State of Tennessee v. Dale Keith Larkin

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 21, 2012 Session

STATE OF TENNESSEE v. DALE KEITH LARKIN

Appeal from the Criminal Court of Washington County

No. 35150 Robert E. Cupp, Judge

No. E2011-01288-CCA-R3-CD - Filed March 28, 2013

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.

Tenn. R. App. P. 3 Appeal as of Right; Judgments

of the Criminal Court Reversed; Remanded

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P. J.,

and A LAN E. G LENN, J., joined.

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.

OPINION

Factual and Procedural Background

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

1

For ease of identification, we will refer to Tia Gentry as Tia and Tony Garland Gentry as Gentry.

We intend no disrespect by referring to Ms. Gentry by her first name.

2

The parties entered into a written mediation agreement on June 21, 2006. Gentry subsequently tried

to withdraw from the agreement. The Defendant filed a motion to enforce the agreement, which the trial

court granted by a written order filed on August 23, 2006.

3

The referenced Order was admitted as an exhibit at the Defendant’s criminal trial.

-2-

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

4

She also gave a later video statement at which Gentry was present. The record on appeal does not

contain these statements but does include excerpts played for the jury and transcribed.

-3-

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.

-4-

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 aggressive, you know, we tried to be

gentle but tried to be quick, and I do recall very clearly that I remember

thinking, you know, this little lady weighs a lot. I hate to say the term but you

know you hear the term “dead weight,” that’s really what it was like. It was

hard to get her out over that tub. It wasn’t easy and she was wet and slippery

and trying to get a good hold on her, it was hard.

On cross-examination, Dr. Wiles described the Defendant’s demeanor as they

struggled to get the victim out of the tub as “very distraught and anxious over what was going

on.” He recalled the Defendant speaking to the victim, saying, “Come on, Teri,” “Please

come back,” and “Don’t die.” Dr. Wiles also stated that, while he and the Defendant were

performing CPR on the victim, the Defendant “developed chest pain and had to take a

nitroglycerin pill.”

Dr. Gretel C. Stephens, a forensic pathologist, testified that she performed an autopsy

on the victim on November 19, 2003. She explained that, when she received the victim’s

body, she was not given a great deal of information about the circumstances surrounding the

victim’s death. She testified, “All we had was the order for autopsy, which was very brief,

succinct and not very informative, which said ‘Subject was lying in bathtub, she had a past

history of depression, no known medication.’” Accordingly, she began the autopsy with the

idea that the victim may have drowned.

During the autopsy, beginning with the exterior of the victim’s body, she noted

“multiple cutaneous and deep contusions,” including a contusion on the dorsal left upper

thigh; contusions of the dorsal left arm; contusions of the right elbow; a fracture of the left

upper arm; a contusion of the right lateral abdomen; a contusion of the lateral left knee; a

contusion on the back of the left calf; a contusion to the right big toe; and contusions to the

upper portion of the left big and second toes. Dr. Stephens explained that these injuries were

“fresh,” i.e., “near the time of death or could be a day or two in.” She also noted bruises to

the right leg that were “a bit older.”

-5-

Dr. Stephens explained her reaction to the victim’s bruises:

The finding of the bruises was – without a history of major falling, seizure

disorder or something like that where multiple areas had been bruised and it

all looked fresh, at least the ones that I pointed out, suggested to me that there

was something more going on than a routine, “Oops, I drowned.” I’ve seen

drowning in the bathtubs multiple times and very few of them have I been

particularly concerned about. I got further concerned when we were able to

show the fracture of the left upper arm bone. That’s very unusual from just

simply a fall. As a result of that, I did some additional testing. I thought,

“Well, maybe, since we didn’t have a history otherwise, she’d been involved

in some sort of a struggle and this was actually a rape, homicide or something

like.” Forensic pathologists always tend to think the worst so that we can rule

them out. So we actually did studies in case we needed them for rape testing.

We also did additional sections that I wouldn’t ordinarily do in an autopsy

including take out the area of the end of the bones at the fracture and look at

them under the microscope. Even though I didn’t find any tumor of any sort

in Teresa Larkin, sometimes pathologic fractures can occur in an area where

the bone is weak and it just means it’s a fracture that occurred because

something else was interfering with the normal strength of the bone in that

area. . . . I also did a section of the vertebra of the vertebral column because

another thing that can occur usually in older women or in somebody that’s

been on a lot of prednisone or other type of a steroid that tends to weaken your

bones, can lead to very weak bones. If she had very weak bones, then a

fracture like that might have occurred without the usual degree of force or

trauma that would have been required to break that bone in a woman who was

just thirty-seven. So I did additional studies because of that.

Her additional testing did not indicate either osteopenia, “kind of the early precursor to

osteoporosis,” or osteoporosis, conditions of bone weakening. She opined, “there was no

major osteopenic components identified” at the fracture site.

In addition to the external bruising, Dr. Stephens also noted that the victim had

suffered internal bruising “at the upper part of the buttock and kind of over a bony

prominence”; “involving the upper portion of the back and shoulder area”; and of the left

breast. There also was bruising to the victim’s scalp, to the left side of her thyroid gland, and

to the right side of her tongue. Dr. Stephens did not see any indication that the victim’s

sternum was fractured.

-6-

Dr. Stephens testified that the victim’s lungs each weighed more than normal,

indicating that her lungs contained excess fluid “or something.” She also found colonies of

bacteria in the victim’s lungs. She explained:

Well, the usual thing that you see in drowning is there are several things

that you can see, but the one that really points to drowning, is when you have

just horrendous froth coming out the mouth and nose and that’s from

pulmonary edema fluid mixed with the water of the drowning and it all just

kind of bubbles back up at you when you’re trying to resuscitate the person.

Usually by the time we see them in the morgue, they still show that unless

they’ve been subjected to a long resuscitative effort so that they’ve been

pumped and pumped and pumped and all of that excess fluid is now kind of

forced out of the lungs. So, you know, we’re not seeing that, but what we are

seeing is bacterial colonies. If you’re pumping somebody’s chest and

breathing for them and they’ve got bacteria up in the throat area, you can

shove that down and it can go into the lungs. It’s unusual to see it that far out

and the same thing can happen if you choke on vomit or choke on materials

from the upper throat or if you drown. You can have, from the breathing in of

the water through the airway, it can wash some of those bacteria from either

the bath water itself or from the upper airway down into the lungs.

She added that the fact that the victim was found with her head above water “and the lack

of any clear indication that she had this horrendous froth and certainly no froth when I looked

at her, went against drowning.”

Dr. Stephens ruled that the probable cause of the victim’s death was asphyxiation,

with blunt trauma also present. She explained that asphyxiation “just means that the oxygen

is not getting to the brain” and that the condition “can happen in multiple ways,” including

drowning, smothering, and heart stoppage. She added, “If you are being compressed hard

enough in your chest area so that you can’t inhale, that can cause an asphyxial death.” She

also explained that petechia hemorrhages, such as were noted on the underside of the victim’s

eyelids, are “tiny pinpoint hemorrhages.” The possible causes for these hemorrhages include

choking, strangling, smothering, violent vomiting, and heart attack. She stated that petechia

hemorrhages can also occur “if you don’t clot normally” or if “it’s someone who tends to

bruise easily.”

As a result of the autopsy, Dr. Stephens concluded that the manner of death could not

be determined. She was suspicious of homicide, however, so she telephoned the Johnson

City Police and asked them to investigate. She stated that, had she had access to the medical

reports that were developed later in the case, she would have concluded that the manner of

death was homicide.

-7-

In conjunction with her testimony, the autopsy report Dr. Stephens prepared was

admitted into evidence. That report contains the following summary of the “anatomical

diagnosis”: “(1) Multiple contusions[;] (2) Proximal fracture of the left humerus with

extensive contusion[;] (3) Large surgical scar of left upper arm and shoulder[;] (4) Numerous

bacterial colonies in the peripheral and central lungs[;] (5) Petechial hemorrhages of the

conjunctivae[.]” The report provides cause of death as “Asphyxiation, with blunt trauma also

present.” The “narrative of findings” provides as follows:

This 37 year old woman died due to asphyxiation with a broken left arm

and multiple bruises also present. The type of asphyxiation is not clear, since

the occurrence was in a bath tub and drowning may have occurred, but

resuscitative efforts were also undertaken, with extensive bacteria in the

peripheral lung tissues being the only feature suggestive of drowning. There

is evidence for asphyxiation since there were petechiae of the eyelids. Drug

tests showed only a small concentration of ethanol present in the fluids and no

other drugs. The findings are especially troubling due to the major injury to

the left upper arm in addition to other areas of bruising. The manner of death

could not be determined. No marked osteopenia of her bone is shown.

The date of the report is March 10, 2004, almost four months after the victim’s death.

On cross-examination, Dr. Stephens acknowledged that she could not determine “what

the mechanics of death were in this particular instance,” even taking into account the later

medical reports which she reviewed. She also acknowledged that she had not reviewed the

victim’s medical records in conjunction with performing the autopsy. She admitted that it

would have been “helpful” to have known that the victim had fractured her left humerus in

January 2001 from slipping on the ice. She also acknowledged that, if the victim had had

osteoporosis, it was “very likely” that she would have suffered “parallel bone fractures . . .

in both arms if she . . . was pulled from the tub by both arms.” However, she denied seeing

osteoporosis during her examination, stating that she “even checked vertebrae.” She denied

knowing that the victim had had “compression fractures of two vertebral bodies,” explaining

that she “could see only what [she] could look at with the naked eye which looked like a mild

degree of osteo-arthritic change.” Dr. Stephens stated that her lab did not have an x-ray

machine and that her “method of testing for a fracture was to see if something moved where

it wasn’t supposed to.” Using this method, she did not find any fractures to the victim’s

sternum or ribs or to the victim’s right arm. She found the fracture in the victim’s left arm

only because the arm was bent in an abnormal fashion.

Dr. Stephens acknowledged that a bruised tongue can be evidence of a seizure. The

victim also could have bruised her tongue while fainting.

-8-

On redirect examination, Dr. Stephens reiterated that she “did not find major

weakness of [the victim’s] bones” and “no objective evidence for osteoporosis.” She also

stated that the victim’s past gynecological problems did not necessarily mean that the victim

suffered from osteoporosis. The toxicology report prepared in conjunction with the autopsy

revealed “a very small amount of alcohol in the blood” but no drugs in the victim’s system.

On further cross-examination about the manner of death, Dr. Stephens testified, “I

didn’t suggest mechanical asphyxiation although that was a consideration. I did consider and

cannot rule out drowning still because of the extensive resuscitative effort that changed a lot

of the findings that we might see.”

Dr. Darinka Mileusnic-Polchan, the Chief Medical Examiner for Knox and Anderson

Counties, Tennessee, testified that, several years prior to the criminal trial, the Defendant’s

lawyer asked her to review Dr. Stephens’ autopsy report and related materials, including

photographs and microscopic slides prepared from the victim’s organs, in conjunction with

the Defendant’s efforts to collect the life insurance proceeds payable on the victim’s death.

Dr. Mileusnic5 also reviewed the statement the Defendant gave to the police. After

reviewing and analyzing these materials, Dr. Mileusnic prepared a written report dated May

31, 2006, which was admitted at trial and includes the following:

Gretel C. Stephens, M.D. at East Tennessee State University, Forensic

Pathology Division, performed full autopsy on November 19, 2003. Two

different findings/conclusions were listed as the main diagnosis under Primary

Series subtitle: 1. Asphyxiation; 2. Blunt trauma. Based on the objective

documentation (photographs and microscopic slides) and choice of words, it

seems that Dr. Stephens excluded drowning and implied mechanical asphyxia.

Unfortunately, it is not clear from the autopsy report what kind of mechanical

asphyxia Dr. Stephens had in mind when she was formulating her final

opinion.

There are few gross findings (Primary Series) supporting mechanical

asphyxia – petechiae of the conjunctivae and contusion of the deep left neck

tissue next to the thyroid gland. Regrettably, there are no photographs of

petechiae to document the finding. Without objective documentation and

detailed description of the density and other characteristics of conjunctival

petechiae, this statement becomes meaningless. Soft tissue contusion in the

left neck is minor and does not involve skeletal muscle. With no other

5

Dr. Mileusnic-Polchan confirmed that she goes by “Dr. Mileusnic.”

-9-

accompanying findings, it is impossible to base the main diagnosis of

mechanical asphyxia just on this detail.

Second part of the main diagnosis, blunt trauma, is depicted in several

gross photographs as well as in several microscopic slides. If one disregards

neck finding, right lateral tongue hemorrhage and petrous temporal bone

finding, eighteen foci of contusions are observed. Comparison of the listed

diagnoses and photographs allows for better understanding what kind of

trauma we are dealing with. First of all, majority of bruises are over bony

prominences such as shoulders, right elbow, right iliac crest and left knee.

Many of the listed contusions would be consistent with [the victim] being

pulled out of the bathtub and placed on the hard surface where resuscitation

began. Additional contusions included dorsal left arm, left breast, parieto-

occipital scalp, right lateral abdomen, thighs, left calf and bilateral toes.

Posterior incision into the skin and muscle of the back nicely demonstrates

hemorrhage at the level of the shoulder blades where the body came in contact

with the hard surface/floor. The same is true for the occipital subscalp

hemorrhage.

Fracture of the left humerus with surrounding hemorrhage is the only

major fresh-appearing trauma. Similar to the rest of the contusions elsewhere

on the body, there is no surrounding inflammatory reaction, consistent with

perimortem occurrence. It is not hard to envision occurrence of these

traumatic findings during aggressive pulling of the body from the bathtub and

subsequent resuscitation.

Dr. Stephens lists a couple of more findings such as peripheral tongue

hemorrhage and petrous temporal bone congestion. Peripheral tongue

hemorrhage is more consistent with terminal seizure rather than trauma due to

foul play. Finally, petrous temporal bone congestion is neither contusion nor

trauma. As the matter of fact, it is a very nonspecific finding, which is

frequently noted in drowning deaths. Diagnoses listed under the Secondary

Series subtitle constitute minor incidental findings, which will not be discussed

here.

Autopsy reveals heavy and edematous lungs (1350 grams combined

weight). Microscopically, there is severe generalized edema noted throughout

the alveolar spaces bilaterally as well as focal hemorrhage and bacterial

clumps. Bacterial colonization of the lungs when autopsy is done shortly after

death indicates aspiration and transfer of oral flora distally in the lungs. These

findings coupled with watery gastric content and [the Defendant’s] account of

-10-

water coming out of his wife’s mouth would indicate drowning. Although [the

victim] was found in only approximately one foot of water, her husband did

indicate that the tub was leaky.

