                                                                        Sep 30 2015, 10:05 am




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Marce Gonzalez, Jr.                                       Gregory F. Zoeller
      Dyer, Indiana                                             Attorney General of Indiana

      James E. Foster                                           Eric P. Babbs
      James E. Foster, PC                                       Deputy Attorney General
      Hammond Indiana                                           Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      John Larkin,                                              September 30. 2015
      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                46A05-1411-CR-550
              v.                                                Appeal from the LaPorte Superior
                                                                Court
      State of Indiana,                                         The Honorable Michael S.
      Appellee-Plaintiff.                                       Bergerson, Judge
                                                                The Honorable Kathleen B. Lang,
                                                                Judge
                                                                Trial Court Cause No.
                                                                46D01-1212-FA-610



      Barnes, Judge.


                                              Case Summary
[1]   In this interlocutory appeal, John Larkin appeals the denial of his motion to

      disqualify the LaPorte County Prosecutor’s Office. We dismiss.

      Court of Appeals of Indiana | Opinion 46A05-1411-CR-550| September 30, 2015               Page 1 of 12
                                                      Issue
[2]   Larkin raises one issue, which we restate as whether the trial court properly

      denied his petition to disqualify the LaPorte County Prosecutor’s Office with

      respect to his pending voluntary manslaughter charge.


                                                      Facts
[3]   On December 11, 2012, police were dispatched to Larkin’s residence following

      a report of a shooting. When an officer arrived, he found Larkin’s wife, Stacy,

      deceased in the closet. An autopsy later determined that she died from two

      gunshot wounds. At the police station, Larkin agreed to talk to investigators if

      he was charged with voluntary manslaughter in lieu of murder. Larkin, his

      attorneys, an investigator, LaPorte County Prosecutor Bob Szilagyi, and Chief

      Deputy Prosecutor Robert Neary were present during the interview, which was

      videotaped. During a break in the interview, Larkin had a conversation with

      his attorneys. However, the recording equipment was not turned off during the

      break, and Larkin’s conversation with his attorneys was recorded.


[4]   Within a week or so, the investigator watched the interview video. The

      investigator or someone in his department also gave a copy of the video to

      Neary. The investigator did not alert Neary that Larkin’s conversation with his

      attorney was on the video. At some point, Neary made arrangements for court

      reporter Jami Arnold to transcribe the video. As she was doing so, she

      discovered Larkin’s conversation with his attorneys, stopped transcribing, and

      contacted Neary. Neary advised Arnold not to transcribe that portion of the


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      video. Arnold transcribed the other portions of the video and returned the

      video and transcript to Neary.


[5]   At the end of January 2013, Neary was preparing for trial and viewed the video,

      including the discussion between Larkin and his attorney. During discovery,

      the State sent Larkin’s counsel a copy of the video. In July 2014, Larkin filed a

      motion to dismiss the voluntary manslaughter charge. Larkin argued that the

      videotaping of his conversation with his attorney violated his Sixth Amendment

      right to effective assistance of counsel. On July 31, 2014, Neary and Deputy

      Prosecuting Attorney Kristina Armstrong filed the State’s response to Larkin’s

      motion to dismiss. The State argued that no new subjects were discussed

      during Larkin’s conversation with his attorneys and that no evidence was

      disclosed or derived as a result of the conversation. Consequently, the State

      argued that Larkin was not prejudiced by the alleged Sixth Amendment

      violation. The State attached a transcript of the conversation to its response.

      At a hearing on Larkin’s motion to dismiss, Neary stated that Szilagyi,

      Armstrong, an intern, and Neary had “all viewed the tape.” Tr. p. 155. The

      trial court ordered the Prosecutor’s Office to submit affidavits from any person

      that viewed the video or read the transcript and detail when they first did so.


[6]   Neary submitted an affidavit and stated that he viewed the video of the

      conversation between Larkin and his attorney at the end of January 2013.

      Neary stated that “After consulting with prosecutors in the office, I am the only

      Prosecutor who viewed this portion of the tape with conversation between the

      Defendant and [his attorney] and/or the transcript of his conversation.” App.

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      p. 562. The intern also submitted an affidavit and stated that, in August 2014,

      he read a portion of the transcript of the conversation between Larkin and his

      counsel. Szilagyi submitted an affidavit and stated that he had “not viewed any

      portion of the videotape or read any portion of the transcript where a discussion

      took place between [Larkin] and [his attorney].” Id. at 670. Armstrong also

      submitted an affidavit and denied having “viewed any portion of the videotape

      or read any portion of the transcript where a discussion took place between

      [Larkin] and [his attorney].” Id. at 664.


