Don't Tell a Soul

by M. William Phelps

  “Yeah.”

  “You’re not going to miss it,” Harrison said, before adding he had one question for the witness. “What do your records show when this account was opened?”

  “It shows an effective date.”

  “And what was the effective date that this account was opened?”

  “August 25, 2003.”

  “Thank you, ma’am.”

  It was rather compelling that just by asking a question, a lawyer could make a date sound as though it meant something—when, in fact, it did not.

  * * *

  The next witness, a cop, talked about text messages and how the police retrieved them. As witnesses came in and testified, Kim Cargill wrote copious notes on a yellow legal pad in front of her, perhaps venting her anger as each witness told his or her story.

  As the day wound down, outside the presence of the jury, the lawyers discussed one particular text message. A “family member” had sent Kim Cargill a text that spoke of how morally wrong and unfair it was for her to spend the child support money she received, which came from one husband, on a lawyer to fight charges of her beating one of her children from another husband. That family member was texting Kim to say it just didn’t seem right that she was doing such a thing.

  What Bingham focused on with this law enforcement witness was how the defendant would delete the texts she had sent, but she would keep many of the responses. It was pure manipulation, Bingham argued. It showed only one side of a conversation.

  Ending the day, Bingham said to the judge, “That part [in the text] about beating her child—we can save it for punishment when deciding to send her to death row!”

  As his first day of witnesses proved, Matt Bingham was playing for keeps.

  62

  DAY TWO BROUGHT LAURA GILLISPIE, the ETMC clinic manager who spoke to Kim Cargill on the phone numerous times. Gillispie explained that Kim would not leave her alone and kept calling the office, threatening her, and being vulgar, crass and menacing. Gillispie told jurors she had been instructed not to give Kim any information about her son’s care at the clinic. Gillispie detailed one of those June 18 calls in which Kim was explosive and angry and screaming, telling jurors she yelled for almost twenty minutes straight.

  Listening, Kim shook her head, as if to say no, that was not how it went down.

  Kim’s attorneys chose to pass the witness.

  * * *

  From this point forward, Bingham and Sikes paraded a litany of witnesses in and out of the box. Each witness had an anecdote to tell explaining how volatile and violent and angry Kim Cargill was when she didn’t get her way. There seemed to be no friend or foe untouched by her routine and repeated acts of aggression.

  Jurors heard from Gina Vestal, who placed the nurses at hospitals for Excel Staffing; Sonya Burton, Cherry’s hairstylist; Angie Grant, an RN at ETMC, who verified Kim’s schedule for June 18; Angela Hardin, who buried Kim with her blow-by-blow account of the phone calls she received from her on June 18. Here, Angela explained, Kim had said “odd” things and planted certain ideas in Hardin’s mind. Then, in a complete turnaround, during a second call on June 20, Angela described how Kim had suddenly become a happy-go-lucky, calm and cool friend looking for support.

  All of the testimony was damaging to Kim Cargill. The fact that she sat there in her purple blouse and shook her head repeatedly, grimaced and grit her teeth, did nothing to change the facts of this case.

  * * *

  Near the close of day two, one of Kim Cargill’s neighbors sat in the witness chair. All April Sikes had to do was ask the right question and stand aside. The facts would explain all there was to understand about Kim Cargill, her demeanor, who she actually was and her movements the day after Cherry Walker had been murdered.

  Sikes brought up June 19, 2010, that Saturday morning. Kim’s neighbor told jurors that she had worked the graveyard shift overnight and got home around seven-thirty in the morning. As the neighbor pulled into her driveway, Kim pulled out of hers, parked in front of the neighbor’s and rolled her window down.

  The neighbor approached Kim as she sat in the driver’s seat.

  “My grass is getting high,” Kim said. “Somebody (Kim gave the neighbor the name) is on his way to mow it.”

  “Okay, Kim. No problem.”

  The neighbor explained to jurors that it was odd to see Kim Cargill out so early on her day off. She asked Kim why she was up. “And she said that she was going to ‘clean her car,’” before adding, “‘I didn’t sleep well last night.’” Kim also mentioned something about being financially strapped and being late on her house payments.

