Don't Tell a Soul

by M. William Phelps

  Problem for Kim Cargill was that her dog had been missing by then for two months.

  57

  KIM WOULD EXPLAIN LATER THAT she decided to burn Cherry’s body because of a “panicked” condition she found herself in, not knowing what to do.

  One of the reasons Kim gave for burning Cherry’s body was that she realized her “sweat and tears and all of me was on the front and back of her from [doing] CPR.” She added how scared she was of being “connected” to Cherry by the forensic matter she had left behind. So, Kim insisted later, “I burned her shirt.”

  This didn’t make much sense, either. One is to believe that she was so worried about leaving DNA on Cherry’s body, but she actually left a coffee creamer plastic cup between Cherry’s legs?

  It was interesting that Kim later said she burned the clothing, as if to imply that she never intended to burn Cherry’s body. She also said she used “lighter fluid and matches.”

  That lighter fluid, she insisted, had been inside her car with a lot of other junk for a few months. She had once used the lighter fluid to burn up “ant piles” at her house.

  Everything Kimberly Cargill did that night after Cherry died was to cover her tracks and remove herself from being connected to Cherry’s dead body in any way. It was selfish and wrong, and Kim said she knew this, but she did it, anyway.

  In regard to the accelerant, it might be noted that Kim admitted to buying $5 worth of petrol while driving around with Cherry. Looking at that statement, one might ponder: Why buy such a low amount of fuel for a car when you had money in the bank? Playing devil’s advocate, one might guess that the $5 worth of petrol was, in fact, enough to fill a small gasoline can, which one could later use to try and burn up a human body.

  58

  ON SUNDAY, JUNE 20, KIM phoned Angela Hardin. Now, however, Angela noticed, there was a pointed difference in Kim’s demeanor from the previous conversation on Friday night. It stuck out to Angela only because Kim’s deportment was so different from the previous call. Kim wasn’t angry anymore. She was calm—quite mellow, in fact. It was as if a storm had passed. Not quite the attitude of a person who had burned a corpse of a woman who had died in her presence thirty-six or so hours before; not someone who was, according to her own testimony, deathly worried that she was going to be tied to an “accidental” death.

  “Just calling to see if you would reconsider,” Kim asked. She still wanted Angela to join her on Wednesday, to be at the hearing for support.

  “No, I can’t, Kim. Sorry.”

  “Just having a friend there would be great for me. I feel like I need a good friend.”

  “No, Kim.”

  “I tried to get my babysitter to go out to dinner with me on Friday,” Kim said without being prompted in any way. Angela never brought up the babysitter and wasn’t even thinking about that previous call. “I wanted to go over some of the questions I think they might ask her.”

  Angela wondered why Kim was telling her this. It came out of nowhere.

  “I asked her, but she refused,” Kim said. “She wouldn’t go out to eat with me.”

  “Whatever happened with her? Are you still upset?” Angela asked.

  “She wouldn’t go out to dinner with me,” Kim said again. Then: “She told me, instead, that she wanted me to go meet her, and she wanted me to find her a white man.”

  What is this woman talking about now?

  “It was kind of an odd statement,” Angela said later.

  Angela ignored it at first. There was some silence.

  “Did you hear what I said?” Kim asked.

  “Not really.”

  “Well, I’ll repeat it. She said she wanted me to go out and meet her and find her a white man.”

  Angela did not know how to respond.

  The next time Angela would hear Kim’s name, it would be connected to Cherry Walker’s murder, coming over the television set in her living room.

  59

  BY JULY 29, 2010, AN arrest warrant on murder charges had been issued for Kim Cargill. She was in lockup, unable to bail out under that Injury to a Child charge. But now things were far more serious. A day after she had been served with the latest arrest warrant, Kim was arraigned; her bond was set at $1.5 million.

  There was no chance she was going to get out of jail.

  In her booking photo Kim’s blue eyes are penetrating and intense. The look she gave the camera conveyed the firebrand persona she had always projected toward the world. Her lips were flat, her mouth straight, her gaze stoic: Get ready, everyone, because I am not going down without swinging.