Additional microscopic findings include mild hepatic steatosis (fatty

liver) and colloid cyst of the thyroid cartilage with focal surrounding

intramuscular extravasation. As the matter of fact peripheral focal

extravasation (leaking of blood in surrounding tissue) is also noted in the

pelvic region and in the perirenal soft tissue (around kidneys). The extent and

location of these foci of extravasation indicate perimortem agonal changes that

were occurring irrespective of trauma. Therefore, overinterpreting these

changes anywhere in the body could be misleading. Neuropathologic exam

demonstrates early red neuronal changes, particularly in the cerebellar Purkinje

cells, consistent with terminal hypoxia. Foci of extravasation or microscopic

bleeding are noted in several brain sections.

The most interesting finding in this autopsy is cardiac histopathology.

Heart sections taken by Dr. Stephens indicate worrisome changes that could

not be ascribed only to agonal artifact, resuscitation or laboratory artifact (recut

glass slides 1 and 2). In her histological description Dr. Stephens did indicate

presence of focal hemorrhage in the heart muscle. In that same section of the

cardiac muscle, in the vicinity of the extravasation/bleeding there are subtle

inflammatory changes present such as focal clustering of lymphocytes,

macrophages and rare neutrophils. In the foci of myocytolysis (muscle fiber

breakdown) there is abundant cellular debris and surrounding interstitial

edema. These changes are frequently indicative of myocarditis, which is

notorious for focality and random distribution with wide skip areas. In cases

of suspected myocarditis additional random sampling of the heart muscle is

highly recommended.

Dr. Mileusnic’s report to the defense concluded as follows:

Based on the currently presented evidence, terminal cardiac event with

agonal seizure and possible drowning cannot be excluded. In summary, most

gross and microscopic findings in support of mechanical asphyxia with blunt

trauma are insufficient to be listed as the main cause of death without [sic]

reasonable medical certainty. More detailed cardiac examination with

additional sectioning is recommended.

-11-

If you have any additional questions or new investigative information

becomes available, please do not hesitate to contact me. Thank you for giving

me an opportunity to work with you on this troubling case.

At trial, she explained her opinion as follows:

The final opinion, of course, all boils down that what I thought to be

cause, potentially manner of death would be, the cause of death I had to base

essential information received and autopsy findings. The most remarkable

thing for me in the autopsy, and you heard a lot of it from Dr. Stephens, is that

her lungs were extremely heavy, [the victim’s] lungs were extremely heavy

and there was a lot of clear fluid coming from her mouth and that was at that

time as [the Defendant] observed and described in the report and by [defense

counsel’s] also account, so all that coupled together, plus watery fluid and

watery content in the gastric content to me, that was very significant for

drowning, there was no question about it. And actually, even to this point

there’s no question about it in my mind. Now, the other finding that I had to

rely on is, okay, we do have this blunt trauma that Dr. Stephens was concerned

about. Of course, I’m looking at the trauma from the photographs and as there

always is, photographs sometimes can be underwhelming depending on how

they’re presented and some of the things that I wanted to see, such as some of

the bruising under the scalp a little bit better angle or petechiae in the eyes, I

could not see, they were not in the photographs. So because of that, I couldn’t

really put so much weight on that particular finding as far as bruising was

concerned. But there was one big thing that we all discussed yesterday and

that’s – or the witness discussing it yesterday, and that was the fracture in the

left arm and that was the arm that would be turned toward whoever is rescuing

[the victim] from the bathtub. So in case you’re going to lift, I don’t know,

120-pound woman just by that arm in the bathtub, I can see how that could

potentially happen. So I said “Okay, if that’s the case, I can see that happening

during that particular rescue.” I think it’s drowning and I still think it’s a

drowning. But as far as what could contribute or lead to this drowning,

because she had some issues but she didn’t have seizures, she didn’t have a lot

of alcohol in the blood, so what could lead to that, then I was looking a little

bit deeper, I was looking into tissue histology to see if I can find anything.

Now the heart was one area that I was concerned about and that’s the section

Dr. Stephens took from the front of the heart, the left ventricle front right kind

of under the breastbone that showed, as she described, a little of a hemorrhage.

I said, “Well, there’s a little bit of hemorrhage,” which is bleeding in the heart

muscle, and I’m also seeing some debris there. Well, could it be that

something is happening in the heart that maybe could lead to her sudden loss

-12-

of consciousness that would cause her to drown? So that’s basically what I

said in my report as a conclusion, is drowning, what could lead to that, it’s

possible.

She added that “drowning was more important than traumatic or other kind of mechanical

asphyxia[,] that’s compression of the neck or mouth or of the chest.” She also testified that,

at the time she prepared her initial report, she attributed the majority of the victim’s bruising

to the rescue attempts.

Dr. Mileusnic faxed her report to the Defendant’s lawyer on June 6, 2006. She

subsequently met with representatives of the State and law enforcement concerning the

victim’s death. They discussed exhuming the victim’s body for further evaluation. In March

2009, the victim was exhumed from her above-ground vault and Dr. Mileusnic performed

a second autopsy. In conjunction with performing this second autopsy, Dr. Mileusnic

prepared an “Autopsy Final Report” which was admitted into evidence and which contains

the following “Narrative”:

The body of Teresa Larkin, a 37-year-old white female, was exhumed

on March 12, 2009 for a second autopsy and detailed anthropologic

examination. In spite of the previous removal of the fractured left proximal

humerus, multiple additional fractures and contusions not obscured by the

decomposition process are recorded at this time. The results of the first

autopsy had been reviewed previously addressing areas of concern. Second

autopsy with anthropologic study and additional testing as well as more

detailed investigative information reveal [the] following:

1. Follow up investigation indicates that the witnessed retrieval of the

body from the bathtub and resuscitation efforts were not aggressive to the

point of inflicting any significant injury to the body of [the victim]. Revival

efforts were both initiated and conducted by trained medical personnel

throughout the resuscitation;

2. Additional examination of the tissues, organs, particularly the heart

sections, coupled with anthropologic evaluation reveals that: a. The previously

noted cardiac changes are traumatic in nature. Parallel sternal fractures as well

as predominance of extravasated erythrocytes rather than inflammatory cells

in the sampled myocardium are consistent with blunt force injuries; b.

Subcutaneous, intramuscular and subscalp contusions are very deep and still

observable despite the prolonged burial and decomposition changes with

maggot infestation. Distribution of fractured bones matches the originally

described skin and soft tissue contusions.

-13-

Initial review of the victim’s medical records tells me that [the victim]

was a rather healthy lady with minor issues such as sinusitis and vaginal

discharge. More than a year prior to her death she had a near-fainting episode.

In summary, the cause of death is homicidal drowning with traumatic

asphyxia and multiple blunt force injuries as contributing factors in death of

[the victim]. The extent, appearance and distribution of the skeletal injuries

cannot be explained away by any accidental or suicidal events, natural

conditions and/or reasonable artifacts of resuscitation, postmortem handling

of the body, first autopsy or exhumation.

During the second autopsy, Dr. Mileusnic noted that the victim’s right humerus was

also fractured, with a “complex spiral fracture.” She testified that the fractures to both upper

arms were caused by “a spiral twisting motion.” Dr. Mileusnic also found “grinding-type

fractures” in both of the victim’s elbows as well as “two very interesting fractures in the

sternum.” She testified that the fracture to the victim’s left elbow “[c]ould have happened

around the same time” as the fracture to the left humerus. As to the sternum fractures, she

stated that it was “relatively rare” for such fractures to be caused by CPR. She explained

further:

A sternum can fracture in trauma cases, a sternum can sometimes fracture

during resuscitation but whenever there was fracture of the sternum or the

breastbone in resuscitation, it was always preceded with the fracture of the

bones – of ribs. I’ve never seen fractured sternum that did not have fractured

ribs that were due to resuscitation, and whenever that happened, it was always

the weakest part of the sternum, the breastbone, and it’s really the thinnest.

This was not the thinnest part of the sternum, this was actually lower down

where the sternum sort of kind of curves and creates kind of a widening or an

enlargement. So the location on the sternum, the fact that there were two

fractures on the sternum, two lines, were very disturbing to me.

She also stated that, after she performed the second autopsy, she concluded that “the most

consistent and meaningful explanation [for the injuries to the heart noted during the first

autopsy] was actually there was contusion on the heart that was related to the trauma to the

sternum.”

In addition to the fractures, Dr. Mileusnic found two areas of “hemorrhage or bleeding

under the skin and in the muscle,” one area in the victim’s back and the other area toward the

victim’s buttocks. She stated that these areas of deep bruising were “not visible

superficially.”

-14-

Dr. Mileusnic reiterated that she “still st[oo]d by” her original determination that the

main cause of the victim’s death was drowning. She continued: “Now how drowning

occurred and how it came about, in my opinion it was actually a very violent death that led

to her drowning and/or a violent mechanism that led to her drowning.” She added, “if this

were my jurisdiction, I would call it homicide.”

On cross-examination, Dr. Mileusnic acknowledged that she faxed her initial

determinations regarding the victim’s death to the Defendant’s lawyer on June 6, 2006, but

she did not recall speaking to Detective Sherfey about the case on the same day. However,

she did recall speaking with Detective Sherfey several times over the course of “a long time.”

She stated that she resisted becoming further involved in the case because it was “troubling”

and “nasty.” She added that the Defendant’s civil litigation had been concluded before she

had “any serious conversation with the State to get involved in the exhumation.” At that

point, she testified, she “got kind of dragged into this case again because [she] felt obligation

toward the victim that [she did] need to review whatever additional information and evidence

is there.” She testified that she had “nothing to do with” the Defendant or defense counsel

after defense counsel called her and told her that the civil litigation was “done and over and

it’s favorable.”

Dr. Mileusnic explained that, when she performed her original work for the

Defendant, she “had no objective scene investigation information whatsoever” and “didn’t

really have any medical history on [the victim].” When she began working for the State, she

“was given scene photographs because it’s really important to see where did this all occur.”

She also learned from conversing with Detective Sherfey that “this bathroom actually was

nicely carpeted which would actually reduce all this trauma from dropping the body on nice

plush carpet resulting in bruising the back of the head, bruising the back of the shoulders,

well, that was not an equation anymore.” Additionally, the State provided her with the

victim’s medical records, including psychiatric records. However, she did not recall

specifically a letter from Dr. William C. Diebold indicating that the victim was being treated

for anxiety and depression in May 2002, was scheduled for a follow-up visit in three months,

and was “also seeing a therapist for more frequent visits.”

Based on the medical records she reviewed, she learned that the victim was dealing

with some minor musculoskeletal pain, probably related to an old injury received in a motor

vehicle accident; “on and off” depression; and some “gynecological issues” including a

hysteroscopy, a uterine ablation, and a tubal ligation. She also acknowledged that the

victim’s medical records reflected that the victim had had a near-fainting episode a year prior

to her death; previous compression fractures of her back; a previous fracture of one of her

toes; and “skeletal issues in terms of pain.” She also acknowledged that the victim had

suffered a prior fracture to the left humerus. She stated that this previous fracture “healed

-15-

with no residue.” Dr. Mileusnic testified that merely looking at a bone was not sufficient to

determine whether the individual suffered from osteoporosis.

When asked if the victim could have had a seizure prior to her drowning, Dr.

Mileusnic responded, “I’ve never seen so much bruising and injury on the body just from

seizure and drowning subsequent to the seizure in a bathtub.” She acknowledged that the

injury to the victim’s tongue could be indicative of a seizure.

On redirect, Dr. Mileusnic stated that one of the “big problems” that she encountered

in this case was the evidence that the victim drowned contrasted with the reports that she was

found in the bathtub with her head above water. She added, “for a healthy person to drown,

you have to be, again, incapacitated or intoxicated, one of those things, and, again, falling

in would account for some injury but not for all of them, and certainly not for fractures that

we’re seeing.” When asked whether someone who had fainted or seized or fallen into a

bathtub would later be found sitting upright, Dr. Mileusnic answered, “No.” When asked to

explain why not, she responded,

Just because her sitting in the bathtub with everything else that we

found, it seems or looks more like a staged scene rather than natural way that

she would end up following her trauma and let’s say drowning. So to me,

looking at some scene that looks staged like that, and staging of the scene is

pretty – a common phenomenon in forensic science, is something to be

concerned about.

She also explained that water in a bathtub “would buffer a lot of the movement and trauma.”

Dr. Murray Marks, Associate Professor at the Department of Pathology and Oral

Surgery at the University of Tennessee Medical Center and a board-certified forensic

anthropologist, assisted in the exhumation and second autopsy of the victim. He explained

that his specific role was “to assess the skeleton and try to make some sense out of trauma

if it was discovered.” He prepared a written report addressed to Dr. Mileusnic, dated May

1, 2009, that was admitted into evidence. In the report, he notes that “[t]he [victim’s] left

humerus demonstrates previous removal of the upper end via complete transverse sectioning

through the proximal third of the shaft and removal of the head. This specimen was not

available for study.” 6

6

Dr. Stephens’ autopsy report reflects that she removed the victim’s left “femoral head” for further

analysis. Based on the remainder of the record, it appears that her reference to the victim’s “femur” was a

clerical error and that the autopsy report should have referred to her removal of an upper portion of the

victim’s left humerus.

-16-

In his examination of the victim, he determined that there was a fracture on the front

surface of the sternum (breastbone) that was “pushed in from the front.” There was also a

second fracture further down on the sternum, also caused by pressure from the front. He

stated that the types of fractures he found in the sternum “would be something from a direct

blow.”

As to the victim’s right upper-arm bone, the right humerus, he observed an area in the

elbow region where the exterior compact bone had been “abraded away,” exposing the

“[t]rabecular bone” which is “the spongy bone or the cancellous bone that is inside the bones

of the skeleton.” He stated that, normally, a person’s trabecular bone is not visible. He

observed a similar injury to the victim’s left humerus. He explained the cause of these

injuries:

That type of a wound is received when there’s a twisting and

particularly of a lower part of the arm and the elbow becomes compromised,

and so the proximal ulna and the distal humerus come into contact in this

particular case right here so it’s twisted off center and then as it’s turned on

this axis, which is the elbow, it wears down the articular cartilage, it can go

right through it and abrade it.

