rule 65(E). Thus, by October 6, 2015, the State

       submitted itself to the trial court, the trial court acted as if it had jurisdiction,

       and the State moved to appoint a special prosecutor thereby resolving any

       further appellate issues. We conclude this delay ended on October 6, 2015, and

       thereafter the time began running against the Rule 4(C) period.
       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017             Page 24 of 50
[30]   The dissent disagrees with this conclusion on three bases. First, it believes the

       actions by the State and the trial court in early October are voidable and

       susceptible to ratification. The dissent therefore believes Larkin essentially

       ratified these actions by failing to object. However, in an October 14, 2015,

       motion, Larkin explained to the trial court the State’s motions were premature

       and any action by the trial court addressing the merits of the State’s motions

       would also be premature. Although the motion does not specifically mention

       the word “objection,” it is clear Larkin was objecting to the State’s and the trial

       court’s actions.


[31]   Second, the dissent believes the delay could not have ended on October 6, 2015,

       because in the same October 14 motion noted above, Larkin explained he was

       contemplating filing a petition for transfer. However, the issues raised in Larkin

       I only addressed the denial of Larkin’s motion to disqualify the LaPorte County

       Prosecutor’s Office and to appoint a special prosecutor. Larkin’s motion to

       disqualify the prosecutor’s office was moot because in the interim a new

       prosecuting attorney had been elected. Therefore, this would not be an issue to

       raise on transfer. The only issue potentially available to Larkin on transfer

       would have been the denial of his motion to appoint a special prosecutor. But

       on October 6, 2015, the State removed all likelihood Larkin would seek transfer

       on this issue because it—not Larkin—moved to appoint a special prosecutor.

       Our review of the record indicates the State’s and the trial court’s actions

       satisfied Appellate Rule 65(E).




       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 25 of 50
[32]   Third, the dissent asserts our conclusion that the delay ended on October 6,

       2015, appears to “improperly penalize the State” when in fact the State’s act of

       moving for a special prosecutor benefitted Larkin because such an act

       “expedited the progress of the case once [Larkin I] was certified.” Slip op. at ¶

       54. We disagree. As noted Rule 4(C) is not written to help or punish the State.

       The rule only addresses whether a delay stops the Rule 4(C) time from running.

       In addition, the rule plainly provides the State maintains the burden of bringing a

       defendant to trial to ensure timeliness. See supra note 2. Therefore, the dissent’s

       assertion that our decision penalizes the State is not in accord with the plain

       language of Rule 4(C). See id. As to the dissent’s assertion the State’s actions

       expedited the case thereby benefitting Larkin, we reemphasize the inquiry is not

       whether the State was harmed or the defendant incurred a benefit, but rather is

       when the Rule 4(C) time stopped.


[33]   In sum, the State proceeded after Larkin I was issued as if under the impression

       the clock was running against the Rule 4(C) period and the act of filing the

       motions early limited the impact on the period. The State cannot have its cake

       and eat it too in now claiming this time should be chargeable to Larkin. Based

       solely on the unique set of facts and circumstances in this case, we conclude the

       period for the interlocutory appeal was charged against Larkin between

       November 5, 2014, and October 6, 2015, and for the next sixty-five days (until

       the change of judge hearing) the clock ran against the Rule 4(C) period.

       Therefore, even assuming the other periods of delay in dispute are chargeable to

       Larkin, the Rule 4(C) period expired on March 26, 2016, two days before


       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 26 of 50
       Larkin moved for discharge. For this reason, we need not address whether

       Larkin waived his claim at the April 7 Hearing because the Rule 4(C) time

       period had already run by that date. The trial court did not err in concluding

       Larkin was entitled to discharge pursuant to Rule 4(C). This conclusion is

       sufficient to affirm the trial court. However, we opt to delve further into Rule

       4(C) analysis given the complicated nature of this appeal. We therefore proceed

       under the assumption the State is correct the interlocutory appeal tolled the

       Rule 4(C) period until certification on November 20, 2015.


                            B. Motion for Change of Judge Delay
[34]   The parties do not dispute the period between November 20, 2015, and

       December 10, 2015, or twenty days, ran against the Rule 4(C) period thereby

       bringing the State’s remaining period to try Larkin to approximately seventy

       days.4 The parties do dispute, however, whether the period beginning with the

       hearing on Larkin’s motion for change of judge on December 10, 2015, and

       Judge Alevizos’ recusal on December 31, 2015, is chargeable to Larkin. The




       4
         The dissent does not agree this issue is undisputed and cites to both the Appellant’s Brief and the Reply
       Brief of the Appellant where the State appears to assert the delay resulting from Larkin’s motion for change
       of judge began on November 23, 2015, the date he filed the motion. We acknowledge Larkin filed his
       motion on this date and further note the caselaw cited by the dissent supports the notion the delay should be
       charged from the date the defendant files its motion for change of judge. However, because of the unique
       facts of this case, we cannot agree. The trial court found the delay did not begin until December 10, 2015,
       the day the trial court held a hearing on the motion and took the matter under advisement. In its briefs, the
       State does not specifically challenge this finding, nor does the State cite to any circumstances in the record
       showing the filing of the motion caused any delay prior to the trial court taking the matter under advisement
       on December 10, 2015. Yet, even assuming the delay began on November 23, 2015, the discussion below
       reveals the delay is chargeable to the Rule 4(C) period and therefore the State still failed to meet the Rule
       4(C) deadline.

