Cox fate goes to jury today

By Patsy R. Brumfield/NEMS Daily Journal

12:39 POST
NEW ALBANY – “Kim got justice,” her mother said after a Union County jury sentenced David Neal Cox Sr. to death for her 2010 murder.
Cox stood ramrod straight in the courtroom as Judge John Gregory set his execution date for Nov. 26, 2012.
But it’s not likely to happen then because automatic appeals begin.
After the 12-member jury exited the room, Gregory sentenced Cox to 185 years on seven other charges from kidnappings and sexual assaults to shooting into an occupied building. The time will run consecutively.
In effect, even if Cox somehow beats the death penalty sentence, he will spend the rest of his life in prison.
Kim’s mother, Melody Kirk, also said she wasn’t quite sure how she felt as her family’s personal nightmare closed in court.
District Attorney Ben Creekmore said he was satisfied with the only correct sentence the jury could reach.
Cox’s sister wept as she embraced Kim’s mother and father. “I’m so sorry,” she said as tears streamed down her face.
• Read more in Sunday’s Daily Journal
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NEW POST
Verdict announced – Jury decides Cox to get death penalty.
• Come back for more details.
11:02 A.M.
NEW ALBANY – David Neal Cox’s future moved into the jury room at 10:59 a.m. today.
After both sides made dramatic closing remarks, the seven women and five men will focus now on the evidence and whether 41-year-old Cox will live or die.
Cox faces life in prison or the death penalty in the capital murder of his estranged wife.
Proceedings began Monday, with jury selection complete by Tuesday evening at the Union County Courthouse.
Cox of Pontotoc County pleaded guilty Aug. 15 to the May 14, 2010, shooting death of Kim Kirk Cox, 40, at her sister’s home in Sherman.
He also pleaded guilty to two counts of kidnapping, burglary, firing into a dwelling and three counts of sexual assault during a hostage situation with two minor children.
Five men and seven women will decide Cox’s future.
Capital murder is charged when a death occurs during the commission of another felony crime.
District Attorney Ben Creekmore and Assistant D.A. Kelly Luther represent the state. Cox’s attorneys are T.R. Trout of New Albany and Kelsey Rushing with the Mississippi Office of Capital Defense.
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(Below is a running account of today’s courtroom action. Please excuse the typos and glitches likely as I type.)
9:23 a.m. – Attorneys, defendant enter courtroom.
9:35 – Judge enters courtroom. Everybody ready, he asks. Defense attorneys want 20 minutes (for closing remarks), state 15 minutes. Judge – says to audience – We’llbe in here probably about 90 minutes, other you stay or go. Don’t want any distractions for jury or lawyer. Will instruct security to bar entry or exit.
Jury comes in.
JUDGE – I will instruct you as to the law, then the attorneys will make the closing statements. (Judge reads to them.) To find for the death penalty, jurors must agree Cox killed his wife, that kidnapping, burglary or sexual battery occurred, if actions were unnecessarily heinous and cruel. May agree on life in prison if believe certain mitigating factors outweigh aggravating circumstances. Jury also may not be able to reach unanimous verdict.
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9:58 – CREEKMORE – I told you we were going to tell you a story. Image that comes to my mind about David Cox, a coward with a gun beause my image is that when they had the drop on him…he had two young innocent kids as shields … he had his hands up, then reached for a gun for a second. But when confronted with grown men, he froze. He wasn’t the same person on 911. He had a plan concenved in the Pontotoc County Jail to get revenge on Kim. He blamed her. People in jail with him said he ranted he would kill her. Heard he carried out his plan. Mr. Smith said he saw him with a 22-gun and said was going to kill Kim. Mr. Smith took it away from him, but he got another gun.
Also part of plan, said he was going to go to Bennie’s house first, but that as he drove by Christy’s house he saw Jacob and hange dhis mind. I sugest that this defendant wanted to face Kim and children rather than going to Bennie’s house. That’s what a coward does.
Heard that experts talked about drug use, brain damage, psychological problems. They can pay experts to give excuses… but our criminal justice system is covered with people who use drugs. I want to know one .. if you can find it… that took a gun and shot a lady and as she died, made her last living memory a living nightmare. Torture. Only one – points to David Cox. Only one. Coward with a gun. Gun makes him feel powerful over little kids.
People that he had a responsibility over … Psalm 45 comes to mind …father, husband, companion? He had a responsibility to nurture. He missed that lesson while he was in church. Very few he had responsibiliyt over… he tried to destroy them. Successful, able to take Kim Cox’s last moment and make it a living nightmare… separate her from the rest of her life, control the way she died. But part of plan was to destroy Bennie, Melody and their family.
But that plan didn’t quite work out – devastation he intended to inflict. Why? Heard … girl, two oys … in a loving home with Bennie and Melody … they are thriving. This man has not defined how they live their lives. After today, they will not have to live in fear of him anymore. You saw the courage it took the girl to get up here … from now on, she does not have to live in fear.
His revenge did not work out.
