Day 5: Trial of ETX mom accused of killing babysitter

Published: May. 11, 2012 at 2:01 PM CDT|Updated: May. 25, 2012 at 2:01 PM CDT
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TYLER, TX (KLTV) - TYLER, TX (KLTV) - The trial of an East Texas woman accused of killing her mentally disabled babysitter continues in a Tyler courtroom. Today is day five of testimony in Kimberly Cargill's murder trial.

Once again, KLTV's Melanie Torre will have live updates from the courtroom throughout the day.

Kimberly Cargill Trial Day 5

Before the jury is brought in, the defense and prosecution question two detectives about who was instructed to set up on Cargill's home until the search warrant was executed.

Defense: Who instructed a Smith County deputy to be in the area of Mrs. Cargill's house ready to make a traffic stop?

Detective: I don't know

Detective says two deputies went to Cargill's home to ask for consent to search before they got the search warrant.

Defense goes back to the traffic stop. "That's a coordinated effort." Cargill left her house one evening after the alleged murder and was stopped by a deputy for rolling through a stop sign.  According to attorneys, Cargill's car, cell phone and purse were detained during the traffic stop. Cargill was issued a warning and told she could leave but couldn't take her belongings. Defense continues to ask the detective if anyone was working on issuing a search warrant at the time Cargill was pulled over.

The defense has filed a motion to suppress.

The state argues that there is no evidence any law enforcement official searched Cargill's vehicle without a warrant. And the state argues, under the automobile clause, the officer who stopped her had probable cause to search the vehicle without a warrant but still didn't. The state says law enforcement was being proactive because they didn't know if Cargill had loaded her car up with evidence and was headed out to destroy it when they stopped her.

Court determines the traffic stop, detention of the vehicle and its contents as well the search of the vehicle were all lawful. Judge Skeen denies the defense's motion to suppress evidence collected from the vehicle.

Noel Martin is brought back to the stand to talk about the search of Cargill's vehicle. He says when searching a vehicle everything is photographed numbered and very carefully documented. Martin says when he first saw the vehicle at the impound lot, there were no signs that the integrity of the vehicle has been compromised.

Martin says inside the car he found a single black hair on the passenger's seat headrest.

State and Martin draw a head rest and point out where the hair was located. The state shows the jury a large blown up photo of the hair.

State shows the jury blown up photos  of the inside of Cargill's car. There are about 3 different fast food bags and cups, some trash and her purse sitting in the passenger seat.

State says they want to go back to some photos taken from inside the residence of Cargill.

Martin says he noticed most of the door handles to the rooms were broken.

State shows the jury photos from Kimberly Cargill's bathroom. There is a Chick Fil A cup on the bathroom counter. State asks Martin if the straw wrapper found by Walker's body was a Chick Fil A straw wrapper. He says it was.

State and Martin begin unsealing evidence that was collected from Cargill's vehicle.

State asks Martin to unseal a swab taken from the driver's side back passenger door handle.

State continues to go over evidence taken from the vehicle.

State calls next witness. Huma Nasir takes the stand. Nasir works in a private accredited DNA forensics laboratory. She explains what she does at the lab and the precautions they take to make sure new DNA is never introduced to an item.

Nasir says because she works with a private lab they often do not know the facts of the case because they are not working directly with law enforcement. She says her lab is brought evidence and told what type of testing to conduct and that's often extent of the information given.

15 minute break

Nasir begins to talk about comparing DNA profiles to decide if certain DNA came from a certain person or did not come from a certain person. In criminal cases this helps include or exclude suspects and victims.

Nasir says in their testing, they could not exclude Cargill.

State has Nasir draw a diagram depicting where DNA is found within cells. Nasir explains that mitochondrial DNA testing was used in Walker's case. She explains this testing is used on hairs that don't have a root because the nucleus of a hair is located in the root. She also explains the mitochondria can be easier to test because there are multiple mitochondria within a cell but there's only one nucleus. She says the downside to this type of testing is that you can't identify someone individually because mitochondrial DNA is shared among the maternal lineage so people on the maternal side will have the same mitochondrial DNA.

State begins going over items in evidence with Nasir.

Nasir explains the screening process to determine if there is any DNA to be tested.

The coffee creamer found at the crime scene was submitted for skin cell testing to see who had touched it.

Nasir says its possible to get multiple results of multiple people touching a object because every time someone touches an object they deposit some skin cells there.

Nasir was able to obtain a partial profile from the dairy fresh creamer at the crime scene but it wasn't enough DNA to tell much. So, Nasir says she did a more specific test called a mini SDR test. With that test she was able to get a profile of two people. She says Kim Cargill could not be excluded as a contributor. State implies the other profile likely came from the person at Burger King who handed the creamer to Cargill. Nasir says neither of the two profiles on the creamer were more present than the other.

Nasir says they do a series of calculations from the journal of forensic science to see what the likelihood someone other than Kim Cargill could also not be excluded from touching the creamer. He explains how forensic science comes up with statistics like these.

Nasir said the calculations showed that 1 in 226,000 people could have a DNA profile that matched the DNA on the creamer and Cargill couldn't be excluded as the 1. State says there are less than 226,000 people in Smith County. State asks if Nasir's statistics take into account the fact that Cargill new the victim who was laying dead where the creamer was found. Nasir says no. State asks Nasir's statistics take into account the fact that Cargill had called the victim the night she went missing and told her she was coming over to pick her up. Nasir says no.

