State v. Larkin
| Citation | 443 S.W.3d 751 |
| Decision Date | 28 March 2013 |
| Docket Number | No. E2011-01288-CCA-R3-CD,E2011-01288-CCA-R3-CD |
| Parties | STATE of Tennessee v. Dale Keith LARKIN. |
| Court | Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee |
Mark D. Slagle (on appeal and at trial); Penny J. White (on appeal); and Johnathan A. Minga (at trial), Johnson City, Tennessee, for the appellant, Dale Keith Larkin.
Robert E. Cooper, Jr., Attorney General & Reporter; Renee W. Turner, Senior Counsel; Tony Clark, District Attorney General; and Dennis D. Brooks, Assistant District Attorney General, for the appellee, State of Tennessee.
Dale Keith Larkin (“the Defendant”) was convicted by a jury of first degree premeditated murder and one count of insurance fraud. The trial court sentenced the Defendant to life imprisonment for the murder conviction and to a concurrent term of eight years for the fraud conviction. In this direct appeal, the Defendant raises the following issues: (1) the trial court erred in refusing to sequester the jury; (2) the trial court erred in allowing the Defendant's expert witness to testify for the State; (3) the trial court erred in admitting autopsy photographs and some of the victim's bones into evidence (4) the trial court improperly limited the Defendant's right to cross-examine a State's witness; (5) the prosecutor engaged in misconduct during closing argument; (6) the evidence is not sufficient to support his convictions; (7) the trial court failed to discharge its duty as thirteenth juror; and (8) the cumulative effect of these errors violated the Defendant's rights to a fair trial. Upon our thorough review of the record, we have determined that (1) the trial court failed to satisfy its mandatory duty to act as thirteenth juror; (2) the trial court committed reversible error in allowing the Defendant's expert witness to testify for the State; (3) the State failed to adduce sufficient proof to support the Defendant's conviction of first degree premeditated murder; and (4) the State failed to adduce sufficient proof to support the Defendant's conviction of insurance fraud. Therefore, we must reverse the Defendant's convictions and remand this matter for a new trial on the charge of second degree murder and any appropriate lesser-included offenses. The charge of insurance fraud is dismissed.
The victim in this case, Teresa Larkin, died on November 18, 2003. She was survived by her eleven-year-old daughter, Tia Gentry, and her husband, Dale Keith Larkin, the Defendant. The victim's life was insured under several life insurance policies. Tia Gentry's biological father, Tony Garland Gentry,1 filed a civil lawsuit on Tia's behalf against the Defendant alleging that the Defendant had caused the victim's death, either by negligence or by homicide. Gentry also sued the insurers of the victim's life. The impacted life insurance proceeds were paid into court and, at the time the lawsuit was settled, exceeded 1.2 million dollars. The lawsuit eventually was settled through mediation.2 According to the Order of Compromise and Dismissal, Order to Enforce Mediated Agreement and Order Approving Minor's Settlement, filed in August 2006, Tia received $500,000 and the Defendant received the remaining sum, less court and mediation costs and the guardian ad litem fee.3
In July 2009, almost three years after the conclusion of the civil action and almost six years after the victim's death, the Defendant was indicted on one count of first degree premeditated murder for the death of the victim. The Defendant simultaneously was indicted on three counts of insurance fraud, one count of which was dismissed later by the State. The Defendant was tried before a jury in late January and early February 2011. The following proof was adduced at trial:
Tia testified that she was eighteen years old and a student at East Tennessee State University (“ETSU”). On Tuesday, November 18, 2003, when she was eleven years old, Tia came home from school and walked into the garage where the Defendant was standing by his workbench. Tia asked the Defendant where the victim was, and the Defendant told her that she was upstairs. Tia went upstairs and found the victim's jacket and shoes in Tia's room near Tia's computer. She continued to look for the victim and eventually found her in the victim's bathroom. The victim was sitting in the bathtub, with her legs outstretched and her back against the back of the tub. The victim's head was tilted to the side. Tia spoke to her, but the victim did not respond. Tia went to her and shook her, but the victim remained unresponsive.
Tia stated that there was water in the bathtub, reaching to about the victim's chest. The water temperature was “like room temperature, maybe warm.” Tia described this as unusual because her mother liked “really hot baths.” When the victim failed to respond, Tia panicked and yelled at the Defendant that the victim “won't wake up.” The Defendant walked upstairs and pulled the victim out of the bathtub by her arms. He told Tia to get Dr. Wiles, a neighboring physician. Tia called 9–1–1 and went to get Dr. Wiles. The victim subsequently was taken to the hospital.
