Don't Tell a Soul

by M. William Phelps

  “And if someone dies of a seizure, is that able to be determined?”

  “It’s a diagnosis of exclusion. Seizure is a key cause of death in many circumstances of epileptic individuals, but it requires a full study of previous medical history, account of the individuals present at the time of seizure, as well as review of the autopsy findings and toxicology.”

  Emphasis, perhaps, on the “account of the individuals present,” because several mitigating factors went into a medical examiner pronouncing seizure as the cause of death. Just about all of which, in this case, led Lann to believe, she said again, that it just didn’t happen.

  After her careful, considerate and detailed autopsy, Lann did not believe that Cherry Walker died from a seizure. The evidence just wasn’t there. No matter how the defense attorney presented his case for death by seizure, how one tried to talk it up, which phrases one used and questions one asked, which potential scenarios one hypothesized, the end result was always going to remain the same from where Dr. Lann saw it: Cherry Walker died of homicidal violence, not a seizure.

  Jeff Haas was doing his job as best he could with what he had to work with. A mountain of evidence pointed to Kim Cargill murdering Cherry Walker. No evidence—besides what Kim Cargill suggested—indicated Cherry Walker died of a seizure. When Haas pressed Lann on Cherry perhaps biting her tongue and some potential bruising found on the inside of her mouth—common injuries associated with seizures—Lann said that “evidence” was indeterminate and unsubstantiated. There was no definitive proof that Cherry had any of those injuries, and the minor scarring and bruising inside her mouth could in no way be associated with biting from seizures.

  * * *

  After a long lunch break Matt Bingham took to the floor again. This time, however, he said simply, “Ladies and gentlemen of the jury, the state rests.”

  Judge Skeen recessed until the following morning when, he said, the defense would have the opportunity to present its case. It was clear from what had transpired over the course of the state’s case that the only chance Kim Cargill had was to get up there and tell jurors her story. Would this narcissistic sociopath feel confident enough to spin her tale of woe for jurors?

  67

  AS SHE SAT IN THE witness-box, with her eyes blinking slowly and repeatedly, one could almost sense the uncontrollable, internal spasm of rage bubbling up inside Kim Cargill. A sheriff’s department deputy stood in back of her, just in case she allowed her inner wrath to manifest into something more outwardly physical. Looking at Kim Cargill as she sat in the witness chair and took questions from her attorney on May 16, 2012, one could feel that negative, frenzied energy issuing from her pores. Here was a defendant livid and unnerved by the accusations made against her. She was embarrassed. She was impatient. She was being forced to bite her tongue when her nature was to lash out. Kim Cargill was on the hot seat, feeling the temperature rise through her body like an electric current—and the one thing Kim hated more than perhaps anything else was giving up control.

  Her lawyers had motioned before she sat down for a “directed verdict”—in which the judge would “direct” the jury to come to a particular verdict—of not guilty, but it was a formality that was quickly denied by the judge.

  Brent Harrison, with the polished, gentle and manicured good looks of a soap opera star, took on the task of questioning his client. Kim wore a floral-patterned, long dress, multicolored and soft and soothing, no doubt by design and advice from her lawyers. She spoke softly, in contrast to her regular bombastic and loud voice. Her Texas accent was played for effect, sounding much sweeter than it actually was.

  Harrison asked her to settle in and speak loudly and clearly into the microphone. After she introduced herself, Kim admitted—in dramatic form—to dumping Cherry’s body on the CR 2191. This admission came before telling jurors that story of Cherry having a seizure inside her vehicle and falling onto the ground unconscious, where Kim eventually determined Cherry was dead. She spoke of running for help, but she just could not find a phone or person anywhere. She said she panicked and decided to try to cover it all up because of what people would think, especially since she had that upcoming custody hearing. It was a story that sounded rehearsed and contrived.

  Kim Cargill answered her attorney for about thirty minutes—with the main body of her testimony focused on that tale of Cherry dying inside the car and Kim hitting the panic button four blocks away from a hospital.

