The evidence against Dale Larkin, whose 2011 first-degree murder conviction for his wife’s death was overturned and remanded for retrial on second-degree murder, keeps getting whittled away, and the state could end up with no case at all.
Larkin, 59, was convicted in 2011 for the 2003 drowning death of his wife, Teri Larkin, in a bathtub at 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.
Judge Jon Kerry Blackwood is handling the case after the trial judge, Judge Robert Cupp, stepped down following the Court of Criminal Appeals’ overturning the case.
Blackwood’s interpretation of the CCA’s opinion is that all evidence that derived from an exhumation and second autopsy conducted by Dr. Darinka Mileusnic is barred from the second trial.
The appeals court ruled Mileusnic’s evidence and testimony was tainted because she worked for Larkin in a civil wrongful death lawsuit settled several years after Teri Larkin’s death.
Larkin’s former attorney, Mark Slagle, had hired Mileusnic to review Teri Larkin’s autopsy and determine the 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.
Ultimately, Dale Larkin was convicted and sentenced to life in prison. Then came the CCA opinion that threw out the conviction in early 2013. The panel also said Mileusnic could not be a witness in the case.
Following the conviction reversal, District Attorney General Tony Clark said he intended to re-try Lark on second-degree murder and intended to use Mileusnic’s autopsy and her findings, but allow another forensic expert to review it and testify about it.
In a December hearing, Blackwood ruled prosecutors could not use notes, reports, correspondence, testimony, conversation, discussion or information prepared by or involving Mileusnic or any other expert or colleague working under Mileusnic’s supervision.
Clark had asked Blackwood to further clarify that ruling. In a letter Clark received this week, Blackwood told the prosecutor that any evidence from the second autopsy cannot be used in a second trial.
Clark, however, isn’t giving up yet.
“We plan on filing motions in response to (Blackwood’s) clarification,” Clark said Wednesday. “At this point, basically he said anything derived from Dr. Mileusnic at all — pictures, findings, reports, findings from Dr. Murray Marks — we’re barred from using.”
Marks, a forensic anthropologist and colleague of Mileusnic, testified a sternum fracture Teri Larkin suffered couldn’t have been inflicted when Dale Larkin and a neighbor performed CPR on Teri.
Marks told the jury the beveled fracture was a “direct impact” injury. He testified his experience with bone breakage in connection to CPR involves the ribs as opposed to the sternum.
Clark contends Marks examined Teri Larkin’s bones independently of Mileusnic and reached his own conclusion. But Blackwood’s “clarification” will prohibit prosecutors from using that report as well.
Prosecutors still have the original autopsy performed by Dr. Gretel Stepens, who was the forensic pathologist at East Tennessee State University when Teri Larkin died, but she did not rule the death a homicide.
Investigators never really closed the case, and in 2009 turned to Mileusnic to conduct an autopsy on Teri Larkin’s remains. Her body was exhumed and Mileusnic determined the death was a homicide.
“It would be very difficult to try the case without any evidence from the second autopsy,” Clark said.
Still, he plans to ask the state attorney general’s office to file an interlocutory appeal to challenge Blackwood’s ruling.
For now, however, Blackwood set a trial for Larkin to begin Aug. 4.
Larkin remains free on bond. He was released from prison after his conviction was vacated.
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