Dr. Marks added that the degree of force required to cause these injuries would be “pretty

significant.”

Dr. Marks also observed an impact fracture to that portion of the victim’s shoulder

blade into which the upper portion of the right humerus fit. He stated that this fracture was

caused by pressure from the humerus. The upper portion of the right humerus also “was

destroyed in a pretty significant manner, it was twisted, fragmented and there was some spiral

fracturing on it which means of a twisted nature caused the breakage. It wasn’t a simple

fracture[,] it was pretty complicated.”

Dr. Marks also explained the injuries that he found by reference to some of the

victim’s actual bones, which were admitted into evidence over the defense’s objection. Dr.

Marks testified that the fractures that he observed were received “around the time of death.”

On cross-examination, Dr. Marks acknowledged that the fractures could have

occurred after the victim’s death.

Charlie Herron, funeral assistant with Oak Hill Funeral Home, testified that he

assisted in handling the victim’s body after the initial autopsy. He and Harry Torian retrieved

the body from the morgue and transported it to the funeral home. He also “worked the

-17-

funeral service.” From the time the victim’s body was retrieved until it was laid to rest,

nothing occurred that would have further damaged the body.

Harry Torian testified that he worked part-time with the Oak Hill Funeral Home,

“working services and making removals.” He and Charlie Herron retrieved the victim’s body

from the Medical Examiner’s Office in Johnson City after autopsy. The body did not suffer

any injury during the removal or thereafter.

Frank Fitzgerald, the embalmer at Oak Hill Funeral Home, testified that he recalled

the victim’s body because it “had bruises on [the] right and left arm and [the] right and left

leg.” He also testified that nothing happened to the body after its delivery to the funeral

home that would have caused any injury.

Dr. Sam Stout, a biological anthropologist specializing in skeletal biology, testified

that he examined a cross-section of a rib bone from the victim’s body to determine whether

it was osteoporotic. He stated that the cortical bone portion of the sample was “right at the

average for a metabolically normal person between the ages of thirty and thirty-nine.” His

examination did not reveal indications of osteopenic or osteoporotic ribs.

On cross-examination, Dr. Stout acknowledged that, as a forensic anthropologist, he

does not make diagnoses of osteoporosis. He explained that “osteoporosis is kind of a

potpourri of diseases actually and all [he was] addressing is how much bone.”

Robert Casey testified that he was working as a rescue technician on a rescue truck

in Johnson City in November 2003. He responded to the call received about the victim. At

the scene, he “found a female patient lying supine on the floor, unconscious, unresponsive,

with no pulse, no respiratory effort and there [were] two gentlemen on the scene.” One of

the men, who identified himself as a doctor, was performing CPR chest compressions on the

victim. Casey went to the victim’s head and began bag-valve mask ventilation. The

ambulance crew arrived shortly thereafter and intubated the victim while Casey took over the

CPR compressions.

On cross-examination, Casey acknowledged having given a written statement to the

police. The statement, admitted as an exhibit, is dated November 20, 2003. The statement

provides as follows:

I received a call to #2 Whalen Ct. on an unconscious female that may have

been in cardiac arrest. I was advised that there was a physician on scene. I

arrived and the physician’s wife met me at the door. She stated, “Go up the

hallway and take a right into the bathroom.” There was naked w/f in the floor

on her back. There was a brown haired w/ man approximately 6’ tall in his

-18-

40’s that I think was a physician and he was doing chest compressions. There

was a w/ m with gray or starched [sic] hair in his late 40’s-50’s with glasses

on that was performing mouth to mouth that I think is her husband. The

husband stated that he had been in the tub with her. There was a candle

burning on the tub in the far back right hand corner. The husband stated he

had been out of the tub for 20 minutes. The husband stated he had found her

in the tub but not under the water. The husband stated that he had pulled her

out of the tub and into [sic] the floor. The doctor stated that when he got there

she had a pulse. I checked her pulse upon arrival and found none. I took over

CPR and found that she was full of water. The water level in the tub was

below the jets. I turned her head to get some water out because she had a lot

of water. When I took over CPR the husband went to her feet. He placed a

towel over the woman as I was working on her. The ambulance arrived in 2-3

minutes and EMS Capt. Randy Byrd arrived right after them. Paramedic Jason

Painter tried to intubate and couldn’t because he couldn’t see the vocal cords,

so he asked for suction. Bob Barrett gave him the yaunkeur [sic] and Jason

commenced suction. There was a lot of water that came out of her airway.

Jason then attempted to intubate the second time, which was successful. Jason

then attempted to bag, but you could hear the gurgling with the chest rising.

Jason then requested suction, which was done with a suction catheter. Jason

then suctioned additional water out of her lungs that had a little bit of blood in

it. Jason pulled the suction out and went back to bagging the airway. We then

secured the tube with a tube tamer. ACLS protocol drugs w[ere] then

administered. She was then packaged on a long spine board to the cot in the

livingroom and then to the ambulance. I don’t remember having wet pants or

anybody else having wet clothes when we were done. I spoke with the

doctor’s wife as I was leaving and asked, “What happened?” She stated the

husband had come outside to do some yard work and the daughter had asked,

“Where’s mom?” The husband told her where her mother was. The daughter

went to the bathroom and thought her mother was playing. The daughter

nudged her mom and she went under the water. The daughter then ran out.

Robert Barrett, an EMT with Washington County/Johnson City EMS, testified that

he also responded to the call about the victim. Upon arrival, he found a “thirty-something-

year-old female lying supine on the bathroom floor. [He thought] she had a towel over her

pelvic area, otherwise, she was unclothed. She was in – she was pulseless, had no

respirations, no heartbeat.” He and his partner, Jason Painter, “immediately proceeded into

ACLS protocol, started IV’s, hooked her up to a cardiac monitor.” The only unusual thing

that stood out in his memory about the call was “there was a half full wine glass in the corner

of the bathtub.”

-19-

On cross-examination, Barrett recalled giving a statement to the police in which he

reported the Defendant “talking to his wife trying to get her to come around.” He also told

the police that “the female didn’t appear to have any deformities on her body.”

Jason Wayne Painter, a paramedic for Washington County/Johnson City EMS,

testified that, when he arrived at the scene, he “found a mid-thirty-year-old female patient

lying in the floor and in obvious cardiac arrest. She was pulseless, she was apneic. CPR was

underway by a physician that was described to be a neighbor, and apparently the patient’s

husband.” He put a heart monitor on the victim and noted no electrical activity in the

victim’s heart. He intubated the victim, and he and Barrett

started the IV and [they] started pushing medications or administering

medications for that rhythm. [They] just continued to do CPR and push

medications. [They] put her on a long spine board, same thing that [they] put

people on for car wrecks for spinal immobilization in order to extract her from

that position. [They] got her on the cot, got her to the truck and just proceeded

to do just that all the way to the hospital.

Painter reiterated that there were “no signs of life” when he arrived, and he observed no signs

of life thereafter.

Painter testified that, during the intubation procedure, they suctioned water out of the

victim’s airway and that, after intubation, he “had to suction water out of her lungs through

the ET tube through the endotracheal tube with a suction catheter.” He stated that he did not

know how much water he actually suctioned out, “but it was a substantial amount.” He

emphasized that the water came from the victim’s lungs, not her stomach.

On cross-examination, Painter stated that, when he arrived at the scene, the victim’s

hair was wet. He added that “[t]here was also water on the floor about the head where her

head was laying on the carpet” and described the water temperature as “not cold.” He

confirmed having told the police two days after the event that the doctor who had been there

when he arrived had told him that there was a faint pulse when the doctor arrived. He also

confirmed having told the police that he “[d]id not notice any abnormal bruising.” However,

he explained that, because they were working on a cardiac patient, they “weren’t really

looking for any.”

On redirect examination, Painter recalled asking what had happened upon his arrival

at the scene. The Defendant told Painter that “he had just gotten out of the bath tub, that he

had just taken a bath with her and left her and she was fine.” When Painter asked the

Defendant how long it had been since the Defendant had seen her, the Defendant replied,

“Approximately fifteen minutes.”

-20-

James McCoy testified that he was related to the victim and Gentry because his

mother was the victim’s grandmother’s sister. He took his wife and mother to the emergency

room after the victim was transported to the hospital. He testified that the Defendant “met

us at the door and said she was already gone so then they were saying that she drowned in

her bathtub.” McCoy’s mother accosted the Defendant, stating, “I want to know what

happened to Teresa.” The Defendant told her that they had found the victim in the bathtub,

sitting up, and that she had had a glass of wine and “took a pain pill, maybe even two and he

didn’t know what happened, if she passed out or what.”

Suzanne Payne testified that she had been friends with the victim and the Defendant.

After learning of the victim’s death, she and another friend, Linda, went to visit the

Defendant and Tia. During their visit, the Defendant told her what had happened, explaining

that “he and [the victim] had been intimate in the bathtub and were talking and making plans

for Thanksgiving, and then he went to pick up Tia.” Payne was unsure if the Defendant was

picking up Tia from somewhere in the neighborhood or from the school bus. The Defendant

told her that, “when he came back, he said he had something to do in the basement, so he sent

Tia on up and then Tia found [the victim].”

Sara Rice testified that she knew the victim because her daughter and the victim’s

daughter had been “best friends for about fifteen years.” She stated that she also knew the

victim because she had a cleaning service and cleaned for the victim. Rice testified that the

victim “was in excellent shape.” She described being on the trampoline with the victim and

doing acrobatics in the yard together with their daughters.

During the summer of 2004, Rice had a conversation with the Defendant about the

victim’s death. The Defendant told her that the victim “had an aneurysm and she drowned

in the bathtub.”

Mary Paige Tate testified that she was a neighbor of the Defendant’s and the victim’s

and that she observed the victim turning cartwheels and playing hopscotch with their

daughters. She observed this activity two or three years prior to the victim’s death.

Levonia Presley testified that she and her husband raised the victim from the time the

victim was about six months old, including putting her through college. The victim was

supposed to make a visit to their house on the day of her death. Presley stated that she and

her husband paid for the victim’s funeral. She also stated that the Defendant never offered

to pay for the funeral expenses. The Defendant asked her if the victim’s eyes could be

donated, but Presley refused. Presley testified that she wanted the exhumation and second

autopsy and stated that she was willing to pay for it.

-21-

On cross-examination, Presley stated that she did not know about the conversations

that her husband had with the Defendant about the victim’s funeral.

Lieutenant Steve Sherfey of the Johnson City Police Department7 testified that he

became involved in the case on November 20, 2003, following a call from Dr. Stephens.

There had been no police investigation prior to that time. In conjunction with the

investigation, he took a statement from the Defendant and collected some drugs from him

that he said the victim had been taking. The drugs included calcium tablets and vitamin pills.

Photographs were taken of the bathtub. The Defendant’s statement, taken on November 25,

2003, provides as follows:8

On 11/18/2003, my wife Teresa had taken her little girl to school.

Teresa had gone to a breakfast related to her work, and got home between 9:30

and 10:00 a.m. Between 11:30 a.m. and 1:00 p.m. I was gone from the home.

I got home around 1:00 p.m. Teresa got home around 1:15 p.m. Teresa had

been under stress due to work. Last month both of the drugs she had sold had

been taken off the market (for TennCare). She had been looking for another

job. We take baths together for relaxation. We had sex in the tub. Teresa

wanted to lay in the tub and relax. She often took hot baths. I had gone

downstairs maybe 30-45 minutes. At 2:45, I had gone out to meet our

daughter at the bus stop. When I came back up, the little girl asked “Where’s

mom?” I said that she was upstairs getting ready. The little girl came back out

and said that mom was not responding. The tub leaks and the tub had a foot

of water maybe. When I got upstairs her lips were purple, and her head was

out of the water. I pulled her out and I told Tia (the little girl) to call 911. I

saw our neighbor, Dr. Wiles, come in while I was outside. I told Tia to get the

doctor. When I got her out, I started CPR, I thought I felt a pulse. After I got

her out of the tub, 4 times water came out of her. She threw up one time when

I leaned over. The doctor came in and we continued CPR. The medics came

in and started CPR. I took a nitro pill due to the CPR. It seemed as though

they worked her 20 to 30 minutes. My brother lives nearby and saw the

ambulances and drove me to the hospital. This seemed like another 30

minutes. I believe she had eaten breakfast at her breakfast for Merck. Her

supervisor is Steve Goodrich, 1409 Bayhill Ridge Lane, Knoxville. She

seemed to be in a good state of mind that day other than her job stress. She

often had tension headaches. She would have real tight muscular pain in her

7

Lt. Sherfey also was referred to at trial as Detective Sherfey.

8

A copy of the Defendant’s statement was admitted as an exhibit.

-22-

head. I do not know if she had taken medications on that day. In May of last

year she was put on estrogen patches. She took Zoloft, Xanax, and Ambien to

sleep. She was court ordered to go to a psychologist for counseling, Dr.

Diebold. His office is below Roundtree. He prescribed her Xanax. She had

problems with alcoholism. She had started drinking around 11:00 a.m. There

was a wine glass broken outside the tub. I do not know how much she had

drunk. She had some female surgery (same-day surgery), the doctor was Julie

Markham. My mom had driven us, I had an accident at work and have

seizures and do not drive.

There was probably around 30 minutes from the time I last saw her until

I got back upstairs. There was probably about a foot of water in the tub when

I got out.

Also pursuant to his investigation, Lt. Sherfey obtained several life insurance policies

covering the life of the victim which named the Defendant as beneficiary. These policies

were issued by Connecticut General Life Insurance Company through the Defendant’s

previous employer; Prudential Insurance Company of America through the victim’s

employer; and Fidelity & Guaranty Life Insurance Company. According to Lt. Sherfey, the

amounts paid under these policies were $1,000 (from American Income Life Insurance);

$25,000 (from Connecticut General); $412,428 (from Prudential); $485,995.50 (from

Prudential); $73,995.50 (from Prudential); $214,691.20 (from Fidelity & Guaranty); and

$750 (from Connecticut General); for a total of $1,235,181.25.

Also during Lt. Sherfey’s testimony, the tape of the 911 call was played for the jury.

During the call, Tia is heard crying and telling the dispatcher, “my mom is in the bathtub and

she won’t wake up!” She then says, “my stepdad just got her out of the water and she won’t

wake up.” A male voice is heard in the background and Tia then says, “bring oxygen, he

said” and “he doesn’t know what happened.” Tia reports that her mother’s lips are blue and

again states that “he” pulled her mother out of the water. She reports that “he” said that “she

has a pulse but she’s unconscious.” She tells the dispatcher that her mother is not breathing.