[7]   In September 2014, Larkin filed a motion to disqualify the LaPorte County

      Prosecutor’s Office from prosecuting the case against him. Larkin pointed out

      the discrepancy between Armstrong’s affidavit and the July 31st filing that she

      and Neary submitted to the trial court. Larkin requested that a special

      prosecutor be appointed.


[8]   In October 2014, the trial court suppressed the conversation between Larkin

      and his attorneys, but not the remainder of the interview. 1 The trial court

      denied Larkin’s motion to dismiss, finding no prejudice from the recording of

      the conversation between Larkin and his attorney. The trial court also denied

      Larkin’s motion to disqualify the LaPorte County Prosecutor’s Office as

      follows:




      1
       The trial court also suppressed statements made by Larkin on December 11, 2012, because of a separate
      Fifth Amendment violation.

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        Defendant points to the fact that CDPA Neary originally
        informed the Court that four people from the Prosecutor’s Office
        . . . viewed the tape or read the transcript of the conversation in
        question. There was some confusion if affidavits had to be filed
        from persons who did not view the tape or read the transcript.
        Although not all affidavits were filed in a timely manner, all four
        are now of record.


        Defendant also relies on the fact that on July 31, 2014, the State
        filed with the Court a Motion and Memorandum in Opposition
        to the Motion to Dismiss. This filing included a transcript of the
        recorded conversation between Defendant and his attorneys at
        the LaPorte County Sheriff’s Department. The Motion and
        memorandum was filed under the signatures of CDPA Neary,
        and Deputy Prosecuting Attorney Kristina Armstrong.
        Defendant points out that Deputy Prosecuting Attorney Kristina
        Armstrong averred in her affidavit that she had not viewed the
        tape or read the transcript. Although a question arises from this
        dichotomy as in the Motion to Dismiss, Deputy Prosecuting
        Attorney Kristina Armstrong filed her affidavit as an Officer of
        the Court. The Court will take her affidavit as the best source to
        resolve any conflicts.


        It is true in this case that the Prosecutors have had access,
        listened to, and read transcripts of a conversation between
        Defendant and his attorneys. As noted in this Court’s Order
        denying Defendant’s Motion to Dismiss, this was an intrusion
        into the attorney-client relationship between Defendant and his
        attorneys. The Court cannot condone this action. However, as
        the Court also noted in the Order, this conversation did not
        prejudice Defendant to the extent that charges must be dismissed.
        Although the actions of law enforcement and the Prosecutor’s
        Office were careless, none of the aggrieved behaviors were
        intentional. The disclosure of the conversation that Defendant
        had with his attorneys on December 13, 2012, did not give
        Prosecutors information that they could not have obtained from

Court of Appeals of Indiana | Opinion 46A05-1411-CR-550| September 30, 2015   Page 5 of 12
               another source or that was not a disclosure of well-known legal
               principles. Additionally, the actual conversation between
               Defendant and his attorneys is suppressed and therefore cannot
               be used against Defendant at trial.


       Id. at 819-21.


[9]    At Larkin’s request, the trial court certified the denial of Larkin’s motion to

       disqualify the LaPorte County Prosecutor’s Office for interlocutory appeal and

       stayed the proceedings. The trial court declined to certify the other orders for

       interlocutory appeal. We accepted jurisdiction over this interlocutory appeal

       pursuant to Indiana Appellate Rule 14(B).


                                                    Analysis
[10]   Larkin appeals the trial court’s denial of his motion for the disqualification of

       the LaPorte County Prosecutor’s Office and for the appointment of a special

       prosecutor. We will review a trial court’s denial of a petition for special

       prosecutor for an abuse of discretion. Camm v. State, 957 N.E.2d 205, 209 (Ind.

       Ct. App. 2011), trans. denied. “An abuse of discretion is an erroneous

       conclusion and judgment, one clearly against the logic and facts and

       circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom.” Id. An abuse of discretion also occurs

       when the trial court misinterprets the law. Id.




       Court of Appeals of Indiana | Opinion 46A05-1411-CR-550| September 30, 2015   Page 6 of 12
[11]   The appointment of a special prosecutor in Indiana is governed by Indiana

       Code Section 33-39-10-2 (formerly Indiana Code Section 33-39-1-62). Indiana

       Code Section 33-39-10-2(b)(2) provides, in relevant part, that a trial court may

       appoint a special prosecutor if:


                  (A)      a person files a verified petition requesting the
                           appointment of a special prosecutor; and


                  (B)      the court, after:


                           (i)      notice is given to the prosecuting attorney; and


                           (ii)     an evidentiary hearing is conducted at which the
                                    prosecuting attorney is given an opportunity to be
                                    heard;


                           finds by clear and convincing evidence that the
                           appointment is necessary to avoid an actual conflict of
                           interest or there is probable cause to believe that the
                           prosecuting attorney has committed a crime[.]