  The neighbor was tired. She wanted to get inside, get cleaned up and head off to bed. But Kim Cargill wanted to chat. She mentioned the imminent custody hearing and asked the neighbor if she would mind coming to the hearing on her behalf. She said how upset she was about her ex wanting custody and she needed all the help she could muster. Then she started crying. The neighbor, a mother herself, hugged her because she felt bad for her.

  “So, can you testify on my behalf?” Kim asked after the hug.

  “I’ll have to think about it, Kim. . . . I really don’t feel we’re close enough, and I rarely see your kids, you know.”

  The witness then explained that Kim had texted and called her all that week leading up to Wednesday (the day of the hearing), but the neighbor avoided the calls and disregarded the texts.

  Kim Cargill’s attorneys asked a few questions—all inconsequential—and passed the witness.

  63

  ON MAY 9, 2012, PAULA Wheeler told her story of being Cherry Walker’s caretaker, seeing Cherry every weekday for months, and being with Cherry on the day in question, June 18, when Cherry received the subpoena. Wheeler noted how Kim Cargill started calling Cherry and badgering her about testifying. From the opening few minutes it was clear that Wheeler’s testimony was disturbing in the simple way that it outlined how Kim treated Cherry as her personal babysitter and often left Timmy with her for days on end, without calling or texting or saying where she was or when she would return. It gave the jury a sense that Kim did not care about her child or Cherry. But even more, Wheeler humanized Cherry in a way that only someone who loved her and spent time with her could. It was obvious from the witness’s reaction to some of the more personal questions about Cherry that she was deeply troubled by Cherry’s death.

  One of the more damaging pieces of information Wheeler related to jurors—refuting the notion that Cherry had a seizure and basically died in Kim’s arms— was that when Cherry became upset, she shook. She didn’t have a violent, grand mal seizure or an epileptic fit of any kind. Her body simply shook.

  Additional relevant testimony Wheeler provided was how Kim had tried to claim that the only reason Cherry was being made to testify against her was “so they could make [Kim] look bad.” Wheeler explained how Kim worked hard that day to try and convince Cherry not to testify and also to convince Wheeler that all the testimony would do would be to upset Cherry.

  When Paula Wheeler talked about dropping Cherry off at the beauty parlor that Friday, she broke down in tears, reliving that last moment she saw Cherry, adding how nervous and uncertain Cherry seemed to be when getting out of the vehicle. It was devastating for her to learn that Cherry had been the victim of a murder, her body burned.

  * * *

  The defense did not challenge Wheeler much, save for asking her if she knew of any medications Cherry had been taking. Then the defense lawyer asked a few questions pertaining to Cherry’s babysitting duties and passed the witness.

  On redirect Matt Bingham asked Wheeler if she knew of the medications Cherry was taking and could explain them to jurors. This was an important question for the purpose of showing that if Cherry had been suffering seizures, she would surely be on medications to control them—especially since Cherry was mandated to partake in regular doctor visits.

  “Okay. Now, Mr. Harrison asked you about the six meds that Cherry was taking
. Two of those were TUMS antacid and one was a vitamin?”

  “Yes,” Wheeler answered.

  “So, if the six meds include the two TUMS and the one vitamin, then I guess . . . yeah, and one is a pill to help her sleep, right?”

  “Yes, that’s true.”

  “So, of the six, two are TUMS, one is a vitamin and the other one is a sleeping aid? . . . We have a sleeping pill. We have a vitamin. And either two or three or so have to do with . . .”

  “Seizures,” Wheeler blurted out.

  Kim Cargill’s lawyers looked at each other.

  “Seizures?” Bingham asked.

  “Yes.”

  “Are all of the rest of them seizure medication?”

  “I don’t really know if all of them . . .”

  “Do you know how many of those are seizure medication?”

  “No.”

  “Because I think one of the questions,” Matt Bingham began to say before he was cut off by an objection, “ultimately, that they’re trying to insinuate is . . .”

