Defense challenges poison evidence in hearing

Testimony is scheduled to resume today in a pretrial hearing where attorneys of a Richlands woman accused of the 2003 death of a 7-year-old girl argued Monday to suppress evidence about what poison investigators say was used.

The Onslow County Sheriff’s Department charged Carolyn Futrell, 37, with first-degree murder in August 2003 after toxicology reports confirmed a medical examiner’s finding that Kayla Allen died of ingesting insecticide. Futrell was Kayla’s legal guardian at the time of her death.

The District Attorney’s Office has said it would not seek the death penalty in the case. Futrell was released from the Onslow County Jail on a $200,000 bond in February 2006.

Attorneys Richard Miller and Kevin Peters of Wilmington — members of a state-funded program that represents defendants in capital cases — filed a motion to prevent a jury from hearing any evidence in relation to toxicology reports because all existing samples of the substance found at the scene of the girl’s death have been destroyed or degraded.

Neither Peters nor Chief Assistant District Attorney Ernie Lee would comment on the case.

In 2003, when Sheriff’s Department investigators arrived at the Futrell Loop Road home where Kayla had died, they found a Dasani water bottle in her bed between her bloody pillow and the headboard, according to court testimony Monday.

“The bottle had a milky white substance inside which had a pungent, chemical smell,” said Pat Garvey, a crime scene investigator for the Sheriff’s Department.

Garvey also testified he was present at the girl’s autopsy and was able to smell the contents of the girl’s stomach during the examination.

“The content of her stomach had the same smell as the content of the water bottle,” he said.

Samples of the girl’s stomach contents and the substance in the water bottle were sent to the N.C. Office of the Chief Medical Examiner following the autopsy, said William Kelly, an Onslow County medical examiner.

Toxicologists at the state level reported the substance sample contained xylene and amitriptyline, ingredients found in the insecticide Atroban, court documents state.

Futrell told investigators she kept bottles for drinking water on the left side under her kitchen sink, and there was a water bottle with Atroban on the right side for killing ants, Sgt. Tom Roberson with the Sheriff’s Department testified Monday.

In the court record, Michael Beuhler, a doctor with Carolinas Poison Center, stated that Kayla would not have accidentally swallowed the substance in the water bottle because of its strong odor and taste and that the substance must have been forced down her throat.

The defense has asked the court to disallow Beuhler’s testimony and any other evidence related to the substance in the water bottle, because when they asked for a sample of the substance, it was not available. The three existing samples of the substance in the water bottle were destroyed by the state medical examiner or chemically degraded while in custody, several witnesses testified at the hearing.

Defense attorneys said the state did not take enough measures to protect the substance, but the prosecution contends the defense did not ask for a sample of the substance for independent testing until two years after Futrell’s arrest.

The state medical examiner’s office has a policy to destroy toxicology samples after two years or when space is needed. Staff with the state medical examiner’s office testified Monday that the sample the state had of the water bottle contents was kept from August 2003 until July 2005 — 23 months.

John Butts, the state’s chief medical examiner, testified he would have saved the samples if either side of the case had asked him to do so. He said he was contacted by defense attorneys on July 22, 2005, but no mention was made to save the samples. The samples were destroyed July 27, 2005.

“If I am told there is a reason to keep something, I will,” Butts said, adding he was not asked by either the prosecution or the defense to save the samples.

After the prosecution was done, Peters presented Donald Jason, a medical examiner for Forsythe County, who has contracted with the defense as a consultant and advisor.

Jason said he agreed with the official medical examination that the cause of death was the chemical xylene, but he disagreed with the manner of death. He said Kayla had a bad cold at the time of her death and may not have been able to smell the chemicals in the water bottle. She may have also inhaled the chemical, he said.

Superior Court Judge John Smith listened to testimony from six witnesses for the prosecution and one from the defense before continuing the hearing from 9:30 a.m. today.