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017                          Page 27 of 50
       State argues it was Larkin’s act of moving for change of judge that caused the

       delay. Similar to his argument above, Larkin counters Harrington should

       control and dictates any delay from his motion for change of judge be charged

       to the Rule 4(C) period because Larkin should not be placed in a position of

       choosing between a fair or timely trial. We agree with Larkin.


[35]   Below, the trial court found Judge Alevizos never should have accepted

       appointment as special judge and at the very least should have immediately

       recused himself due to a conflict. Although the trial court did not note details

       of the conflict in its findings, the record is revealing. Following Stacey’s death

       and Larkin’s arrest, Larkin’s sister, Dorothy Denise Carroll, a licensed attorney

       in Illinois, was granted legal and physical custody of Larkin’s children and

       acted as guardian of the children’s estates and trustee of their trusts. At some

       point, Carroll sought approval from Judge Alevizos, the presiding judge over

       the familial matters, to purchase Larkin’s home with money from the children’s

       trusts for the purpose of allowing the children to continue to live in the home.

       We previously summarized the relevant portions of a hearing on Carroll’s

       petition:


               Carroll presented the testimony of Toni Henke-Wheeler
               (“Henke-Wheeler”), who provided family and individual
               counseling to the Children. Henke-Wheeler testified that the
               Children were dealing with grief stemming from the death of
               their mother, their father’s alleged role in the death of their
               mother, and the perceived “loss” of their mother during the latter
               part of her life due to her substance abuse problems. When
               Henke-Wheeler referred to the “alleged” role Larkin played in


       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 28 of 50
               the death of the Children’s mother, the trial court interrupted her
               and stated:


               [“]So is the—the involvement isn’t alleged. The nature of the
               involvement is what’s at issue. Is that my understanding of the
               criminal case? So you don’t need to [use] alleged there.[”]


               Henke-Wheeler was then cross-examined by Larkin’s counsel,
               who asked the question, “Given the fact that the children now
               only have one parent, their father, in your opinion, if he is
               removed from their presence, what impact would his absence
               have on the children?” Before Henke-Wheeler could respond,
               the trial court objected sua sponte, stating “It's irrelevant. You
               don't have to object. It's irrelevant.”


       In re Guardianship of K.K.L., No. 46A04-1507-GU-921, slip op. ¶ 10 (Ind. Ct.

       App. Apr. 26, 2016) (alterations in original) (emphasis added) (citations

       omitted). Judge Alevizos then denied Carroll’s petition. Carroll did not appeal

       this order.


[36]   A week later, the trial court sua sponte ordered Carroll to appear and show cause

       as to why she should not be removed as the guardian of the Children’s estates.


               The trial court cited the following reasons for its order:


               1. It appears from the Chronological Case Summary that
               [Carroll] has not filed an accounting;


               2. [Carroll] caused to be filed a petition to have the wards’ trust
               purchase her brother, John Larkin’s, house. The Court finds this
               as evidence that she was more interested in her brother's fiduciary
               interest than the fiduciary interests of the wards.

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017      Page 29 of 50
               3. More importantly, [Carroll] did not, in her capacity as
               personal representative/Guardian, file a lawsuit against (her
               brother) John Larkin, who is the individual charged with the
               homicide of the wards’ mother (and the Estate’s decedent). It
               appears that the statute of limitations has now passed for her to
               attempt to bring suit at this time.


       Id. at ¶ 12 (alterations in original) (citation omitted). Following the show cause

       hearing, Judge Alevizos entered an order removing Carroll as guardian of the

       children’s estates and trustee of the children’s trusts. On appeal, we reversed

       the trial court’s order in its entirety. Id. at ¶ 30. Judge Alevizos also later

       reported Carroll to an Illinois Disciplinary Commission alleging Carroll made

       false misrepresentations, but the record is unclear as to the circumstances

       surrounding Judge Alevizos’ allegations. See Transcript, Volume II at 5.


