UPDATE (4:17 p.m.) - The jury has found Kim Cargill guilty of capital murder in the death of Cherry Walker, her son's babysitter.
The sentencing phase starts 9 a.m. Monday and could include the death penalty.
District Attorney Matt Bingham asked that Cargill's bond be increased. Judge Jack Skeen Jr granted the motion for the bond increased to $5 million.
Click here to read more about Kim Cargill's background.
TYLER (KYTX) - Smith County District Attorney Matt Bingham began his closing argument Friday morning by thanking the jury for their service in the Capital Murder case against Kimberly Cargill.
He then began explaining the charge to the jury, acknowledging that his office was required to prove a specific case that outlines how Cherry Walker's death occurred.
Referring to the new charge of murder, as opposed to the original charge of capital murder, Bingham said there was only one specific scenario in which they could find Cargill guilty of murder.
"You would have to believe that Kimberly Cargill killed Walker," he said. "But that Cherry Walker hadn't been subpoenaed to testify against her."
Bingham again cast doubt on Cargill's story of Walker having had a seizure and died as a result. He recounted evidence saying that Cargill had gone to Whitehouse Police Department to see if there was a dead body investigation the day after she says she dumped Walker's body off a rural county road.
He recounted other evidence showing that Cargill had a yard man and kept her home in disarray, and contrasted that to ER testimony that she happened to have lighter fluid and matches in her car because she used it to kill fire ants in her yard.
"Cherry Walker has been dead for one year and eleven months," Bingham said. "And do you know what [Cargill] has done for her in the last one year and eleven months? Let someone stick a Q-Tip in her mouth (to retrieve a DNA sample)."
Bingham next brought up Cargill's claim that she couldn't take Walker to the hospital because of traffic, despite the seizure allegedly occurring within a quarter of a mile from both of Tyler's major hospitals.
"She could have turned through the Church's Chicken parking lot and been going the right way," Bingham said.
Bingham mentioned Cargill's tearful day of testimony in the case and then recalled the surveillance tape showing her appearing cheerful when she went to Whitehouse police on June 19, 2010.
"That's the real Kim Cargill," he said. "Not the one you saw here."
"She's someone who has to control everything," Bingham said. "She knew that if the (child custody) court saw Cherry Walker, then she would lose custody of her son."
Bingham reminded of jurors that Cargill made no effort to let anyone know that there was a dead body laying out in the country.
"Mr. Walker had to call the Whitehouse police department to see if the body dumped by her and killed by her was his daughter," Bingham said.
Bingham then discussed testimony from Walker's caretaker saying that Cargill wanted to "hide Walker out" on the day of her child custody hearing, in violation of the subpoena that had been issued.
He asked jurors to scrutinize the more than 70 phone calls Cargill reportedly made on the day of Walker's death, all in violation of her employer's policy against making personal phone calls while on the clock.
"Let me show you what a liar she is," Bingham said. "She told you that she was just trying to gather names for her lawyer. This was a Friday. She wasn't going to give him those names until Monday. Why the urgency?"
Bingham recounted Angie Hardin's testimony. Hardin was a friend and fellow nurse of Cargill's. Hardin testified that Cargill was upset because Walker was mentally challenged and said the babysitter was going to ruin her.
"Hardin's testimony is some of the most damning in this case," Bingham said. "She showed you a lie with a capital 'L.'"
Bingham said Cargill told Hardin that she had tried to take Walker to dinner, but that Walker wouldn't go. That was in contrast to Cargill's own testimony that she and Walker had a pleasant dinner together prior to Walker having a seizure.
"Not 24 hours after Walker said she didn't want to go, Cherry's body is found," Bingham said. "I want to ask you this question. Do you believe she had a seizure? Do you believe that this is a one-in-a-million coincidence that's just a bad situation for the defendant"
Bingham reminded jurors that Dr. Meredith Lann, the medical examiner who did Walker's autopsy, said she was 100% sure that Walker's death was a homicide.
"You've got two options," Bingham said. "You could believe that the person who would dump and set fire to her body would kill her with homicidal violence. Or you could believe that woman just couldn't get to a hospital because of traffic. I want you to ask yourselves right now, this second, if you believe that."
