PASCO -- A defense attorney for a Pasco man accused of robbing a convenience store is asking the state Court of Appeals for an emergency stay in the case.
Shelly Ajax is appealing a Franklin County Superior Court judge's decision to have her client, Billy Wayne Davis, undergo a second mental evaluation at Eastern State Hospital.
Davis, 65, is charged with first-degree robbery with a firearm for his involvement in an Aug. 20 robbery of the Family Mart Conoco on Fourth Avenue in Pasco. If convicted, Davis could spend the rest of his life in prison under the state's "three strikes" law.
Davis was evaluated by a state psychiatrist at Eastern State late last year, and Dr. Avery Nelson determined Davis was insane at the time he allegedly committed the robbery, court documents said.
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In February, Judge Vic VanderSchoor agreed to allow prosecutors get a second evaluation, but Ajax contends prosecutors can't ask for another evaluation simply because they didn't like the results of the first one.
She appealed VanderSchoor's decision and asked for an emergency staywhile the appellate court decides whether to review the case.
Deputy Prosecutor Brian Hultgrenn asked VanderSchoor this week to allow him to schedule the second evaluation so the case could move forward if the appeals court denies the defense's motion.
After VanderSchoor agreed, Ajax said, "My client intends to invoke his right to remain silent at a second evaluation."
Hultgrenn then said that if Davis invokes his right to remain silent during the evaluation, the defense cannot use insanity as a defense at trial.
"You see your honor, that's the tangled web we weave here," Ajax replied. "That's the issue."
In her appeal, Ajax said there have been no changes to her client since his first evaluation at the state mentalhospital and there are no grounds for a second evaluation.
"The state does not agree with the mental health evaluation provided to them and is seeking a second opinion to circumvent the first opinion," she wrote.
Ajax also said the state's request to deny Davis' right to remain silent during the evaluation "is a blatant attempt to circumvent a defendant's right to silence" during proceedings established under state law, documents said.
Any statements he makes in a second evaluation could be incriminating, she said, adding that "the fact that the trial court ordered a second evaluation intrudes on the defendant's right not to incriminate himself."
Hultgrenn, however, challenged Ajax's assertion. He said that when the Eastern State psychiatrist made his determination that Davis was insane at the time of the crime, that doctor "essentially became an expert witness" for the defense, documents said.
The state now has the right to have the findings examined and to have Davis re-evaluated, as the defense could if the first evaluation determined Davis was competent and sane, Hultgrenn wrote.
Davis is out of custody after his bail was reduced after the first evaluation and would remain out of custody during a second evaluation, Hultgrenn said.
He added that if Davis is convicted, he would face life in prison, and if he was found not guilty by reason of insanity, he also could face a lifetime civil commitment.
"In circumstances such as these, it is important to be thorough and conduct at least two evaluations," he wrote in court documents.
Davis' felony criminal history dates back to 1975, with convictions for first-degree robbery in 1981, second-degree robbery in 1988, first-degree attempted robbery in 1990 and second-degree theft in 1998.
According to the evaluation by Nelson, Davis is competent and has the capacity to understand the proceedings and assist in his own defense.
But Nelson said that as a result of a mental disease -- psychosis because of pneumonia and septicemia and multiple medical problems -- "Davis didn't have the capacity to perceive the nature or quality of the offense, and did not know right from wrong."
Nelson also said he feared Davis "could die in jail" because of the serious medical risks involved. He said the risk of a repeat offense is "extremely low" with good medical care.
During the evaluation, Davis reportedly seemed "perplexed" about the criminal incident, saying the gas station was one of his regular neighborhood stops for gas, documents said.
He said the employees know him and he was confused about how he became involved in such an act, Nelson said.
"He thought it must have something to do with Four Loko -- a caffeinated alcohol energy drink he consumed the previous day. He specifically remembered that he felt exhausted and weak with no energy," Nelson wrote.
Davis also appears to be in the early stages of dementia, which combined with the pneumonia and other illness resulted in severe cognitive dysfunction, Nelson said.
"The patient could respond in words to questions related to his Miranda warning. ... But he could not understand the significance of the Miranda warning. He did not really know what it meant," Nelson said. "Mr. Davis had no idea how ill he was at the time of the incident and the effects his medical condition had upon his thinking."