The Benadryl did it

“This is not a whodunnit,” the defense attorney told the jury yesterday, May 10. “This was in fact a killing that was done by David McGee.”

David Noel McGee Jr., 26, is facing one charge of first degree murder, in the bludgeoning death of his 55-year-old mother a year ago. The body of Rebecca Apodaca was found on February 1, 2017, in the Escondido apartment she shared with her son.

“David killed his mom, there is no doubt about that, but it was not murder,” defense attorney Lindsay Itzhaki told the jury in her opening statements yesterday morning.

Itzhaki explained, “There is a difference between a killing and a murder” and she claimed the prosecutor would not be able to prove specific intent, a necessary element for the crime of murder. “The people have to prove a specific purpose, a specific intent, for this killing.”

Itzhaki described McGee as helpful and kind. “Passive, almost a doormat if you will.”

“Why would this 26-year-old boy kill his mother, whom he has taken care of his whole life?” Itzhaki wanted the jury to ask themselves. Then she answered for them: “David killed his mother in a fog of Benadryl.”

Itzhaki showed a bottle of pink pills to the jury, it was the same size and brand of antihistamine as the empty bottle found by investigators. The prosecutor and defense attorney both agree that McGee swallowed a potentially lethal dose of the pink pills, and he was saved by a quick trip to hospital. McGee also cut his own arms and neck; these wounds were also treated at hospital.

Prosecutor Keith Watanabe asserts that the pills were swallowed after McGee “hammered” his mother to death. And that the young man resented his mother bothering him to get a job.

Itzhaki said she will call a doctor to testify who is a toxicologist, “He will tell you about hallucinations and delirium and psychosis, with Diphenhydramine levels of this type.”

Both attorneys agree that David McGee and his mother commonly used Benadryl pills as a sleep aid. And their extended family bought large quantities of the antihistamine, Kirkland brand as an economy, and they shared the bottles. “They all use Benadryl for whatever reason, help them sleep, allergies or whatever,” said Itzhaki. She told the jury, “It can cause hallucinations in high dose.”

“So, again we ask ourselves, how did we get here? If not for the Benadryl, we would not be here,” Itzhaki asserted. “If not for the Benadryl, David and Ella would still have their mother.”

The defendant’s sister, Ella, took the witness box the afternoon of May 10, 2017. She is the one who discovered the body. Ella will resume her testimony on Monday, May 14, in San Diego’s North County Superior Courthouse.