Leann Wiles also speaks to the dispatcher, stating that her husband, a doctor, is assisting in

performing CPR and reports that the victim had a “weak pulse at first.”

On cross-examination, Lt. Sherfey explained that he went to Dr. Wiles’ house on

November 20, 2003, to obtain a statement. He spoke with both Dr. Wiles and Mrs. Wiles and

made notes from their conversation. According to Lt. Sherfey’s notes, Dr. Wiles told him

that the victim was lying next to the tub when he got to the bathroom and began CPR. Lt.

Sherfey stated that he may have misconstrued what Dr. Wiles had said, however, and that

what Dr. Wiles had meant was that he started CPR after the victim was removed from the

-23-

tub. Lt. Sherfey also acknowledged that, in her call to 911, Tia stated that the Defendant had

pulled the victim out of the tub.

As to the life insurance policies, Lt. Sherfey acknowledged that one of the policies

was provided by the victim’s employer, and that the victim was the beneficiary on policies

insuring the life of the Defendant. One of the policies under which money was paid to the

Defendant was a policy primarily insuring the Defendant; the victim was listed as an

“additional insured.” He also acknowledged that the Connecticut General and Prudential

policies contained an “accidental death” provision and that Prudential paid both the face

value and the accidental death benefits. The insurance policy monies were paid into court

following a lawsuit by Gentry on Tia’s behalf against the Defendant and the insurance

companies. The lawsuit subsequently was settled with sums of $500,000 to Tia and

$729,560.89 to the Defendant. The Defendant also divested himself of any interest he had

in the house that the victim owned prior to their marriage and placed the deed in a trust for

the benefit of Tia.

Lt. Sherfey acknowledged that he took two videotaped statements of Tia, one in

January 2004 and one in January 2005.

The State rested its case-in-chief after Lt. Sherfey’s testimony.

The Defendant testified that he was fifty-five years old at the time of trial. Other than

this matter, he never had been charged or convicted of a crime. He continued to live in the

home in which the victim had died, a house he had owned prior to their marriage. He had

been married once previously and had a daughter, Whitney, with his first wife. He had been

employed by Sprint for thirty years when he had a car accident involving a head injury,

leaving him unable to drive for over a year. The injury, combined with an earlier heart

attack, led to his receiving Social Security disability benefits. He received additional income

from several rental properties.

He married the victim in July 2000 after they had been living together for about one

year. Tia, the victim’s daughter, also lived with them. The house in which the victim and

her daughter previously had been living became a rental property. Since the victim’s death,

that property was turned over to Tia. The Defendant retained five other pieces of rental

property that he had acquired prior to his marriage to the victim.

During the marriage, the Defendant and the victim refinanced the victim’s former

house and the rental properties. The refinancing resulted in five loans and one of the

Defendant’s rental properties being paid off. At the time of the victim’s death, all of the

loans were current and all of the rental properties were occupied. The Defendant stated,

-24-

“The rents from the six made all the payments, plus there was money left over so there was

never, never any problem . . . making payments or anything.”

The Defendant confirmed that the victim had worked for Merck as a pharmaceutical

sales representative and made over $80,000 per year.

The Defendant stated that he had a life insurance policy through Sprint and that the

policy also covered the victim. He described the policy as “kind of an automatic thing when

you work there.” The policy included accidental death benefits. The victim was named the

beneficiary on all of the Defendant’s life insurance policies. Similarly, the victim was

covered under a life insurance policy issued in conjunction with her employment, which also

covered the Defendant after their marriage. The Defendant was listed as the beneficiary on

the victim’s life insurance policies.

When the Defendant and the victim refinanced the rental properties, the victim

became concerned about the financial implications and the Defendant’s health problems.

Accordingly, they obtained an additional life insurance policy from Fidelity & Guaranty in

the amount of $200,000. The Defendant was the primary insured at a cost of $305 a month.

When they learned that they could add the victim as an additional insured in the same amount

for $20 a month, they did so. They were each other’s beneficiary. As for contingent

beneficiaries, the Defendant designated his daughter and the victim designated Sam and

Levonia Presley. The Defendant explained this designation as intended to keep Gentry from

Tia’s money in the event of the victim’s death.

After the victim’s death, the Defendant received paperwork from Merck (the victim’s

employer) by which to make a claim on the victim’s life insurance. The Defendant stated

that he did not know how much the policy was for at the time. The paperwork he received

from Merck indicated that the policy proceeds would be in the amount of $462,000.

After receiving the victim’s death certificate, which took several months, the

Defendant also made claims under the Connecticut General (Sprint) and Fidelity & Guaranty

(private) life insurance policies on the victim. Prior to any proceeds being paid to the

Defendant, Gentry sued the Defendant on behalf of Tia for five million dollars. Gentry also

sued the insurance companies, claiming the proceeds. Eventually, the insurance companies

paid the proceeds into court for further disposition pursuant to the litigation.

According to the Defendant, the victim had fallen on the ice in January 2001, resulting

in a fracture to her left humerus near the shoulder. She was treated by Dr. Aiken at Watauga

Orthopaedics but still was having problems with it over a year later. The victim also suffered

-25-

from gynecological problems including heavy bleeding and excruciating pain. She had

surgery for these problems in March 2003. She also suffered from depression.

The Defendant stated that he understood that the victim suffered from low bone

density. According to the Defendant, one of the drugs that the victim represented was

Fosamax, prescribed for low bone density. In conjunction with her job, the victim had a

device that measured bone density in an individual’s foot. She provided this device to one

of her clients, Dr. John Sherrill, so that he could measure the bone density of his nurses and

patients and, if necessary, prescribe Fosamax. The victim also used the device on herself.

The Defendant explained that he and the victim were also close friends with Dr. Sherrill and

his wife, and the Defendant testified: “I didn’t see [the victim] take the test, but I did hear

the discussions because Dr. Sherrill’s wife also had a very low number when she had taken

the test. So I can remember Dr. Sherrill begging both of them to take Fosamax and neither

of them would.”

At the time of her death, the victim had been looking for another job, in part because

TennCare had removed Fosamax and another drug that the victim represented from its

formulary. This was going to result in a large pay cut and possibly the loss of her job. After

her death, the Defendant learned that the victim had also been “put on report” by her

employer for failing to get her paperwork turned in on a timely basis. The Defendant stated

that the victim suffered from stress related to her job.

On the morning of her death, the victim had a breakfast appointment for her work.

After such an appointment, the victim typically remained to speak with doctors about the

drugs she represented and restock the doctors’ shelves with samples. The victim returned

home between 9:30 and 10:00. At about 11:30, the Defendant’s daughter picked him up to

take him to lunch. While they were at lunch, the victim took care of some business at a local

printing shop. The victim had returned home by the time the Defendant arrived after lunch.

The Defendant and the victim took a bath together and had sex. The Defendant left the

bathtub and went downstairs at “a little before 2:00.” At the time the Defendant left the

victim, she had let some of the water out of the tub so that she could refill it with hot water.

According to the Defendant, the victim “loved hot baths” and took them regularly. The

Defendant told the victim he was going to go outside and do some yard work. The couple

had plans to visit the Presleys later that day.

The Defendant raked some leaves and then went to the basement to get the mower.

The garage door was up, and he noticed that it was about 2:45. He walked down to the bus

stop in order to meet Tia. He met Tia and her friend, Katie, and they walked together back

to the house. The Defendant returned to the mower. Tia asked the Defendant where the

victim was, and he told her that she was upstairs getting ready for their visit to the Presleys.

-26-

According to the Defendant, he remained in the basement for what “seemed like

another ten minutes before Tia came downstairs.” He continued:

When Tia came downstairs, Tia was not [sic] excited, which it was surprising,

because I wasn’t in a big hurry. She said, I think her exact words were, “Dale,

I can’t get mom to answer me.” Well, we played a lot of hide and seek and I

thought “Well, we’re just going upstairs to play another game of hide and seek

for her mom.” And I followed Tia up and we went into the bathroom. And

when I went into the bathroom, my wife was there in the tub up, with her head

above water, her lips were quivering and they were blue. I could tell, that was

the first sign that I knew something was wrong was by the color of her lips.

I knew that there was probably a, you know, a problem because she seemed

like she was having a hard time and kind of, not really gasping, but just having

a hard time breathing. I immediately pulled my wife out of the tub.

I leaned over, she was there with her hands down. I grabbed her by her

wrists, I stood up with her. Her – she was facing me, I had her – it would have

been her left wrist in my right hand and her right wrist in my left hand, and I

proceeded to get her out. And it was not a – it’s like Tia described, it was not

just a smooth trying to pick someone up by their wrists and get them out of the

tub, it was not a smooth thing.

....

She was – her hair was wet, she was wet and soapy. So the water – she was

very slick, and when I picked her up, I know that I dropped her left or it would

have been her right wrist slipped out of my hand. I’m right-handed, I was

weaker in my left wrist. Her wrist slipped out and she kind of – I know she

torqued around, I’m not sure if it was that way or that way, but she torqued

around, hit the wall, I got – I kind of moved up against the wall to help steady

her to keep her from falling, and got her other wrist back and then used the

wall to bring her on out.

Tia saw me do [this]. That was – I mean, it was probably during the

time that I was getting, – I mean, as soon as I saw her, I said, “Call 911.”

Tia grabbed one of the – it was a cordless phone, I’m not sure if it was

in the bathroom there, it probably was because her mother probably had it

laying beside the tub somewhere there in the bathroom. She grabbed the

phone, she called 911[.]

-27-

....

[A]s soon as I got her out, I know that she was talking to them, and I’m

thinking – I’m thinking they had told her or she said they want me to stay on

the line. I said, “No, go get David and Leann [Wiles],” because I had just seen

them, I knew they were home because they had just passed me fifteen, twenty

minutes prior to that.

She ran and got David and Leann. She did not come back in the house,

she stayed outside. Leann kept her outside in the front yard.

When asked if the victim’s feet hit the floor as he was extracting her from the tub, the

Defendant answered,

Yes, like I said, she was facing me, and I can remember hesitating when

we got to the edge of that tub, she was out of the tub, but her feet were still

back. I knew that her feet were going to hit that floor, and they did, it was a

very loud thump when both her feet hit the floor.

The Defendant stated that, once he got the victim out of the tub, he began CPR. He

testified,

The first breath that I put into her, she gagged and she threw some water up,

and then after and in just a minute, you know, I kept her head to the side

because I didn’t want to have her head back while she was throwing up. So

I turned her kind of on her side and she threw-up and that would have been

right at the corner.

The Defendant continued CPR. When Dr. Wiles arrived, Dr. Wiles told the Defendant

to stop so that he could check the victim’s carotid pulse. When the Defendant stood up, he

“had a real tightness in [his] chest.” He took a nitroglycerin pill. Dr. Wiles told the

Defendant that the victim had a pulse, so Dr. Wiles began doing the chest compressions, and

the Defendant ventilated the victim.

The Defendant flatly denied that Dr. Wiles assisted him in getting the victim out of

the bathtub. He stated that she was on the floor when Dr. Wiles arrived and that there was

not room for him to assist. Referring to a photograph of the tub area which included a yard-

stick on the floor, the Defendant stated that the space was less than forty inches wide.

Accordingly, the two men moved her two to three feet away from her original position on the

-28-

floor “to where [Dr. Wiles] could be on one side of her and [the Defendant] could be on the

other.”

The Defendant testified: “I love my wife very much and still do. I would have never

done anything that day or any other day to have caused any kind of harm, let alone her death.

I would have never had done anything to have hurt her. I loved her very much.” The

Defendant added that he had not dated since the victim’s death.

The Defendant stated that, at the hospital, he was asked if the victim was an organ

donor. He did not recall any specific mention of the victim’s eyes. The Defendant stated that

he deferred the decision to Tia. He also deferred the choice of the victim’s casket to Tia and

was ready to pay for the funeral. At that point, Sam Presley told him, “No, I want to do that.

That’s the last thing I can do for her.” Accordingly, the Presleys paid for the funeral. The

victim was interred in an above-ground crypt. A year later, the Defendant was served with

a summons on the lawsuit filed by Gentry.

The Defendant was unaware that the victim’s death was under investigation until he

was visited at his home by Lt. Sherfey (then Sergeant) and Investigator Matt Howell. They

asked him what had happened, and he gave them a statement. He also gave them the drugs

the victim had been taking and allowed them to take photographs. He had no further contact

with law enforcement until he was arrested on July 19, 2009.

After the victim died, Tia continued to live at their house for approximately five

weeks, at which time Gentry came and got her.

The lawsuit filed by Gentry was mediated to a settlement in July 2006. According to

the settlement, a trust was set up for Tia in the amount of $500,000 and title to the house

previously owned by the victim.

On cross-examination, the Defendant acknowledged having seen the victim turn

cartwheels. He described the victim as a “very thin woman.” He also stated that they did not

have a gym membership, did not have any “cardio equipment,” and that their lifestyle was

“pretty sedentary.”

The Defendant also stated that the victim appeared fine and in a good mood when he

got out of the bathtub and left her. He considered her death to have resulted from an

accident. He reiterated that he did not kill the victim. He denied hearing a bone break while

Dr. Wiles was performing chest compressions. He reiterated that he got the victim out of the

-29-

bathtub by himself, before Dr. Wiles arrived. He testified:

I would not have just stood there with my hands on my . . . hips and waited for

that, for him to come and help me get my wife out of the tub. I got . . . my

wife out of the tub immediately. And, you know, it wasn’t a – it wasn’t

something I was trying to be slow and gentle with either, sir. I tried to get her

out of the tub as quick as I could and try to get some – some help to her

because, like I said, her lips were blue and quivering and she was in some type

of distress.

He reiterated that he pulled his wife out of the tub by her wrists. He explained that that “was

the fastest and best way [he] knew how.” He also stated that Tia was in the bathroom during

the time he was pulling the victim out of the bathtub.

The Defendant asserted that he and the victim had “a great marriage.” The stress that

the victim had been suffering from was work-related, not marriage-related.

