Upon close examination of the testimony and evidence adduced against Larry, we conclude no rational trier of fact could have found him guilty of second-degree murder beyond a reasonable doubt. While there was certainly evidence indicating he was involved (along with others) in an assault of Tutt, the cause of death was not the assault, but rather a stabbing. Even viewed in the light most favorable to the government, the evidence simply does not sufficiently link Larry with the stabbing. The jury could have concluded the Defendants stayed at Hayes’s shack the night before the murder weapon was found there. But the evidence also demonstrates the murder weapon was not discovered for over twelve hours after the stabbing allegedly occurred, at least three other individuals—Paul Hayes, Jr., his father and his father’s girlfriend—stayed at the shack on the night of April 25, and the shack was freely accessible to all who wished to enter.
The lack of forensic evidence connecting Larry to the killing is also noteworthy. The forensic pathologist stated Tutt lost large amounts of blood, probably two to two and a half quarts, and significant bleeding would have occurred given the nature of the injuries. Indeed, the testimony revealed that blood had covered surrounding tree branches, and yet authorities did not find any of Tutt’s blood on Larry’s clothing or the backpack he constantly carried. Neither could the government establish the time of death. The FBI also did not find any trace evidence from Tutt (i.e. hairs or fibers) n Larry’s possessions and did not find any of Larry’s DNA on Tutt. Lastly, the FBI found no fingerprints on the steak knife.
The most damning bit of evidence against Larry is, of course, Dawes’s testimony -- he observed Henry (described as “the shorter [man]”) and Larry (described as “the taller [man]”) kicking and punching a man matching Tutt’s description around dusk on April 25. Despite the great distance from which Dawes made these observations and the inconsistencies in his statements regarding the number of individuals participating in the assault, we must assume his testimony is true and he did indeed see the Defendants hitting and kicking Tutt that evening. But while that fact incontrovertibly establishes battery of Tutt by the Defendants, it does not, without more, provide sufficient evidence to convict Larry of second-degree murder. Notably, Dawes never testified he saw a weapon of any sort, let alone a steak knife. Moreover, the exculpatory evidence regarding the physical state of Larry’s right hand only two days after the killing must function into the equation and Larry only confessed to buying and drinking “ocean” with Tutt, hardly an admission to second-degree murder.
The Tenth Circuit went on to held that the government could not salvage this convicition under an aiding and abetting theory either. There is a lot of good language in this case for attorneys raising sufficiency claims.