Motion likely next week on Larkin trial possibility

Becky Campbell • Sep 20, 2013 at 9:14 PM

A Johnson City man whose murder conviction in his wife’s drowning death was overturned will be in court next week for a status update in his case.

Dale Keith Larkin -— convicted in 2011 for the 2003 drowning death of Teri Larkin in a bathtub in their Shadowood subdivision home — is scheduled to appear before Senior Judge Jon Kerry Blackwood on Wednesday. The hearing will be held in Carter County because Blackwood is scheduled for court there that day.

While Larkin’s first-degree murder conviction was thrown out, the appellate court left the door open for the state to try him on a second-degree murder charge.

Larkin, now 58, wasn’t arrested until 2009 after state prosecutors and police investigators had a second autopsy conducted on Teri Larkin’s remains.

In the 2003 autopsy performed on Teri Larkin after her death by Dr. Gretel Stephens, the cause of her death was ruled as asphyxiation with blunt trauma present. Stephens also documented one fracture of the upper left humerus, the bone in the upper arm.

She didn’t find four other fractures — one at the end of each humerus and the sternum — that another forensic pathologist, Dr. Darinka Mileusnic, found during the second examination, performed in 2009, that included X-rays of the remains.

At trial, Mileusnic testified she believed Teri Larkin was murdered. But she had come to a different conclusion in 2006 when she was hired as an expert for Dale Larkin in a wrongful death lawsuit.

At that time, Mileusnic determined Teri Larkin’s death was an accidental drowning and a heart condition also could have contributed.

In overturning Larkin’s first-degree murder conviction, the Court of Criminal Appeals ruled Mileusnic should not have been allowed to testify because of her prior involvement in the case.

That is also an issue at the heart of whether the state will retry Larkin on a second-degree murder charge.

District Attorney General Tony Clark, however, believes it is likely he can still use the evidence Mileusnic relied on during the trial while not using her to testify.

“The issue we’re looking at right now is whether or not we can use evidence from the first trial in a second trial. The (state) Attorney General who handled the appeal has said we can use Dr. Mileusnic’s findings,” Clark said.

He thinks next week’s hearing will result in a motion hearing being set on the legal issue.

To add to the complexities of the case, there is a new judge and new attorney involved in the case. Criminal Court Judge Robert Cupp recused himself after the case was overturned and the appellate panel heavily criticized him for not setting the conviction aside based on statements he made after the verdict.

In the appellate opinion, 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 said 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.”

Larkin now has a new attorney in the case. Jim Bowman took over the defense after Larkin’s original attorney, Mark Slagle, died while awaiting a lung transplant. Second chair counsel Jonathan Minga remains on the defense team.

Larkin is free on $100,000 bond while the case is pending.

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