Appeals Court reverses Johnson City man's murder conviction in wife's death

Becky Campbell • Mar 28, 2013 at 10:18 PM

A Johnson City man’s first-degree murder conviction for his wife’s 2003 death was overturned Thursday in a Tennessee Court of Criminal Appeals opinion that cited judicial errors and insufficient evidence for premeditation.

Dale Larkin, now 58, was convicted in 2011 of drowning his wife, 34-year-old Teri Larkin, in a bathtub at their north Johnson City home. Larkin wasn’t charged until 2009 because Teri Larkin’s death was initially ruled an accident.

The opinion came just three weeks after Larkin’s trial attorney, Mark Slagle, died while waiting on a double lung transplant.

The appellate court kicked back the case to Washington County Criminal Court, ruling the state could only retry Larkin on a second-degree murder charge rather than the first-degree charge.

The appellate court dismissed Larkin’s insurance fraud conviction outright.

Because the CCA ruled the state didn’t prove premeditation — a specific requirement for first-degree murder — the case was remanded back for a retrial.

In the opinion handed down Thursday morning, the court said trial Judge Robert Cupp failed to satisfiy his mandatory duty as the court’s 13th juror.

That role is to protect a defendant from “a miscarriage of justice by the jury,” the higher court noted in its opinion. A trial court judge has the discretion to overturn a jury’s verdict if the judge doesn’t feel the evidence supported the conviction. That decision as 13th juror requires no explanation.

But in Larkin’s case, Cupp spoke at length about his disagreement with the jury’s verdict, and how he didn’t understand how the panel came to convict Larkin of first-degree murder. But he declined to overrule the jury’s decision.

The appellate panel ruled that due to Cupp’s verbal expression of his opinion, then refusal to overturn the verdict as 13th juror, he committed an error.

“When, however, the record contains statements by the trial court expressing dissatisfaction or disagreement with the weight of the evidence or the jury’s verdict, or statements indicating that the trial court misunderstood its responsibility or authority to act as the thirteenth juror, the defendant must be granted a new trial,” the panel wrote.

The appellate court noted specifically that Cupp said “I think that I have to find that the jury did not have sufficient evidence to conclude what it concluded. I think that in this matter, the jury did have sufficient evidence to come to a conclusion along that line. And ... I don’t feel that it is appropriate for me to overturn that jury’s conclusion at this time. However, for the record, this court has had difficulty with the ... proof in this matter,” Cupp said in denying a new trial.

The appellate court noted it considered those comments to mean Cupp didn’t believe the proof against Larkin supported the jury’s verdict, but Cupp “refused to grant a new trial because the evidence was legally sufficient to support the verdict.”

Aside from that issue, the appellate court also ruled Cupp erred by allowing forensic pathologist Dr. Darinka Mileusnic to testify as an expert witness for the state.

Her initial role in the Larkin case was as an expert for Larkin during a wrongful death lawsuit filed by Teri Larkin’s daughter, Tia Gentry, over life insurance proceeds.

Larkin’s attorneys had filed a motion to prevent Mileusnic from being a state witness, but Cupp overruled that and allowed her to testify against Larkin.

At trial, Mileusnic testified she believed Teri Larkin was murdered. As an expert for Dale Larkin, Mileusnic determined Teri Larkin’s death was an accidental drowning and a heart condition also could have contributed.

When the state won the motion that allowed Mileusnic to testify at trial, District Attorney General Tony Clark said it was “huge” for the state’s case.

The court also determined the state failed to prove Larkin committed insurance fraud by collecting on his wife’s life insurance policies. There were several policies totaling about $1.2 million in effect at the time of Teri Larkin’s death. In a civil court agreement in 2006, her daughter received $500,000 and Dale Larkin received around $730,000.

No date has been set for Larkin to appear in Cupp’s court. The defense could ask that Larkin’s bond be reinstated while the case is still pending. He’s currently in a state prison serving his sentence.

Prosecutors can appeal the CCA’s ruling to the state Supreme Court.

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