[37]   As noted above, the general rule is acts by a defendant causing delay are

       charged to him, and here, Larkin moved for change of judge and a delay

       followed as the trial court took the matter under advisement. Alternatively,

       Harrington dictates 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.” Harrington, 588 N.E.2d at 511. The difference between this

       case and Harrington is this case also addresses a judicial conflict. Despite this

       factual difference, we find the reasoning in Harrington persuasive. To be clear,

       Rule 4(C) only provides exceptions to the State’s burden of bringing a

       defendant to trial in a timely manner. Those exceptions merely speak to acts by

       a defendant, emergency, or court congestion, and the rule does not include any


       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017     Page 30 of 50
language pertaining to prosecutorial or judicial conflicts of interest; Harrington

recognizes an exception for prosecutorial conflicts, and this case recognizes an

exception for judicial conflicts.5 Just as a prosecutor has a duty to identify and

cure conflicts, Canon 2.11 of the Indiana Code of Judicial Conduct provides in

relevant part, “A judge shall disqualify himself or herself in any proceeding in

which the judge’s impartiality might reasonably be questioned . . . .” And in

light of the record before us, an objective person could have reasonably

questioned Judge Alevizos’ impartiality. Therefore, like the defendant in

Harrington, Larkin was placed in an untenable situation. Larkin was forced to

choose between a timely trial and a trial presided over by a judge with a taint of

prejudice and bias. Our federal and state constitutions demand defendants

receive timely trials by impartial judges. As noted above, we merely address

this delay arguendo, but we conclude the delay of twenty-one days between

December 10, 2015, to December 31, 2015, is chargeable to the Rule 4(C)

period, not Larkin, leaving the State forty-nine days in the Rule 4(C) period to

bring Larkin to trial.




5
  We acknowledge the decision to follow Harrington may appear at first blush to be contradictory since we
opted not to follow Harrington when addressing the interlocutory delay. To be clear, the delay from the
interlocutory appeal completely deprived the trial court of jurisdiction and therefore Pelley controlled. Here,
there was no stay of proceedings; rather, the delay resulted from a conflict through no fault of Larkin and
therefore Harrington is controlling as to the present issue.

Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017                            Page 31 of 50
                          C. Appointment of Special Judge Delay
[38]   The parties next dispute the fifty-nine day delay from December 31, 2015, to

       February 29, 2016, in appointing a special judge. In light of our conclusion the

       delay resulting from Larkin’s motion for change of judge is chargeable to the

       Rule 4(C) period, the State contends this fifty-nine-delay is not chargeable to the

       Rule 4(C) period because the delay falls under the court congestion exception.

       Specifically, it cites to Henderson v. State, 647 N.E.2d 7 (Ind. Ct. App. 1995),

       trans. denied, where we held a “delay due to the unavailability of a judge who

       can properly hear a case is an exigent circumstance which qualifies as court

       congestion and tolls the running the Crim.R. 4(C) time period.” Id. at 13

       (relying on our supreme court’s decision in Morrison v. State, 555 N.E.2d 458

       (Ind. 1990)). Larkin believes this delay should be charged to the Rule 4(C)

       period because the delay “was caused by circumstances beyond Larkin’s

       control, i.e., the trial court’s erroneous procedure for selecting a new judge and

       the conflicts created by the State’s misconduct, not Larkin.” Appellee’s Brief at

       34. Larkin cites to Young v. State, 521 N.E.2d 671, 673 (Ind. 1988), where our

       supreme court was tasked with attributing delay occasioned by the defendant’s

       counsel’s resignation from the public defender’s office and concluded the

       defendant could not be charged with the delay because he did not cause his

       attorney’s resignation. Given the facts of this case, we agree with Larkin.


[39]   At the December 10 hearing on Larkin’s motion for change of judge, Judge

       Alevizos warned the parties every remaining LaPorte County judge had a

       conflict of interest and would not be able to preside over the case if he recused.

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 32 of 50
       He further explained this would require the County Clerk to seek a senior judge

       or a judge from another county. Judge Alevizos’ statements were consistent

       with LaPorte County’s Local Rule 46-CR 2.2, which provides if no LaPorte

       County judge is able to hear a case, the County Clerk shall select a judge from

       contiguous counties. However, Rule 46-CR 2.2 further provides,


               In cases in which no full-time judicial officer is eligible to serve as
               special judge, or the particular circumstances of a case warrants
               selection of a special judge by the Indiana Supreme Court, the
               regular sitting judge under Criminal Rule 13(D) may certify the
               case to the Supreme Court for appointment of a special judge.


       (Emphasis added.) In his December 31 Order granting Larkin’s motion for

       change of judge, Judge Alevizos directed the County Clerk to “select a

       successor judge pursuant to Local Rules.” Appellant’s App., Vol. 2 at 89. The

       County Clerk then, through no fault of his or her own, proceeded to select five

       different judges over a two-month period.


[40]   Upon review of this unique record, Judge Alevizos should have certified this

       case for the appointment of a special judge. Even as Judge Alevizos wrote in

       the December 31 order,

               [T]his is a matter full of circumstances to be known for which a
               reasonable person, competent enough to appreciate all the above,
               would be hard to find; in fact, it is quite likely that only those
               with authority to review the decision of this court today would be
               so competent. Therefore, to save this matter any further delays and to
               ensure that any sense of bias is removed from this overly complicated set
               of circumstances, the Court will GRANT the motion for recusal.


