Cupp recuses self after Johnson City murder conviction overturned

Becky Campbell • Apr 16, 2013 at 7:28 AM

A Washington County judge recused himself from a murder case against a man whose 2011 conviction was overturned based on lack of evidence and judicial errors.

Judge Robert Cupp filed an order Monday in which he stepped out of Dale Larkin’s murder case.

In the order, Cupp wrote “in order to avoid the appearance of impropriety that might arise if the undersigned was to preside over these proceedings, (he) does recuse himself from presiding over this case and will ensure that all appropriate steps are taken for the appointment of a judge with proper authority to preside over this matter.”

Senior Judge Jon Kerry Blackwood, who has presided over numerous cases in the First Judicial District, has agreed to take the case.

Larkin, now 58, was convicted in 2011 of drowning his wife, Teri Larkin, in a bathtub inside their north Johnson City home in 2003. Dale Larkin wasn’t charged until 2009 because Teri Larkin’s death was initially ruled an accident.

Convicted of first-degree murder, Dale Larkin was serving a life sentence until last month when the Tennessee Court of Criminal Appeals threw out the conviction and ordered a new trial on nothing higher than second-degree murder.

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

In the opinion handed down, the court said at trial Cupp failed to satisfied his mandatory duty as the court’s 13th juror. The court said Cupp committed a reversible error by allowing a forensic pathologist who had testified as Larkin’s witness in a civil case to testify as a state’s witness in the murder trial.

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.

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 Blackwood's court. He was released from prison on the $100,000 property bond that was in effect while he awaited trial.

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