Pasco man may have been wrongly charged

Kristin M. Kraemer, Tri-City HeraldOctober 25, 2013 

A Pasco man locked up for life under Washington's "three strikes" law could be freed after an appellate court found he improperly was charged for a 2010 convenience store robbery.

Billy Wayne Davis was convicted of going into the Family Mart Conoco with a pump-action BB rifle and ordering the clerk to hand over all of the money in the register.

But because a co-defendant actually took the cash before the pair left the store, Davis should have been charged as an accomplice as well as a principal in the crime, the Washington state Court of Appeals ruled.

Because Franklin County jurors weren't instructed on accomplice liability, the evidence before them was insufficient to support every element of first-degree robbery and therefore Davis' case should be dismissed, the court said.

Prosecutor Shawn Sant thinks the three-judge panel got it wrong, either by overlooking some facts or not considering all the issues before reaching a conclusion.

"That's going to be one we quite frankly disagree with the court's opinion ...," he told the Herald. "Obviously it's a serious case. Anytime you have a robbery, especially when the consequence is life, a lot is at stake."

Sant will meet with his deputy prosecutors in the next week to discuss their options, he said. He expects they will file a motion with the Court of Appeals to reconsider, or even go straight to the Washington Supreme Court with a petition for review.

Davis, now 68, is serving time in Clallam Bay Corrections Center on the Olympic Peninsula.

During the early hours of Aug. 20, 2010, Davis and Moses C. Sanders walked into the Pasco store on Fourth Avenue and demanded the contents of the cash register, according to court documents.

Davis had a BB gun that was modified to look like a rifle and pointed it at clerk Michael Acton during the holdup. Sanders took $304 in bills and coins from the drawer, but claimed he gave the money to Davis before they ran out of the store.

Acton called 911 at 2:17 a.m. and the two men were found in Volunteer Park in Pasco, across the street from the Franklin County Courthouse.

Davis was wearing clothes that matched the description of a robbery suspect. Sanders, who was 53 at the time, was hiding in a tree and made comments to police that he had to do it and he didn't want to die.

The suspects were driven by the store so the clerk could confirm their identities before they were taken to jail, documents said.

Davis reportedly was in possession of $289 at the time of his arrest. The clerk said $287 in bills was taken from the store.

A Superior Court jury returned a guilty verdict in October 2011 for the robbery with a firearm.

The defense claimed that Davis was insane when he committed the robbery.

Davis told a state psychiatrist he was confused about how he became involved in such an act, especially since he was a regular customer at that gas station, and questioned if it had something to do with Four Loko -- a caffeinated alcohol energy drink he said he'd consumed the previous day. The psychiatrist found that Davis was in the early stages of dementia, which combined with pneumonia and other illness resulted in severe cognitive dysfunction.

At his first court appearance, Davis told the judge he was working part-time and was a basketball referee, and hadn't been in trouble with the law in a long time.

Court records show that Davis has 10 felony convictions dating to 1966 in both Franklin and King counties.

In addition to convictions for first- and second-degree robbery and attempted first-degree robbery, his record includes second-degree burglary; second- and third-degree assault; grand larceny; first-degree escape and second-degree theft.

He also reportedly has about 14 misdemeanor convictions, prosecutors said early in the case.

This robbery conviction qualified as a third strike under state law, so Davis was sentenced to life without the possibility of early release.

However, the court sided with Davis' appellate argument that since he actually didn't take property from Acton against his will, his right to due process was violated when the trial court accepted the guilty verdict.

Even if the state failed to include language in the charging document that Davis also was an accomplice, the issue would have been covered if prosecutors had asked the judge to give a related jury instruction.

"It is undisputed that Mr. Davis did not personally commit all the elements of robbery. Accordingly, an accomplice liability instruction was required," the court's opinion said.

The court reversed the conviction and ordered the trial court to dismiss the robbery with prejudice, which means it cannot be re-filed because that would be double jeopardy.

Prosecutors argued on appeal that even if Davis didn't physically pull the money out of the register, he "still obviously committed the robbery" by forcing Acton at gunpoint to provide the money and later was found down the road with the store's property.

"It's almost a misconception, we feel, that just because two or more individuals might be committing a crime, we don't have to add them as an accomplice. Both can be acting as principals, an equal party," Sant told the Herald.

If either appellate court refuses to take up the case for further consideration, Sant said Davis will be returned to Franklin County and the prosecutor will have no choice but to let him walk free.

-- Kristin M. Kraemer: 582-1531;; Twitter: @KristinMKraemer

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