       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017        Page 33 of 50
       Id. at 88 (emphasis added). Thus, even Judge Alevizos recognized in his own

       words, albeit implicitly, the particular circumstances in this case warranted

       special treatment. In addition, he based his ruling in part on his desire to save

       the matter from further delay; however, this did not occur. The appropriate

       action would have been to certify the case to our supreme court to appoint a

       special judge, and although we may only speculate, we have little doubt the

       supreme court would have promptly selected a special judge given the nature of

       this case. Judge Alevizos, however, selected a more inefficient route, a route he

       knew or should have known would cause an abnormal delay. We conclude the

       particular circumstances of this case do not warrant a finding that the fifty-nine-

       day delay falls under the court congestion exception. Again, we merely address

       this delay arguendo, but we conclude the delay of fifty-nine days between

       December 31, 2015, and February 29, 2016, is chargeable to the Rule 4(C)

       period, not Larkin, leaving the State with no more time.


[41]   In sum, the crux of the State’s contention is the Rule 4(C) period had not yet

       expired by the April 7 Hearing. The delay from the interlocutory appeal is

       chargeable to Larkin, but the time began running against the Rule 4(C) period

       again on October 6, 2015, leaving the State with ninety days. Although we

       conclude to the contrary, even assuming the following delays were chargeable

       to Larkin, the Rule 4(C) period expired March 26, 2016. On the other hand, if

       by chance the Rule 4(C) period did not begin to run until November 20, 2015,

       the Rule 4(C) period expired in the middle of February as we already concluded




       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 34 of 50
       the latter delays are charged to the Rule 4(C) period. The trial court properly

       discharged Larkin.


                                        II. Motion to Dismiss                      6




                                         A. Standard of Review
[42]            We review a trial court’s ruling on a motion to dismiss a charging
                information for an abuse of discretion. An abuse of discretion
                occurs when the trial court’s decision is clearly against the logic
                and effect of the facts and circumstances before it. A trial court
                also abuses its discretion when it misinterprets the law.


       An-Hung Yao v. State, 975 N.E.2d 1273, 1276 (Ind. 2012) (citations and internal

       quotation marks omitted).


                                                  B. Fair Trial
[43]   The State contends the trial court abused its discretion in dismissing the charge

       against Larkin on the basis Larkin could not receive a fair trial. Specifically, it

       acknowledges a presumption of prejudice attached due to the eavesdropping,

       but claims the trial court erred in not holding a hearing at which the State could

       present evidence to rebut the presumption pursuant to State v. Taylor, 49 N.E.3d

       1019 (Ind. 2016). Larkin asserts Taylor is not controlling because the




       6
        We note this case is resolved by the outcome of the discharge issue, but we opt to address the State’s
       misconduct as well.

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017                          Page 35 of 50
       misconduct in this case is far greater and more akin to State v. Schmitt, 915

       N.E.2d 520, 521 (Ind. Ct. App. 2009), trans. denied. We agree with Larkin.


[44]   In Taylor, police officers and prosecutors eavesdropped on a conversation

       between a defendant and his attorney and the police officers pleaded the Fifth

       Amendment when questioned about the eavesdropping. The issue for our

       supreme court was whether blanket suppression of the police officers’ testimony

       was the proper remedy to cure the constitutional violation. The court first

       explained in such circumstances there is a presumption of prejudice, but this

       presumption is rebuttable. 49 N.E.3d at 1024. Because the officers learned of

       both tangible (location of evidence) and intangible (defense strategy) evidence

       while eavesdropping, the court noted as follows:


               The eavesdropping here gives the State two unfair advantages.
               One is learning the whereabouts of evidence it would not
               otherwise discover, like the handgun. The trial court here
               addressed that prejudice by applying the exclusionary rule, under
               which unconstitutionally seized evidence “is generally not
               admissible in a prosecution . . . absent evidence of a recognized
               exception” to the rule. One such exception is the “ultimate
               discovery exception,” which applies when the State can show
               “by a preponderance of the evidence” that it had an independent
               source for discovering the evidence. Here the court applied that
               exception to the other various exhibits and neither party
               challenges the court’s “independent source” findings.


               The State’s second unfair advantage, however—learning defense
               strategy—is more insidious and therefore warrants a unique and
               more stringent remedy. Having stolen Taylor’s strategic
               “playbook,” tainted witnesses can preemptively shade their
               testimony to undermine that strategy. Shading testimony based
       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 36 of 50
               on ill-gotten strategic insight is more difficult to detect, but just as
               damaging to the fairness of an adversarial proceeding.
               Unfortunately, the extent to which the State actually prejudiced
               Taylor by capitalizing on both these advantages is, in the State’s
               words, “shrouded in a fog of uncertainty,” especially considering
               the officers’ refusal to reveal what was overheard and by whom.


