David, J.
Following the death of his wife, John Larkin was charged with voluntary manslaughter. However, this charge was later dismissed because both of the lower courts found that: 1) the Criminal Rule 4(C) period within which to bring Larkin to trial had expired and the delays in bringing him to trial were not attributable to him; and 2) the prosecutorial misconduct in this case required dismissal. For reasons discussed herein, we disagree with the lower courts on both issues. Accordingly, we reverse and remand for the trial court to hold a hearing or proceed to trial pursuant to this Court’s holding in State v. Taylor, 49 N.E.3d 1019 (Ind. 2016).
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In December 2012, police were dispatched to the home of John and Stacey Larkin for a reported shooting. Stacey Larkin sustained two fatal gunshot wounds during a domestic dispute involving her husband, John Larkin.
While the State’s preliminary charge was murder, Larkin agreed to speak with police if the State would consider only charging him with manslaughter. The police so charged Larkin, and then conducted a recorded interview. During a break, police left Larkin alone with his attorney, but kept the video recording equipment running, capturing Larkin and his attorney’s privileged communications. … Police and prosecutors viewed the video and, therefore, saw and heard Larkin’s privileged discussion with counsel. …
In March 2014, following several continuances, the parties stipulated that after November 5, 2014, the State would have 90 days to try Larkin pursuant to Indiana Criminal Rule 4(C). Thereafter, in July 2014, Larkin moved to dismiss the voluntary manslaughter charge, citing police and prosecutorial misconduct that deprived him of his Sixth Amendment right to effective counsel. … In October 2014, the trial court denied Larkin’s motions, but it suppressed: 1) statements Larkin made to police after he invoked the right to counsel but before counsel arrived; and 2) the recorded conversation between Larkin and counsel.
At Larkin’s request, the trial court certified for interlocutory appeal the denial of Larkin’s motion to disqualify the prosecutor’s office, and stayed the proceedings pending resolution from the Court of Appeals.
In September 2015, the Court of Appeals dismissed Larkin’s appeal as moot since LaPorte County elected a new prosecutor in November 2014. Larkin v. State, 43 N.E.3d 1281, 1286-87 (Ind. Ct. App. 2015). …
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On March 28, 2016, citing Rule 4(C), Larkin moved for discharge. …
In May 2016, Larkin filed another motion for discharge under Criminal Rule 4(C). … The court held a hearing on Larkin’s motion to dismiss on June 9, 2016. … The trial court … granted Larkin’s motions, discharging him pursuant to 4(C) and dismissing the voluntary manslaughter charge.
The State appealed, raising two issues: 1) whether the trial court erred in granting Larkin’s 4(C) discharge motion; and 2) whether the trial court erred in granting Larkin’s motion to dismiss. In a split published opinion, the Court of Appeals affirmed on both issues. State v. Larkin, 77 N.E.3d 237 (Ind. Ct. App.), reh’g denied (Aug. 25, 2017)(“Larkin I”), transfer granted, opinion vacated, 94 N.E.3d 700 (Ind. 2017). …
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In this case, the parties stipulated that the State would have 3 months from November 5, 2014 to try Larkin. Trial was ultimately set for June 20, 2016 after an interlocutory appeal and a motion for change of judge. At issue is whether the delay as a result of the interlocutory appeal and the motion for change of judge are attributable to Larkin or not.
In Pelley, this Court said, “[w]hen trial court proceedings have been stayed pending resolution of the . . . interlocutory appeal, the trial court loses jurisdiction to try the defendant and has no ability to speed the appellate process.” …
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Here, Larkin I was not certified until November 20, 2015, but prior to that, the State filed several motions including one for appointment of a special prosecutor. Pursuant to Pelley and App. R. 65, the trial court did not yet have jurisdiction. Nevertheless, the Court of Appeals majority found that the trial court reassumed jurisdiction and the State submitted itself to the trial court’s jurisdiction due to a “constructive” lift of the stay when the State moved for appointment of a special prosecutor. It found that the purpose of App. R. 65 was satisfied by the trial court and the State’s actions; that is, they were acting in accord with the decision being final. …
We agree with the State and Judge Barnes that until the interlocutory appeal was certified, the trial court did not have jurisdiction. As such, the period of delay during the pendency of Larkin’s interlocutory appeal through the time the Court of Appeals opinion was certified is chargeable to Larkin.
On November 23, 2015, Larkin moved for a change of Judge. …
This Court has held that “a delay occasioned by a defendant’s filing of a motion for change of judge is chargeable to him and that the time begins to run anew when the new judge qualifies and assumes jurisdiction.” State ex rel. Brown v. Hancock County Superior Court, 372 N.E.2d 169, 170 (Ind. 1978) … Larkin should be charged with the delay from the filing of his motion until Judge Blankenship accepted appointment.
However, the Court of Appeals majority found Harrington v. State, 588 N.E.2d 509 (Ind. Ct. App. 1992), disapproved by Cook v. State, 810 N.E.2d 1064 (Ind. 2004) dispositive. …
… The Court of Appeals majority here relied heavily on Harrington’s language that a defendant should not be forced to choose between a fair and speedy trial. Admittedly, Harrington’s language about choosing between a fair and speedy trial was not explicitly disapproved in Cook.
However, there are a few problems with applying Harrington in this case. First, adopting this approach would allow for a defendant to file for change of judge preventing the case from moving forward but allowing the 4(C) period to run. …
… Accordingly, we apply Cook and find that the delay in finding a special judge is attributable to Larkin. Because the delays that occurred as a result of Larkin’s interlocutory appeal and his motion for change of judge are attributable to him and he agreed to a June 2016 trial date in May, prior to expiration of the 4(C) period, he is not entitled to discharge pursuant to Criminal Rule 4(C).
In this case, there is no dispute that the State committed misconduct and on numerous occasions. …
… Accordingly, here we must decide whether the State’s misconduct is so severe that Larkin’s criminal charges should be dismissed over it. Balancing Larkin’s rights with the public’s interest in seeking justice for victims and applying our precedent, we find that outright dismissal is not the appropriate remedy in this case.
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… The trial court will need to look at each piece of evidence and testimony and determine first, whether it is tainted and next, if so, whether the State can rebut prejudice beyond a reasonable doubt.
… Dismissal is an extreme remedy. As the U.S. Supreme Court has held, for constitutional violations committed by the government, “the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence” gained from the violation. U.S. v. Morrison, 449 U.S. 361, 365 (1981). …
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We further find that Taylor applies to this case and outright dismissal is not the appropriate remedy for the State’s misconduct. Instead, the trial court is to assess each piece of evidence to determine whether it is tainted by the State’s misconduct. …
Accordingly, we reverse the trial court on both issues and remand. The trial court, at its discretion, may either hold a hearing during which the State is given an opportunity to rebut the presumption of prejudice for any tainted evidence or proceed to trial at which the State may attempt to meet its burden through offers of proof outside the presence of the jury.
Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.