Don't Tell a Soul

by M. William Phelps

  Throughout her testimony Rueon was on the verge of bursting into tears.

  Near the end of the day Bingham asked Rueon about Cherry babysitting Timmy and how the family and Cherry’s doctors had all been against it. They talked about this for some time, with Rueon agreeing that Cherry did not know her own limitations.

  “So the fact that Cherry was willing to keep [Timmy] didn’t mean that the average reasonable person would think that was a good idea.”

  “The reasonable person would not—never, ever—leave a child with Cherry—” Rueon said as Bingham cut her off midsentence.

  “Right.”

  “—under any circumstances.”

  “Yes, ma’am. That’s what I’m getting at. Cherry’s willing to do things that Cherry shouldn’t do?”

  “That’s correct,” Rueon agreed.

  “Mr. Bingham?” Judge Skeen said.

  Bingham looked at the clock. It was Friday, getting late, and they needed to complete a few legal matters without the jury present before recessing until the following Monday morning.

  65

  THE SIXTH DAY OF TRIAL began with Rueon Walker concluding her testimony, providing more of the same sentimental candor and victim background every trial should include. Often the victim gets lost in the headlines and the wacky behavior of the defendant takes precedence. Nobody, though, could accuse Matt Bingham and the state of allowing that to happen. The DAO gave Cherry Walker her due respect and had several witnesses spread throughout the trial describe the kind of person Cherry was, the lives she touched and the devastating loss all felt without her in their lives any longer.

  Joe Mayo, at one time a suspect, told his stories of being close to Cherry, singing karaoke and enjoying that bright smile and calm demeanor Cherry brought into the world. He expressed her love of horror films and ironing clothes and cleaning her apartment and eating out and living on her own. Joe humanized Cherry Walker perhaps more than anyone else could by simply stating facts about her life: the movies she liked, her daily habits, the food she favored. Joe also had a flair for humor at a time when everyone needed a good laugh.

  When Bingham asked him how old he was, the self-proclaimed professional singer said, “I’m thirty-five years old—hard to believe, huh?” Then Joe asked if he could sing in court, but Bingham responded, “Well, probably not, but we know where you’re at in case [we] want to go see you. . . .”

  “Awesome,” Joe said.

  * * *

  Cherry’s neighbor, Marcie Fulton, who had introduced Kim Cargill to her, handing off babysitting responsibilities for Timmy, sat next and explained how Cherry had come to meet Kim and then take care of Timmy. Marcie testified that she had specifically told Kim that Cherry was mentally challenged, and Kim, learning this, did not let it deter her from using Cherry as a babysitter. All Kim wanted was a place to dump her kid—and in Cherry Walker’s clean, small apartment, she found such a place.

  Questioning Marcie, April Sikes focused jurors on June 18. Several of those seventy-eight calls/texts Kim had made were to the neighbor. During one of these calls the neighbor recalled Kim being “pretty upset” and even “frantic.” It was more evidence of Kim being unhinged and in the frame of mind to do just about anything to save herself. In addition, Kim had asked Marcie if she, too, had received “a piece of paper” (subpoena) and what was she planning to do about it.

  Marcie explained to jurors that she had told Kim over the phone she had not been subpoenaed. Not at that time.

  Cargill then told Marcie what needed to be done if and when the subpoena arrived.

  “And what did she tell you?” ADA Sikes asked.

  “She told me to get out of town or go home with her—[because] I was going to get a piece of paper, a subpoena.”

  “Okay,” Sikes said, encouraging her to continue.

  “And she said, ‘I know you don’t want to get that piece of paper, because you. . . . If you do, you’ll have to go to court.’ And that’s about the size of it.”

  In a subtle manner, simply by telling the truth, Marcie Fulton had put into context how manipulative and controlling Kim Cargill could be.

  “So it didn’t sound to you like she wanted you to go to court?”

  “No, she didn’t.”