Eddie R. Lawhorn testified that, between 1994 and 2004, he sold mortgage protection

insurance. He met with the Defendant and the victim in March 2002 in order to speak with

them about mortgage protection insurance regarding their recent refinancing of some

properties. He testified that “[t]he primary concern seemed to be from Teresa that her

husband had had heart problems at an early age, which at that time was forty-seven.” The

couple wanted insurance coverage in the amount of $400,000 for fifteen years. Lawhorn was

successful in finding a company willing to issue the policy, with the Defendant being the

primary insured. The premium was too high, however, so the Defendant and the victim

decided to reduce the policy amount to $200,000 on each of them, with the victim designated

as the additional insured. The policy was issued by Fidelity & Guaranty.

Dr. John Sherrill, a family physician practicing in Bristol, Tennessee, testified that the

victim had been his Merck Pharmaceutical representative. He also treated the victim on

occasion but did not act as her gynecologist. They developed a friendship which extended

to their respective spouses. He met the Defendant before the Defendant and the victim were

married.

In conjunction with her job, the victim had a Sahara Densitometry Screening Test

which was a device into which an individual could insert a foot and get a bone density score.

Dr. Sherrill explained, “[A] good score would be %2.5 and if it was 0 it means she’s lower

and if it’s &2.5, those patients are at risk for osteo – well they have osteoporosis.” According

to Dr. Sherrill, the victim’s score was &2.5. He advised her to take Fosamax, to exercise

-30-

regularly, and to take calcium supplements. He described the victim, however, as “a non-

compliant patient.”

Dr. Sherrill stated that the victim had suffered “two previous fractures, one where she

just bumped her – one of the toes, and then the other one, a minor trauma too, she fell

holding her husband’s arm and fractured her left humerus, proximal humerus.” He stated

that the fracture was “indicative of either a low bone mass or osteoporosis in her case, an

osteoporotic fracture.”

On cross-examination, Dr. Sherrill reiterated that the fracture to the victim’s left arm

was “very unusual for someone who doesn’t have . . . osteoporosis or something.” He

acknowledged, however, that he did not witness the fall or treat the fracture. He added that

the victim had other risk factors pointing to osteoporosis: “she’s Caucasian, she was a thin,

slender build, she had a very sedentary lifestyle, [and] she used alcohol on a regular basis.”

He also stated that, “if you have osteoporosis, you don’t take medications, you’re never going

to get true healing.” He testified that he saw the print-out from the victim’s screening test

and that he remembered it because his wife at the time had the same score, and the score was

“fairly unusual” in young women. On further questioning, Dr. Sherrill testified on cross-

examination, “Ladies and gentlemen of the jury, I believe this young woman had

osteoporosis.” He then stated that this was his “professional opinion based on her risk factors

and two previous non-traumatic falls.”

Dr. Thomas Watson Jernigan, board-certified obstetrician gynecologist, testified that

he was the Professor and Interim Chairman of the Department of Obstetrics and Gynecology

at East Tennessee State University. He stated that the defense had contacted him to review

the victim’s case. In so doing, he reviewed “a multiplicity” of the victim’s medical records

and developed a “couple of concerns.” Dr. Jernigan explained:

I am a person that does a lot of menopause counseling, and one of the things

that struck me is that this young lady, thirty-six years of age, had already

sustained an endometrial ablation, that is a lining of the uterus which has been

ablated to prevent bleeding. But if you delved further into the discussions both

from Holston Medical Group and Dr. Markham, her gynecologist, she had

been having hormonal issues throughout most of her time and this may have

led to some of the other problems she was having. One also became concerned

about the bone health of the entire body.

....

-31-

If one were to look at Ms. Larkin’s records over time, one saw that there were

hormonal irregularities throughout her adolescence and in her 20’s and into her

30’s. How does this play a role in bone health? Well, most of us, as we’re

young kids and then running and playing throughout our adolescence, gain

most of our bone density before the age of twenty. And in women, it’s very

important, because right after that period of time, they start losing bone. And

I’ve tried several ways of putting it into simple terms, but the bottom line is,

the running, the active playing, the exercising builds up a deposit and then

mother nature sort of slowly takes out that deposit, and over time, all of us end

up with weakened bones. But in Ms. Larkin’s case, there seemed to be an

issue, not only with consecutive or sequential estrogen fluctuations, but

enough that led to some irregular bleeding which then led to the ablation.

There were times that she didn’t have periods, which would indicate to me that

she had a problem with having enough estrogen. If you really look in the year

2003, Dr. Markham mentioned several times night sweats, hot flashes which

are indicative of a loss of estrogen. Bone needs estrogen. If bone has

estrogen, it builds, it actually slows down the resorption. No estrogen, and

more bone is lost. That’s why we worry about patients who go through a

menopause at fifty having difficulty over the latter parts of their life. Well, in

this case, that started much earlier.

With regard to the medical findings after the victim’s death, Dr. Jernigan testified as follows:

Well, there are a number of things I found important. Let me start with

where I am, and I’m a gynecologist first, that’s what I look at first. So I

looked at a couple of things. First I looked at her female organs and what was

going on there. When they had done the endometrial ablation, the burning of

the inside of the lining to prevent heavy bleeding, there was an inactive

endometrium indicating, again, the lack of estrogen stimulation. Further, the

ovaries, at the time of the first autopsy, were very small, smaller than would

be anticipated for a young woman. Now that’s not an indication of how much

estrogen there was, but it’s another key. We, as clinicians, look for keys. We

try to look at the whole body and then we look at our area and we try to put

this together, and this together, and then we come up with a diagnosis and

that’s how we work. So I looked at that. I also was concerned because she

had already sustained a previous fracture . . . on the left arm. And then there

were other indications of significant fractures which included the right arm and

the sternum, . . . and those concerned me because it went back – and then – so

I went back and looked and said, “Could this person have had poor bone health

starting in adolescence?” And that’s when I started to look at her weight, she

-32-

was Caucasian, she did use alcohol, and she did not take medications

consistently[.]

In reviewing the victim’s medical records from Watauga Orthopaedics, Dr. Jernigan

noted that the victim’s “left shoulder fracture was still giving her problems eighteen months

after the fracture” and that this concerned him. Dr. Jernigan opined:

Based on everything that I read, which included Watauga Orthopaedics,

which included Holston Medical Group, . . . Dr. Markham’s discussion, there’s

no question that there was a problem with her bone structure, which in clinical

terms would be osteoporosis.

On cross-examination, Dr. Jernigan acknowledged that he was not a forensic

pathologist and did not analyze the bone tissue of his live patients. He also acknowledged

that the victim had been treated with an estrogen patch “as late as October of 2003.” He

stated that the records he reviewed did not reflect the length of time that the victim had been

using an estrogen patch. He acknowledged that he did not know how much alcohol the

victim drank. He also acknowledged that, in the medical records that he reviewed, there was

“[n]o documentation of osteoporosis.”

Dr. Ronald Hamdy testified that he was employed by East Tennessee State University

as a Professor of Internal Medicine, the Chair of Geriatric Medicine, and the Director of the

Osteoporosis Center. At defense counsel’s request, he reviewed the autopsy reports and the

medical records of the victim. He testified that, based on recent research,

[t]he diagnosis of osteoporosis now is based on one of two possibilities. If the

patient has sustained a fragility fracture, the diagnosis is osteoporosis. If the

patient hasn’t sustained a fragility fracture, then you look at bone density and

measure the bone density to make the diagnosis. But the presence of a fragility

fracture now is diagnostic of osteoporosis.

As to the definitions of fragility fractures, he explained:

The one that is universally accepted is, it is a fracture that results from a fall

that does not exceed the body height. So if a person is walking, trips over

something, falls, breaks a bone, this is a fragility fracture. If the person is

cleaning the gutters, trips and falls twenty feet, this is a traumatic fracture, it

doesn’t qualify as osteoporosis. Other definitions of osteo-fragility fracture is

a fracture that occurs out of trauma that ordinarily would not result in a

fracture. The orthopedic surgeons like to use the term “low energy” or “low

-33-

impact fracture.” But it’s very important to realize that now, 2011, and it’s

been going on for a few years now, the diagnosis of osteoporosis can be made

just based on the presence of a fragility fracture.

He also explained the differences in cortical and trabecular bone in the context of an

osteoporosis diagnosis:

Essentially, most of the bones we have are a mixture of cortical and

trabecular bone. If you can imagine the bone in the thigh, it’s a very long

tubular. The outer shell is the cortical bone, the inside softness is the

trabecular bone. Trabecular bone has a very rich blood supply. Cortical bone

doesn’t have as rich a blood supply, in fact, the amount of blood going to the

cortical bone is very much reduced. Our bones are all the time turning over

and this is the way we can keep a healthy skeleton. When any part of our bone

is injured, even if it is a small bump against a wall, there is a tiny injury.

Almost immediately, cells are going to come and resorb the bone that is not

healthy, and then, when they are finished resorbing this, other cells are going

to come to build that bone. I’m saying this because this depends a lot on the

blood supply. Because trabecular bone is so vascular, it responds to anything

much quicker than cortical bone, and if you look at what happens normally at

the menopause when estrogen is diminished, the first bone to be affected is the

trabecular bone. And this is why the young ladies are under menopause when

they fall and fracture a bone, it’s usually the wrist, which is mostly trabecular.

As they grow older, they fracture their vertebrae which contain more trabecular

than cortical bone, and when they are in their 60’s, 70’s and 80’s, they fracture

their hip because now the cortical bone is also affected. So the very first bone

that is affected is the trabecular, and I think this bears a lot on – if you look at

the piece of bone after all the soft tissue has been removed, you’re only left

with the shell, and just looking at the shell, you cannot now say the patient has

a lesser quantity than he should have, because this is immaterial as far as a

diagnosis of osteoporosis is concerned. The diagnosis of osteoporosis is based

on the presence of fragility fractures. If the patient does not sustain fracture,

the next best thing we have is to measure the bone density. But we all know

that the bone density is not a good representative, a good predictor of fractures,

and we’ve got lots of studies on virtually all the medications we have to treat

osteoporosis. When we pick up patients with osteoporosis, we measure their

baseline bone density, we treat them, we measure their bone density two, three

years later and we see how many patients have fractured. Even though the

bone mineral density is the best predictor of fracture, it’s not the only one, in

-34-

fact, it doesn’t predict more than about 60% of the fractures, which means that

40% of the fractures cannot be predicted on the bone mass.

Dr. Hamdy also explained that reduced estrogen, such as occurs with menopause, results in

reduced bone mass: “Around the menopause, up to 5% of the skeleton can be lost every year

for 2, 3, 4 years which means that over a period of 3, 4 years, the skeleton can lose about a

third or a quarter of its bone mass, and then after that, it slows down.” He also stated that

ovarian dysfunction can contribute to osteoporosis because it results in less estrogen being

produced.

With respect to the victim, Dr. Hamdy testified that “the diagnosis of osteoporosis is

quite obvious.” He cited her fragility fracture in January 2001 when she fell on the ice and

broke her humerus. Prior to that, in March 1991, she fractured her right fifth toe after she

hit her right foot with a vacuum cleaner. Dr. Hamdy opined that this fracture was “very, very

likely to be another fragility fracture or a low trauma fracture.” He also noted that, eighteen

months after the fragility fracture to her humerus, the victim’s “bone has not healed because

she had osteoporosis.” He also referred to two entries in the victim’s medical records, the

first in December 1995 and the second in May 2000, that were suggestive of the disease of

mastocytosis. Dr. Hamdy stated that mastocytosis “is another condition that leads to

osteoporosis.” While Dr. Hamdy cautioned that it was not definite that the victim suffered

from mastocytosis, the medical records entries were “very, very suggestive of mastocytosis.”

As to the fractures to the victim’s sternum noted during the autopsy, Dr. Hamdy

explained that,

[i]f a health care professional who’s trained in CPR has administered CPR to

a person who looks quite healthy, you are going to use as much force as

possible because you want to compress the heart. . . . And trained health care

professionals know how to differentiate a lady who looks as if she has a fragile

bone, from a lady who looks normal. This is easy because of the age of the

person. But if you are faced with a person who is in her mid-30’s, you have

no way of knowing that the bones are fragile and you may use the maximum

force because your ultimate goal is let’s push whatever blood is in the heart

into the brain.

Thus, the autopsy report indicated that the victim’s “sternal fractures are consistent with a

compressive force applied to the chest as is done in CPR.” He added, “[T]he bones are so

fragile that pulling the arms may induce a fracture.”

-35-

Asked about Dr. Stephens’ notations in her autopsy that the victim had “no marked

osteopenia of the bone,” Dr. Hamdy stated that “[one] cannot say for sure the patient has

osteopenia or not” simply by looking at pieces of bone. He also questioned Dr. Stephens’

notation that “no decrease in [the victim’s] bone strength is encountered,” asking, “[H]ow

did she test it? What sort of bone strength? How did she apply it? And what was she

comparing it to?” As to Dr. Stout’s observation that, “[i]n terms of cortical area and mean

osteon size, the histomorphology of the rib from [the victim] are consistent with a healthy

(skeletally) person in their 30’s,” Dr. Hamdy stated that he had reviewed the rib sections and

agreed with Dr. Stout’s observations but opined that “they’re irrelevant because this lady has

sustained fragility fractures.” He added, “I’ve also got big problems that just the ribs were

looked at. Traditionally, when we do a bone density test, we look at the two hips, we look

at the wrists, and we look at the vertebrae. These are the weight-bearing bones, we in fact

don’t look at the ribs at all.” He continued:

And one thing that I found very interesting is that it does say . . . Dr. Mileusnic

harvested the humerus and where are they and why wasn’t microscopic

examination done on the weight-bearing bones that were harvested? Why just

the rib?. . . It is true, osteoporosis is a systemic disease that affects all the

bones, but to various degrees, and if you just focus on one bone, the data is

irrelevant.

On cross-examination, Dr. Hamdy reiterated that he could not assess the accuracy of

Dr. Stephens’ conclusions about the victim’s bones because the autopsy report did not set

forth the specific data upon which her conclusions were based. He also reiterated that a

fragility fracture resulted in a clinical diagnosis of osteoporosis, regardless of microscopic

examination of the bones. When questioned about the medical records indicating that the

victim had been receiving estrogen therapy, Dr. Hamdy replied that, while he did not measure

the estrogen in the victim’s body, the medical records reflected that “she doesn’t have enough

estrogen.”