Bingham recounted testimony that Walker's stomach was almost empty, despite Cargill's claim that they had eaten dinner before Walker died.
He tried to put Walker's mental disability in perspective by reminding jurors of testimony that she communicated at the level of a 4-year-old and could not read, write, count money or drive.
Bingham recounted testimony from several people that contradicted Cargill's claim that her phone was at home charging when Walker died. One woman said Walker claimed she'd been asleep during the late evening of June 18, 2010. That was in direct opposition to Cargill's own testimony in which she admitted she was dumping Walker's body in the country during that time.
"Like her family, we love Cherry Walker," Bingham said. "We are going after this case like she was our daughter. Don't forget Cherry Walker."
"This is the day where you let the defendant know, for the first time in her life, that she can't blame someone else," Bingham said.
Cargill's attorney, Brett Harrison, began his closing argument by saying things were not as simple as the black and white dichotomy that Bingham laid out.
"Why, knowing that people knew Walker was subpoenaed in the case against her, would [Cargill] go out and kill the primary witness against her?" Harrison asked.
Harrison said the prosecution claimed that Cargill essentially advertised a plan to kill Walker, and said that flew in the face of their separate claims that she was cunning, calculating and manipulative.
Harrison reminded jurors that the defense does not and has never contested most of the evidence in this case.
"The only issue is did she kill Cherry Walker or not?" Bingham asked.
Harrison highlighted testimony claiming Walker started having major motor seizures at the age of 16 and remained on anti-seizure medication for the remainder of her life. He also talked about testimony that stress can induce seizures.
Harrison talked about Dr. Lann's testimony that it is possible to die from a seizure and that the diagnosis of that is one of exclusion, which makes it difficult to prove. He talked about another expert witness who testified that there could be a ten percent chance that Walker died of a seizure.
Harrison reminded jurors that Cargill did not have to testify. He said she did it, knowing that her story was tough to believe.
"The fact that she turned left and went to Cherry's apartment just doesn't make sense," Harrison said. "She thought she would be blamed for her death. And here she is."
Harrison talked about the fact that Cargill withstood hours of interrogation from Bingham during her cross-examination and still managed to answer "I didn't kill her" without hesitation when Bingham asked what it felt like to kill Walker, dump her body and burn her.
Harrison said several witnesses provided corroborating pieces of evidence that came together to paint a picture of a possible seizure the night that Walker died, including a possible bruise on the inside of Walker's cheek and bruises on her chest that could indicate someone tried to do CPR on her.
"As disgusting, as unsettling, as repugnant as what she did really is, none of it equals homicide," Harrison said. "There's no question that she hid the body, dumped the body, burned the body. Where is the proof of murder?"
Cargill's other attorney, Jeff Haas, made his closing argument next.
"It doesn't say anything about believing something," Haas said, referring to the jury. "It's about proving something."
He talked about the fact that there was no indication of a struggle or any defensive wounds to show that Cargill tried to strangle or smother Walker.
"The state wants you to speculate on how the defendant killed Cherry Walker," Haas said. "You can do that, but it's just speculation. We do to convict people of capital murder on speculation."
He said the state had a vested interest in getting Dr. Lann to identify a cause of death, insinuating that perhaps she was pressured to deliver the result in the autopsy that she did. He decried the fact that the prosecution did not do an inventory of the drugs in a hospital where Cargill worked in June 2010.
Haas said the death would not have been ruled "homicidal violence" if not for the fact that Cargill dumped and burned Walker's body. He characterized the child custody case that allegedly started this whole thing as a lose-lose situation for both Walker and Cargill, saying that Walker could have lost the ability to babysit, which she loved.
Haas admitted that Cargill had lied extensively in the wake of Walker's death, but said he didn't believe they could find her guilty without a definitive explanation of how Walker died.
"There are a lot of things that we don't think there is any way in the world they could happen but they do," he said.
"You may think that Kim Cargill's story is incredible, unbelievable or implausible. But what you have to look at is no 'do I believe it's implausible,'" he said. "It's 'can I say beyond a reasonable doubt that the testimony she gave about what happened is false beyond a reasonable doubt.'"
