Dale Larkin sitting upright and looking forward in court this morning with Jim Bowman and Jonathan Minga also at the table. (Becky Campbell, Johnson City Press)
ELIZABETHTON — Defense attorneys for Dale Larkin, whose murder conviction in his wife’s 2003 drowning death was overturned earlier this year, will argue in December that evidence from his first trial cannot be used a second time.
Jim Bowman — who is now lead counsel for Larkin after his first attorney, Mark Slagle, died just before the appellate decision was announced — told Senior Judge Jon Kerry Blackwood Wednesday that the opinion throwing out the conviction won’t allow the state to use forensic evidence from a witness now banned from the case.
Larkin appeared in a Carter County courtroom Wednesday for the brief hearing. It was held in Elizabethton because Blackwood was scheduled for court there.
Larkin, now 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 homicide.
One of the issues the Tennessee Criminal Court of Appeals had with the case was that Mileusnic had been a defense witness in a wrongful death lawsuit that stemmed from Teri Larkin’s death. Her opinion at that time — based on a review of the original autopsy — was that Larkin drowned and had a heart condition which could have contributed to her death.
“In this case, there were several issues addressed by the court of appeals. One of the key issues was the use of Dr. Mileusnic as the forensic pathologist,” District Attorney General Tony Clark told Blackwood. “The defense, at some point in time utilized this pathologist in a wrongful death action prior to the criminal case. We utilized Dr. Mileusnic when a second autopsy was performed of the deceased. We used Dr. Mileusnic in our case in chief. The court of appeals said that was a conflict.
They said it was basically not fair for us to do that,” Clark said.
“Since this was remanded back on a second-degree murder (charge), the appeals court said we could not use Dr. Mileusinc. However, the state plans on using reports, slides, pictures and other material obtained by Dr. Mileusnic and have another expert come in and review those. In talking to Mr. Bowman and Mr. (Jonathan) Minga about this, they may have a problem with us doing that. That is a crux of our case,” he said.
Bowman certainly does have a problem with the state’s attempt to sidestep the appellate court ruling by using another expert to testify about evidence Mileusinc gathered during the autopsy.
“Our reading of the opinion was that Dr. Mileusinc could not testify. There is also a footnote that makes it clear that any evidence that she introduced also could not be used unless it was otherwise admissible. That creates an issue I think the court, in the interest of judicial economy, it would probably be wise to try to address before,” a trial, Bowman said.
Blackwood set the case for a Dec. 16 motion hearing. 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.