Posted 12:57 am Saturday, May 05, 2012
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Defense Wants Prosecutors To Avoid Using ‘Murderer'
By DAYNA WORCHEL
Staff Writer
Staff Writer
The defense attorney for a Whitehouse woman accused of capital murder argued in a pretrial hearing Friday that prosecutors should not "engage in any name calling" of his client during her trial, which begins on Monday.
Kimberly Diane Cargill, 45, is accused in the 2010 capital murder of Cherry Walker, Ms. Cargill's babysitter who planned to testify against her employer in a child custody hearing.
The Smith County District Attorney's Office is seeking the death penalty if Ms. Cargill is convicted. The trial, which is expected to last from four to six weeks, will take place in the 241st District Court.
Defense attorney Brett Harrison had made the request that prosecutors refer to his client as "the defendant" or "Ms. Cargill." But Smith County Assistant District Attorney April Sikes countered Harrison's statement in court.
"In my closing arguments, if I believe Ms. Cargill is a murderer, I will call her a murderer," Ms. Sikes said. Judge Jack Skeen Jr. ruled that Harrison could make objections during the course of the trial if he thought Ms. Sikes used language he didn't agree with.
Authorities found Ms. Walker's partially burned body along County Road 2191, also known as Oscar Burkett Road, in June 2010. Smith County investigators said Ms. Walker died of "homicidal violence." It took four weeks for prosecutors and defense attorneys to assemble a jury for the trial.
Smith County District Attorney Matt Bingham argued in court that some phone calls made between Ms. Walker and Ms. Cargill and overheard by Ms. Walker's caregiver on June 18, 2010, did not fall under the hearsay rules of evidence. Ms. Walker was mentally challenged.
"The calls to Cherry Walker (from Ms. Cargill) fall under an exception to the hearsay rules," Bingham said in court. He said the phone calls, where Ms. Walker allegedly told caregiver Paula Wheeler that she was nervous because the defendant told her to ignore a subpoena asking her to testify in a child custody case, showed the victim's state of mind at the time she received the call.
Bingham also said the law allows testimony describing an event made by someone witnessing the event, such as Ms. Wheeler witnessing the phone calls Ms. Walker received from Ms. Cargill.
Bingham argued that Ms. Walker was clearly upset after the receiving the phone calls from the defendant telling her to ignore the subpoena, and that the victim's state of mind showed she was fearful of Ms. Cargill. He said Ms. Walker told her caregiver that Ms. Cargill had offered her a great deal of money to clean Ms Cargill's home and take her out to eat on June 18.
Ms. Walker told her caregiver that "she was real nervous" about testifying in the child custody case and about going out to eat with Ms. Cargill.
The date June 18, 2010, was when Ms. Walker went missing and was last seen alive, Bingham said. Bingham said the defendant did not want the authorities to learn that a mentally challenged woman was caring for her children.
Skeen will make a ruling Monday morning before the trial starts about what Bingham can say in opening arguments.