  Defiance.

  Diligence.

  Determination.

  This was Kim’s mantra now.

  * * *

  By the end of October, Kim was indicted by a grand jury on first-degree murder charges. She pleaded not guilty and vowed to take her case to the highest court, if the lower courts did not serve the justice she desired.

  Smith County DA Matt Bingham said his intention was to try Kim under capital felony murder charges, which would qualify her case for death penalty status.

  Already at issue was the “cause” of Cherry’s death, which the medical examiner had listed on Cherry Walker’s death certificate as “homicidal violence.” More specifically, grand jurors knew only that Cherry’s death had been caused by “homicidal violence” because of a “specific means unknown” to anyone. Even the pathologist had been unable to determine “manner and means” of death in Cherry’s case. She could guess how Cherry was murdered, but in the end it was all common, educated deduction. Thus, as far as Kim and her attorneys viewed her case, the door to reasonable doubt was opening wider as each day passed and motions were filed.

  During one hearing Dr. Meredith Lann, the ME in charge of conducting Cherry’s autopsy, testified that she could not “rule out asphyxiation as a possible cause of death.... I called it homicidal violence to encompass the nature of the case.”

  Because Cherry’s body had been “found facedown in a remote location and had been burned,” Lann did not think “the cause of death was natural, accidental or suicide.” She added, “I don’t think she did this to herself.”

  If Kim was going to argue that Cherry had a seizure, she had better make certain that any lab results—the science—backed it up. From where Lann stood looking through her microscope, Cherry’s body was “thoroughly tested . . . for medications and to see if her insulin levels were normal, to see if there was any other medical reason for her death”—and the doctor concluded there was not.

  Much of Kim’s mental health behavior throughout her life was submitted to the court as evidence that she had been diagnosed with personality disorders as far back as childhood. Lucky for Kim, Rachel Wilson, her mother, was back in her camp, vowing to stand behind her daughter as Kim faced a future that could include death.

  60

  THE COURT APPOINTED JEFF HAAS and J. Brent Harrison to represent Kim. Kim could not have hired many other attorneys more qualified to defend her, had she the money to bring in a so-called dream team.

  Haas had over thirty years’ experience heading into Kim’s trial, having been licensed in Texas since 1981. In private practice he had represented criminal defendants from charges of resisting arrest, all the way up to capital felony, and everything in between—credit card abuse, kidnapping, home invasion, carjacking. Haas promoted the following pledge on his website: The sooner we get involved, the better your chances are for success. The sentiment did not help Kim much, seeing how late into the game Haas and his team had taken on the case.

  J. Brent Harrison had a résumé that read like an application for Lawyer of the Year. Harrison had taken on cases in well over a dozen counties in Texas since going into private practice as an attorney in the mid-2000s. What would help Kim immensely was that Harrison had been first assistant criminal district attorney in Smith County from 2004 to 2005 and assistant criminal district attorney in the same county from 1996 to 2004. He knew the ins and ou
ts of how a DA thought and worked.

  It was no secret that the evidence against Kim did not look good for her. Medical and forensic evidence, on top of reams of testimony, would point to Kim having means and motive, not to mention painting her in a negative, angry, violent light. One of Kim’s most pressing problems was that Cherry Walker’s body had been burned to hide identity and evidence. How was Kim going to explain that?

  * * *

  Smith County DA Matt Bingham, the man in charge of waging legal war against Kim Cargill, stated that she senselessly and callously murdered a citizen within the boundary lines of the Texas landscape Bingham’s office oversaw, and he was going to do everything in his power to see that she paid dearly for her actions. As he stood before the court on May 7, 2012, after the long and tedious process of choosing a jury and several alternates was finally over, Kim having spent the better part of two years, Bingham had prosecuted five death penalty cases to conviction. In total, Bingham had prosecuted over twenty-five murder and capital murder cases successfully since becoming the DA by the appointment of Texas governor Rick Perry in 2004. He was a proven winner inside a courtroom. For Bingham, part of any successful prosecution began by having the right case to take into a courtroom. Bingham was choosy. He didn’t take every case to court. He chose winners.

