Johnson City man expected to leave prison today in wake of murder conviction reversal

Becky Campbell • Apr 1, 2013 at 9:46 PM

Dale Larkin, the Johnson City man whose first-degree murder conviction for his wife’s 2003 asphyxiation death was overturned last week by a Tennessee appellate court, should be released from prison on bond today.

Larkin, now 58, was not charged until 2009 in Teri Larkin’s death. A jury convicted him in February 2011 and Judge Robert Cupp sentenced Larkin to life in prison. Larkin had been free on bond at the time, but was immediately taken into custody.

As of Monday morning, Larkin was still in custody at Riverbend Maximum Security Institution in Wartburg. His attorney, Jonathan Minga, was working to get Larkin released.

Minga filed a motion Thursday asking Cupp to reinstate his client’s previous $100,000 bond. Cupp signed the order, which is marked filed at 5:05 p.m. in the clerk’s office.

In overturning Larkin’s conviction, the Tennessee Court of Criminal Appeals also determined there was insufficient evidence to prove premeditation, and said Larkin can only be tried on a second-degree murder charge.

Local prosecutors must decide if they will appeal the CCA’s ruling or take Larkin back to trial on the lesser charge.

The CCA also ruled that Dr. Darinka Mileusnic should not have been allowed to testify for the state about a second autopsy she performed — at the request of investigators and prosecutors — because she was a paid expert for Larkin in a civil suit related to his wife’s death.

In the opinion handed down last week, the court said trial Judge Robert Cupp failed to satisfy 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.

Teri Larkin, 36, was found unresponsive in her bathtub by her daughter, Tia Gentry, on Nov. 18, 2003. Jurors apparently believed the state’s theory that Dale Larkin had caused severe injuries to his wife and left her to be found by young Tia.

When Tia got home from school that day, she asked where her mother was and Dale Larkin said Teri was getting ready for them to go to Kingsport.

She ran to get her stepfather, Dale Larkin, when her mother wouldn’t respond to her, according to testimony.

The defense theory was that Larkin pulled his wife from the tub with such force that it could have caused the injuries — multiple bruises all over Teri’s body and five fractures — found during a second autopsy in 2009.

And the reason the defense said the injuries could have occurred then was due to undiagnosed osteoporosis in Teri Larkin. The jury either totally rejected the osteoporosis theory or just didn’t believe it was serious enough in a menopausal 36-year-old.

Dale Larkin does not have a court date set in Washington County Criminal Court yet.

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