  Judge Skeen encouraged the DA to move on.

  After he regrouped, Bingham needed a way out of the seizure medication thread. He needed to explain this. So he keyed, smartly, on Cherry’s diligence where it pertained to her taking medications.

  Wheeler agreed that Cherry was a stickler when it came to taking her meds. She never missed a dose.

  “And did you ever see her have a seizure?” Bingham asked.

  “No.”

  Sometime later: “She didn’t have ‘excitement seizure,’ did she?”

  “No.”

  Wheeler went on to make it very clear that she knew the difference between a seizure and the way in which Cherry shook when she became upset or angry, and that she had never seen Cherry have a seizure during the entire time they were together.

  They talked about Cherry and her shaking next. The image Wheeler gave jurors was that it was highly possible on the night Kim Cargill picked Cherry up that Cherry became upset and started to shake.

  Could this have been that so-called “seizure” the accused was trying to use as her defense?

  Nonetheless, the one problem Bingham had was that Cherry Walker was on several medications for seizures, which meant her doctors were aware of the fact that she could suffer a seizure.

  * * *

  Paula Wheeler’s boss, Pertena Young, came in next and told her story of Kim Cargill threatening her on the phone that day with the claim that she had friends in the DA’s office.

  A comment to which Matt Bingham responded, “Oh, does she?”

  And the courtroom broke out in laughter.

  After that lighter moment Bingham was able to get Pertena Young to conclude that Cherry Walker was a person who could be easily manipulated.

  As each person who knew Cherry testified, one subtle comment after another built upon a foundation of Cherry’s incredibly lovable, however imperfect, character. Cherry was a no-nonsense, free spirit in many repsects, while set in her ways in so many others. She was someone who deeply cared about people and had a tender, touching uniqueness about her that was hard not to see and become affected by—that is, for perhaps everyone except Kim Cargill.

  * * *

  As the day moved on, the cop who pulled Cargill over for speeding told his story, which set up a timeline that was already touched upon. After that, the pizza delivery driver sat and talked about coming upon Cherry’s corpse, which set up an opportunity for the DA to put WPD police officer Joshua Brunt on the stand so he could introduce the crime scene. His statements injected a stark realism into the trial as graphic photos of Cherry Walker’s murdered and burned corpse were displayed.

  In what could be interpreted as an act of pure Oscar potential, as the disturbing images of Cherry’s body presented the courtroom with the brutal depiction of what a murdered and burned body looked like, Kim Cargill turned on the tears and cried. As she did, she hugged herself like a drug addict going through withdrawal. She rocked back and forth in her seat as though the thought of Cherry Walker dead and gone had made her hurt. It was truly embarrassing for some to watch what they saw as an utter display of fakery.

  A host of law enforcement witnesses added his or her particular role in the case. Strategically, perhaps, these witnesses’ observations were short and scripted on the stand. A highlight from this was Larry Smith, a retired special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Special Agent Smith had once specialized in investigating fire deaths. He was an expert in liquids used to ignite fires. The main conclusion the retired agent had come to in this case was that Cherry Walker’s corpse indicated to law enforcement that they were looking at an “incendiary fire,” which meant it had been “intentionally set with the use of combustible materials, liquid—ignitable liquids.” Agent Smith added that the accelerant used in this case could have been “kerosene, gasoline, diesel, heptane, alcohol, rubbing alcohol, wood alcohol, just about anything of that nature.”

  Near the end of his testimony Larry Smith explained that in his experience most people burned bodies to make them “unrecognizable,” and to destroy evidence and identifying markers, such as fingerprints and teeth.

  64

  THE SMITH COUNTY DAO STUCK to a familiar game plan. Character and expert witnesses shuffled throughout, so as not to put anyone to sleep with long periods of monotonous and mind-numbing scientific testimony that, although necessary, could be hard to sit through. There are only so many credentials one can bear to hear from a witness without thinking, Blah-blah-blah. Still, dental records and blood analysis and fingerprint identification on coffee creamer plastic cups (for example), along with a person’s knowledge and education surrounding these topics, were part of this case.