  “Did Kim Cargill ask you to go to her house?”

  “Yes.”

  “But you didn’t do that?”

  “No . . . ma’am.”

  The implication here, without being stated, was that had Marcie gone over to the Cargill house on that night, or had she received a subpoena that day, there was a chance she might have wound up next to Cherry, dead and burned, on the side of CR 2191.

  Further along, Marcie related that she had spoken to Cherry several times on June 18 and then to Kim Cargill afterward.

  Sikes asked, “Did . . . Cherry [talk] like [she wanted] to go to court?”

  “Cherry asked me if I was going to lie for Kim, and I said no. She said, ‘Well, I won’t, either.’ That’s about what I remembered.”

  It was clear to jurors that Cherry Walker knew exactly what was going on and what Kim Cargill was asking her to do.

  “Okay,” Sikes continued, “do you remember Kim Cargill saying, ‘Cherry talks like you want to go to court. . . .’ Do you remember that?”

  “Yes, I remember that.”

  “And you told her you didn’t want to go to court?”

  “No, I don’t want to be here.”

  “Did Cherry tell you Kim was trying to take her out to dinner?”

  “Yes.”

  After taking the pass from ADA Sikes, Kim Cargill’s lawyer said, “We have no questions, Your Honor.”

  66

  SUZANNE JONES-DAVIS NEXT TOOK HER place in the witness-box. After telling jurors she had been arrested and charged for tampering with evidence, Kim Cargill’s so-called friend explained how she had been swallowed up into the black hole of Kim’s madness after reconnecting with her. They had met in the eighth grade, Suzanne recalled here, but they had not seen each other in many years. Then that wonderful social media invention, the Internet, brought them together for a class reunion. Suzanne had not, she said, been indicted thus far, nor had she cut any deal for her testimony. However, everyone paying attention to her words knew that if she played nicely in the sandbox with the DA, she would catch a break down the road.

  As Suzanne testified throughout the morning session, it became clear that Kim had made up stories about her life in order to draw Suzanne into being a pawn in Kim’s plot to get around how abusively she had treated her kids. Suzanne walked into the situation blind, not knowing anything else besides Kim’s version of events—and she fell for it.

  The witness discussed the letter to the court she had written under Kim’s direction, rewriting and editing, several e-mails they had exchanged, and then explained that she decided to help an old friend, by stretching the truth.

  She and Kim talked on the phone for hours, Suzanne told jurors. One of the main topics was Kim’s worry that she was going to have to pay support for a second child. This was not something Kim was going to be doing, she told her friend. After those conversations Kim would always sign off by saying things such as, “Love you . . . and may God be with you,” plying Suzanne with the phrases she knew she wanted to hear. In Suzanne’s mind Kim Cargill was a sincere, God-fearing woman in need of a sympathetic ear. It seemed that everyone in her old friend’s life was against her.

  As ADA Sikes and Suzanne went back and forth, it was obvious that Kim had used Suzanne, abused her, lied to and cheated her, finally convincing Suzanne to do things Kim Cargill knew were illegal and morally corrupt. True, Suzanne could have said no. She could have walked away, like the Waterton Circle neighbor who stood her ground. However, Kim knew a mark when she saw one. Where Suzanne was concerned, Kim layered on the superficial charm, with large helpings of glibness. She was a master sculptor shaping and molding Suzanne Jones-Davis into the perfect soldier.

  The one bombshell Sikes
brought in through Suzanne was how, on Monday, June 21, Kim called her and asked if she had seen the news about her babysitter being found dead the previous Saturday.

  Only problem with that information: It had not been news yet. Thus, jurors were left with the question: How would Kim Cargill know her babysitter was dead if she had not killed her?

  * * *

  The state next brought in Dr. Meredith Lann, the ME in charge of determining how Cherry Walker died and by what manner. As Lann began her testimony, detailing her long list of credentials, she explained to jurors that she no longer worked for Smith County. In fact, Lann had taken a new job and was now the ME for Alaska. A monumental task, essentially—but a new job that spoke to the respect Meredith Lann had within her field.