Tia testified that, after her mother's death and before she moved in with Gentry, she asked the Defendant “if he thought maybe somebody had poisoned [her mother] or something.” According to Tia, the Defendant “kind of like got very defensive about it and kept asking [her] who put that in [her] head.”
On cross-examination, Tia acknowledged having given a video statement to law enforcement not long after the victim's death.4 In her statement, she described her mother as “stressed out” on the morning of her death. She also told the police that she heard her mother call her name as she was looking for her. When describing the Defendant's actions, she told the police that, when he pulled the victim out of the bathtub, “he just like jerked her out and it hit her head into the tub.”
Tia testified that the victim had worked as a pharmaceutical representative for Merck, and one of the drugs her mother sold was Fosamax
. Her job required her to be on her feet a lot. On redirect, the prosecutor asked if Tia had overheard conversations between her mother and the Defendant about “money issues.” Tia responded, “I know that he had quit getting money [from his employer] and that created some money problems for them and they would argue about me and [the Defendant's daughter] and money.”
Dr. David Allen Wiles, a neurosurgeon, testified that he lived near the residence of the victim and the Defendant. On the day in question, he and his wife had just returned home from shopping. They passed the Defendant sitting on the curb, who told them he was waiting for Tia to come home. Shortly thereafter, Tia “came running across the street screaming.” Dr. Wiles and his wife accompanied Tia to the victim's home, and he went inside while his wife stayed outside with Tia. As he entered the house, he yelled for the Defendant, and the Defendant directed him to the bathroom. He testified to what he saw in the bathroom:
[The victim] was in the bathtub, she was bluish, did not appear to be breathing and I did a quick kind of scan of what was going on and checked her pulse and couldn't tell whether she had a pulse or not, I thought hopefully that she did, and told [the Defendant] we needed to start CPR. We couldn't do that in the bathtub.
Dr. Wiles clarified that he checked the carotid pulse and “thought maybe there was a very weak pulse.” He, however, was not sure whether she had a pulse. He described the victim's position in the bathtub as “a typical position for being in a bathtub,” that her head was above water, and that the water level was about at her chin. The victim's head was back against the back of the tub.
Dr. Wiles asked the Defendant to assist him in getting the victim out of the tub. He testified:
[W]e pulled her out over the edge head first, face-up so she was kind of dragging over the edge on her back. As I recall, [the Defendant] was at the head, and as she came out over, I kind of grabbed her under her arms around her chest and we lifted her over. I remember her being—she was not a big woman but I remember her being heavy and it wasn't an easy job to get her out of the tub. We got her out and put her on the floor next to the tub and there was not a lot of room there. We then moved her down the hallway to an area where there was more room and started CPR at that point.
Dr. Wiles did not remember the victim striking her feet or her knees as they dragged her out of the tub.
The two men began performing CPR on the victim with Dr. Wiles doing the chest compressions and the Defendant doing the breathing. They performed CPR until emergency medical personnel arrived in less than ten minutes.
Dr. Wiles testified that he noticed “a little bit of vomitous” in the corner of the victim's mouth. There was also some water in the victim's mouth, but he did not recall it being “a large volume.” Dr. Wiles explained that, in the past, he had broken the sternum
of an individual on whom he was performing chest compressions during CPR. He did not recall hearing the sound of the victim's sternum breaking.
Asked what he remembered about the bathroom, Dr. Wiles testified that he recalled seeing a glass of wine and a bottle of pills. He asked the Defendant if the victim had any medical problems and whether she could have overdosed. The Defendant told him that the victim had had some wine, that they had taken the bath together, and that she was fine when he got out of the bath and left. Dr. Wiles testified that the medication was an antidepressant and that there was still some in the bottle, which was not open.
As to getting the victim out of the bathtub, Dr. Wiles added:
[I]t was, of course, a very urgent and rushed thing trying to get her out and get CPR going so it was—I'm certain it was...
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...considering the harmlessness of the above errors, Dr. Trivette's "side switching" is crucial to our review. In State v. Larkin , 443 S.W.3d 751 (Tenn. Crim. App. 2013), the Court of Criminal Appeals of Tennessee addressed the issue of a defense expert's "switching sides" to testify for the ......
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