Smith County Assistant District Attorney April Sykes then began her argument.
"I think it's unfair that the defense can throw up 'seizure' and it's reasonable doubt," Sykes said. "I'm sick to death of talking about Kimberly Cargill and her lies."
"I care about Cherry Walker. I sure do," Sykes said. "And I despise the woman who killed her."
Sykes talked about testimony from a doctor who said he had never seen someone die of a seizure without the complication of other major diseases.
"You know what the defense has missed when they say 'she panicked,'" Sykes asked. "She wouldn't have panicked at all if she has just gone to the
hospital."
"They asked you what evidence there is of a homicide," Sykes said. "Everything you heard."
"Kimberly Cargill said one true statement when she got on that stand," Sykes said. "Do you know what it was? Her name."
Sykes disagreed with the defense's claim that Cargill advertised her plan for the night Walker died, saying she's worked for two years trying to find anyone who knew.
"Regardless of your verdict, Cherry Walker is not trash," Sykes said. "I hope her laying out in that trash dump breaks your heart."
Sykes said she believes Cargill went to an ATM on the night of Walker's death to get cash and use it to lure Walker to come with her.
"If you believe Kim Cargill, then find her not guilty," Sykes said. "But I'll tell you this. It would be the biggest mistake of your life."
Sykes poked holes in Cargill's claims of having been unable to get to a hospital due to traffic, Walker falling out of Cargill's SUV and Cargill's supposed panic. She called them all ridiculous an insult to Cherry Walker's memory.
Sykes cited testimony saying Walker was very passive and would typically sit there and take whatever was dished out to her. Sykes asked the jury whether they thought, in her last moments, if Walker had wished for her father or prayed to God for we safety.
"When we started this, I told you the evidence would lead you to the killer," Sykes said. "And there she is."
TYLER (TYLER MORNING TELEGRAPH) - A lesser charge of murder will be included with the capital murder charge against Kimberly Cargill, prosecutors and defense attorneys agreed on Thursday.
The jury, which is expected to decide Ms. Cargill's guilt or innocence after closing arguments this morning, could find the defendant guilty or not guilty of murder instead of capital murder since the lesser charge has been included.
Ms. Cargill, 45, admitted to dumping the body of Cherry Walker, her mentally challenged babysitter on a remote Smith County road on June 18, 2010, and setting the body on fire in testimony on Wednesday.
Ms. Walker had been set to testify against Ms. Cargill in a child custody hearing on June 23, 2010. Ms. Cargill faces the death penalty if she is convicted of capital murder.
Judge Jack Skeen Jr. denied a motion by defense attorneys Thursday for the lesser charge of tampering with physical evidence to be included along with the capital murder charge against Ms. Cargill.
After Skeen denied that motion, defense attorney Brett Harrison asked for the lesser charge of murder to be included with the capital murder charge.
The defense did not call more witnesses Thursday.
Ms. Cargill and other defense witnesses took the stand Wednesday.
When defense attorneys rested Thursday, Smith County District Attorney Matt Bingham called two rebuttal witnesses: Dr. Richard Ulrich, a neurologist who treated the victim from 2003 to 2009, and Paula Wheeler, Ms. Walker's caregiver.
Ulrich testified that during the time he treated her, the victim would not have seizures as long as she took her anti-seizure medication.
"I have never seen anyone die of a seizure," Dr. Ulrich said in response to Bingham's questioning.
Medical records Bingham presented in court showed that Ms. Walker had been without her anti-seizure medication for over a month and had no seizures during that time.
Defense attorney Jeff Haas asked Ulrich about the possibility of sudden unexpected death in epilepsy. The doctor replied that it was very rare and had a less than 10 percent chance of happening, but that it is a possibility.
"Sometimes people just die, and no one knows why?" Haas asked.
"Yes," Ulrich replied.
Ms. Wheeler said the defendant told Ms. Walker that she could "hide out at her house" because she had received the subpoena to testify in the child custody hearing.
In testimony Wednesday, Ms. Cargill said she told Ms. Walker she could "hang out" at her house.