  There had been some indication that Lann would wrap up the state’s case. It would be hard to imagine a better way to end than once again introducing jurors to photographs of Cherry Walker as Dr. Lann had last seen her: at autopsy, on her table, in death. The stark images would remind jurors a dead human being was at the center of the trial. Not a name. Not some mentally retarded woman for Kim Cargill to blame her life on. Not a number on a toe tag. But a woman, a sister, a daughter, a friend, a churchgoer, an incredibly special person who was loved and missed.

  After Lann told jurors about manner of death, cause of death and how she drew her conclusions, DA Bingham asked, “And what kind of . . . um, is there a limit on the amount of information that you want, or do you want as much information relevant to . . . [the] case as you could get?”

  “Being a very thorough person, I like to have as much information as possible, especially if there’s a homicidal nature to the death.”

  From that point Lann showed how, through the process of “many phone calls” with law enforcement, whose “field agents do a lot of work there on the front line,” the doctor was able to gather more information that helped her determine cause of death. “And I can spend most of my time just collating all the information to be able to come up with an opinion and my final conclusions.”

  Lann studied X-rays. She scoured medical records. She conferred with detectives. She photographed Cherry Walker’s body and studied the case every which way she could. Although her methods (or the methods of any ME) are never 100 percent guaranteed, she made certain she hadn’t missed anything. Finding out how a person died was a careful process of deduction. Medical examiners took into account every possibility and every potential medical condition and scenario that could have led to a person’s death. Lann left no stone unturned. It was her job to do so.

  Bingham went through a list of the medications Cherry was taking and asked Lann if those would have made a difference in the way the doctor determined manner or cause of death.

  She said certainly they would, adding that she knew Cherry Walker had been treated for seizures and was on meds that could cause seizures. This was not a secret to anyone.

  After discussing how Lann knew about Cherry’s meds and potential seizures, and how Cherry had been treated for seizures in the past and had suffered mild tremors, when all was said and done, it did not matter to Lann. Cherry Walker, in Lann’s opinion, had not died from a seizure. That was clear from the examination of the body and the evidence Lann had collected and analyzed.

  “Do any of those records change your opinions that you’ve made in this case?” Bingham wanted to know.

  “No,” Lann testified.

  The conclusion Lann had come to—and would stand behind with her career—was that Cherry Walker died by means of “homicidal violence.” It was the only conclusion Lann could come to after taking every other scenario and possibility into account.

  “Do you have any question about that in your mind?” Bingham restated.

  “No,” Lann reiterated.

  Bingham asked about the idea Lann had posited from day one indicating there was a chance Cherry Walker might have been asphyxiated. The DA wanted his expert to explain this for jurors so they understood exactly what Lann was saying.

  “At autopsy,” Lann said, “I had a few findings, which although not specific, they’re suggestive of a possible asphyxiation, and they point toward that she might have had a compression to the neck or some sort of portion of her body, which allowed for these small capillaries in her eyelids and eye-lining.... The lining which covered her eyes, called the conjunctiva, had small hemorrhages in them.” She added that when she saw “those little hemorrhages or bleeds in the membrane,” it gave her pause to “wonder. So, like I said, it’s not specific, but it does make me wonder.”

  “Okay. And so . . . I want to make sure I state it correctly . . . the manner of death was ruled homicide.”

  “Yes,” Lann said again.

  Cherry Walker was murdered; there were only so many ways one could articulate that finding.

  In addition, Lann offered, when she checked the toxicology reports, looking for any other sign of what could have been in Cherry’s system and led to her death, Lann found “low” levels of the seizure medication Cherry had been prescribed. The thermal burns Cherry had received from being set on fire had altered Cherry’s blood levels. So it was hard to tell how much medication was actually in her system, but Lann was certain Cherry had indeed taken her seizure meds on the day she died. That fact was clear in the blood work.

