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Trial begins in death of 2-month old boy

March 18, 2009|By ERIN JULIUS

CHARLES TOWN, W.Va. -- A man who in an interview with police became emotional when describing the birth of Colton Lee James faces a minimum of 30 years in prison if convicted in the 2-month-old boy's death on Dec. 10, 2007.

"I watched this baby be born, I watched his first breath," Michael Todd Cox said in a recording played Wednesday during the first day evidence was presented in his trial on the charge of child abuse by a custodian resulting in death.

The trial in the Jefferson County Courthouse is expected to last into next week.

Cox, 41, began dating the boy's mother, Kathy Whitmore, while she was pregnant with Colton, and he moved in with her at her grandmother's house shortly thereafter.

That is Cox's "method of operation," a prosecutor said during her opening statement Wednesday.

Cox pleaded guilty in 1993 to voluntary manslaughter in the death of 11-month-old Amber Koehler. Cox was dating Koehler's mother at the time of the girl's death, which was attributed to a brain injury similar to Colton's, Jefferson County Assistant Prosecuting Attorney Brandon "Brandy" Sims said.

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Amber's mother, Melinda Moser, is expected to testify during Cox's trial.

In the recording played Wednesday, Cox said he pleaded guilty in the first case because he was "so scared of the judicial system" and did not trust his "public pretenders," referring to his public defenders.

Colton's biological father, Allen Whitmore, rarely saw the child, Cox told police. But Allen Whitmore was at the hospital on Dec. 6, 2007, after Colton was admitted with a brain injury.

"He is my child," Cox was heard saying on the recording.

Jurors will hear testimony that Cox is a "really nice guy" who moved in with Kathy Whitmore and helped her take care of her children, defense attorney James Kratovil said during his opening statement. Kratovil accused the state of focusing on Cox in this case because of his criminal history not because of the evidence.

Much of the taped discussion between Cox and West Virginia State Police Sgt. David Boober focused on the events of Dec. 6, 2007, the day Colton was taken to Jefferson Memorial Hospital. Later that night, the boy was airlifted to Georgetown University Medical Center in Washington, D.C., according to testimony.

The bulk of live testimony Wednesday was from Boober, who has worked on child abuse cases for about three years. It was during his testimony that prosecutors played more than an hour of the taped interview with Cox.

During her opening statement, Sims described for jurors the prosecution's explanation of what happened before Colton was admitted to the hospital with what she described as "massive brain damage."

Sims said Kathy Whitmore left the baby and his older brother in Cox's care while she did some shopping. When Whitmore returned home, she found that Cox had dressed both boys and was in need of a ride to Germantown, Md.

Whitmore drove Cox to Germantown, with a stop in Frederick, Md. She returned to her home on Kabletown Road outside of Charles Town, W.Va., left Colton with her grandmother and took her older son to a friend's house. Whitmore's grandmother, Mary Fowler, testified that she was the first to discover something was wrong with the boy.

Colton had been asleep when Whitmore left the house. Fowler noticed later that he started reaching his arms out in a manner she had not seen before and became worried.

"I wrapped him in a blanket because he was so cold. I mean it was like he didn't have any blood at all," Fowler said. The baby's left eye had drooped, she testified. "I just kept saying, 'Sweetheart, I wish I could do something for you,'" Fowler said.

When Whitmore returned, she called 911. One of the paramedics who responded to the scene testified Wednesday, saying she told both women that Colton appeared to have a brain injury. Both women were shocked, the paramedic testified.

On the recording, Cox talks about calling Fowler shortly after the incident. The woman talked about Colton having a seizure, his eyes rolling to the back of his head and she didn't know what to do so she shook him, Cox said.

While on the stand Wednesday, Fowler denied ever shaking Colton or any baby.

Sims said the state plans to call Kathy Whitmore to the stand today and hopes to wrap up its case today or Friday.

Cox, who blew a kiss to people seated in the gallery as he entered the courtroom Wednesday, was in Eastern Regional Jail Wednesday night.

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