       Id. at 1027-28 (alteration and emphasis in original) (citations omitted).

       Therefore, in addressing the fact the State learned the defendant’s defense

       strategy, the court held the State should bear the burden of disproving prejudice

       from testimonial, or intangible, evidence stemming from that misconduct

       beyond a reasonable doubt. Id. at 1028. In addition, the State must be given a

       full opportunity to meet that burden. Id. Therefore, the State here claims the

       trial court erred in not giving it a full opportunity to meet its burden of

       disproving prejudice to Larkin.


[45]   Comparatively, Larkin cites to Schmitt. There, the State appealed the trial

       court’s decision to sanction the State by dismissing charges against the

       defendant because the State failed to comply with a discovery order. On

       appeal, the State argued dismissal of the charges was not the proper remedy.

       We noted,

               A trial judge has the responsibility to direct the trial in a manner
               that facilitates the ascertainment of truth, ensures fairness, and
               obtains economy of time and effort commensurate with the rights
               of society and the criminal defendant. Where there has been a
               failure to comply with discovery procedures, the trial judge is
               usually in the best position to determine the dictates of
               fundamental fairness and whether any resulting harm can be
               eliminated or satisfactorily alleviated. . . . The trial court must be
       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017       Page 37 of 50
               given wide discretionary latitude in discovery matters since it has
               the duty to promote the discovery of truth and to guide and
               control the proceedings, and will be granted deference in
               assessing what constitutes substantial compliance with discovery
               orders.
               ***
               Where the State’s actions were deliberate and the conduct
               prevented a fair trial, a more extreme remedial measure, such as
               the exclusion of evidence, may be employed. Dismissal of
               charges is also a sanction within the arsenal of the trial judge in
               dealing with the failure of the prosecution to afford the defense
               access to evidentiary materials as ordered. In determining
               whether dismissal was proper, the court should consider whether
               the breach was intentional or in bad faith and whether substantial
               prejudice resulted.


       915 N.E.2d at 522-23 (alteration in original) (citations omitted).


[46]   At the outset, we emphasize the misconduct identified in Taylor was

       eavesdropping, and only eavesdropping, and our supreme court was tasked

       with establishing a limited framework to allow the State the opportunity to

       disprove taint from eavesdropping. Here, and in stark contrast: 1) law

       enforcement initially deprived Larkin of the opportunity to speak to his

       attorney, 2) Neary and law enforcement recorded Larkin’s privileged

       communications with his attorney, 3) after learning the communications had

       been recorded, Neary had the recording transcribed and disseminated, 4) Neary

       and Armstrong made conflicting statements about who had seen the video

       and/or transcript of the video, 5) the safe’s door was tampered with prior to

       Larkin having an opportunity to examine it, 6) Detective Babcock expressed an

       intent to force Detective Kaplan to change his story regarding Stacey’s alleged

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 38 of 50
suicidal episode in the summer of 2014, and 7) a non-redacted case file was

provided to newly appointed Special Prosecutor Levco despite the trial court

ordering Special Prosecutor Levco only receive a redacted case file. Clearly, the

misconduct here far exceeds that found in Taylor, and given this disparity,

Taylor cannot control. Even assuming Taylor is controlling, the State’s

argument still fails. As the State acknowledges, “On June 9, 2016, the trial

court held a hearing at which the State appeared by telephone.” Brief of

Appellant at 20. During the hearing, the parties discussed Larkin’s motion to

dismiss. At one point, the State noted its desire to have the court hold an

additional hearing so it could present evidence to disprove prejudice. However,

we express two concerns relevant to this issue. First, at oral argument, Levco

suggested he had not viewed the recording of the privileged communications,

but in the same breath argued a Taylor hearing was necessary because he did

not believe there was prejudicial information contained on the recording that

was not already known from other sources. In light of these comments, it is

apparent Levco, one way or another, learned of the information because there

is no other way he could confidently make these statements. Therefore, the fact

Levco had knowledge of the contents of the communications is even more

prejudicial to Larkin as it extends the taint of the State’s misconduct to the man

tasked with prosecuting Larkin in a tribunal free of taint. Second, our review of

the record shows the State made no offer to prove after the trial court declined

the State’s request to hold a Taylor hearing. “An offer to prove is the method by

which counsel places before the trial court (and ultimately the reviewing court)

the evidence he or she wishes to present, to allow the court to determine the
Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 39 of 50
       relevancy and admissibility of the proposed testimony.” Arhelger v. State, 714

       N.E.2d 659, 664 (Ind. Ct. App. 1999). We think under the circumstances of

       this case, the State was required to make an offer to prove regarding the

       additional evidence it wished to present. Because the State did not make an

       offer to prove, we have not been provided an adequate record to determine

       whether the State suffered prejudice even if the trial court erred in not holding a

       Taylor hearing.