  Matt is known as a crime fighter, Bingham’s campaign website stated, and as a strong advocate for the rights of crime victims. He is a conservative Republican, and a strong supporter of the party’s conservative principles.

  Bingham’s co-counsel was April Sikes, a polished, calm and tenacious ADA, the perfect balance to Bingham’s in-your-face style of going after defendants with passion. Sikes, a Baylor University graduate, had twenty-five years’ experience in the courtroom. She had a reputation for using the facts of a case to expose guilt. This was a feat that—although it sounds simple, perhaps even expected—was hard to pull off if the experience wasn’t there to back it up.

  And so the stage was set.

  * * *

  Pretrial motions and hearings had started back in January 2011. Here they were, almost a year and a half later, ready to square off. Death penalty cases were always double the work—perhaps triple—compared to non–death penalty cases. It’s in the nature of the potential result. Every motion and juror question and sidebar and bench conference took twice as long. Still, by 9:00 A.M., Monday, May 7, 2012, all of the paperwork and arguments and evidentiary debate was done. Judge Jack Skeen Jr. was in charge of watching over the 241st District Court of Smith County, with the official court reporter Christy Humphries by his side. Skeen prepared to hand out jury instructions and have the indictment against Kim Cargill read into the record, along with her plea—as a formality—of not guilty.

  You’d never know it by looking at Kim’s expression as she stared at everyone—a smug grin on her face— but her life was on trial. As Kim sat looking indifferent and determined, dressed in a pink-and-white shirt, this was one situation she could not control. She could not shout her way out of it. She would have to do what she was told or a muzzle and restraints would be used to do it for her.

  With that completed, Skeen offered both sides the opportunity to step forward and begin with opening arguments.

  * * *

  Standing at a lectern, in a gray suit, white shirt, black-and-white tie, his shiny bald head reflecting the lights above, DA Matt Bingham began with the victim, Cherry Walker. He detailed Cherry’s life, focusing on her low IQ, the fact that she was just starting out in life on her own at thirty-eight years of age. He reminded jurors that this was a woman, an “adult,” with “the overall adaptive functioning equivalent to that of a nine-year-old.” However, what Cherry “lacked” in education and ability and everyday functioning within her age percentile, Bingham made sure to point out, “she made up for . . . with her heart.”

  The DA next moved on to Kim Cargill. She was forty-five years old as she sat and listened. Her dark-blond hair flowed feathery over her shoulders as she stared at Bingham without reaction and he tore into her character.

  Bingham went through each of her husbands. Named each man. He spoke of Kim having four children with four different men. Her oldest child, Travis, was now a man at twenty-one. Blake, at seventeen, was ready to turn eighteen and become an adult himself. These were not children anymore, cowing to an abusive woman beating them at whim; they were tough, strong and ready to testify against the woman who had given them life.

  The trial, Bingham explained, was going to focus mainly on Kim’s then six-year-old son, Timmy, who “was removed from her home . . . just fifteen days before Cherry Walker was murdered.”

  Bingham talked “timeline” next.

  He spoke of the child support “she would be paying” for two kids.

  How the state got involved and found out she was leaving Timmy with Cherry.

  How the court had issued an “order of protection of a child” in Timmy’s case.

  How Forrest Garner was going to get full custody.

  How the walls were closing in on Kim Cargill, come June 18, 2010, the last time Cherry Walker walked the earth alive.

  How Kim’s anger, narcissism and lack of self-control drove her to commit the ultimate act.

  How she tried to cover it up.

  How, for Kim Cargill, during that week in June 2010, when her world crumbled, it was “full steam ahead.” She needed to react, to do something, to make somebody pay for what had gone wrong in her life.

