Day 1: Trial of ETX mom accused of killing babysitter

Published: May. 7, 2012 at 3:16 PM CDT|Updated: May. 21, 2012 at 3:27 PM CDT
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The trial for the East Texas mother accused of murdering her babysitter is underway in a Tyler courtroom this morning.

Forty-five year old Kimberly Cargill of Whitehouse, accused of murdering Cherry Walker, a mentally disabled woman, who often cared for one of Cargill's young sons entered a not guilty plea.

KLTV'S Melanie Torre is in the courtroom with live updates:

Kimberly Cargill Day 1

Bingham opens by thanking the jury and introducing them to Cherry Walker by placing a large photo of her on display.

He tells them Walker was mentally retarded and couldn't read or write. That Walker only was able to live alone because a community access case worker, Paula Wheeler, spent half of every day with Walker, teaching her how to shop and cook and driving her around.

Bingham says Walker had the mentality of a 9 year old but was a good person. Walker meets Cargill through someone named Marcy who used to look after Cargill's son.

He then introduces them to Kimberly Cargill by placing her photo on display. He tells the jury about Cargill's three husbands and four children and that at the time of her arrest Cargill was working as an LVN temp at ETMC in Athens.

Bingham begins to draw a timeline on a whiteboard for the jury. He tells them one of Cargill's sons was removed from her home by CPS in March. In June the court sets hearings to discuss the removal of one of Cargill's other young sons. A hearing regarding custody is set for June 23, 2012.

Timeline of June 18:

6:45am Cargill arrives at ETMC in Athens 10:18am Cherry Walker's subpoena for the June 23 hearing is issued and delivered 10:20 Walker calls Kim Cargill. "And Cherry Walker is dead from that moment on."

Bingham says walker feeds Cargill's kids with her SSI income.  "Kimberly Cargill would take her son to stay with a mentally retarded girl when that son's father lived in the same complex as Walker. But the father never knew. That's what you have sitting right there (points to defendant)."

Walker would miss doctors appointments because Cargill would just leave her son with him. Bingham makes a list on the whiteboard of about three dozen dates Cargill left her son with Walker.

Everything changed on 6/18 at 10:20., Bingham says.

"Kimberly Cargill didn't talk to Cherry much. She used Cherry for one thing.. to take her son to and dump him off," Bingham says.

Bingham shows the jury a list of Cargill's phone calls and texts the day Cherry went missing. All texts Cargill sent had been deleted.

10:20 Cherry leaves Cargill a voicemail

10:48 Cargill checks the voicemail

10:49 Cargill calls Cherry back and talks to her for 8.75 minutes

10:59 Calls Cherry again

11:06 Cargill calls her attorney

12:19 Cherry gets dropped off by Paula at the Salon to get her hair done

2:14 Cargill Cherry walker again

3:29 Cargill calls Walker again

7:28pm Walker calls Cargill again

7:30pm Cargill clocks out at ETMC

7:35pm Cargill calls Walker and tells her she's coming to pick her up, take her out to eat and paging her to clean her house that night *Cherry calls Paula and tells her she's going out with Cargill 8pm Cargill gets a speeding ticket from Chandler PD

8:01 Cherry Calls Cargill and tells Cargill not to come over 8:02pm Cargill calls Cherry. "That's the last phone call the defendant makes and it's the last time anyone hears the voice of Cherry Walker."

From 8:02pm until 12:23am Cargill doesn't make another call, answer another call or send another text.

For hours after 8pm Cargill is receiving calls from work. The hospital needs to know who Cargill did and didn't give medicine to since she left work so fast no one knows which patients she finished treating.

Phone records on 6/19 show Cargill never tried calling Walker once.

"Where's Cherry? Where's the calls to her? You called her about a gazillion times the day before." Bingham says Cargill isn't calling Cherry because she knows Cherry isn't a problem anymore.

On 6/19 at 7:45 am Cargill talks briefly to her neighbor and tells her she's going to wash her car. On 6/19 Cargill goes to Whitehouse PD asking if they found her dog that was missing for two months. The Cargill starts making small talk asking if it been a slow day for the police department.

Bingham tells the jury they'll hear from Paula Walker and they'll hear about the big mistakes Cargill Makes. Bingham says the jury will hear about the dairy fresh creamers from dairy queen found at the crime scene and all throughout Cargill's house.

Bingham goes back to the morning of 6/18. When Cargill calls Walker, Walker's caretaker Paula Wheeler is present. Paula hears all of their conversations and even talks to Cargill herself multiple times. Cargill tells Paula that she will hide Walker out at her house. Cargill tells Paula, "If they find out something is wrong with [Walker], they'll take my kid from me."

Walkers body ground around 3:30pm on June 19 when a pizza delivery man makes a U-turn and sees the body. Bingham describes the burns, the clothes and the condition she is left in.

On fathers day Cherry's dad sees the news, calls the police and says the woman found could be his missing daughter.

Recess until 1pm.