  Harrison finally asked, “When you called Suzanne [Jones-Davis], knowing Cherry Walker was dead, did you tell her you hadn’t seen [Cherry on] Friday?”

  “Yes.”

  “Was that a lie?”

  “Yes.”

  “You were with Cherry Walker on June 18, 2010?”

  “Yes.”

  “Were you with her in Smith County, Texas?”

  “Yes.”

  Strangely, Harrison then asked: “She is a deceased individual?”

  “Yes.”

  Ever more strangely: “She was a living individual prior to the time . . . prior to that time on June 18, 2010?”

  “Yes.”

  “Did you kill her?”

  “No.”

  That was it. All finished—at least from the defense’s point of view.

  Now the real test would begin as DA Matt Bingham stood.

  68

  MATT BINGHAM WORE A PATTERNED tie, with alternating dark and light stripes, white shirt and a dark-colored suit jacket. He stood behind the lectern with a determined look on his face. Bingham knew that less was more here. Although it would be hard to quell his emotion, he’d want to avoid a heated cross-examination as much as he could. There was no need to go through and ask Kim about every piece of the story and pick apart her lies, one by one. There would be nothing to gain from such a tedious replaying of the evidence. The best strategy was to pick his arguments smartly and go straight at the facts that would prove Kim Cargill was guilty. The truth, any prosecutor knew, has a way of rising to the surface. All one needs to do when confronting a lying defendant is present the opportunity for her to cut her own throat and she, eventually, will drag that knife across her own skin.

  Bingham began with the obvious. Prior to telling the courtroom, just moments before during her direct examination, who else had Kim Cargill told tales to about Cherry Walker’s seizure?

  There was a thunderous objection from Brent Harrison to the question.

  The judge allowed the question, as long as Bingham kept it to what Kim had told anyone else but her attorneys. That information was, of course, covered under attorney-client privilege.

  Bingham went through a list of possibilities.

  Suzanne?

  “No.”

  The neighbor?

  “No.”

  Michael Darwin?

  “No.”

  “Anyone?”

  “No,” Kim said. She had not told anyone the seizure story.

  “As a matter of fact, your first explanation—one of your explanations—was that she was going out to eat with . . . what?”

  Bingham indicated he needed some help from Kim Cargill.

  “Boyfriend,” Kim finished.

  “‘White boy’? ‘White boy,’ right?” Bingham finished, repeating what Kim had testified to during her direct examination “Remember that?”

  “Boyfriend” was all Kim would divulge.

  “Yeah. And why did you come up with that lie? . . . It’s a lie, isn’t it?”

  “Yes.”

  “And why did you come up with that?”

  “Because that’s actually who she wanted to find that night,” Kim said, contradicting her own testimony.

  “So she still wanted to find the ‘white boy’? Is that your testimony?”

  “Her boyfriend.”

  “Okay,” Bingham conceded, his point clearly made. “Her boyfriend.”

  Kim began to sniffle, sounding as though she was on the verge of tears.

  Bingham seized upon her emotion. “A
nd let me ask you this—You’re up there, and you’re . . . you’re making crying sounds. . . .”

  After an objection, “I’m trying not to,” she answered.

  “Let me ask you then—When you went into the Whitehouse Police Department and you went in there to gather information, where was Cherry Walker’s body?”

  “She was on that country road.”

  “Yeah. She was on the country road burned up, wasn’t she?”

  “Yes.”

  “Why aren’t you crying on the Whitehouse PD video? . . . It’s a lie, isn’t it?”

  “Well, not . . .”

  “Well, is it or isn’t it?”

  “Not exactly.”

  “Oh, really?”

  Kim claimed she was in denial while standing inside the WPD talking about Father’s Day, her two-month-missing dog and how busy the police were on that day.

  Bingham shrugged, knowing he’d revisit the denial comment.

  Kim told jurors she had no idea Cherry was “MR,” adding, “I did not know she had that diagnosis.”