[12]   The petitioner has the burden of producing evidence in support of the motion.

       Camm, 957 N.E.2d at 210 (citing Kubsch v. State, 866 N.E.2d 726, 734 (Ind.

       2007), cert. denied). The purpose of the special prosecutor statute is to protect

       the State’s interest in preserving the public confidence in the criminal justice

       system and ensuring that the prosecutor serves the ends of justice. Id. (citing




       2
           Repealed by Pub. L. No. 57-2014, § 4 (eff. July 1, 2014).


       Court of Appeals of Indiana | Opinion 46A05-1411-CR-550| September 30, 2015       Page 7 of 12
       State ex rel. Kirtz v. Delaware Circuit Court No. 5, 916 N.E.2d 658, 659 (Ind.

       2009)). “The public trust in the integrity of the judicial process requires that

       any serious doubt be resolved in favor of disqualification.” Williams v. State,

       631 N.E.2d 485, 487 (Ind. 1994).


[13]   Larkin requests that the entire LaPorte County Prosecutor’s Office be

       disqualified. It is well-settled that once the elected prosecuting attorney is

       disqualified, his or her whole office is disqualified from representing the State in

       a particular case. Banton v. State, 475 N.E.2d 1160, 1164 (Ind. Ct. App. 1985).

       If the “elected prosecutor (as opposed to a deputy prosecutor) is disqualified

       from a case and special prosecutor is appointed, the elected prosecutor’s ‘entire

       staff of deputies must be recused in order to maintain the integrity of the process

       of criminal justice.’” Jones v. State, 901 N.E.2d 655, 658 (Ind. Ct. App. 2009)

       (quoting State ex rel. Goldsmith v. Superior Court of Hancock County, 270 Ind. 487,

       491, 386 N.E.2d 942, 945 (1979)). When an elected prosecutor is disqualified,

       his or her entire staff of deputies must be recused because “a prosecuting

       attorney exercises authority over and speaks through his deputies.” Goldsmith,

       270 Ind. at 491, 386 N.E.2d at 945.


[14]   It is not, however, necessary to disqualify a prosecutor’s entire staff or to

       dismiss an indictment because a deputy prosecutor has a conflict of interest.

       Williams, 631 N.E.2d at 487. The conflict of one deputy prosecutor will not

       have an impact on other deputy prosecutors in the office. Goldsmith, 270 Ind. at

       490, 386 N.E.2d at 945. Accordingly, the conflict of a deputy prosecutor does



       Court of Appeals of Indiana | Opinion 46A05-1411-CR-550| September 30, 2015   Page 8 of 12
       not require the recusal of the entire staff of the prosecutor. Id., 386 N.E.2d at

       945.


[15]   The State argues that this issue is moot because the elected prosecutor, Szilagyi,

       was defeated by John Espar in the May 2014 primary election, and Espar was

       elected the new prosecuting attorney in November 2014. According to the

       State, Espar had no involvement in the challenged conduct, and a special

       prosecutor is unnecessary. An issue is deemed moot when it is no longer “live”

       or when the parties lack a legally cognizable interest in the outcome of its

       resolution. Jones v. State, 847 N.E.2d 190, 200 (Ind. Ct. App. 2006), trans.

       denied. “[W]hen we are unable to provide effective relief upon an issue, the

       issue is deemed moot, and we will not reverse the trial court’s determination

       ‘where absolutely no change in the status quo will result.’” Id. (quoting In re

       Utley, 565 N.E.2d 1152, 1154 (Ind. Ct. App. 1991)). However, a public interest

       exception may be invoked where: (1) the issue involves a question of great

       public importance; (2) the factual situation precipitating the issue is likely to

       recur; and (3) the issue arises in a context that will continue to evade review.

       Id.


[16]   Larkin argues that we should not determine that the issue is moot because it

       would require us to take judicial notice of the election results. Indiana

       Evidence Rule 201(a)(1) allows us to judicially notice a fact that: “(A) is not

       subject to reasonable dispute because it is generally known within the trial

       court’s territorial jurisdiction, or (B) can be accurately and readily determined

       from sources whose accuracy cannot reasonably be questioned.” We conclude

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       that well-known and readily ascertainable election results are subject to judicial

       notice pursuant to Evidence Rule 201(a)(1). See Harden v. Whipker, 676 N.E.2d

       19, 19-20 (Ind. 1997) (holding that election results were subject to judicial

       notice). Consequently, we will take judicial notice that Espar is now the elected

       prosecutor of LaPorte County.


