Defense asks judge to bar death sentence, delay start of Delmer Smith murder trial

ejohnson@bradenton.comJuly 25, 2012 

MANATEE -- New evidence relating to the phone records of Delmer Smith III, accused of killing Kathleen Briles in 2009, could postpone his murder trial next week.

Both the defense and state have filed motions to continue the trial, set to begin with jury selection Monday. Judge Peter Dubensky will hear those motions, the defense's motion to bar the death sentence and others at 8:30 a.m. Thursday.

On Friday, state prosecutors disclosed evidence regarding phone calls allegedly made to and from Smith's cell phone. As a result, the defense filed a motion stating a continuance is needed to allow time to review the records and possibly obtain evidence for response.

The state filed another motion Monday to delay the trial as a "remedy for the defense's failure to comply" with a Florida Rule of Criminal Procedure requiring notice to present an expert testimony at least 20 days before

trial. According to the motion, the State Attorney's Office was not told until July 23 in a phone call that the defense would present neuropsychologist Dr. Hyman Eisenstein of Miami in the case. The defense's request for a neuropsychologist had been granted June 21.

The state requests the continuance to comply with legal procedure, in addition to needing time to investigate the expert's background.

Smith, 51, is charged with first-degree murder in the Aug. 3, 2009 death of Kathleen Briles. Dr. James Briles, the victim's husband, found his wife, bound and gagged, about 7:50 p.m. in their Terra Ceia home. Police identified an antique sewing machine, which was found next to the victim, as the weapon allegedly used to beat Kathleen Briles to death.

Smith was developed as a person of interest after cell phone records showed he was in the area about the time of the incident. The day following the incident, items belonging to the Briles were sold to a local pawn shop by James Cellecz. The two were persons of interest in several ongoing cases in both Sarasota and Manatee counties. Following an investigation, Smith was arrested Feb. 10, 2010 on charges of homicide and burglary while in custody at the Sarasota County jail.

The State Attorney's Office is not prosecuting the burglary charge, but did file a charge of first-degree murder.

The state in May 2010 filed to seek the death penalty in Smith's case.

"The state attorney's office carefully examines each murder case and when appropriate seeks death," said Brian Iten, assistant state attorney on the case.

The defense's motion to bar the death sentence, on the stance that Florida's death penalty statute and method of administering lethal injection are unconstitutional, is one of several motions to be heard Thursday.

Other defense motions include:

n Motion to declare Florida Statute 921.141, regarding sentence of death or life imprisonment for capital felonies and further proceedings to determine sentence, unconstitutional on the basis that the burden of proof is shifted to the defendant, "creating presumption of death;

n Motion for jury instruction correctly defining "premeditation";

n Motion to declare Florida Statute 921.141 unconstitutional for inadequate appellate review;

n Motion to compel state to provide pretrial notice of aggravating facts;

n Motion to bar imposition of death sentence according to a decision regarding the Sixth Amendment of trial by jury in Ring v. Arizona;

n Motion for statement of particulars providing notice of aggravating circumstances.

Smith's defense attorney, Daniel Hernandez, a regional public defender out of Tampa, did not return phone calls Tuesday for comment.

The state has filed a motion to compel, motion in limine and motion to allow family's presence at all phases of trial.

Iten called motions filed by both the state and defense "standard."

The judge will also hear at 1:30 p.m. Thursday the state's notice of intent to use evidence of other crimes, wrongs or acts committed by the defendant.

Three weeks are currently set aside for the jury trial, starting Monday.

Iten said he expects jury selection to take one week, followed by one week of evidence presentation. If Smith is convicted, Iten expects the penalty phase to take another few days.

Smith was sentenced in December to life in prison for a Sarasota home invasion and kidnapping. He is being held at the Sarasota County jail.

Smith is suspected in as many as 10 home invasion robberies -- five in Manatee County and five in Sarasota County -- between February and August 2009. Smith is accused of sexually assaulting a woman during one of the incidents.

Elizabeth Johnson, Herald crime reporter, can be reached at 941-745-7041. Follow her on Twitter @EJohnsonBHcrime.

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