[47]   We further acknowledge Schmitt is also not directly on point as it only

       addressed sanctions for deliberate violations of discovery orders. Despite this,

       we find its language persuasive and relevant to the question at hand. Here, the

       trial court was in the best position to ensure a fair trial, and as it clearly stated in

       its order granting Larkin’s motion to dismiss, “It is the Court’s obligation to

       guarantee a fair trial, and based upon the totality of misconduct on the part of

       the State, this Court cannot guarantee this Defendant a fair trial.” Appellant’s

       App., Vol. 4 at 88. And although the trial court did not enter specific findings

       as to whether the misconduct was done deliberately or in bad faith or whether

       substantial prejudice resulted, it is clear to us the several acts of misconduct

       were done, at the very least, in bad faith, and such acts severely prejudiced

       Larkin to the extent he could not receive a fair trial. The State’s actions here

       threaten the public trust in our criminal justice system. This cannot and will

       not be tolerated. We conclude the trial court did not abuse its discretion in

       granting Larkin’s motion to dismiss.




       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017      Page 40 of 50
                                                Conclusion
[48]   The trial court did not err in granting Larkin’s motion for discharge and motion

       to dismiss. Accordingly, we affirm the trial court’s judgment.


[49]   Affirmed.


       Riley, J., concurs.


       Barnes, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 41 of 50
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       State of Indiana,
       Appellant-Plaintiff,
                                                                  Court of Appeals Case No.
               v.                                                 46A04-1607-CR-1522

       John B. Larkin,
       Appellee-Defendant.




       Barnes, Judge, dissenting.


[50]   I respectfully dissent. I am well aware of the highly-questionable conduct

       engaged in by members of the LaPorte County Prosecutor’s Office and law

       enforcement community on more than one occasion, having authored this

       court’s opinions in both Larkin I and Taylor. However, I cannot conclude that

       Larkin’s speedy trial rights under Criminal Rule 4(C) were violated, nor that the

       trial court properly granted his motion to dismiss on constitutional grounds.


                                             I. Criminal Rule 4(C)

[51]   I differ from the majority regarding its attribution of several periods of time to

       the Rule 4(C) clock rather than to Larkin. First, while I fully agree with the

       majority’s analysis that the time in which the interlocutory appeal for Larkin I

       was pending was attributable to Larkin, I conclude that time did not expire

       until the clerk of this court certified our decision as final on November 20, 2015.

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017                Page 42 of 50
[52]   Indiana Appellate Rule 65(E) states in part:


               The Clerk shall certify the opinion or memorandum decision to
               the trial court or Administrative Agency only after the time for all
               Petitions for Rehearing, Transfer, or Review has expired, unless
               all the parties request earlier certification. If the Supreme Court
               grants transfer or review, the Clerk shall not certify any opinion
               or memorandum decision until final disposition by the Supreme
               Court. The trial court, Administrative Agency, and parties shall
               not take any action in reliance upon the opinion or
               memorandum decision until the opinion or memorandum
               decision is certified.


       It has been said that trial courts lack “jurisdiction” to perform any action in a

       case while an appeal of a final judgment is pending, except for ministerial tasks

       such as reassessing costs, correcting the record, or enforcing a judgment. In re

       Paternity of V.A., 10 N.E.3d 65, 67-68 n.1 (Ind. Ct. App. 2014). See also Pflederer

       v. Kesslerwood Lake Ass’n, Inc., 878 N.E.2d 510, 514 (Ind. Ct. App. 2007)

       (holding that issue of costs and fees to be imposed based on wrongful issuance

       of injunction was not ripe until appellate decision was certified as final);

       Hancock v. State, 786 N.E.2d 1142, 1143, n.1 (Ind. Ct. App. 2003) (holding trial

       court’s action in resentencing defendant following remand on appeal before

       appellate decision was certified as final “was premature and should be

       considered as a nullity”).


[53]   I concede that our supreme court in recent years has narrowed the definition of

       appellate “jurisdiction.” See, e.g., In re D.J. v. Indiana Dep’t of Corr., 68 N.E.3d

       574, 579 (Ind. 2017); In re Adoption of O.R., 16 N.E.3d 965, 970 (Ind. 2014). It is


       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017     Page 43 of 50
       possible that a trial court’s actions while an appeal is pending may not raise a

       “jurisdictional” problem and such actions may not be “void.” See K.S. v. State,

       849 N.E.2d 538, 541 (Ind. 2006) (holding that judgments entered by a court

       having subject matter and personal jurisdiction are not void). However, I still

       believe such actions are at least “voidable” based on clear procedural error. An

       action that is “voidable” has a defect or imperfection that can be cured by the

       ratification or confirmation of a party who could have taken advantage of the

       defect. In re Guardianship of A.J.A., 991 N.E.2d 110, 114 (Ind. 2013).