  Jurors would need to understand that Kim Cargill was at that crime scene, had poured an accelerant over Cherry Walker’s body and, after haphazardly leaving her DNA behind, lit Cherry’s corpse on fire. This was the real Kim Cargill, a woman who could strike a match, set the world around her on fire, turn and walk away as if it was just another day. Human life meant very little to Kim Cargill—that much, testimony had emphatically proven, was evident from the way she had treated her own children.

  Through Kim’s June 18 manager at work, the DA was able to show jurors that she had made/sent seventy-eight calls and/or texts throughout her shift. Several of her patients that day, her boss explained, had complained that she was not doing her duty. Kim’s boss had to call Kim Cargill into her office and scold her—to which Kim started crying.

  * * *

  As May 10 came, Detective Noel Martin spoke of processing the Cargill home with his crime scene unit. Martin was followed by several police officers (including lead detective James Riggle), each of whom talked about his or her role in the investigation. There wasn’t much to discuss besides the evidence because Kim Cargill had never granted an interview and she had been arrested for murder while already serving time for Injury to a Child. As each cop walked in and told his or her story, it was like staring at a puzzle and watching all the pieces connect together.

  One dramatic moment came when Noel Martin was questioned by Kim’s attorney about the so-called “sheet” that law enforcement uncovered in her washing machine. Among scores of evidence photos taken inside the Cargill house, photos of the sheet and where it had been found were presented. The implication was that Kim had used the sheet to wrap Cherry up in and transport her, or that it contained some blood or other forensic evidence that would have pointed to a crime taking place inside the house. During direct questioning the evidence bag with the so-called sheet sat in the courtroom as the DA asked Martin questions about it. However, the item was never taken out of the bag by the DA. When Kim’s attorney questioned Martin about the same piece of evidence, however, asking him if it was, in fact, a sheet, the lawyer took the item out of the evidence bag and asked if it hadn’t, instead, appeared to be a tablecloth.

  “I do not know,” Martin answered, shaking his head. “
It looked like a sheet to me. It was a long piece of linen.”

  * * *

  The trial continued on May 11.

  Day five of the trial focused on Kim Cargill’s life leading up to the murder. To explain the type of person she was, the DA had Forrest Garner come in and tell his stories of dealing with an absolute tyrant and a hothead. He portrayed Kim as an angry, bitter, scathing ex who spewed hatred and chaos and violence on what seemed to be a daily basis. Forrest talked of his apartment catching fire after arguing with Kim one night, and how he lived nearly next door to Cherry Walker, but never knew she was watching Timmy. It was all quite damaging to Kim and her character. In all of his testimony Forrest could not—same as just about every character witness the DA had called before him—dredge up one good thing to say about Kim Cargill. She was a menace; she was a disgrace to motherhood. She destroyed lives and made day-to-day living an absolute hell for nearly everyone she came into contact with.

  One chilling point Forrest Garner left the jury with, if only by suggestion, was that if Kim Cargill had displayed all of this destructive and abusive behavior in front of people, what had she actually done to her kids when she knew nobody was watching?

  After Forrest Garner, James Cargill, Blake’s dad, took the stand and told of the havoc she had caused him and his child. Kim was like a hurricane that came in, spinning and spinning, and never left town.

  * * *

  In a smart move the DAO ended this day with Rueon Walker, Cherry’s stepmother, giving the trial a jolt of sentimentality from the victim’s side.

  Rueon talked about Cherry and her final days. She spoke of how Cherry was starting off on her own and how proud the family was that Cherry had worked toward her independence.

  Then DA Matt Bingham brought up those pivotal dates: June 18, 19 and 20. Rueon detailed those days and the anxiety they began to feel as Cherry had not shown up in church on Father’s Day and had not been heard from since Friday. It was numbing, Rueon explained, to learn of her death and how her body had been found on the side of the road, burned like a piece of campfire wood. After all Cherry had been through in her life, to be tossed to the side of the road, it was beyond reprehensible, beyond unimaginable. However, it would turn out for this family that it was not beyond forgivable.