  On the last day Cherry Walker was alive, Bingham mentioned, Kim Cargill spent the entire day, while at work, calling scores of people, spewing her rage. It was Cherry’s fault. When Cherry was served with that subpoena in front of Paula Wheeler on the morning of June 18, Kim realized her charade was over—unless, that is, she did something about it.

  Her character was put into question repeatedly: “How does a lady [go] to an apartment with a random mentally retarded girl and just leave their child with them?”

  An opening argument is not considered evidence—and never should be—but it is a statement of the facts as the lawyer giving the argument sees them. As Bingham went on, he focused on June 18, 2010, showing how everything Kim Cargill had done up until that day led to her being faced with the reality that if Cherry Walker gave testimony at the hearing five days hence, on June 23, Kim was going to lose everything.

  The lure, Bingham explained, wasn’t dinner, as Kim Cargill had told everyone she had contacted that day and night. No, it was offering to pay Cherry to clean her house. Kim Cargill knew Cherry had an affinity for cleaning and cleaning supplies and she used this against her, a trail of crumbs to lure Cherry toward her death.

  Bingham moved over to a whiteboard to the right of the lectern and pointed at the cold, hard evidence. He noted how his investigators went to “fifty-eight” different convenience stores that Kim Cargill might have stopped at on the night she killed Cherry Walker. They searched for video. Bingham focused on that window of time between 8:02 P.M. and 12:33 A.M., when Kim called her boss, who had been calling all night long.

  Bingham mentioned the “supposed” missing dog, giving a slight indication in his voice that he wouldn’t put it past Kim Cargill to have made the dog go away herself, since her son Brian had loved it so much and she would later need a reason to step into the WPD.

  The murder scene, or dump site, was up next.

  Then all the DNA she left behind.

  The way in which Cherry’s body was burned.

  The autopsy, which “showed asphyxia components . . . because there were hemorrhages within the membranes that overlie the eyes and the eyelids,” Bingham told jurors, a fact that proved that Cherry Walker had been strangled. The image was of a strawberry—the inside portion—the white of Cherry’s eyes, dotted and speckled with burst red blood vessels, among the white portion of the eyeball.

  Many jurors winced at these descriptions, knowing that photos would come when experts took the stand.

  Near the end of his opening
statement, Bingham told jurors that the defense didn’t have to make an opening statement or even present witnesses. However, if they did, Bingham stated with authority, he encouraged each juror to “demand answers” from the defendant and her attorneys regarding the phone calls, the creamer cup and Kim Cargill’s statements to Paula Wheeler. Those were the three items that, even by themselves, proved guilt in this case.

  61

  AFTER BINGHAM FINISHED, JUDGE SKEEN asked Kim Cargill’s attorneys if they were going to make an opening statement.

  “Your Honor,” Jeff Haas said, “we are going to reserve our option.”

  Interesting approach: no opening statement from the defense. Did it express confidence or trepidation?

  With a few legal matters settled, Matt Bingham called the DA’s first witness, Dr. Richard Wilson, who had treated Cherry Walker at one time. The reason Wilson was on the stand was to prove that Cherry Walker was mentally challenged.

  Brent Harrison focused his cross-examination on pointing out the doctor had not known Cherry by memory. He had to study old reports in order to familiarize himself with her case. Then, grasping at the chief theme of Kim Cargill’s defense, Harrison asked the doctor if Cherry had “developed major motor seizures” when she was sixteen years old.

  The doctor read from his report, which indicated that Cherry had indeed suffered from seizures then.

  With that, Harrison said he was done.

  * * *

  Bingham brought in a Verizon Wireless analyst, Jennifer Dalmida. Her testimony was tedious, but very necessary. As Dalmida talked jurors through the calls exchanged between Cherry and Kim on June 18, Bingham presented fifteen “blown-up images with cell phone records printed on them,” and asked Dalmida to point out certain numbers—Cherry’s and Kim’s—for jurors.

  Brent Harrison stood and said, “Tell me your last name one more time.”

  “Dalmida.”

  “Miss Dalmida, how bad would it be if you missed your six o’clock flight? Would it be pretty bad?”