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Attorney: Suspect had diminished mental capacity

Nov. 09, 2012 @ 11:50 PM

HUNTINGTON -- A local murder trial was delayed Friday as an attorney for Anthony Patrick Cole prepares to argue that Cole suffered diminished mental capacity at the time of a killing nearly two years ago.

Cole, 21, appeared Friday before Cabell Circuit Judge Paul T. Farrell. Trial was postponed from next week to Dec. 4.

The case concerns the Jan. 26, 2011, shooting death of Dashawn Gilbert, a New York native who had been living in Huntington. It happened in an apartment at 7011/2 8th Ave., just two blocks from the home of Cole's family.

An investigator previously testified Cole, then 19, had contemplated suicide in the apartment's bedroom, but hesitated at the thought of devastating his two younger brothers. Cole then exited the room, heard Gilbert make a comment and looked at the victim saying, "May God have mercy on your soul," as he fired the fatal gunshot. They had just met the night before and had decided to stay with the apartment's tenant, who was a mutual friend, according to the investigator's prior testimony.

Cole's teenage psychiatric records were the topic of Friday's discussion. The defendant waived his privacy rights, allowing the files to be utilized by a local defense psychiatrist and reviewed by the prosecution's expert.

Cole's attorney, Dwight Staples, has relied upon the defense side's psychiatrist, and in part those psychiatric records, in crafting a diminished capacity defense. Staples summarized the argument after court, explaining it will contend Cole's diminished mental capacity kept him from forming elements necessary for first-degree murder, such as premeditation.

Staples cited a family emergency in calling for this month's postponement. Farrell, eager to try the case, urged both sides to submit the necessary paperwork and be ready for jury selection in early December.

Cole also faces an unrelated count of first-degree robbery linked to a Dec. 20, 2010, attack on a woman in her 20s. The indictment alleges Cole hit the woman in the head with his handgun and demanded money and her cellphone before taking her debit card and wallet.

The 8th Avenue apartment marked just one of various places Cole had stayed since the Dec. 20 robbery, according to the prior testimony.

The murder and robbery cases are being tried separately with different defense attorneys. If convicted, both charges carry possible life prison sentences.