[54]   Had Larkin decided to object to any of the premature actions by the State or

       trial judge, I believe there would have been no choice but to sustain such

       objections. He did not do so, but rather essentially ratified the premature

       actions. In any case, the actions of the prosecutors and trial judge in

       withdrawing or recusing and seeking appointment of a special prosecutor before

       our decision in Larkin I was certified inured to Larkin’s benefit, in terms of the

       Rule 4(C) time period: they expedited the progress of the case once our opinion

       was certified. It would improperly penalize the State to say that it restarted the

       Rule 4(C) clock before certification of our Larkin I opinion. I also note that, if

       the parties were in agreement that no one would seek transfer or rehearing, they

       could have jointly asked this court to certify our opinion before the official time

       period for certification had passed, but they did not do so. Perhaps Larkin was

       considering filing a rehearing or transfer petition after we dismissed his appeal




       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 44 of 50
       as moot and wanted the full amount of time to consider whether to do so. 7

       Additionally, it would have been highly inadvisable for the trial court to have

       attempted to schedule a new trial date before it was clear that our decision in

       Larkin I was final. Consequently, I believe the time period until November 20,

       2015, was chargeable to Larkin for Rule 4(C) purposes.


[55]   Next, I address the delay associated with Larkin requesting the recusal of Judge

       Alevizos from the case and the eventual appointment of Judge Blankenship as

       special judge on February 29, 2016.8 I find that the caselaw is well-settled on

       this point: any delay occasioned by a defendant’s motion for change of judge is

       chargeable to the defendant under Rule 4(C). See State ex rel. Brown v. Hancock

       Cty. Superior Court, 267 Ind. 546, 547-48, 372 N.E.2d 169, 170 (1978); State v.

       Grow, 255 Ind. 183, 185, 263 N.E.2d 277, 278 (1970); Henderson v. State, 647

       N.E.2d 7, 13-14 (Ind. Ct. App. 1995) (describing delay caused by finding special

       judge qualified to hear case as due to “court congestion”), trans. denied. It does

       not matter that the defendant’s request for a change of judge is “justifiable or

       meritorious.” Grow, 255 Ind. at 185, 263 N.E.2d at 278. In Grow, the period of

       delay in finding a qualified special judge was six months; in Brown, it was




       7
         In an October 13, 2015 response to the State’s request to appoint a special prosecutor, Larkin’s attorney did
       in fact represent that he was still considering filing a transfer petition.
       8
        The majority states, “The parties do not dispute the period between November 20, 2015, and December 10,
       2015, or twenty days, ran against the Rule 4(C) period . . . .” Slip op. p. 27. However, the State in its
       opening and reply briefs appears to take the position that Larkin tolled the Rule 4(C) period beginning on
       November 23, 2015, when he filed his motion for change of judge.

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017                           Page 45 of 50
       sixteen months. In both cases, our supreme court found the entirety of the

       delays chargeable to the defendants.


[56]   Larkin also contends that Judge Alevizos never should have agreed to accept

       presiding over this case, or at least should have immediately recused himself

       after the December 10, 2015 hearing regarding recusal, and the delay in Judge

       Alevizos not agreeing to step aside until December 31, 2015, should not be

       chargeable to him. In essence, Larkin argues and the majority agrees that

       Judge Alevizos had a patently-obvious reason for recusing based on his having

       presided over a guardianship case involving Larkin’s children and his sister.

       However, neither Larkin nor the majority have cited a case where recusal was

       required under circumstances similar to those here, nor any Rule of Judicial

       Conduct that unequivocally mandated Judge Alevizos’s recusal. “The law

       presumes a judge is unbiased and unprejudiced.” Patterson v. State, 926 N.E.2d

       90, 93 (Ind. Ct. App. 2010). In the absence of such clear precedent or rule, I

       would not say Judge Alevizos had to immediately and automatically recuse

       himself. In any case, as previously noted, it does not matter whether Larkin

       had good reason for asking for Judge Alevizos’s recusal; the time associated

       with that request is chargeable to Larkin. In sum, I conclude the time period

       between Larkin’s motion for change of judge on November 23, 2015, and Judge

       Blankenship’s acceptance of the case on February 29, 2016, did not count

       against the Rule 4(C) time period.


[57]   The State concedes that, per the parties’ agreement before the interlocutory

       appeal, it had ninety days from the date of certification of our Larkin I opinion

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 46 of 50
       in which to try Larkin, aside from delays attributable to him or court

       congestion. By my calculations, this results in a latest possible trial date of May

       26, 2016—with the Rule 4(C) clock recommencing on November 20, 2015 and

       then being tolled between November 23, 2015 and February 29, 2016. The trial

       court eventually scheduled trial to begin on June 20, 2016. The question is

       whether Larkin waived any objection to this trial date. I agree with the State

       that he did.


