Defense attorneys for a man facing a second trial in the 2003 drowning death of his wife filed a motion last month asking a judge to limit the evidence prosecutors can use from the first trial.
Dale Larkin, 58, was convicted in 2011 for the 2003 drowning death of Teri Larkin in a bathtub in their Shadowood subdivision home. The delay between her death and Larkin being arrested was due to an initial finding that Teri Larkin’s death was not a homicide, but that there was blunt force trauma present.
Investigators never really closed the case, and in 2009 turned to Dr. Darinka Mileusnic to conduct an autopsy on Teri Larkin’s remains. Her body was exhumed and Mileusnic determined the death was a homicide.
The problem, according to the Tennessee Court of Criminal Appeals — which reversed Larkin’s first-degree murder conviction in an opinion earlier this year — was that Mileusnic had previously worked for Larkin. His former attorney, Mark Slagle, had hired Mileusnic to review Teri Larkin’s autopsy and determine about cause of death.
Her opinion at that time — based on a review of the original autopsy — was that Larkin drowned and had a heart condition that could have contributed to her death.
For Dale Larkin’s murder trial, Mileusnic performed a second autopsy and her opinion totally changed. After the autopsy she performed on Teri Larkin’s exhumed remains, she determined the woman’s death was a homicide.
Ultimately, Dale Larkin was convicted and sentenced to life in prison. Then came the CCA opinion that threw out the conviction. The panel also said that Mileusnic could not be a witness in the case.
But prosecutors have told Judge Jon Kerry Blackwood — who took the case after Judge Robert Cupp recused himself because the CCA ruled he committed an error because he allowed Mileusnic to testify — they fully intend to use all of Mileusnic’s evidence.
District Attorney General Tony Clark told Blackwood during a September hearing that he will use the same evidence, but will get another forensic pathologist to look at it and give their opinion about Teri Larkin’s death.
Defense attorneys Jim Bowman and Jonathan Minga filed a motion in November stating why they say Mileusnic’s information cannot be used.
The motion said that because the CCA ruled Cupp erred by not omitting Mileusnic’s testimony, findings, conclusions or opinions, the information cannot be legally used in a second trial.
And allowing the information would prevent Larkin from exercising his right of confrontation, provided in the Sixth Amendment of the U.S. Constitution, Bowman’s motion filed in November said.
The defense has asked Blackwood to throw out any information that came from Mileusnic, regardless of who the state wants to use to present it.
The defense filed a 22-page memorandum of law last week to support its motion. State prosecutors have not filed an answer to the motion.
“The admission of any testimonial or documentary evidence from the prior trial and the admission of any testimonial or documentary evidence related to, relying on, or based upon the prior testimony, reports, findings, conclusions or opinions of Dr. Mileusnic or those working under her direction is prohibited by the appellate court’s decision in this case,” Bowman wrote in the most recent case filing.
Blackwood will hear arguments on the motion next week. Larkin is free on bond while the case is still pending. He served nearly two years in prison before the appellate court overturned the conviction.