MANATEE -- Jury selection for the trial of Delmer Smith III, charged with first-degree murder in the 2009 slaying of Kathleen Briles, will begin Monday after Judge Peter Dubensky denied both the state's and defense's motions for a delay.
Dubensky also rejected the defense's motion to bar the death sentence in Thursday's hearing. So Smith could end up on death row if found guilty in the trial, which starts almost exactly three years after Dr. James Briles found his slain wife, bound and gagged in their Terra Ceia home Aug. 3, 2009.
Smith, 41, attended the morning hearing in inmate garb, his ankles and wrists shackled. He stared ahead, occasionally looking at papers on the table or whispering to his attorney, Daniel Hernandez.
Dubensky questioned if Hernandez, who was assigned the case almost two years ago, has been consulting enough with Smith about the defense strategy.
Brian Iten, assistant state attorney, noted that Smith's defense has not obtained depositions from the medical examiner, crime scene investigators or several persons documented in Smith's cell phone records.
"I have concerns that the majority of our witnesses have not been deposed," Iten said.
That became part of the defense's motion to delay the trial after Hernandez requested to speak with Smith.
"I sense a back-pedaling on your part, and that concerns me," Dubensky told Hernandez, adding he would not let "doubts seeded" by the state control the case.
When Dubensky asked if Smith has been happy with his defense so far, Smith nodded from his seat.
Dubensky also granted the state's motion to allow three of Kathleen Briles' relatives to be present at all phases of the trial.
Two of Kathleen Briles' children are expected to identify stolen property taken from the murder scene late in the trial. And Dr. Briles is one of the first witnesses set to testify about how he found his wife at about 7:50 p.m. that night. Police identified an antique sewing machine, which was found next to the victim, as the weapon used to beat her to death.
The prosecutors said they believe the family's presence will not alter their testimonies.
But Hernandez argued that the jury could refer to the family's reactions during the trial, causing prejudice through sympathy.
Briles said later that if he had been barred from the court room, the jury would have questioned his absence.
"I can control myself," he said after the hearing. "I've done it for many years."
New evidence surfaces
Smith, who usually shows no emotion in the courtroom, furrowed his brow during another state motion. Iten asked to allow a witness testify that Smith asked him to pass along a "threatening" message to James Cellecz, who was convicted in April 2010 of pawning Briles' jewelry following her death.
Hernandez argued the value of presenting allegations of witness tampering against Smith would be outweighed with prejudice.
Dubensky's decision as to whether that evidence will be admissible was not released Thursday.
In his decision to deny the defense's motion to continue, Dubensky said Hernandez's request for extra time to obtain depositions three years after the alleged crime and two days before the trial is "simply a delay tactic."
The defense's initial motion to continue was filed July 20 after prosecutors disclosed evidence regarding 88 phone calls allegedly made to and from Smith's cell phone the day of Briles' death. Hernandez said he wanted more time to develop a response to that evidence. But Dubensky said most of the information has been available since April 2011 and the names of phone subscribers recently released "is mere surplus."
The state also filed a motion Monday to delay the trial after the defense called regarding the use of neuropsychologist Dr. Hyman Eisenstein of Miami as a mental mitigation expert. The state said the late notice would hinder the prosecutors' investigation of the witness.
In his decision, Dubensky said the state would be given time, if there is a penalty phase, to depose Eisenstein. He also ordered the defense to provide a written statement to the prosecutors regarding circumstances Hernandez plans to present through Eisenstein's testimony.
Smith only recently agreed to a personal evaluation by Eisenstein, Hernandez said.
Trial ruling a surprise
With both sides pressing for the trial to be delayed, it came as a surprise that the judged denied both motions.
Mark Lipinski, a local defense attorney, said it is unusual for a judge to deny a motion to continue when the depositions of critical witnesses are involved.
"Unless Mr. Hernandez files some sort of emergency writ to the Second District Court of Appeals, it looks like they're going to trial Monday," Lipinski said.
Lipinski said Hernandez must have a reason for not deposing the witnesses.
"It is always dangerous to go to trial in an important case without certain witnesses being deposed," Lipinski said. "I know some very good attorneys who, for reasons of their own, choose not to depose witnesses because they believe it strengthens and solidifies the state's case."
Hernandez could not be reached Thursday evening for comments.
Iten has 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. Three weeks are set aside for the trial. Iten said he will spend Friday going over the case and talking to witnesses.
The state has not made any offers in the case. Hernandez said he has discussed pleading guilty with Smith, who is "not inclined to do so."
Smith is already serving life in prison for a home invasion and kidnapping in Sarasota. He is suspected in as many as 10 home invasion robberies -- five in Manatee County and five in Sarasota County -- between February 2009 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.