[58]   On April 7, 2016, the trial court conducted a pre-trial hearing. Before this,

       Larkin had already filed a motion for discharge under Rule 4(C), contending

       the time for trial already had passed. This motion was discussed at the hearing

       but not ruled upon. Also, defense counsel and the special prosecutor discussed

       possible trial dates. The special prosecutor offered possible trial dates in early-

       to-mid May 2016. Defense counsel, however, represented to the trial court

       that, if in fact it eventually ruled against Larkin’s discharge motion, he would

       rather begin the trial on June 20, 2016. Defense counsel further indicated that

       he was waiving any speedy trial argument as to a trial on that date. The trial

       court clarified for the record, to which defense counsel agreed: “He waives it,

       he waives it to the extent, as I understand, that he has already made a record

       that the time has run.” 4/7/2016 Tr. p. 85.


[59]   “As a general rule, when a defendant seeks or acquiesces in a delay, the time

       limitations set by Criminal Rule 4 are extended by the length of the delay.”

       State v. Black, 947 N.E.2d 503, 507 (Ind. Ct. App. 2009). When a defendant

       agrees to a trial date outside the Rule 4(C) time limit before that time limit has

       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 47 of 50
       expired, the defendant waives his or her right to be discharged. Id. at 509.

       Here, defense counsel, at the April 7, 2016 hearing, made it quite clear to the

       trial court both that (1) he believed the Rule 4(C) time period had expired, but

       (2) if it had not, he waived any Rule 4(C) complaint as to trial beginning on

       June 20, 2016. My analysis is that the Rule 4(C) time period did not expire

       until May 26, 2016; hence, Larkin waived any claim that a trial beginning on

       June 20, 2016 exceeded the Rule 4(C) period.


[60]   I emphasize that, although Criminal Rule 4 places an affirmative duty on the

       State to speedily bring a defendant trial, it is not intended to provide defendants

       with a technical means to avoid trial. Cundiff v. State, 967 N.E.2d 1026, 1028

       (Ind. 2012). I think Larkin may be doing just that. I would hold that the trial

       court’s proferred trial date of June 20, 2016, did not violate Larkin’s rights

       under Criminal Rule 4(C).


                                             II. Motion to Dismiss

[61]   Next, I address the trial court and majority’s alternative conclusion that the

       misconduct of police and prosecutors warrants outright dismissal of the case

       against Larkin. No one disputes that certain prosecutors and law enforcement

       officers egregiously violated Larkin’s constitutional rights. However, our

       supreme court addressed extremely similar misconduct in Taylor and refused to

       conclude that outright dismissal or suppression of all the State’s evidence was

       required.




       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 48 of 50
[62]   In Taylor, the trial court had suppressed all testimony from any officer who had

       eavesdropped on the defendant’s privileged communications with his lawyer,

       which communications revealed the location of the murder weapon. Our

       supreme court reversed this ruling, ultimately holding:


               We conclude that a presumption of prejudice, rebuttable only by
               proof beyond a reasonable doubt, adequately protects Taylor
               from prejudice caused by the officers’ eavesdropping and their
               assertion of the Fifth Amendment privilege about their actions.
               Thus, prospectively imposing blanket suppression of all
               testimony from witnesses pleading the Fifth Amendment is
               inappropriate.


               We reverse the blanket suppression of testimony from witnesses
               who invoke the Fifth Amendment and remand with instructions
               to determine as to each presumptively tainted witness whether
               the State has proven beyond a reasonable doubt an independent
               source for that witness’s testimony without implicating the
               witness’s Fifth Amendment privilege—and therefore without
               derogating Taylor’s right of confrontation. The trial court may,
               in its discretion, either hold a new suppression hearing or
               proceed directly to a new trial at which the State may attempt to
               meet its burden through offers to prove outside the presence of
               the jury.


       Taylor, 49 N.E.3d at 1029.


[63]   In my view the State was entitled to attempt to rebut any presumption of

       prejudice associated with improprieties by prosecutors and police. It may in

       fact be unable to rebut that presumption, but per Taylor it is allowed to at least

       try. I am quite familiar with the facts of both this case and Taylor, and I cannot


       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 49 of 50
       say the facts here are so much more egregious than they were in Taylor that

       outright dismissal is an appropriate remedy. In any event, Taylor spoke of the

       possibility that a case of eavesdropping could be so egregious that outright

       suppression of any eavesdropper’s testimony would be warranted; it did not

       mention the possibility of dismissal of a case as an appropriate remedy.


[64]   I vote to reverse the granting of Larkin’s motion for discharge under Criminal

       Rule 4(C) and his motion to dismiss on constitutional grounds, and to remand

       for trial.




       Court of Appeals of Indiana | Opinion 46A04-1607-CR-1522 | June 7, 2017   Page 50 of 50