Defense passes the witness.

Defense asks Nasir if the results should stand alone. She says they should and they do. She says her conclusions are based on her testing and her testing only.

Recess for lunch

The state calls the next witness, Romy Franco, a colleague of Nasir's. Franco has a bachelor's degree from Texas A&M and a Master's degree from The University of North Texas.

Franco performed tests on evidence collected in this case. She begins explaining the protocol for running mitochondrial DNA testing on a hair with no root. Franco was given a blood card with Walker's DNA on it. Franco says she ran mitochondrial DNA testing on that blood card, too.

Franco says, according to testing, Cherry Walker couldn't be excluded as the owner of the hair found in Cargill's car. Franco says they found that hair could have belonged to 8 in 1305 individuals. Franco says Walker's mitochondrial DNA couldn't have been a better match to the mitochondrial DNA found in Cargill's car.

Defense asks Franco some of the same questions asked of Nasir-- if the tests are meant to stand alone. Franco says they stand alone as far as she is concerned.

Witness dismissed. State recalls Nasir.

Nasir discusses statistics regarding the hair found in Cargill's car. She says 98% of black people are excluded from being the owner of the hair found in Cargill's car. Nasir says they are told to be more conservative in their conclusions-- in other words, they're told to give leeway toward the defendant in a criminal trial.

State calls Smith County Deputy Theresa Smith. Smith has worked for Smith County for six years, patrolling for two years.

On June 22, 2010 Smith stopped Cargill for failing to come to a complete stop at a stop sign. She says at the time of the stop she did know Cargill was a suspect in a capital murder case. Smith said she had been instructed to follow Cargill but Smith couldn't stop her until she made some kind of violation.

Pass the witness

Defense says, "You told Mr. Bingham you were following Mrs. Cargill but that's not accurate, is it?"

Smith says she was parked away from the stop sign when she saw Cargill. Smith says she was instructed to follow Cargill until she could stop her. Defense asks about dash camera video of the stop. Smith says there is none because her system was broken. Smith says she was instructed to give Cargill a ride home. While they were in the car Cargill got on her cell phone. Smith says she was instructed to take Cargill's phone. Cargill was speaking to her attorney, Brett Harrison, when Smith took Cargill's phone away.

Witness passed back  to the State.

State calls next witness detective Jeremy Black. Detective Black says he has worked for Smith County for 12 years.

Detective Black says he was instructed to sit in front of Cargill's house to watch for anyone who was coming or going. He says he knew warrants were being worked on but he didn't know if they were for the car, house or both. Black says he saw Cargill leaving her house. She pulled up to the vehicle detective Black was in and asked if he was looking for someone or if she needed to call her lawyer. After she drove off deputy Smith pulled Cargill over at the stop sign. Detective Black says he stayed with the vehicle waiting for the warrants. Black says after a short time Lt. Tony Dana relived him at the scene of the car.

State passes the witness

Defense asks if the detectives all arrived at Cargill's residence together. Black days they did not.

Defense: Did you see Mrs Cargill leave her residence in her vehicle?

Defense asks how long after the detectives knocked on Cargill's door she left her residence. He says about two hours.

Detective Black goes over what happened at the traffic stop.

Defense asks if he was aware of any search warrants being drawn up for the vehicle or the house. He said he wasn't sure.

Lt. Tony Dana takes the stand and talks about going to relieve Detective Black and guard the car until it could be taken into evidence.

State calls next witness Ryan Smith. Smith worked for the city of Whitehouse answering calls for police, water, utility and animal control.

Smith says he met Cargill through a number of CPS calls. The defense objects to this question/answer and the jury is told to disregard that.

Smith says on 6/19/10 Cargill came into office asking about a lost dog. He says this was their first conversation about a missing animal.

State plays a video for the jury of Cargill in the police station asking about her missing dog. The dog, Oreo, had been missing for about two months. While at the station Cargill asks Smith if they've been slow that day. He says the statement didn't stand out to him at the time, but now knowing just hours later a body would turn up and Cargill would be considered a suspect, it does seem more significant.

Defense has no questions for Smith.

State calls Forrest Garner to the witness stand.  Garner was married to Cargill in 2005 for less than a year.

Garner and Cargill had one son, the son Cherry Walker babysat. Garner and Walker lived in the same apartment complex but he had no idea who Walker was.

Garner goes over some of the dealings with CPS regarding Kimberly and their son.

James Cargill, Kim's former husband, takes the stand. He says he was married to Cargill June 1993-December 1995.

Mr. Cargill and the state go over Cargill's phone records showing her attempts at calling him on June 18.

Mr. Cargill says they are not friends.

Kim Cargill attempted calling Mr. Cargill about 10 times all throughout the day but he says he never spoke with her. He says he did not want to answer those calls and for her to call that much is not abnormal. The state starts going over text messages from Kimberly Cargill. Her texts ask him to call her but he did not call her.

Mr. Cargill says she called him wanting to know if he'd been subpoenaed for the CPS hearing. Mr. Cargill found the call strange because he hardly ever talked to her.

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