A Tucson man convicted of killing three Pizza Hut employees has been ordered to testify against his co-defendant despite the fact he doesn't want to and his attorneys believe he's incompetent.
While Judge Frank Dawley of Pima County Superior Court said Kajornsak "Tom" Prasertphong, 26, may end up being declared incompetent for sentencing purposes, there is no reason to believe he won't be able to "perceive, remember and relate" facts during Christopher "Bo" Huerstel's upcoming trial.
Huerstel and Prasertphong are accused of fatally shooting Robert Curry, 44, Melissa Moniz, 20, and James Bloxham, 17, during a robbery attempt at an East Side Pizza Hut in January 1999.
Prasertphong, then 19, and Huerstel, then 17, were both convicted in September 2003 and sentenced to death for Moniz's and Bloxham's murders and to life without parole in Curry's death.
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Huerstel's conviction was overturned and his second trial ended with an acquittal for first-degree murder and a hung jury on a second-degree murder charge.
Prasertphong's death sentence was overturned when the U.S. Supreme Court ruled that juries, not judges, should render sentences in death-penalty cases. He is awaiting a new sentencing hearing.
Prosecutors want to put Prasertphong on the stand to testify against Huerstel during his third trial.
Prasertphong's attorneys object, saying their experts believe Prasertphong not only is incompetent now, but was incompetent during his 2000 trial.
Under the law, someone is deemed incompetent when they don't understand the nature of the charges against them and/or can't assist their attorneys in preparing their case.
Dawley agreed Friday to have Prasertphong's competency evaluated for his sentencing but said he doesn't believe such evaluations are needed for witnesses.
When Dawley told Prasertphong he must testify, Prasertphong said he wouldn't.
"I don't wish to testify. Period," Prasertphong said.
When the judge told him prosecutors couldn't use anything he said against him, Prasertphong replied, "I still refuse to testify."
The judge said he would give Prasertphong the chance to provide a deposition instead of testifying at trial. Should Prasertphong refuse to participate in the unscheduled deposition, he could receive a six-month jail sentence.
According to defense documents, neuro-psychologist Thomas Thompson stated he believes Prasertphong has "impaired social emotional maturity, reasoning and interpersonal skills."
For example, Prasertphong told him several times he plans to fly jets for a living and once made $16,000 while competing in Thai martial-arts matches.
There is no evidence Prasertphong competed in martial arts, and he failed Air Force entrance exams seven or eight times because of his poor English skills, Thompson said.
Prasertphong doesn't see the "incongruity of his statements and reality," Thompson wrote.
In related matters, Dawley postponed Huerstel's Feb. 28 trial at the request of Huerstel's attorneys, who have appealed Dawley's earlier decision not to dismiss the case against him.