  It was laughable. There were plenty of witnesses on record saying Kim had known this about Cherry and mentioned it on several occasions. That was the thing about chronic liars, Bingham knew. They often had a hard time keeping track of all the lies.

  Bingham let that slide and went back to the denial comment, asking, “Cherry Walker’s life on this earth is over. Why aren’t you crying on that video?”

  “It was an act.”

  “So you’re that good, huh?” Bingham paused. “Is this an act today?”

  “No.”

  “No, it’s not?” Bingham asked, before he added, “So, in front of the jury, when you’re looking at being convicted of capital murder, this is not an act. But you went to the Whitehouse Police Department—knowing that you’ve taken her out there, dumped her body, set it on fire—you’re able to set that aside, right, and just be happy-go-lucky? You’re that good?”

  Kim did not respond.

  “Is it just an act?” Bingham asked again, demanding an answer.

  “I was trying to appear normal.”

  “Well, you did appear normal. . . .”

  This passionate prosecutor, standing in the courtroom as a voice for Cherry Walker, was keen to make clear that Kim Cargill had watched a woman, whom she knew personally, die in her presence the previous night, dumped that same woman’s body on the side of the road and lit it on fire, watched it burn, but then walked into a police station about twelve hours later (by her own account) and acted like a carefree housewife and mother looking for a lost dog, wondering how busy the police department was. If she had been so distraught, as she had now claimed, if she had been so upset and “in denial” over what had transpired just a half day before, here was solid evidence in the form of a videotape showing that it did not take her long to get over it. Thus, why would it be bothering her in this courtroom so many years later? After all, she had spoken to several people after that Friday night and came across as nonchalant and normal, as she had in the video. Why was she feeling that pain so many years later?

  Kim had no answer. However, she did respond to every scenario posed by Bingham. For example, Bingham focused on the lighter fluid she said she’d just happened to have inside her car on the night she needed it to burn Cherry’s body. Bingham, like many, had an issue with this stroke of convenient fortune. Most believed Kim had taken the lighter fluid from her home with the intent to use it on Cherry after she murdered her, or had used that $5 worth of gas she’d purchased that night. So, if she had the lighter fluid inside her car, lighter fluid she had said she used to kill fire ants around her house, Bingham wanted to know why it was in the car.

  “Why didn’t you leave the lighter fluid in your garage, since you burn things around your house?” Bingham asked.

  “Because I-I-I had a little one (meaning Timmy) that I didn’t want-want-want him to get-get-get into it,” Kim answered, nearly stuttering.

  Bingham knew she was lying. But you don’t come out and call the defendant a liar—you show by example.

  “Really?” Bingham said with a sarcastic chuckle. “Well, you had a hypodermic needle sitting on your [kitchen] table. Were you concerned about that?”

  “That probably came from my nursing scrub pockets and he wasn’t there at that time.”

  “And he wasn’t there, either, when it was in your car—the lighter fluid—was he?”

  “It had been in there for quite a while.”

  “Yeah . . . and . . . you want these people to believe sitting here . . . that you left the lighter fluid in your car so your little one wouldn’t get into it?”

  “I had a bunch of stuff in the back of my SUV.”

  This type of ridiculous answer to what were commonsense questions went back and forth, with Bingham winning every time. Kim repeatedly came across as insincere and untrustworthy, answering questions with whatever came to mind.

  * * *

  Another point Bingham brought up was that on no other day in her phone call history—which law enforcement had checked—had Kim Cargill made so many calls while at work. Why was it that she had made so many phone calls the day Cherry Walker had received a subpoena to testify against her?

  After Kim failed to answer, Bingham left jurors with the impression that she was going insane on that day trying to figure out how she could stop Cherry from testifying—the sole reason why she had made so many calls.

  Another solid fact Bingham brought out was how, on that Saturday after Kim admitted to knowing Cherry was dead, she called her neighbor and talked about the hearing scheduled for the following Wednesday. The reason she called, Bingham shouted, was because “You’re still moving on with the hearing.... Cherry Walker is dead, laying [sic] in the dirt, just what you wanted. . . .”