Bennie and Melody have another family … family of law enforcement. Seen them here. Heard from them. Know they have spent their life helping other people. That’s their jobs – Bennie law enforcement, Melody at Highway Patrol. But one thing, strength law enforcement showed that night. Restraint they showed that night. Tragedy that night, yes. No abuse of violence against David Cox that night. They took him without incident. Unbelievable restraint.
Death penalty can be imposed when we are confronted with the worst of the worst. Read all your instructions together. But I want to read one … about Kim’s death and lethal force. He pleaded guilty to capital murder. (Goes through aggravators – they all exist, not one but all, he says.) Dangerous situation. Know he kidnapped Kim Cox. Know he kidnapped the girl and Little David. Know it was burglary, he entered that home by force to commit a crime. Sexual battery has been proven, three times. Heinous or cruel, it was. Kim died a lingering death. She knew she was dying. I know you are, he said to her.
Conclude … some mitigations listed. These are not proof. Your decision.
Last thought: Whatever you do, it will be respected by all members of Kirk family and law enforcement. 10:15.
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RUSHING with defense closing:
First, to say he appreciates the time you spent with us. This wasn’t what you thought your week was going to be. I appreciate your service. I know it’s been a long week, and things we talked about early on that were going to happen.
Want to go back and talk about what I told you was going to happen: Weren’t going to spend a lot of time about the facts or make excuses. David Cox pleaded guilty. We heard evidence to things he already said he did.
We were going to talk about what got us to this point. I think the state was trying to make a legal excuse … but because he pleaded guilty … we wanted to talk about how this happened, with things in David’s life.
Let’s start … what happened is tragic. It was bad, no other word. WE can’t take that night back. WE can’t fix it. WE can’t bring Kim back. Can’t restore the girl or Little David. But to explain how we got to that point.
State is right. He’s not going anywhere. He will never be a free man again. Nothing is automatic in a death penalty case. What do we mean? If you don’t all decide, as the judge read, you can say “we didn’t agree.”
David grew up in a home with a single mother. He had abandonment issues. Important for Jacob and Little David. He was bullied in school. Because of that, he had issues. Started self-medicating. They said nobody saw effects. Literally his episodes were in the garage and then it was over. Everybody said this was bad for you, can cause brain damage. Went to pain meds and meth.
Meth is bad stuff. Can function, appear “normal.” Most in denial are family members. Saw symptoms, didn’t know what it was.
At this point … Creekmore said he saw coward with a gun. I see this guy right here, spent this trial looking down, afraid to make eye contact. In childlike state, afraid to look up. Not a threat, a menace. WE haven’t seen that person… not a coward with a gun. Someone who had a problem.
How do we know he had a problem? Wasn’t just mean? Bro. Smith testified that when David got out of jail, Smith told him he was acting like his old self. If he was just mean, would he have been there? No. They met in church. David helped him.
Our experts … agreed. Either chemical or bipolar or both. An episode that night. McMichael said excited talking during episode. You heard the 911 tapes. Family said he was up all night at times. Full of bravato, talking on the phone. Everybody said David wasn’t sounding like himself. David had all the symptoms.
Why talk about him, Little David and Jacob? Whatever that huffing did at age 15, David stayed age 15. Why did he treat 6-7 year olds as buddy not father? Because they were, his buddies.
When you get that stuff in your system … I know it’s not going to show up on machines … those sons were his buddies.
Why important? When he got out in Pontotoc, there was a restraining order and it kept him from seeing his buddies. Episode triggered when he saw Jacob.
He somehow became this shell of a person you see sitting here.
We heard about what happened at State Hospital – he said he didn’t want to take tests.
Want to talk about negotiations that night. Don’t want to second-guess law enforcement. First negotiator finished training 3 days before, second one had never done this before that day. He made four phone calls. A reason why David was taken without force: Because he was asleep. They waited him out. He fell asleep. When they walked in with guns, they woke him up. Something they didn’t have a lot of experience with. What happened if went in earlier? WE don’t know. They waited him out.
In summary, our experts said something else going on. Drug problem. Probably some kind of bipolar. Combinations probably. That’s mitigation. Not saying that he was criminally incompetent. But that’s mitigation. FAmily got there and asked for forgiveness. Couple knows a different DAvid. Asked for his forgiveness. Those drugs he inhaled changed his personality into that – that’s mitigation. Consider that.
Here for sentencing … What will tilt scales of justice? Hopefully we have given you enough mitigators to show how somebody could have gotten to this point. And that taking another life won’t restore a life. He’s not coming back… around this family, community, anybody. He’s gone.
We’re asking you to consider these things, testimony .. to find that DAvid Cox is not a coward with a gun that night … not person reaching for a weapon. That was something else. Asking for sentence of life without parole. 10:41
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LUTHER TO WRAP UP
I had a speech ready but threw it away. David Cox murdered Kim Cox. Wasn’t police. Kim Cox was a terrible murder victim. More than anything else, she was a mother. Begging for help. But said don’t come in here, he will kill my kids. What do you if you’re a hostage negotiator and she says not to come in here. Are you going to second guess that decision? (Tears in one woman’s eyes, weeping. Two others with tears.)
