Cox v. State

Decision Date25 June 2015
Docket NumberNo. 2013–DP–00087–SCT.,2013–DP–00087–SCT.
Citation183 So.3d 36
Parties David COX v. STATE of Mississippi.
CourtMississippi Supreme Court

Office of State Public Defender by Alison R. SteinerKelsey Levoil Rushing, attorneys for appellant.

Office of the Attorney General by Cameron Leigh Benton, attorney for appellee.

EN BANC.

RANDOLPH, Presiding Justice, for the Court:

¶ 1. David Cox was indicted in an eight-count indictment for capital murder, kidnapping (two counts), sexual battery (three counts), burglary, and firing into an occupied dwelling. Cox was declared competent to stand trial. Cox pleaded guilty to all charges, including capital murder. As the State sought the death penalty, a jury was empaneled to determine his sentence. The jury returned a verdict of death, and the trial court entered a death sentence.

BACKGROUND1

¶ 2. David Cox ("Cox") and Kim Cox ("Kim") had two children of their marriage, D.C. and J.C. Cox was the stepfather of Kim's daughter, L.K., born in April 1998.2 Kim and Cox separated in 2009 after L.K. told Kim that Cox had raped her. Kim reported the crime to local law enforcement. In August 2009, Cox was arrested on charges of statutory rape, sexual battery, child abuse, possession of precursors, and possession of methamphetamine. During his nine months in jail prior to posting bond, Cox often would become enraged and would proclaim to his cellmates his hatred for Kim, blaming her for his incarceration. Cox professed to them that he would kill Kim once released. Because Kim feared Cox, she and the children moved in with her sister, Kristie Salmon.

¶ 3. Cox was released on bond from the Pontotoc County Jail in April 2010. Cox was working as a commercial truck driver. On his way home on May 14, 2010, Cox purchased a .40 caliber hand gun and two extra magazines. Cox then borrowed a van from his sister and brother-in-law and went to Salmon's home. Cox shot his way into the home. Kim, L.K., D.C., J.C., and Salmon were at the home. J.C. and Salmon escaped and called for help. Kim, L.K., and D.C. were taken hostage by Cox for more than eight hours.

¶ 4. The first 911 call was made at 7:10 p.m. Cox communicated with police throughout the night and early morning. Through those communications, police learned that Cox had shot Kim twice, once in the arm and once in the abdomen, between 7:00 p.m. and 7:10 p.m. During the ordeal, Cox communicated with hostage negotiators, Kim's father and stepmother, and members of Cox's family. The last confirmation that Kim was still alive was at 12:45 a.m. on May 15. While Kim lay dying, Cox sexually assaulted L.K. in Kim's presence on three separate occasions.

¶ 5. Agent Chris Jones of the Mississippi Bureau of Investigation testified that Cox cursed and screamed into the phone and stated that he was going to kill Kim and L.K. Cox threatened that if law enforcement entered, he would "be going for head shots," as he knew the officers would be wearing body armor. Cox also threatened that, if Jones called back, he would "shoot [L.K.] in the head."

¶ 6. Officer Alan Chavers, a police officer and hostage negotiator for the Tupelo Police Department, testified that Cox told him that he had shot Kim in the stomach. Chavers encouraged Cox to release Kim for medical treatment. Unmoved, Cox said that he wanted to watch Kim die. Chavers testified that he repeatedly pleaded with Cox to release Kim. Cox replied, "since you're so interested in her ... I want you to hear her beg before she dies." Kim also spoke with Chavers, pleading for her life. Chavers and Cox had several conversations in which Cox repeatedly said that he would not release Kim, because he wanted her to die. Cox also continued to threaten to kill the children if anyone tried to enter the home. Kim expressed her fear that Cox would follow through on his threats against the children.

¶ 7. Cox also spoke with Kim's father, Benny, and Kim's stepmother, Melody. Cox told Benny that his original plan had been to kill Benny, Benny's other daughter, and Melody, then to "go to Sherman and finish up and kill the rest of them." Cox told Benny that he "shot her and she was bleeding like a stuck pig." Benny spoke with Kim and she told him, "Daddy, I'm dying." Cox spoke with Melody multiple times, but he refused to speak to Benny again. Cox told Melody, "You f–––––– bitch, I hate your guts, but I hate his worse so this is the way it's going to be. You and me are going to do the talking...." Melody testified that Cox taunted Kim while talking to Melody, saying, "Are you having fun yet, you bitch? Are you enjoying this? Is this fun, Kim?" Cox renewed his threats to "put a bullet in [L.K.'s] head."