Defense not making opening statement. Will start with first witness at 1.

Day 1 Part 2:

State calls first witness

Richard Wilson, age 83, retired 11 years ago Got a Masters degree from ACU in Psychology, also attended other colleges; at his time of retirement he was licensed in the state of Texas.

Bingham: Do you remember cherry walker?

Wilson: No I do not

According to a report, the first time Wilson saw her was in 1995 to determine if she met the legal requirement for mentally retarded services. She did qualify. Wilson saw her again in 2000 because she had given birth to a child and someone thought she was functioning at a higher level than before. He found she had not made any significant changes in her adaptive functioning.

Wilson says in 1995 she had an IQ of 56. The average is 100.

State: Are there some people who are still mentally retarded but operate at a high level?

Wilson: Yes

State: Would you put [Walker] at low, moderate or high level?

Wilson: Moderate

State: What can you tell us, if you're able to, would you have found Cherry Walker to be childlike?

Wilson: I frankly don't remember her.

State: How do you categorize her adaptive behavior assessments?

Wilson: Well, there are standard questions you ask and you find out what she can do.

State: In 2000, her score based on the book you're using, placed her at the age equivalent of someone who was five years and six months old?

Wilson: Yes

State: So when she was 29 years old, her communication domain was that of someone who was four years, four months? [communication domain is ability to communicate with others]

Wilson: Yes

State: Her daily living skills domain was 9 years, 0 months? [daily living skills include dressing, bathing, etc.]

Wilson: Yes

State: She had an adaptive behavior domain of someone  who was six years, six months?

Wilson: That is correct

Bingham asks Wilson if he asses whether or not someone with the adaptive, daily living skills and communication domain of Walker's would be recommended to oversee young children. Wilson says that's not something he evaluates.

Wilson says records show Walker attended Orr Elementary School and was placed in special education in second grade. She graduated from John Tyler High School through the special education program.

Bingham passes the witness.

Defense asks Wilson if he has any personal recollection of Cherry Walker or her testing. He says he doesn't remember her and only has the two reports from 1995 and 2000 to use as reference.

Wilson tells the defense he was a psychologist for the mental retardation department of the Andrews Center and only worked in that department.

State calls second witness Jennifer Dalmida, an analyst for Verizon wireless. Flew in from Georgia to testify. Testifying today for records pertaining to the number 903-570-2880.

Dalmida says according to Verizon records the customer for this account was listed as Jill Low, 1804 Waterton Circle, Whitehouse Texas.

The account also had contact information listed as Kimberly Low (903) 570-2880.

State shows about a 15 blown up images with cell phone records printed on them and asks Dalmida to review them and highlight certain numbers. This takes about an hour.

15 minute recess

Dalmida finishes highlighting the call log displays. Bingham begins to go over the call logs asking Dalmida to verify which numbers were initiating the call or text, which calls went to voicemail, how long the calls lasted. Bingham is showing the jury evidence of Cargill & Walker's communication the day Walker went missing.

Pass the witness

Defense asks when account was opened. Dalmida answers August 25, 2003. Defense has no further questions. State asks if the account has always been under the same name. Dalmida says according to her records, yes.

State calls next witness.

Justin Hall, a detective with the smith count sheriff's office. Started working there in 2003. Worked as a jailer, jail sergeant and patrolman. Say he analyzes computers, cell phones and digital media.

State asks Hall what his role has been in the Cargill case. Hall says he helped search her phone and her house. Remembers her garage to be very messy.

Defense begins asking Hall about identifying Cargill's phone through serial number and photos. Hall says he did do the analysis of the phone.

Hall says he attempted to analyze Paula Wheeler's cell phone, as well. Hall says he was not able to retrieve any information (calls, texts, voicemails) between Paula and Cherry because Paula had deleted everything.

Defense: Who's number is 903-504-9580

Hall says he doesn't remember, he just knows they found an owners Manuel in Cherry Walker's apartment with that number written on it. He says they believed it to be Cherry Walker's number but couldn't be sure.

Hall says he had about 5 phones turned over to him in the investigation.

Jury is taken out of the room as the state and defense argue over the relevance of presenting her text messages to the jury.

Defense argues these messages going months back before the alleged offense are irrelevant.

Cargill begins to shake her head "no" which noticeably irritates Bingham who says, "If she's just going to sit there shaking her head 'no' then let's just bring the jury back and let them decide. Cargill's attorneys have a short word with her and she goes back to incessantly writing on the legal pad she has had in her lap all day.

State and defense continue to dispute over which text messages can be admitted to evidence on condition of relevance.

State agrees to remove the text message where a family member tells her it's not fair for her to use the child support money for one child to pay for an attorney after beating the other child.

"Being the master manipulator she is, she deletes the texts that she sends and keeps the texts from everybody else," Bingham says.

"That part about beating her child... We can save it for punishment when deciding to send her to death row," Bingham says.

We will continue with updates throughout the day. Keep checking back to 

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