Dr. Jonathan Arden testified that he is a forensic pathologist. On behalf of the

defense, he reviewed the victim’s medical records and autopsy reports. He stated that, based

on his review of the microscopic slides of the victim’s ovarian tissue, she “had ovaries that,

anatomically looked like they were not functioning.” This “open[ed] up the whole question

about bone strength and osteoporosis.” As to the fractures to the victim’s arms, Dr. Arden

testified:

If you look at where they are distributed and the nature of those fractures,

they’re very much symmetrical, not identical, but very symmetrical. You have

a high left humeral fracture, and I’m indicating just my left upper arm just

-36-

below the shoulder, the one that Dr. Stephens identified. It had a configuration

that you heard described by, I think both Dr. Marks and Dr. Mileusnic, as

being a spiral fracture and I concur with that, which indicates a twisting

mechanism to make the break. You have a very similar looking fracture on the

upper part of the right humerus, not exactly the same location, it was up a little

higher but very similar also described and shown in the photos and I agree with

what they said that this is a spiral fracture, again, indicative of twisting,

yanking of that arm causing the forces to be in the humerus just below the

shoulder. You have what Dr. Marks described as grinding fractures or

abrasion fractures in the bones on each side of each elbow indicative of one

bone rubbing on another and scraping off some of the surface. Again, related

to and I hope I’m not mischaracterizing but I think Dr. Marks said relating to

a twisting kind of mechanism, and you have that in both elbows on the same

bones in both elbows. You also have the one thing that’s not perfectly

symmetrical, is the – I actually should say one thing’s not symmetrical because

nothing is perfect in life, but only one shoulder had a little bit of the abrasion

in the – in the scapula, the socket where the humerus fits in the shoulder so –

but again, both sides, fractures indicative of twisting mechanisms of both arms.

So, that to me is the first important thing with those fractures because there’s

a pattern there. The body is telling us what happened that both arms were

yanked and twisted. The other thing that is important to me about the arm

fractures, is that the only one of those fractures that was positively identified

in the first autopsy, when the soft tissues were still intact, when you still had

a good shot at seeing the bleeding associated with a real injury, an antemortem

injury, was the left humerus that Dr. Stephens found. And although she

describes it as having hemorrhaged, I can tell you that based – first of all, there

are no photographs of that internally so I can’t assess that independently, there

is one microscopic slide that I recall of the left humerus, the area of the

fracture. And what was notable to me, is that in actuality, on that slide there

is no fracture one showing. I’m not saying there was no fracture in the body,

but the sample that was taken did not include a fracture line, and, in fact, it had

a small amount of what I characterize as a minimal amount of bleeding. So it

– and fractures tend to bleed quite substantially. It had a little bit of bleeding.

It didn’t show the actual fracture line, there was no hemorrhage into the

marrow space where the trabecular bone is that you’ve seen, the little network

or meshwork in there. So the fact that whatever hemorrhage could be

demonstrated was really quite minimal, again, to me is indicative of – these are

perimortem fractures. And the other arm fractures we don’t have the benefit

of the soft tissues, they were discovered later after the decomposition process

had happened, but interestingly to me that you have these symmetric patterns

-37-

of fractures on both arms, in both arms, and you have the one area in which I

can assess it, the bleeding is remarkably minimal, which is indicative of a

perimortem fracture, not something that happened to a live person with full

circulation and blood pressure.

It’s significant to me because my interpretation of the arm fractures is

that they occurred when [the victim] was pulled out of the tub, at a time when

she was either already without pulse or very close to it. We – I was here, you

heard from [the Defendant] about how he felt that [the victim] still may have

been alive up until the moments before she came out of the tub, that she was

having difficulty breathing. So she may have had a heartbeat then. We also

know that by the time she is laid down on the floor and resuscitation is started,

it’s questionable about whether or not a pulse is felt. At some point quickly

thereafter, she required CPR, she needs chest compressions, which is

indicative of her heart is stopped. So the time when she is pulled by the arms

and yanked or jerked, as was said by several of the witnesses out of the tub,

there’s a time at or around when her heart stopped beating. And so they are

significant to me, number one, because I think they’re perimortem and

perimortem fractures would be appropriate for someone whose heart had

already stopped or was just about to stop, and the other significance to me is

that going full circle back to where I started in the case in my first inquiries

back to you, is that the amount of fracturing that she has in those bones,

especially the two spiral fractures of the two upper arms, is much more than

I would expect to happen if you take a normal healthy thirty-six-year-old

woman, grab her by the arms and jerk her up out of the tub to rescue her. And

so that’s another thing that is saying to me, “She has weakened bones.” I

started in the beginning of the case noticing her ovaries, being concerned about

them not being functional, being concerned about her having osteoporosis, so

that all then comes together quite remarkably.

Dr. Arden also opined that the “best explanation” for the fractures to the victim’s

sternum was the CPR efforts, based on the characteristics of the cracks themselves and

“because there was no hemorrhage associated with those fractures.” He explained: “The

fact that there was no hemorrhage despite the fact that there are two cracks in that bone, is

indicative of this being a postmortem fracture.”

Dr. Arden testified that, in his opinion to a reasonable degree of medical certainty,

[A]ll of the fractures of the arms can be explained by the grabbing and jerking

motion getting her up out of the tub. The fractures to the sternum are not

-38-

explained readily by getting her out of the tub but they are explained readily

by the immediately following CPR. The bruises, if you notice, are scattered

in a number of different area[s] of her body. Many of them are overlying what

we call “bony prominences.” Those are the parts on your body where the

bones stick out, places where you are more likely to hit when you fall down.

I am motioning on my elbow, things like elbow, knees, over the pelvic bones,

or the hip joints where you – your bones stick out, you can hit them if you fall.

So many of her bruises were related to areas of bony prominences which is

what you hit if you get – if you fall, if you get dropped, that kind of thing.

Some of them were not and some of them were consistent with her

being grabbed, for instance, that kind of thing. And just one other small item

in terms of the bruises and explaining them, I will also tell you that in two of

the bruises that were looked at microscopically, I saw evidence of some

inflammation that indicates that those were in the neighborhood of several

days old. And so one of the bruises in the scalp, I think it was the right frontal,

and the bruise that was described on the outside of the left breast, there was

microscopic evidence there that those were actually probably a few days old.

So we have to discount those completely from the events in the bathtub and the

events of that day in November. But the rest of them could be from grabbing,

could be from dropping, could be from the attempts to get her out. There’s

nothing about those that would not fit with that explanation.

Asked further about the pattern of the victim’s injuries, Dr. Arden testified:

[I]f you look at the pattern and the distribution of the injuries around her body,

this is not, in my opinion, a pattern of injuries that you see typically in an

assault. If you look at the bruises, for instance, as I said, many over bony

prominences, which are – nothing is impossible. I’m not saying you can’t

possibly get a bruise on your elbow during an assault, but look at the overall

pattern. Look at things like knees and elbows, look at things like the torso.

Look at the ones on the back that are consistent with her being laid down

forcefully in order to do CPR. None of those tells me a story that says, “This

is what normally happens when somebody gets fatally assaulted by blunt

impact. This is what happens when somebody gets beaten to death,” and, of

course, the rest of the autopsy supports that. Does she have any internal head

injuries or brain injuries? No. Does she have any injuries in the face such as

common mechanism of assaultive injuries, somebody gets punched in the

face? No. Does she have evidence of strangulation? And actually, in my

opinion, no, not at all. She has the one little hemorrhage to left of her thyroid

-39-

gland, and I heard Dr. Stephens talk about how that was unusual and she

thought that was concerning. I looked at that picture again just last night, and

there’s a tiny little area of hemorrhage, it doesn’t add up to anything, I can’t

make that into a strangulation. You know, she doesn’t have stab wounds, she

doesn’t have gunshot wounds, you know, that’s obvious. Look on the torso.

Does she have any significant injuries to the internal organs in her torso as if

somebody assaulted her? No. Does she have any internal bleeding that relates

to inflicted injuries? No. She only has the one finding in the heart, which is,

again, if you look at the microscopic slide, a tiny area of minimal escape of red

blood cells. It’s so little that it’s what you could see with resuscitation, it’s

what you could see as a what we call a “postmortem artifact.” It’s not a bruise

of the heart. It’s clearly not a contusion, so she has no internal injuries. She

has no facial injuries. She has no head injuries. She has no brain injuries. She

has a pattern that doesn’t look like somebody who was killed by blunt impact.

Dr. Arden testified that he disagreed with Dr. Mileusnic’s findings and conclusions

concerning the cause and manner of the victim’s death. While he agreed “that drowning has

to be a major consideration here, [he did] not agree that it is proved, as we say beyond a

reasonable medical certainty, the kind of standard we use to render a diagnosis or an

opinion.” He also disagreed that the manner of death was homicide because he did not see

“any injuries that . . . could be interpreted to say they were inflicted upon her and caused her

death.” He emphasized that,

most importantly, [he did not] see clear-cut evidence as to the cause of death

at all. There’s very, very valid question here, and you’ve heard discussion

from the witnesses about drowning, about some form of asphyxia, although

nobody seems to have an answer as to what kind of asphyxia, how that

happened, and if you can’t figure out how it happened, I don’t think you can

say how it happened. I mean, if you don’t know how someone was

asphyxiated, how do you know if it’s an accident or a homicide or what?

He opined that “the best decision for her manner of death . . . is also ‘undetermined.’” He

added: “We simply can’t say, and it’s not because I don’t want to say, it’s because there isn’t

evidence on which to base such a specific conclusion.”

On cross-examination, the State posed the following hypothetical: “had [the victim]

been killed, had she went through someone walking in behind her, grabbing her arms,

pushing them together and shoving her down in the bathtub, could she not have received all

-40-

of these injuries?” Dr. Arden responded as follows:

Simply pushing her down into the bathtub? I think it’s unlikely she’s

going to receive all of these injuries. Under this hypothetical scenario you’ve

just presented to me, she could receive some of these injuries. But, you know,

what you’ve described to me doesn’t sound like something that would have

caused the arm fractures, for instance. It certainly wouldn’t have caused the

sternal fractures. It might have banged her elbows, for instance, but it doesn’t

– it’s not a scenario where you’re banging – I’m using the word “bang”

meaning where she had impacts to cause bruising both front and back. So it

would theoretically explain some of her injuries but not the totality or the

pattern.

Asked about the omission from his written report of any analysis regarding the twisting

injuries near the victim’s elbows, Dr. Arden responded as follows:

I was really concentrating much more on the fractures of the upper portions,

the proximal portions of the two upper arm bones, the humeri. And so, given

that those to me, I thought were really more important, that’s what I

concentrated on. I was aware, of course, of those fractures around the elbow

and especially after hearing Dr. Marks testify and describe his interpretation

of them, I realize that, although I had omitted them here, they fit in with my

original interpretation of the totality of the injuries, which is why I’m

discussing them today.

He reiterated that he took these injuries into account when giving his opinion about the

victim’s injuries during his testimony. He testified that, in his medical opinion, the victim’s

injuries could have been caused by the manner in which the Defendant testified that he got

the victim out of the bathtub.

When asked if he stood by the statement he made in his written report that nothing he

had reviewed suggested foul play or homicide, “given that there was no other evidence of any

type of seizure, no evidence of any other type of a fall, anything of that nature, and she was

found sitting upright and she obviously had water in her lungs with no other explanation of

a medical reason why she died,” Dr. Arden responded as follows:

Actually, yes. She is at that point an unexplained death, something of

a mystery. She doesn’t have any of the kinds of injuries that I would expect

from somebody who was fatally assaulted. As you said that in the predicate

to your question, something about no evidence of a seizure, which actually,

-41-

I’m sorry, sir, is incorrect. She does have a bite mark of her tongue which is

commonly seen with seizure although there is no – there is no positive

anatomical evidence of a seizure . . . . But she did have evidence that is

consistent with having had a seizure. There was nothing that was described to

me of that scene that suggested a struggle, that suggested an assault, so

actually, sir, I still stand by that statement.

Dr. Arden acknowledged that none of the victim’s medical records which he reviewed

stated a diagnosis of osteoporosis. He disagreed with Dr. Marks’ method of testing for

osteoporosis, explaining,

the rib is not the ideal bone to use for testing for osteoporosis and, in fact, I’ve

got literature with me from the anthropology community that points out, that

taking a single section of one rib is not an adequate survey, even if it’s a test

that is valid and legitimate. They make the point that for – and specifically,

it’s published for evidentiary purposes, so this is from the forensic

anthropology literature. It says, ‘You should not take one section from one rib,

there is too much variability within the same rib or rib to rib.’

He added that the examinations performed by Drs. Marks and Stout “don’t address the

medical question on that issue, and it is a medical question.” He added, “The anthropologists

aren’t here making diagnoses medically.”

When asked if he could rule out the victim’s death as a homicide, Dr. Arden testified,

As in categorically, 100% exclude? I can’t do that for anything, neither

can anybody else in this room. There is not 100% certainty in life or medicine.

I can tell you that there is some possibility that this was a homicide. I can tell

you that there is no evidence on which to base that conclusion with a

reasonable medical certainty.

....

It’s clearly an undetermined death to me because there is no significant or

there is no compelling evidence. First of all, I don’t know that she died of

asphyxiation. We have one other thing we haven’t talked about, at least in my

time on the stand here. There was a question raised by Dr. Mileusnic about

whether she has myocarditis and we’ll never know the answer to that question.

That kills people. Some people die from sudden cardiac deaths in the

complete and total absence of a pre-existing, long-standing heart disease

-42-

including young healthy people. Some people have seizure disorders that

weren’t previously diagnosed. Some people slip under the water and drown.

We actually don’t know that she drowned, for one thing, we also don’t know

that she asphyxiated. There’s no proof positive of asphyxiation here. There’s

some mildly suggestive evidence that wasn’t documented, the petechial

hemorrhages. You can see those with heart attacks, and as Dr. Stephens said,

people who have violent vomiting. So there is no evidence on which to base

a conclusion about what caused this woman to die. And if we don’t know

what caused her to die, and there’s no compelling evidence from the scene and

the circumstances about how it happened, whatever it was, then how do we

know what killed her? We don’t.

The defense rested its case after Dr. Arden concluded his testimony. In rebuttal, the

State submitted several pages of notes by Jennifer Parris, a licensed clinical social worker

whom the victim saw for fourteen sessions beginning in June 2002 and continuing into

December 2002. These notes reflect that the victim reported anxiety, depression, insomnia,

panic attacks, and “some marital issues – blended family issues.” The intake form, prepared

in June 2002, indicates that the victim reported no suicidal or homicidal thoughts. The intake

form further reflects that the victim’s “goals” were “deal [with] stepdaughter effectively”;

“problem resolution”; “stress mgt.”; and “coping skills.” The final notes reflecting the

December 18, 2002, session state, “Family conflict/holiday. Focused on coping.”