  The defendant said that wasn’t what she wanted.

  “And so what do you say to [your neighbor] when you see her that morning? ‘Hi, how are you doing,’ right?”

  “Yes.”

  “Not crying then, either, are you?”

  “I was pretty stressed.”

  “Oh, I bet you were!”

  Later, Bingham stated in a sardonic tone that Kim was so stressed and upset on that morning after talking to her neighbor that she even went out and washed her car.

  Kim played down every bit of what she did and said and how she acted in front of people throughout that weekend. When backed into a corner, she answered Bingham with “I don’t remember” and “I cannot recall.”

  Under questioning Kim then submitted to Bingham that she was mostly concerned about the court humiliating Cherry—and this was the real reason why she didn’t want her to testify.

  Bingham shook his head. “Well, I know you were real concerned about that,” he said. “It’s just like when you poured the lighter fluid on the back of her body and set her on fire, right? Pretty concerned about her. . . .”

  Kim claimed she never said she wanted Cherry to “hide out” at her house. Paula Wheeler had misconstrued what she had said. Instead, Kim claimed, she had asked Cherry to come “hang out” at her house. There was some confusion about the two words.

  It was nonsense. The jurors, looking bored but alert, were not at all fooled by Kim Cargill and her lies.

  * * *

  Matt Bingham and Kim Cargill went toe to toe all day long. Most of what Bingham wanted the jury to understand was implied in his questions. It was a solid strategy. If she didn’t answer the way in which Bingham wanted, he’d rephrase the question as a statement and move on.

  During one of his longer declarations, after detailing what Kim had said during direct questioning regarding what happened to Cherry inside her car, Bingham ended, “And it’s just because you just had . . . dang, you just had bad luck. She happened to die on the very day that she got subpoenaed to testify against you in court.”

  “No,” Kim said.

  “Well, what is it? I mean, isn’t that it, basically? That you’re coming back f
rom a happy meal at Posados and, all of a sudden, you start hearing something, and she’s having a seizure, banging her head against the window, and you’re like, ‘What the . . .’ You didn’t kill her. It’s just bad luck, right? Just a bad chain of events. All of it culminated just on that one night.”

  “She got subpoenaed—” Kim began to say, but her own lawyer cut her off.

  “Judge, I would ask . . . There’s not a question there.”

  Kim said, “I made some tragic and desperate choices that night.”

  “Well, I mean, you’re saying you didn’t kill her,” Bingham went on to note. “You’re saying she had a seizure, right?”

  “That’s correct.”

  “Okay. And how do you know she had a seizure?”

  “Because I know what a seizure looks like.”

  “You do? Well, how?”

  “I’ve seen many at the hospital.”

  “All right. And are you trained to help with seizures?”

  “Yes.”

  “And is it your testimony that you’re in a turn lane, and the reason you don’t go to a hospital, as a trained LVN who’s seen many seizures, that you’re just blocked by traffic?”

  “Yes. I was in the left turning lane with the other traffic coming forward and two lanes . . . with cars. I was blocked in.”

  “Okay. So let me get it straight. You’re . . . an LVN sitting in your car on the very day that she gets subpoenaed to testify in court. You’ve gone by and you’ve picked her up, and all of a sudden you’re in the turn lane. And so if . . . you go to the left, you go to her apartment. If you turned right, you’d be on a street that’s right next to a hospital, wouldn’t you?”

  Kim did not know what to say to that.

  “The fact of the matter is,” Bingham added, demolishing her left-turn explanation, “the reason you didn’t is because that never happened. What you did is, you pulled her into the garage at your house, you shut the garage door and you killed her.”

  The courtroom went church silent.

  “That’s a lie,” Kim said defiantly.

  “That’s a hoot,” Bingham said with a laugh. “Calling me a liar.”

  * * *