Defense contends testimony based on inaccurate estimates

April 10, 2008 - 1:32PM

Because of the foul odor, strong taste and burning sensation associated with ingesting insecticide, a 7-year-old girl who died in 2003 would not have voluntarily swallowed the amount of poison that killed her, a toxicology expert testified in court Thursday.

Kayla Allen, a girl prosecutors say was killed by her legal guardian, would not have ingested more than a swallow or two of the poison before stopping, said Michael Beuhler, the medical director at Carolinas Poison Center. He testified during the fourth day of the trial of Carolyn Futrell, 37, who stands accused of first-degree murder in the girl's Aug. 24, 2003, death.

Prosecutors say Futrell forced the girl to drink the insecticide, while defense attorneys contend that what happened was a tragic accident.

Futrell, now of Wilmington, said she kept bottles for drinking water under the left-hand side of the kitchen sink and the bottle with insecticide was on the right with cleaning supplies, investigators testified.

Futrell said Kayla was thirsty after taking some cold medicine and got a bottle out from the sink, according to court records.

"I would not expect one or two swallows from that bottle to be lethal," Beuhler said. But Kayla took eight swallows, Beuhler estimated by comparing the diameter of the Dasani water bottle that contained the poison and the contents of Kayla's stomach.

During cross-examination, Futrell's attorney Kevin Peters hammered away on Beuhler for not conducting any tests of his own and drawing conclusions using studies Beuhler subsequently excluded from his analysis.

Peters also disagreed with Beuhler's estimates as to the volume of the insecticide found in Kayla's stomach during her autopsy.

He pointed out that Beuhler's conclusions about the amount of the contents in the girl's stomach did not take into account the cold medicine and breakfast cereal Kayla consumed the day she died. Peters also asked whether Beuhler's conclusions were based on estimates or scientific measurements.

"All measurements are estimates," Beuhler answered.

Kayla had trace elements of an antidepressant prescribed to Futrell in her system, according to toxicology reports. Beuhler testified that since Kayla had been given something that she was not supposed to have once, there was a strong probability she could be given something again, referring to the pesticide.

Not allowed to testify before the jury was a social worker who was prepared to tell the court that she had investigated complaints of Futrell forcing one of her biological children to eat hot sauce as a form of punishment. Onslow County Superior Court Judge John W. Smith ruled that the alleged incident had happened too long ago to be relevant and would be prejudicial.

The Onslow County Department of Social Services investigated 13 allegations of neglect, physical and sexual abuse involving Kayla prior to her death, according to court records.

Beuhler was not allowed to give specifics about the sample he received from investigators because he waited too long to examine the poison, which he stored in a filling cabinet in his office, Smith ruled in January.

During a hearing before Beuhler was allowed to testify, Peters demonstrated that Beuhler used statistics to support his opinion that Kayla's death was not a suicide in his reports, but then dismissed statistics that did not support his conclusion that Kayla's death was a homicide.

Peters also questioned what a toxicology expert would know about the manner of someone's death.

"I have never seen a medical toxicologist testify as to a manner of death, and that is what he did in his report," Peters said. "This should not go in front of the jury."

The judge allowed Beuhler to testify, but warned the prosecution not to elicit testimony concerning evidence that had been suppressed.

http://www.jdnews.com/news/swallowed_55963___article.html/voluntarily_year.html

Emphasis added by H4K Editor