[17]   We agree with the State that the appointment of a special prosecutor is moot

       here because Szilagyi is no longer the prosecutor. The new prosecutor Espar

       was not involved in listening to Larkin’s confidential conversation with his

       attorney. Because there is no basis to disqualify Espar, there is no basis to

       disqualify the entire LaPorte County Prosecutor’s Office as Larkin is

       requesting. We also conclude that the public interest exception is not applicable

       here. Although the issues involve a question of great public importance, i.e.,

       improper interference with an attorney-client relationship by at least one deputy

       prosecutor, the circumstances here are unusual enough that they are not likely

       to recur or continue to evade review. Larkin’s request to disqualify the entire

       LaPorte County Prosecutor’s Office is moot. Consequently, we dismiss the

       appeal of the trial court’s denial of Larkin’s motion to disqualify the

       Prosecutor’s Office and appoint a special prosecutor.3




       3
         In its brief, the State relied in part upon Sixth Amendment violation of right to counsel cases, which we do
       not find relevant in this situation. See, e.g., Appellee’s Br. pp. 16-20 (relying on State v. Taylor, 35 N.E.3d 287
       (Ind. Ct. App. 2015), trans. granted, and Ingram v. State, 760 N.E.2d 615 (Ind. Ct. App. 2001), trans. denied).
       The issue in Taylor was a motion to suppress evidence as a result of a Sixth Amendment violation and the
       issue in Ingram was the dismissal of charges against the defendant as a result of a Sixth Amendment

       Court of Appeals of Indiana | Opinion 46A05-1411-CR-550| September 30, 2015                          Page 10 of 12
[18]   The State also argues that the “only order which the trial court certified

       addressed whether then-Prosecutor Szilagyi and his deputies should be

       disqualified.” Appellee’s Br. p. 13. The State contends that the trial court has

       not addressed whether Espar’s deputies should be disqualified and that we

       cannot address whether Neary or Armstrong should be individually

       disqualified. Only issues that were properly raised in the trial court in ruling on

       the trial court’s order are available on interlocutory appeal. Indiana Dep’t of

       Envtl. Mgmt. v. NJK Farms, Inc., 921 N.E.2d 834, 841 (Ind. Ct. App. 2010), trans.

       denied. Larkin’s motion and the trial court’s order addressed only the

       disqualification of the entire Prosecutor’s Office and appointment of a special

       prosecutor, not the disqualification of individual deputy prosecutors. Despite

       our concerns regarding the conduct here, we are constrained to agree with the

       State. However, if requested by Larkin, the trial court should consider whether

       disqualification of Neary and/or Armstrong would be appropriate in this

       situation.4 In doing so, we note that “[p]ublic trust in the integrity of the

       judicial process requires us to resolve serious doubt in favor of a prosecutor’s

       disqualification.” Kirtz, 916 N.E.2d at 661. Further, “sometimes an attorney,




       violation. Neither case addressed the disqualification of an entire prosecutor’s office or an individual deputy
       prosecutor. Consequently, we find neither case persuasive here.
       4
         We note that it is possible to disqualify individual attorneys rather than the entire prosecutor’s office. Our
       supreme court has described a trial court’s authority to disqualify an attorney “as necessary to prevent ‘insult
       and gross violations of decorum.’” Cincinnati Ins. Co. v. Wills, 717 N.E.2d 151, 154 (Ind. 1999) (citations
       omitted). A trial court may disqualify an attorney for a violation of the Rules of Professional Conduct that
       arises from the attorney’s representation before the court. State v. Romero, 578 N.E.2d 673, 676-77 (Ind. 1991)
       (disqualifying a former prosecutor who attempted to represent a defendant in a matter substantially related to
       a prior prosecution without the State’s consent in violation of Professional Conduct Rule 1.11's duty to
       maintain confidences of the State, his former client).

       Court of Appeals of Indiana | Opinion 46A05-1411-CR-550| September 30, 2015                       Page 11 of 12
       guiltless in any actual sense, nevertheless is required to stand aside for the sake

       of public confidence in the probity of the administration of justice.”5 Id.


                                                     Conclusion
[19]   Whether the trial court erred by denying Larkin’s motion to disqualify the

       LaPorte County Prosecutor’s Office from this case is moot. Consequently, we

       dismiss.


[20]   Dismissed.


       Kirsch, J., and Najam, J., concur.




       5
         Indiana Code Section 33-39-10-2(b)(3) also allows the appointment of a special prosecutor if “(A) the
       prosecuting attorney files a petition requesting the court to appoint a special prosecutor; and (B) the court
       finds that the appointment is necessary to avoid the appearance of impropriety.”

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