  Lann walked jurors through each photo, painstakingly and heart-wrenchingly, detailing what each represented to her in terms of the autopsy and Cherry’s death. As each photo, which was unbearably graphic in nature, came before the courtroom on computer screens, Kim Cargill could not bring herself to look up. She had that yellow notepad in front of her and either doodled on it or simply kept her head down. Here was the end result of Kim’s work on display for everyone to see, and she did not want to be judged for looking at it herself. Instead, she could only squirm in her chair once in a while and look to the side or down at the floor—anywhere else but at the result of what she had done to Cherry Walker.

  Dr. Lann was “confident” in her opinions. She stood by them. Before passing his witness, DA Matt Bingham made the point that Cherry Walker had not died as the result of a seizure. Cherry Walker, according to the ME, was murdered.

  * * *

  Jeff Haas took over the questioning. This was one of the defense’s only chances to present its “seizure” defense during the state’s case. If he could get Lann to admit she had no idea how Cherry died and open up the opportunity for her to have died of a seizure, just as his client had claimed, he would be on the road leading to a verdict of not guilty.

  Within his cross-examination Haas alluded to several theories. One was that Dr. Meredith Lann knew law enforcement was “very interested” in her autopsy results as she worked on Cherry Walker’s body; another was that the ME knew law enforcement had a “person of interest” in the case—a woman who was a nurse.

  Lann said yes to both, adding that this was not so much different from any other homicide case she had been involved in. Cops were always eager to know the results of an autopsy when they suspected foul play. Their interest was typical; it was not an anomaly, as Haas had made it sound in the way he phrased his questions.

  Haas focused on the bruises found on Cherry’s body. Finally he asked if any of the bruises Lann noticed during autopsy would have been “consistent with defensive wounds”?

  “No.”

  Then it was on to the abrasions Lann found on Cherry Walker’s body. The way Haas asked each question made it sound more important than it was. For example, he’d preface his queries by saying, “Now, you said something” or “All right, let’s talk about . . .” These types of phrases, along with the tone Haas used, gave the false impression that what followed was significant—but jurors were smart. They knew smoke when it stunk up a room, and they understood what truly mattered in the end: evidence.

  “All right,” Haas said at one point, “now, you did a real diligent search, I would imagine, to try to determine what the cause of death was, correct?”
r />   “Yes.”

  “And you weren’t able to make a determination, correct?”

  “The cause of death was homicidal violence.”

  How many times did Lann need to say this?

  “But the manner and means or mechanism?” Haas pressed.

  “The manner is homicide. The mechanism, unknown.”

  For instance, the bullet is what kills; the gun it was fired from—or mechanism—becomes insignificant in terms of the outcome.

  “Now, you found no ligature marks around the neck, correct?”

  “Correct.”

  “The windpipe or trachea, was that crushed?”

  “No.”

  “Were there any bruises around the neck that you could see?”

  “No.”

  “What kind of . . . What does ‘undetermined’ mean—just don’t know?”

  “Correct.”

  Another common tactic defense attorneys leaned on was the hypothetical, which Haas then posed. “Are there ways for people to die that you’re not able to determine how they died?”

  “Yes.”

  A few questions later, another wild question that had little to do with the case: “Have you ever heard of sudden-death syndrome?” Haas wanted to know.

  “Yes.”

  He asked Lann to explain.

  “I’ve heard of . . . sudden infant death syndrome,” she corrected, “as a use of a diagnostic tool. But I don’t ever really use it in my practice. It’s a way for people to describe a collapse or cessation of life without any known means or mechanism. . . .”

  “I know you’re talking about homicidal violence, but as far as the means of death, [you] just don’t know, correct?”

  “Yes.”

  “Now, is it possible for someone to die of a seizure?”

  “Yes.”