Poison bottle's cap was closed tightly, prosecutors say

April 15, 2008 - 1:23PM

BY LINDELL KAY
DAILY NEWS STAFF

Three hours Tuesday afternoon was not enough time for an Onslow County jury to decide the fate of Carolyn Futrell, accused of first-degree murder in the 2003 poisoning death of a 7-year-old girl in her care.

The jury will continue deliberation today at 9:30 a.m. The jury has three choices: first-degree murder by poisoning, which carries a life sentence without parole; involuntary manslaughter, which carries a maximum sentence of five years in prison; or not guilty.

Futrell, 37, is accused by the state of first-degree murder by poisoning in the death of Kayla Allen on Aug. 24, 2003. Kayla swallowed insecticide and then vomited the poison into her lungs causing respiratory failure, according to the autopsy report.

When investigators found a Dasani water bottle containing insecticide in Kayla's bed the day she died, the bottle's cap was screwed on tightly, prosecutors told the jury during closing statements Tuesday,

Chief Assistant District Attorney Ernie Lee holds up the water bottle that held the poison that killed Kayla Allen, during closing statements today.

"Do you really believe that as she lay dying, the victim, Kayla Allen, would have taken the time to screw the cap back on the bottle of poison that killed her?" Chief Assistant District Attorney Ernie Lee asked the jury.

Lee said testimony showed that Futrell forced Kayla to drink Atroban - a milky-white, foul-smelling and gasoline-like poison - from the water bottle.

Lee reminded the jury Futrell told them the day before that she was planning to go to church the Sunday morning Kayla died, but Lee said he didn't believe her because the 911 call was made at 11:14 a.m., "14 minutes after church began."

He said Futrell is the same woman who admitted on the stand to popping an 18-month-old Kayla "in her mouth to shut her up." She was the same woman who threw Kayla against a door jamb for asking for lunch money, and she was the same woman who gave Kayla a prescription drug sometime shortly before pouring Atroban down the girl's throat, Lee said.

Lee said the defense tried to muddy the waters with all the conflicting stories of what happened the day Kayla died.

"But who is the author of that confusion?" Lee asked. "Futrell herself."

Lee said the defense liked it when the medical examiner said the manner of Kayla's death was undetermined but did not like to hear the same doctor say he found no evidence of Kayla having a cold or allergies during the autopsy. The defense's entire case was built around convincing the jury that Kayla had a cold or suffered from allergies the day she died, Lee said.

Wilmington lawyer Kevin Peters pointed out that neither the local nor state medical examiners certified Kayla's death as a homicide.

"Can you say this was a homicide when the (medical examiners) could not say it?" Peters asked.

He said detectives never talked to friends or family of Futrell prior to her arrest because they had it made up in their minds she was guilty from the beginning. Miller said the state overlooked what the medical examiners said because it didn't fit with what the prosecutors needed to try Futrell.

"The state kicked (the medical examiners) to the curb because they weren't getting what they wanted," Peters said.

Richard Miller, Futrell's co-defender, said the jury should doubt testimony by Dr. Michael Beuhler, the medical director at Carolinas Poison Center, because he was an administrator and not a pathologist. He said Beuhler had never performed a single autopsy.

Miller reminded the jury of testimony by Dr. Donald Jason, a medical examiner for Forsyth County who contracted with the defense as a consultant and advisor. Jason testified that he agreed with the official finding for Kayla's cause of death - ingesting an insecticide - but that it could have been accidental. 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.

But Assistant District Attorney Mike Maultsby said that anywhere in the state of North Carolina, when someone drinks poison and calls poison control, they are talking to a pharmacist or a nurse who answers directly to Beuhler.

"He is the one everyone in this state looks to for help in poisoning situations," Maultsby said. "Who calls Dr. Jason when their child is in danger?"

Atroban, Maultsby said, is not a knockout agent.

"Kayla would have had plenty of time to call out for help," he said. "But who would she call out to? She was home alone with the defendant, and the defendant (was) forcing her to drink poison."

After three hours in the jury room, the foreman presented a note to Onslow County Superior Court Judge John W. Smith.

Smith read the question out loud, "Does it need to be given directly to the person?"

Smith answered, "No."

The jury was dismissed for the night, and deliberations will continue today.

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Emphasis added by H4K Editor