After deliberating, the jury convicted the Defendant of (1) the first degree

premeditated murder of the victim and (2) one count of insurance fraud. 9 The trial court

subsequently sentenced the Defendant to life imprisonment for the murder and to a

concurrent term of eight years for the fraud conviction. The Defendant filed a timely motion

for new trial, which the trial court heard and eventually denied. The Defendant timely

appealed.

Analysis

Thirteenth Juror 10

The Defendant contends that he is entitled to a new trial because the trial court failed

to perform its duty as thirteenth juror. We agree.

9

During deliberations, the trial court granted a judgment of acquittal on one of the two remaining

insurance fraud counts.

10

We have chosen to address the Defendant’s issues in a sequence other than chronological.

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Tennessee Rule of Criminal Procedure 33(d) provides that the trial court “may grant

a new trial following a verdict of guilty if it disagrees with the jury about the weight of the

evidence.” Tenn. R. Crim. P. 33(d). This Court has described this provision as “the modern

equivalent to the ‘thirteenth juror rule.’” State v. Blanton, 926 S.W.2d 953, 958 (Tenn. Crim.

App. 1996). According to our supreme court, “[t]he thirteenth juror rule originated at

common law and requires the trial court to independently weigh the evidence, pass upon the

issues, and decide whether the verdict is supported by the evidence.” State v. Moats, 906

S.W.2d 431, 433 (Tenn. 1995) (citing Curran v. State, 4 S.W.2d 957, 958 (Tenn. 1928))

(emphasis added). This fundamental duty requires the trial court to determine for itself

whether the evidence adduced at trial establishes guilt beyond a reasonable doubt. See id.

(citing Manning v. State, 292 S.W. 451, 457 (Tenn. 1927)). The trial court’s mandatory

review includes an evaluation of the credibility of the witnesses and an assessment of the

weight of the evidence. See Moats, 906 S.W.2d at 434-35. See also Blanton, 926 S.W.2d

at 958 (thirteenth juror rule imposes a duty on the trial judge to “weigh the evidence and

grant a new trial if the evidence preponderates against the weight of the verdict”).

The reasons underlying the thirteenth juror rule are long-standing, set forth more than

one hundred years ago:

[T]he circuit judge hears the testimony, just as the jury does, sees the

witnesses, and observes their demeanor upon the witness stand; that, by his

training and experience in the weighing of testimony, and the application of

legal rules thereto, he is especially qualified for the correction of any errors

into which the jury by inexperience may have fallen, whereby they have failed,

in their verdict, to reach the justice and right of the case, under the testimony

and the charge of the court; that, in our system, this is one of the functions the

circuit judge possesses and should exercise – as it were, that of a thirteenth

juror. So it is said that he must be satisfied, as well as the jury; that it is his

duty to weigh the evidence, and, if he is dissatisfied with the verdict of the

jury, he should set it aside.

Cumberland Telephone & Telegraph Co. v. Smithwick, 79 S.W. 803, 804 (Tenn. 1904).

In short, the crucial purpose of the thirteenth juror rule “is to be a ‘safeguard . . .

against a miscarriage of justice by the jury.’” Moats, 906 S.W.2d at 434-35 (quoting State

v. Johnson, 692 S.W.2d 412, 415 (Tenn. 1985) (Drowota, J., dissenting)). Thus, “the trial

court’s approval of a criminal verdict as the thirteenth juror is a necessary prerequisite to the

imposition of a valid judgment.” Id. (emphasis added). See also State v. Carter, 896 S.W.2d

119, 122 (Tenn. 1995).

-44-

In order to satisfy its role as thirteenth juror, a trial court simply may overrule a

motion for new trial without comment. In such event, this Court may presume that the trial

court approved the verdict as the thirteenth juror. See Moats, 906 S.W.2d at 434; Carter, 896

S.W.2d at 122. When, however, “the record contains statements by the trial court expressing

dissatisfaction or disagreement with the weight of the evidence or the jury’s verdict, or

statements indicating that the trial court misunderstood its responsibility or authority to act

as the thirteenth juror,” the defendant must be granted a new trial. Moats, 906 S.W.2d at

435-36.

In Moats, the supreme court determined that the trial court misconstrued its

responsibility or authority to act as the thirteenth juror and ordered a new trial, id. at 436,

based on the trial court’s following comments on the record:

[T]he case was a difficult to try. [sic] There was a great deal of evidence that

caused this Court concern, ah, throughout the trial of this case. I am saying

that on the record.

Nevertheless, I think that upon reviewing the testimony, and the

conclusion of the jury, the Court feels that the jury came to what, ah, was a

reasonable conclusion, if they looked at it as the Court feels it must consider

that they looked at it . . . . I don’t think that the Court can willy-nilly decide

that somebody is entitled to a new trial. 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, ah, 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, ah, with

the proof in this matter.

Id. at 433. The supreme court construed these comments as indicating that “the trial court

did not believe that the weight of the evidence supported the jury’s verdict, but refused to

grant a new trial because the evidence was legally sufficient to support the verdict.” Id. at

435. Therefore, our high court concluded, “[T]he trial court misconstrued its authority to

grant a new trial under the thirteenth juror rule.” Id. Accordingly, the defendant was entitled

to a new trial. Id. at 436.

-45-

In the instant case, the trial court heard argument on the motion for new trial on May

2, 2011. The trial court’s comments on that date include the following:

I guess in my thinking over the last several days, and this case has been on my

mind trying to look . . . back and see where a jury could have gone where they

– gone where they went, whatever language that is, and I didn’t think during

that period of time about Mr. Larkin’s testimony, for whatever reason I just

didn’t think about it. And General Brooks is right, the jury had an opportunity

to listen to him; had an opportunity to believe him, or disbelieve him. For

whatever reason it’s apparent they had to disbelieve him. They did not believe

what he testified about. It was purely – purely and I mean pure the most

circumstantial case that anybody practicing law would ever be exposed to. I

– I mean, everything hung upon circumstantial proof. And it’s, when you

think about it the court probably was thinking that the jury may have a hard

time reaching a verdict of guilt in this case maybe because of the way I was

thinking at the time, that wasn’t the truth – I mean, that wasn’t what happened.

They – they reached a verdict and they did it – they did it with some emotion.

The trial judge declined to rule as thirteenth juror on that day, however, and continued his

final ruling until June 3, 2011. At that time, the trial court ruled from the bench as follows:

I guess a long time ago when I started practicing law I took a position I didn’t

always not many times during my life that I probably have not agreed with

juries, but we all disagree sometimes and say, well, we don’t – we don’t agree

– I don’t agree. I’ve had some people convicted I didn’t think should be, but

I’ve had people acquitted I don’t think should have been acquitted. The

problem is when you get one person that puts on a black robe to think that

their ability to comprehend, to analyze, and look at the evidence is so much

greater than twelve folks sitting in that jury box I don’t think is what this

system is about. It’s – it’s about when you – when you see, which very seldom

happens, just grave injustice, and you can argue that maybe in this case. They

– they’ve took evidence of what doctors testified to and that’s all this case is

all about. That’s what made it so unusual. It wasn’t – you know, as cases go

that we’ve had through the years it’s not anything that you’d sit as a spectator

and get excited about like one of those who done it. That’s not what this case

was. It was about twelve folks taking all that evidence they had and going

back there and – and hopefully going through and – and looking at everything.

You’ve got to understand, as you do, that over there there were twenty-four

eyes and twenty-four ears, and here there’s two and that’s all. This jury after

listening to a well tried case, and when I say a well tried case I mean that,

-46-

made a determination that Mr. Larkin committed this offense. You make an

argument that’s very compelling to me, Mr. Slagle, in the sense that the review

on appeal is different from this court’s determination of what you’ve asked me

to do. There’s a lot of difference between that standard we both know. And

that puts Mr. Larkin in a – in a – in a tough situation on appeal as to whether

or not they would disturb that verdict. And I just don’t think I’m in a position

to disturb it. I don’t. I’ve looked at this thing and, you know, he’s – he’s

entitled to a fair trial. He’s not entitled to a perfect trial. Judges in the best

of their wisdom don’t try perfect cases. I kind of get amused sometimes when

I read about cases and they talk about jurors who did what they did and

everything. But, where jurors get where they do is what judges rule on during

the course of a trial. That’s what an appeal is about, it’s not about whether or

not a jury was particularly wrong, or not wrong – right in an appeal, but

whether a judge did what he was supposed to do wearing a black robe. And

I think I’ve done that in this case. I – I think he – he got a fair trial. It wasn’t

perfect. There’s no trial that will ever be. So, I’ve looked through everything

that I’ve – I’ve – you’ve had. He’s had his day in court, and the court’s not

going to disturb that verdict.

(Emphases added). The trial court subsequently entered an order denying the Defendant’s

motion for new trial.

Similar to the trial court’s comments in Moats, these comments reflect the trial court’s

failure to conduct an independent weighing and evaluation of the evidence, including the

credibility of the witnesses, as required by the thirteenth juror rule. The trial court clearly

was surprised by the jury’s verdict, and it struggled to make sense of the verdict by

speculating that the jury simply rejected the Defendant’s testimony. The trial court itself

never made a finding on the Defendant’s credibility. Additionally, even if the trial court

expressly had agreed with the jury on the Defendant’s credibility and found on the record that

the Defendant’s testimony was not credible, once the court decided to comment, the trial

court still had a duty to weigh the various experts’ testimony and determine for itself whether

the State had proved beyond a reasonable doubt that the Defendant committed the

premeditated murder of his wife. The trial court did not undertake this analysis. Instead, the

trial judge deferred to the greater number of eyes and ears possessed by the jurors as

compared to the number he, alone, possessed.

Moreover, instead of focusing on an independent evaluation of witness credibility and

the weight of the evidence as required by the thirteenth juror rule, the trial court focused its

attention simply on whether the Defendant had received a fair trial. The legal definition of

a “fair trial” is much broader and encompasses many more issues than simply the quantity

-47-

and quality of the evidence adduced at trial. Thus, whether a defendant has received a fair

trial is not the issue that must be resolved when a trial court is ruling as the thirteenth juror.

The trial court’s general conclusion that the Defendant received a “fair trial” is not an

adequate substitute for the trial court’s independent analysis of the evidence and witness

credibility and its ensuing adoption or rejection of the jury’s verdict. It is, in fact, the trial

judge’s responsibility to “second-guess” the jury’s twelve sets of eyes and ears with his or

her own single set, because a trial judge’s eyes and ears are complemented by his or her

“training and experience in the weighing of testimony, and the application of legal rules

thereto.” Smithwick, 79 S.W. at 804. A trial judge does not satisfy this responsibility by

stating that he or she is not in the position to overturn a jury’s verdict, nor by concluding that

the trial court’s rulings during the trial resulted in the defendant receiving a fair trial.

In sum, we hold that the trial court did not satisfy its obligation to act as the thirteenth

juror in this matter. Accordingly, we reverse the Defendant’s convictions and remand this

matter for a new trial.

Although we are reversing the Defendant’s convictions on the thirteenth juror issue,

we will address several of the Defendant’s other issues in light of a possible retrial of the

Defendant.

Dr. Mileusnic

Dr. Mileusnic originally was contacted about the victim’s death by the defense in

conjunction with defending the civil proceedings brought by Gentry on Tia’s behalf against

the Defendant. Following discussion, Dr. Mileusnic agreed to be retained by the defense and

to render a professional opinion regarding the cause of the victim’s death. For her review

and professional analysis, the defense provided her with numerous documents and other

materials regarding the victim’s death, including the Defendant’s statement to the police; the

victim’s death certificate and subsequent “Delayed Report of Diagnosis”; the County

Medical Examiner’s Report of Investigation; and the (first) autopsy report and related items.

After reviewing these materials, Dr. Mileusnic generated a written report dated May 31,

2006, which concluded the following: “Based on the currently presented evidence, terminal

cardiac event with agonal seizure and possible drowning cannot be excluded. In summary,

most gross and microscopic findings in support of mechanical asphyxia with blunt trauma

are insufficient to be listed as the main cause of death without [sic] reasonable medical

certainty.” She faxed this report to defense counsel on June 6, 2006. The Defendant utilized

the report in the civil litigation. Importantly, there is no evidence in the record that Dr.

Mileusnic communicated to the Defendant any reservations about the validity of her opinion.

-48-

In spite of her work for the Defendant in the civil case, Dr. Mileusnic began working

with the State in its pursuit of the instant criminal charges within days of submitting her

report to the defense in the civil case. In April 2010, the defense filed a motion “to exclude

Dr. Darinka Mileusnic-Polchan from testifying on behalf of the State” on the bases that (1)

“the State of Tennessee through its agents ha[s] improperly violated a confidential

relationship and a contractual relationship that the defendant had with Dr. Darinka

Mileusnic” and (2) “Dr. Darinka Mileusnic’s conduct was improper, that such conduct

violated a confidential relationship with Dale Larkin and that her conduct breached her

contractual obligation to the defendant.” The trial court held a hearing on the motion, at

which the following proof was adduced:

Lt. Sherfey testified that he began investigating the victim’s death on November 20,

2003, but no charges were filed until July 2009, after the exhumation and second autopsy by

Dr. Mileusnic. Lt. Sherfey acknowledged that, prior to that time, the defense had provided

him a copy of the report Dr. Mileusnic prepared in her capacity as an expert witness for the

Defendant in conjunction with the civil case involving the victim’s death. He testified that,

after receiving the report, he and “Agent Lott” spoke with the district attorney “in reference

to speaking with her about, we were going to set up a meeting in reference to some slides that

she had analyzed and some other things that we saw in the report.” He acknowledged that

the “slides” were ones that had been provided to Dr. Mileusnic by the defense.

Lt. Sherfey stated that he spoke with Dr. Mileusnic on June 22, 2006, in order to set

up a meeting between her and the district attorney general. She advised him that she was

available to meet with the district attorney on June 28, 2006. According to Lt. Sherfey, Dr.

Mileusnic requested at the June 28th meeting “any statements, that kind of thing, that we

might have in the case that she didn’t have.” Accordingly, they provided her with

“everything” in their file, including statements. Lt. Sherfey acknowledged that some of the

statements contained hearsay and that some were from angry family members casting

aspersions on the Defendant and/or his marriage to the victim.

