|Fox faces murder arraignment for sons' deaths |
By GEORGE DIEPENBROCK
Southwest Daily Times
The state charged Fox with the murder counts in July for his alleged involvement in a March 27 trailer fire on Virginia Street that took the lives of his two sons, Chance Fox, 6, and Rowdy Fox, 4.
State prosecutors presented their case Monday in a three-part sequence. The first part outlined Fox's alleged fear his sons would become Jehovah's Witnesses with their grandparents.
The second part depicted the technical events of the fire, including a statement from a state fire inspector that he classified the fire as human caused.
The third part of the case emphasized Fox's behavior since the boys' deaths, including a jail inmate's statement of Fox's alleged confession to the murders.
Fox's attorneys from the Death Penalty Defense Unit asked Smith to dismiss the case.
"This is not even a good arson case," Fox's attorney Ron Evans said.
During the most emotionally-charged testimony, the boys' mother, Angie Gardner, took the stand in the morning.
Gardner stated she and Fox had a relationship that fluctuated on-and-off for nine years, but in the year before the fire, they had separated because Fox's medication for his colon cancer was affecting him. His drinking also made her nervous about leaving the boys with him.
"His medicine was messing him up, and I was kind of afraid of him," Gardner said.
Gardner also testified that while his condition improved and Fox promised he would not drink around the boys, she allowed her sons to spend time with him again.
Gardner also mentioned tension between Fox and her parents, who are Jehovah's Witnesses.
"He said he didn't like my mother's religion and that he was afraid she would take (Chance and Rowdy) to church with her," Gardner said.
When prosecutor Melissa Johnson asked Gardner to identify each boy in their most recent school picture, Gardner looked at Fox several times and back at the pictures before verifying. Johnson then brought the pictures to the defense's table to show to Fox's attorney Jeffrey Wicks, who did not object to the state entering the pictures as evidence during the hearing.
Fox immediately reached for tissue to wipe his eyes and turned away so he could not see the pictures. He became emotional at any mention of the boys during the morning portion of the hearing, but during the afternoon session, he remained calm.
During cross-examination, Gardner noted Fox always burned scented candles because he was embarrassed about smells that could resonate as an effect of his colon cancer treatment.
Lori Benton, administrative assistant at the Liberal Housing Authority's Park Lane Towers, testified about several instances between October and December of 2003, before Fox was evicted from the facility, when he was drunk and disruptive. She noted one instance when Fox made a remark about his drinking and his sons.
"He said 'I know I shouldn't be drinking, but I really miss my boys, and if I can't have them, nobody will,'" Benton said.
During cross-examination, Benton noted she did not contact law enforcement.
Fox's friend, Timothy Harvey, of Tyrone, Okla., testified how Fox liked fire and remarked to him on occasions about knowing how to burn down a home and collect insurance while authorities would be unable to detect the cause.
Harvey also said how he became angry with Fox for stating that he would rather see his boys dead than go to church with Gardner's parents. During cross-examination, Harvey said he didn't think Fox meant it when he said it.
When Harvey exited the courtroom, he waved at Fox, who did not acknowledge him.
State fire inspector Melvin L. Dale testified he ruled out electrical and natural causes of the March 27 trailer fire when he originally inspected the scene that day. And based on the immediate evidence, he was unable to determine the fire's cause at the time.
During his testimony, Dale also mapped the scene, as the boys' bodies were found in a make shift bed on the trailer's south end, while the fire originated near the normal bedroom in the north end, where Fox stated through interviews that he slept.
Dale also said after gaining information from the county attorney's investigator Brian Miller of witnesses and Fox, coupled with his own investigation, he considered arson as the cause.
Paramedic Karla Holder who responded to the fire testified Fox had minimal injuries beyond singed hair, and she said he had a strong odor of alcohol and passed out several times and had to be revived.
Norman Shoemate, a former inmate in the Seward County Jail and now in custody in Meade County for writing worthless checks, testified how Fox's demeanor changed in jail after he was charged with capital murder in September.
"I asked him 'Did you do it?' and (Fox) said, 'This is bad. Yeah I did.'" Shoemate said.
Shoemate testified Fox told him he had candles burn a couch in the trailer because he wanted the boys to die of smoke inhalation rather than burns. Shoemate also noted Fox told him he was drinking wine that night and how Fox referred to animosity between Gardner's parents and himself.
The defense questioned Shoemate's credibility because of his past convictions and charges for worthless checks.
Kathleen O'Keefe, of Colorado Springs, Colo., testified as a person Fox met in an online message board about camping. Fox stayed near O'Keefe's residence for about 10 days before he was arrested. O'Keefe noted how Fox's attitude about the fire changed as he began to tell her about how he had killed the boys. She noted how Fox was addicted to morphine and drinking alcohol considerably, and in one instance, he threatened her and scared her because he told her he would also kill her.
In summation for the defense, Evans argued the case relied on speculation from statements Fox made, lacked definitive evidence that arson occurred and presented a witness in Shoemate with credibility problems.
But Judge Smith declared enough evidence was presented to warrant a crime occurred and that Fox could have committed the crime.
Smith scheduled Fox's arraignment on the charges for 1:30 p.m. Dec. 17.
The preliminary hearing was scheduled for Monday and today, but the hearing concluded at 1:52 p.m. Monday.