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Testimony on Cole's mental state in question

Jan. 16, 2013 @ 11:23 PM

HUNTINGTON -- A circuit judge is deciding whether testimony about a homicide defendant's temporary mental disorder can be shared at trial.

Anthony Patrick Cole, 21, of Huntington, appeared Wednesday before Cabell Circuit Judge Paul T. Farrell. He is charged with the Jan. 26, 2011, shooting death of New York native Dashawn Gilbert.

A defense expert, Dr. Bobby Miller, testified Wednesday that Cole suffered from adjustment disorder at the time of the killing. He contends the temporary disorder, lasting no more than three months, diminished Cole's mental capacity causing him to lack premeditation and malice, both elements of first-degree murder.

Cabell County Prosecutor Chris Chiles vigorously questioned Miller's opinion. He cited Cole's story that he contemplated suicide moments before he pointed the same gun at Gilbert's head, telling the victim "may God have mercy on your soul."

The two men had just met the night before. They stayed at a mutual friend's apartment, located at 7011/2 8th Ave. That's where Cole said he contemplated suicide before a comment from Gilbert prompted him to turn the weapon and fire.

The apartment is located just two blocks from the home of Cole's family. Miller believes continued family strain led to Cole being kicked out. That produced a much larger problem when he was barred from having contact with a younger brother. It caused him to retreat, become intoxicated and contemplate suicide.

Miller said that series of events is consistent with adjustment disorder, a condition he defined as a psychological reaction to a circumstance that exceeds what would be expected from a normal person. The disorder lasts for no longer than three months, Miller testified explaining his opinion that Cole no longer suffers from a diminished capacity.

Farrell repeatedly questioned Miller's most recent report and strength of the psychiatrist's opinion. Miller testified his initial uncertainty concerning Cole's diagnosis was affirmed in late 2012 when prosecutors turned over approximately 280 text messages and photographs.

That included a photograph form Cole's cell phone, which showed him standing in front of a mirror with a gun to his head. Miller and the defense also pointed to a text message, sent after the killing, in which Cole confessed to the killing and said he was unstable.

Chiles responded by pointing to another text message, in which Cole wrote he doesn't lie unless he needs to manipulate.

Miller agreed to having previously questioned Cole's level of honesty, but he said the photographs, text messages and other statements provided by the defendant had given him greater belief in Cole's story.

Farrell ordered Miller to turn over two previous, undisclosed evaluations of Cole's mental state by Thursday. He also suggested attorneys file additional paperwork in expectation of a decision as early as late next week.

The trial is tentatively set for late February. Cole has been incarcerated since Jan. 27, 2011.

Follow Curtis Johnson via Twitter @curtisjohnsonHD and http://facebook.com/curtisjohnsonHD

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