¶ 8. Cox also talked to his sister and brother-in-law, bragging that he had shot "the bitch" and that he wanted her "to die a slow and painful death." Cox's brother-in-law, Michael, testified that he spoke with D.C., who told him that "Daddy hurt Mama." Michael also testified that Cox was yelling at L.K. and threatening to shoot her. Michael stated that Cox told him that he had a bullet for L.K. and for himself. Michael testified that he heard Kim say, "David, you know I'm dying," and Cox unmercifully responded, "I know you are."

¶ 9. Cox never released Kim for medical care, satisfying his depraved desire to see Kim suffer and die mercilessly. After negotiation attempts failed, a SWAT team entered the home at 3:23 a.m. Cox was taken into custody, L.K. and D.C. were removed from the scene, and Kim was found dead, having bled out as a result of the abdominal gunshot wound

.

PROCEDURAL HISTORY

¶ 10. Cox was indicted on a multicount indictment in the Circuit Court of Union County on one count of capital murder (murder while in the commission of kidnapping Kim Cox), two counts of kidnapping of L.K. and D.C., one count of burglary, one count of firing into a dwelling, and three counts of sexual battery of L.K.

¶ 11. Cox was found competent to stand trial based, in part, on the opinion of Dr. Mark Webb, who had been retained by the Office of Capital Defense, and based in part upon the opinions of the staff of the state hospital at Whitfield, after they observed and tested Cox during a two-week observation stay.

¶ 12. Cox sought a change of venue, which was denied. The trial court found insufficient evidence was offered to support the change-of-venue claims of partiality and the inability to receive a fair trial. Cox offered two affidavits, one of which was Cox's, and four exhibits of dated local news reports, arguing the case had been highly publicized and that Kim's father and stepmother previously had served with local law enforcement. The trial court found that the State had met its burden of persuasion by offering witness testimony that no publicity had occurred since near the time of the crime, more than two years and four months before the trial. The trial court found convincing the testimony of four witnesses who testified Cox would have a fair trial and denied the motion "at this point," recognizing that voir dire had yet to take place.

¶ 13. Cox also filed pretrial motions to exclude evidence of victim-impact testimony, the autopsy reports, crime-scene photographs, and prior bad acts. The trial court ruled that portions of statements related to Cox's bad acts were admissible, after considering the Rule 403 "filter test." The State was limited to showing that Cox was incarcerated in Pontotoc County to develop the story surrounding the charged crime and evidence of "other purpose" exceptions. The trial court ruled that the limited statements of Cox's cellmates would be admissible to establish motive and to provide the complete story surrounding the crime, which included Cox's statements faulting Kim and L.K. for his prior arrest and incarceration. It was during that incarceration that Cox planned to kill Kim upon release.3 4 Cox subsequently pleaded guilty to every charge.

¶ 14. Before the sentencing trial, the trial court conducted an ore tenus hearing on the admissibility of L.K.'s videotaped forensic interview. The trial court entered an order finding that the video would be admissible. The trial court's order stated that it recognized that, pursuant to Mississippi Rule of Evidence 1101(b)(3), the Rules of Evidence did not apply to sentencing; however, out of an abundance of caution, the videotape was reviewed and deemed admissible pursuant to Mississippi Rule of Evidence 803(25) (the tender-years exception to the hearsay rule), and the court deemed it relevant to support the aggravator of "especially heinous, atrocious, or cruel."

¶ 15. A jury trial commenced on September 17, 2012, to determine Cox's sentence on his capital-murder guilty plea. The trial concluded on September 22, 2012. The jury received testimony from police officers, investigators, SWAT team members, the 911 operator, Kristie Salmon (Kim's sister), Benny Kirk (Kim's father), Melody Kirk (Kim's stepmother), L.K. (Kim's daughter and victim), Michael Houston (Cox's brother-in-law), Raymond Smith (Cox's neighbor and close friend), two of Cox's former cellmates, the coroner, child advocate Ellen Still, and Dr. H.F. Mason (designated as an expert in general surgery and penetrating gunshot wounds

). Cox presented testimony from Hilda Smith (Cox's neighbor and close friend), Linda Carpenter (Cox's half-sister), Charlotte Houston (Cox's sister), John Owen (designated as an expert in drug, alcohol, and chemical dependency), and Dr. Mark Webb (designated as an expert in psychiatry). In rebuttal, the State offered testimony from Dr. Reb McMichael (designated as an expert in forensic psychiatry).

¶ 16. The jury returned a unanimous verdict sentencing Cox to death. The trial court entered an order in accordance with the verdict. The trial court sentenced Cox on all other charges. Thereafter, Cox moved the trial court for a new trial. After a hearing, the trial court denied Cox's motion. Cox timely appeals to this Court raising nine issues, which have been restated and rearranged to...

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