A Greene County jury rejected a cough-syrup defense and on Friday afternoon found defendant Elizabeth McKeown guilty of murder in the first degree for killing a woman she did not know by running over her with her car.
McKeown, 49, of Springfield, did not visibly react to the verdict. She now faces life in prison. Her sentencing date is Sept. 2.
Her unusual defense was that she did not know right from wrong because a toxic level of a drug found in cough syrup was in her system.
A jury of 10 women and two men spent two days deciding the case.
Prosecutor Emily Shook, first assistant prosecuting attorney, had told jurors in her closing argument that “words matter,” and urged them to focus on what McKeown told police in the hours following the death.
After the verdict, Shook described to the Hauxeda what she thought was the strength of the case.
“We had a video,” Shook said. “We had her statements that matched up with that video. Her recollection of what happened was exactly depicted on that video.”
McKeown was convicted of murdering Barbara Foster, a stranger, whom she ran over and killed on Nov. 20, 2018.
McKeown's lawyer, Jon Van Arkel, spoke briefly to his client following the verdict. He declined to speak to the Hauxeda.
He had argued during the trial that his client had a psychotic episode caused by her use of a common, over-the-counter cough syrup that day — and did not know at the time that her liver was unable to process the drug dextromethorphan, or DXM, commonly used in cough syrup.
The jury convicted McKeown of the most serious charge, murder in the first degree, meaning that she killed McKeown after “deliberation.” She was also convicted of armed criminal action.
This was not a death-penalty case.
The charges ranged as low as involuntary manslaughter in the second degree, a Class E felony with a range from probation to four years in prison.
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In closing arguments Thursday, prosecutors called the death a “brutal murder” and said McKeown knew what she was doing.
Van Arkel pointed to what he considered the unrefuted testimony of three experts who all concluded that McKeown suffered from “mental disease or defect,” due to the cough syrup, and therefore she did not have the mental capacity to know what she was doing was wrong.
The murder trial was never about whether McKeown drove over and killed Foster on a late afternoon two days before Thanksgiving in 2018.
Evidence, including a video captured by an Uber driver, showed she did and McKeown told investigators she did.
Instead, the question was whether McKeown should be found not guilty by “mental disease.”
Foster, a native of California, was 57. She worked at Eyeglass World on Battlefield Road. Her mother attended the trial.
Losing touch with reality
Van Arkel's three expert witnesses all testified that under Missouri law McKeown should be found not guilty because she had lost touch with reality.
One of the experts, Sarah Mielens, a clinical psychologist at the Northwest Missouri Psychiatric Rehabilitation in St. Joseph, was considered a “neutral” evaluator in that she was hired by the court and not by the defense lawyer.
Mielens interviewed McKeown in December of 2019.
“Psychosis does not necessarily mean you forgot what happened,” Mielens testified.
“… It was difficult for her to piece apart what was real and what was not,” Mielens said.
The other experts were Dr. Leigh Anne Nelson, a forensics psychiatric pharmacist and an associate professor at the University of Missouri at Kansas City, and Cristina Pietz, a clinical psychologist based in Springfield who until 2015 worked at the United States Medical Center for Federal Prisoners.
Nelson testified it was highly unlikely McKeown was using the cough medicine to get high because, first, she took an extended-release version, and, second, the level of DXM in her blood would have been much higher than 350 nanograms per milliliter. (She said toxicity sets in at about 200 nanograms per milliliter. A normal person who can metabolize DXM would have a level no greater than 5.)
Testimony indicated that McKeown was a recovering alcoholic who had been sober for three to five years. She did not take the witness stand in the trial.
Nelson said it was her opinion that McKeown took the recommended dose that day.
It was Nelson who noted the 350 level and then suggested that McKeown be tested to see if her liver was metabolizing DXM. The test showed that her liver could not.
For most people, she testified, the drug is out of the body in six to 10 hours.
For people like McKeown, she testified, it is out of the body in 30 to 65 hours.
Under cross-examination, psychologist Pietz testified that she used three separate tests on McKeown to analyze if she was “malingering,” a phrase that means lying or exaggerating events. She interviewed McKeown twice in June 2019 and again in May 2022.
Pietz said she saw nothing to indicate McKeown was lying or exaggerating.
“It is my opinion that she was suffering from mania and delusions, or false beliefs,” Pietz said.
Prosecutor says that ‘words matter'
Prosecutors Emily Shook and Dane Rennier in their closing arguments told jurors it was their duty, as the triers of fact, to determine if McKeown knew what she was doing, not the duty of psychologists or psychiatrists.
The prosecutors asked jurors to focus on what McKeown consistently told investigators in the hours immediately following the death, not on what they told psychologists and psychiatrists months later.
After she was arrested, McKeown told police she pretended to be nice and “tricked” Foster into exiting her vehicle and then “cut her in two” by running her over.
She told investigators that she was in a hurry to get to the bank to make a car payment and was stuck in traffic on southbound Campbell at University Street at about 5:15 p.m.
She at first nudged Foster's van to get her to move it, but Foster also was stuck in traffic. When Foster exited her vehicle to see what was happening, McKeown said, she ran her over.
McKeown was interviewed multiple times by police and repeatedly waived her right to have an attorney present.
Video of her being interviewed three times by Police Detective Matt Farmer was played in court. Her actions and words often were bizarre and inappropriate.
When Farmer asked her what her name was she made a series of noncoherent noises.
The first officer to confront McKeown after the death was Justin Lloyd, who testified that when he asked her where her identification was, she said, “Up your butt and around the corner, officer.”
Shook told jurors that when a police detective found an empty bottle of cough syrup in the trash outside McKeown's home on the night of the death it was empty.
(That empty bottle of generic cough syrup, purchased at a Walgreens, was in a zip-lock bag and entered into evidence as Exhibit 5. Jurors on Thursday night sent a note to the judge, asking for the exhibit to examine it. It was given to them.)
“She did not just drink a teaspoon and a half,” Shook told jurors.
Van Arkel, McKeown's lawyer, had objected to a similar statement made earlier in closing arguments by prosecutor Rennier about how much cough syrup McKeown drank that day and how long she had been taking cough syrup.
Van Arkel argued that Rennier was making statements that were not found in evidence. (Opening and closing statements are not considered evidence.)
Judge Micheal Cordonnier advised jurors that it was their job during deliberations to determine what the evidence was at trial.
In his closing, Van Arkel asked jurors to take note that the state did not call an expert on DXM, or on psychosis during the trial.
“The state did not bring in another expert,” he said. “Where are they?”
According to jury instructions, Missouri law states that jurors must find a defendant not guilty if the defendant “did not know or appreciate the nature, quality or wrongfulness” of their actions.
In addition, if a defendant is claiming to be not guilty by mental disease or defect due to intoxication, according to the jury instructions, the intoxication would have to be an “involuntary intoxication.”