We’re here today for justice. Lot of questions asked today. Most of them with two words – David Cox. Shot door in, then shot Kim Cox and gloated about it? David Cox. Who made sure that last sight she saw before she went to eternity… her husband, girl raised since 3? David Cox did that. Who made sure the last sounds of the girl wanting to throw up because this man she brought into her life was sticking (body part) into her mouth? David Cox. Who made sure last thing Kim Cox felt was her life blood and the painful abdomen …? David Cox. Who made sure that the last thought of Kim Cox was … is he going to keep his promise? He told everybody that the girl brains were going to be blown out tonight.
He was the man whom Mr. Smith said I had to take the gun away from him and hide it because he was going to kill Kim. Found another gun. Bought it on same day he committed the crime. Got more magazines. (Woman is still weeping.) Cox said it was his plan to go kill Bennie Kirk, her stepmother the next day then come back and kill Kim. It was David Cox. But he couldn’t wait one more day … shot at Christy Salmon.
Kim’s last thoughts and feelings … smell of gunpowder where he shot at Christy. She lay there and not knowing if he killed her sister. Will he kill my kids?
Defense said not here to offer excuses. But that’s all you heard. Daddy left … bullied because I was bigger … on drugs … I was this, I was that… all boils down to his excuses. Organic brain syndrome. A kid all the time.
Dvid Cox said he didn’t remember any of it. Tells lies at state hospital … same man that the day before, weeks years before was driving a big truck on road, writing letters.
Give mitigators consideration. But do they outweigh facts that he killed Kim, kidnapped her/ son, assaulted girl three times, burglarized the house. One aggrevator is: Is this crime especially heinous and atrocious? Read that instruction and find me a fact situation if you were writing a horror novel that defines that instruction more than what we heard this week. Don’t think even John Grisham could write a more example of that jury instruction…. just for the enjoyment and pain to cause her.
Was it mental disease or meth use for those eight months he was in jail, when every day he woke up saying I hate Kim Cox. Was it some manic attack .. (another female juror weeping)… that he happened to be there with a loaded gun? He set out eight months in jail to kill Kim Cox. He tells you through the police that he didn’t remember what happened. But what does he tell his cellmates what he’s going to do?
Kim Cox was a daughter and mother. Murdered in most atrocious, heinous manner. That outweighs any excuse whatsoever of David Cox, with all his psychologists and psychiatrists could ever muster up. Return death penalty. 10:57
JUDGE – Everybody feeling OK?
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COURT STAFF – Helping gather up evidence to take into jury room.
JUDGE – Releases three alternates. When reach a verdict, knock on the door for the bailiff.
JURY RETIRES: 10:59
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MORNING POST:
NEW ALBANY – Jurors return this morning to decide if David Neal Cox Sr. spends the rest of his life in prison or dies of lethal injection for the 2010 fatal shooting of his wife, Kim.
About 6:30 p.m. Friday, after five days in court, Circuit Judge John A. Gregory sent the seven women and five men home before what could be the trial’s final day in the Union County Courthouse.
Cox, 41, admitted last August that he shot his estranged wife at her sister’s Sherman trailer home, kidnapped two minors and sexually assaulted the female one three times in front of his dying wife.
This week’s proceedings are about his sentence, which for capital murder can only be life without parole or death. Thursday, the defense put on its case to try to engender sympathy with the jury for the lesser sentence.
Its witnesses included Hilda Smith, a former neighbor, two of Cox’s sisters, an addiction counselor and a psychiatrist. To end the day, the state rebutted with another psychiatrist.
The psychiatrists contradicted each other on Cox’s mental state. Dr. Mark Webb of Ridgeland, a defense witness, insisted that Cox was bipolar. He also said Cox’s inhalation of gasoline from 15 to 25 and his meth use later contributed to his mental instability. Dr. Reb McMichael, a forensic psychiatrist at the Mississippi State Hospital, disagreed with Webb and said Cox was clearly faking symptoms of mental illness while he was being evaluated.
“It’s clear he was not being straight with us,” McMichael said. “We thought his description of demons was unrealistic.”
Earlier in the day, addiction specialist John Owen told the jury that Cox exhibited numerous symptoms of meth addiction with sleeplessness and paranoia.
Webb said Cox told him he suffered hallucinations and saw demons which were 5 feet tall and had no eyes. McMichael told the jury that while hallucinations are seen only by the person having them, the person usually reacts and can be observed speaking to unseen figures or moving in reaction to what they are seeing. He said staff never saw Cox doing that.
Cox’s sisters, Charlotte Houston of Thaxton and Linda Carpenter of Lafayette County, spoke emotionally to the jury, saying their brother’s life was worth saving. “I believe there’s always forgiveness,” Carpenter told the court. She and David are 11 months apart and he watched out for her during their early years in school.
Houston said she was concerned that her brother was losing weight and not sleeping. She said she tried to get him to see a doctor. “He said he would sleep when he got his truck unloaded,” she noted about the day he killed his wife.
patsy.brumfield@journalinc.com