After she had been given the opportunity to review the State’s file, Dr. Mileusnic met

again with District Attorney General Clark in October 2006. Lt. Sherfey and Agent Lott of

the Tennessee Bureau of Investigation also attended this meeting. According to Lt. Sherfey,

District Attorney Clark knew that Dr. Mileusnic was the Defendant’s witness. Lt. Sherfey

testified that Dr. Mileusnic advised them that “she would be willing to pursue it further as

far as an exhumation. There was some unanswered questions from the original autopsy that

she would like to see.” Accordingly, in March 2009, the State filed a petition to exhume the

victim’s body, which the trial court granted. The petition provided that Dr. Mileusnic had

agreed to perform the subsequent autopsy. Based on Dr. Mileusnic’s autopsy and Dr. Murray

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Marks’ report, which Dr. Mileusnic relied upon in conducting the autopsy, the State

subsequently sought an indictment against the Defendant.

Dr. Mileusnic testified and acknowledged that she had been approached by the

defense about the victim’s death. In conjunction with her testimony, several items of

correspondence between her and defense counsel were admitted into evidence. The first

letter from defense counsel to Dr. Mileusnic, dated April 4, 2005, provided as follows:

I enjoyed our conversation Friday regarding my pending case in the

Law Court for Washington County at Johnson City. As I explained to you on

the phone, this case arose from the death of a young woman, my client’s wife,

in the bathtub of their home in Washington County, Tennessee. I am

providing you with a copy of the autopsy report and the statement my client

made to the police regarding the incident. My client’s neighbor, a

neurosurgeon, attempted to revive Ms. Larkin. Obviously his attempts were

unsuccessful.

The young girl who found her mother in the tub is now back in the

custody of her biological father. Her father is attempting to sue my client to

prevent him from recovering over $600,000 in life insurance benefits from

three different policies in which Ms. Larkin named her husband as beneficiary.

This was listed as a suspicious death. These benefits have not been paid at this

time.

I am certain that the State of Tennessee or its expert witness, Dr. Gretel

Stephens saved pictures and other evidence from the autopsy. Since the State

has decided not to pursue charges against my client in this case, I can obtain

their closed file as well as that of Dr. Stephens. Please review these

documents and give me a phone call next week so that we may discuss your

possible participation in this case as an expert witness on behalf of Mr. Larkin.

Also, after a review of this information, I would appreciate an

approximate cost of your services should you be so inclined to take this case.

I shall await your reply.

On April 21, 2005, defense counsel sent another letter to Dr. Mileusnic, which stated the

following:

On April 4, 2005, I sent you some information regarding a statement

given by my client, Dale Larkin, as well as an autopsy concerning the death of

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his wife, Teresa K. Larkin. These documents are the subject matter of a civil

lawsuit as no criminal charges were placed. I do not know if you have had a

chance to review these documents.

If you have had a chance to review the documents, I would appreciate

a phone call or letter from you outlining your review of the documents and

whether or not you would be interested in being employed as an expert on Mr.

Larkin’s behalf in the civil lawsuit brought by the ex-husband of the deceased

and biological father of her only child. I would also appreciate you providing

me with an approximate cost of your time and work you would need to

perform in this case. I would appreciate you contacting me at your earliest

convenience.

On May 5, 2005, defense counsel sent another letter to Dr. Mileusnic, which contained the

following:

Enclosed you will find a check drawn on our escrow account in the

amount of $1,000 to retain your services in the above-captioned civil action.

I have explained to my client that you charge $1,000 to review a case, $2,000

to make a report and $500 per hour for additional work. I am going to need a

court order to release the pictures and microscopic slides as well as the case

file from the Johnson City Police Department. I hope to have that order down

in the near future. I must preserve the chain of custody of the evidence at the

request of the district attorney general. This will require someone transporting

these items other than a member of my firm. I do not know what arrangements

you could make to maintain custody of the slides and pictures. I will discuss

that with you at the next call.

I appreciate your cooperation in looking into this case. I did discuss

with my client how Ms. Larkin was removed from the bathtub. My client said

that he grabbed her by the wrist and pulled her from the bathtub on to the floor

in the bathroom. I do not know whether that information helps you, but I will

have you to talk with my client as soon as possible.

I look forward to working with you on this case.

Dr. Mileusnic acknowledged that she wanted to work for the Defendant to determine

how the victim died. She accepted a $1,000 retainer to do so. In conjunction with her

ensuing work, she sought and obtained from the defense additional information consisting

of forty-four recut slides from Dr. Stephens’ autopsy. As to information she received from

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the defense that was not noted in her written report, she stated, “There was no additional

information regarding that except for maybe a couple of facts about Ms. Larkin and that she

had some medical issues, and that she had potentially a drinking problem.” She recalled

asking defense counsel if the victim had been feeling “bad” or if she had “weak or bad

feelings” in an effort to obtain more information about possible heart problems. She recalled

learning that the victim had complained of “not feeling well for a while.”

Dr. Mileusnic testified that she was contacted by the State after generating her written

report for the Defendant. She stated, “I was contacted with additional information with the

question, please, could you review additional information because the fact was, I did not have

scene investigation available to me originally. So then I accepted to review the additional

scene investigation and the medical records.” Asked by defense counsel why she agreed to

do further work on the matter for the State after having performed work for the Defendant,

she responded:

Well, first of all, you know, I expressed my reservation saying that,

number one, I did review the case, and number two, I never submitted

complete charge on this case. Except for the retainer I never charged [defense

counsel] or his client an additional dime because – and the main reason for that

being, because I just did not feel good about the case, because I knew that I did

not have complete information. That’s number one. Number two, you never

called back, you never contacted me, you never asked me whether additional

funds were really necessary. I wouldn’t have asked for that anyway. And then

number three is that I kind of feel an obligation toward the decedent because

we are – forensic pathologist essentially speak for decedents, not necessarily

for one lawyer or the district attorney or whatever. So I felt obliged that I kind

of owed her to review as much information as possible to render a complete

opinion that could be as honest as possible.

Dr. Mileusnic also contended that she was “not employed by any particular

individual” but by the “people [of] East Tennessee, and particularly Knox and Anderson

County tax payers.” She added, “after a year or actually two years later, I didn’t really feel

any obligation to anybody rather than just the victim.” Dr. Mileusnic also stated that,

initially, she suggested to the State that they hire someone else and that she “basically did

express reservation for [her] further involvement.”

When asked by defense counsel if she had recommended to the State that someone

else do the exhumation and second autopsy “due to [her] connection with [the Defendant],”

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she responded,

Well, first of all, I never met with [the Defendant] and I never met with

[defense counsel] until today.11 As a matter of fact, I never knew what you

looked like until today. So I would not – I would really prefer if you wouldn’t

use my connection or dedication, because there was really nothing except for

your thousand dollar retainer and that was a long time paid. . . . And

throughout the whole time I did express my reservation whether they’re [the

State] sure they want me to get involved. And as I said, you know, I speak for

the victim. I don’t speak for any particular party. And, therefore, they agreed

for me to get involved, and I didn’t have an issue with it either.

Dr. Mileusnic stated that she was present at the exhumation along with members of

her staff. The bill for the second autopsy was $1,300, but she did not know if this bill had

been paid. Dr. Mileusnic stated that she saw no conflict in first working for the Defendant

and then working for the State, asserting that her work for the State “was unrelated to

whatever I did with you.” When asked whether she had communicated to the defense her

later conversations with the State, she stated that she did not remember.

On cross-examination by the State, Dr. Mileusnic testified that she enlisted Dr. Marks’

services and that “his expertise was instrumental in generating the final report and the

opinion.” She also stated that she did not recall signing “any consulting agreement” with the

defense and did not recall any specific conversations with the defense about confidentiality.

She, however, also stated, “generally in my business we always try to keep information

confidential.”

Dr. Mileusnic testified that, after she generated her report for the defense, she was not

surprised to be contacted by the State. She also stated that, although she was entitled to

$2,000 for the report she generated for the defense, she “never did any billing” because she

“did not feel comfortable with the provided information.” She added, “Obviously, there was

much more to the investigation than just the statement of the involved person.” She

described the additional information provided to her by the State as follows:

Well, the new information was the statements from – or actually in our

conversation we addressed the statements from the decedent’s daughter on

how she was found, additional information on the set-up of the bathroom and

the bathtub and how – the layout actually of the bathroom, the conversations

between law enforcement and the involved individuals, from the physician

11

The Defendant was represented by the same lawyer in both the civil lawsuit and the instant trial.

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who performed the resuscitation, all the details, to all the medical records that

were available that I requested as far as her previous health and other

conditions in which might actually give me a little bit more insight into her

overall health.

On redirect, Dr. Mileusnic stated that she had never given the report she generated for

the defense “to anyone else” and that she never discussed her conversations with the defense

“with anyone else.”

After taking the matter under advisement, the trial court later denied the Defendant’s

motion to exclude Dr. Mileusnic as a witness for the State at the Defendant’s criminal trial.

The trial court found that no confidential relationship existed between the doctor and the

defense. The trial court noted that the report Dr. Mileusnic generated for the defense “was

shared with opposing civil litigants, as well as the Johnson City Police Department.” The

trial court also found that the defense had not disclosed any confidential information to Dr.

Mileusnic and that the relationship ended upon the conclusion of the civil proceedings for

which she had been retained.12 Additionally, the trial court found that the State would have

been placed “at a distinct disadvantage” “[i]f they had to go out and get someone else to

perform that work.” The trial court added, “[I]t’s only right I think in this case because I

think this is a doctor who actually works for the people of East Tennessee, that’s what her

relationship is.” The trial court ruled,

[B]ased upon all that I just feel that it was appropriate for the State to contact

her. She was the appropriate person to contact, and to put the State at some

disadvantage because of that would just not be appropriate. More than

anything else I find there’s no confidential relationship, and I think it’s

appropriate that the State of Tennessee to use her as the expert in this case.

Analysis

Generally, we review a trial court’s decision to admit or exclude expert witness

testimony for an abuse of discretion. See State v. Reid, 91 S.W.3d 247, app. 294 (Tenn.

2002); State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993); State v. McCloud, 310 S.W.3d

851, 864 (Tenn. Crim. App. 2009). The Defendant contends, however, that, under the facts

and circumstances of this case, the alleged error is one of constitutional dimension based

upon his due process rights. Initially, we note that whether an expert witness retained by a

party in civil proceedings thereafter should be disqualified from testifying for the State in a

12

We note that the Order of Compromise and Dismissal regarding the conclusion of the civil

litigation was not filed until August 2006.

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subsequent criminal prosecution against the same party appears to be an issue of first

impression before this Court. Indeed, our research has revealed no similar cases in either

state or federal courts.

Before resolving the issue of whether the trial court committed error in denying the

Defendant’s motion, we must determine the applicable legal framework a trial court and an

appellate court should use for analyzing whether an expert witness who first works for the

defendant in a civil matter, and then works for the State in its subsequent pursuit of a

criminal conviction of the defendant, should be permitted to testify against the defendant at

the defendant’s criminal trial. In his opening brief, the Defendant contends that courts should

apply a per se disqualification rule to expert witnesses who switch sides. Given the

complexity of this issue and the multitude of factual scenarios in which it potentially may

arise, we decline to adopt a per se rule of disqualification when an expert witness retained

by a party in a civil matter is then retained by the State in its subsequent prosecution of the

party.

In the alternative, the Defendant argues for application of the “appearance of

impropriety” test, citing Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. 2001). Clinard

addresses the disqualification of lawyers, not expert witnesses. Specifically, a lawyer

represented Party A while the lawyer worked at one law firm. The lawyer subsequently

joined a firm that represented Party B in a lawsuit against Party A. The Tennessee Supreme

Court concluded that the law firm representing Party B properly screened the lawyer who had

earlier represented Party A so as to protect Party A’s client confidences from being

transmitted to the lawyers representing Party B. Nevertheless, the court held that the law

firm had to be disqualified from representing Party B in the lawsuit on the independent basis

of an appearance of impropriety.

The Clinard court emphasized that, in the context of maintaining the integrity of the

legal profession, “‘the mere appearance of impropriety is just as egregious as any actual or

real conflict [of interest].’” Id. at 186 (quoting Lovell v. Winchester, 941 S.W.2d 466, 469

(Ky. 1997)). Thus, the court recognized that, “‘[f]or a law firm to represent one client today,

and the client’s adversary tomorrow in a closely related matter, creates an unsavory

appearance of conflict of interest that is difficult to dispel.’” Id. at 188 (quoting Analytica,

Inc. v. NPD Research, Inc., 708 F.2d 1263, 1269 (7th Cir. 1983)).

To implement the appearance of impropriety standard, the court suggested several

“contours of the rule that aid in its application.” Id. at 187. As relevant to the instant case,

these contours include the application of an objective standard based on the “perspective of

a reasonable layperson.” Id. Importantly, application of the standard so as to avoid the

appearance of impropriety “is intended to promote public confidence in the legal system.”

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Id. Extending Clinard’s rationale to apply to expert witnesses, a trial court would be required

to disqualify an expert witness on the basis of an appearance of impropriety “in those

situations in which an ordinary[,] knowledgeable citizen acquainted with the facts would

conclude that [allowing the expert witness to switch sides] poses a substantial risk of

disservice to either the public interest or the interest of one of the clients.” Id. (internal

quotation marks omitted). See also In re McCarter, 296 B.R. 750, 754 (Bankr. E.D.Tenn.

2003) (disqualifying expert witness who sought to testify for one side while employed by the

other, noting that courts have the discretion to disqualify expert witnesses “as part of the

court’s inherent power to preserve the public confidence in the fairness and integrity of the

judicial proceedings”) (internal quotation marks omitted).

The State does not respond to this argument in its brief but simply asserts that the

applicable analysis focuses on two issues: “(1) whether it was objectively reasonable for the

party seeking disqualification to conclude that a confidential relationship existed; and (2)

whether any confidential or privileged information was disclosed by that party to the expert

that is relevant to the current litigation.” As with most of the cases cited by the Defendant,

in making this argument, the State relies wholly on civil cases addressing the disqualification

of expert witnesses. See Koch Refining Co. v. Boudreaux, 85 F.3d 1178, 1181 (5th Cir.

1996); Hewlett-Packard Co. v. EMC Corp., 330 F.Supp.2d 1087, 1092 (N. D. Cal. 2004);

Mayer v. Dell, 139 F.R.D. 1, 3 (D. D.C. 1991). Even in the context of civil litigation,

however, courts have recognized that the courts have an inherent power “to disqualif

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