Emergency hearing: Delmer Smith refuses state's psychiatric evaluation

Delmer Smith refuses to meet with state psychiatrist

ejohnson@bradenton.comAugust 11, 2012 

MANATEE -- In an emergency hearing Friday afternoon, prosecutors told Judge Peter Dubensky that Delmer Smith has refused to meet with the state's psychiatrist and may want to represent himself.

Smith was convicted Thursday of first-degree murder in the Aug. 3, 2009 slaying of Kathleen Briles. A status hearing has been set for Monday, followed by the penalty phase on Tuesday, in which the jury will recommend a sentence of death by lethal injection or life in prison.

One of Smith's defense attorneys, Bjorn Brunvand, called the State Attorney's Office Friday to relay his client's wishes.

"When I arrived this morning to meet with Mr. Smith, initially he did not want to talk," Brunvand said.

After agreeing to meet, Brunvand said his client instructed him to call no witnesses during the penalty phase, but "indicated he may want to repre

sent himself."

The defense's expert psychologist has already evaluated Smith, but the defendant indicated Thursday and enforced Friday that he does not want to present mitigating evidence to explain his actions.

"I'm going to advise Mr. Smith about some of the rights he has, and benefits and advantages he may be giving up," Dubensky said.

Smith, who was shackled and dressed in inmate garb, affirmed he understood. Dubensky will continue questioning Smith to see if he changes his mind in the coming days.

If Smith refuses to meet with the state's psychiatrist Sunday afternoon, the judge has few options pursuant to Florida Rule of Criminal Procedure 3.202 (e). Dubensky may prevent the defense's psychologist from testifying, or the defense psychologist may be required to turn over the material obtained from his interview with Smith to the state's witness. Dubensky said he would research the possibility of other alternatives to be discussed Monday.

"One of the most powerful arguments you may have could be lost to you if you refuse to speak to Dr. Myers," the state's psychiatrist, Dubensky told Smith.

Brunvand said he did not have the opportunity to discuss those consequences with his client, but after Dubensky's instruction, Brunvand said he misunderstood and had previously informed Smith.

In response, Smith whipped his head to the side and rolled his eyes in disbelief.

The defense has also arranged for Smith's sister and two nieces, who Brunvand considers "significant" witnesses, to be flown from Michigan to testify. Dubensky said those accommodations would remain in place.

But Smith indicated he does not want them on the stand.

"I choose not to see them," an unusually vocal Smith told the judge. "I told him (Brunvand) that already."

The state also brought up Smith's discontent with his lawyers and that he may choose to represent himself. When Dubensky asked if Smith would like to fire his attorneys, Smith asked, "How about appointing me new lawyers?"

Dubensky told Smith he would have the weekend to draft a motion firing his lawyers or asking for new representation if he finds his current defense ineffective.

"Two attorneys in my ear, putting stuff in my head, 'It's for my best interest,' " Smith said. "It's not for my best interest."

Smith said he initially did not want the jury to be instructed on the possibility of lesser charges, but changed his mind at the recommendation of his attorneys.

Previously in the case, Smith told his attorneys about information he wanted presented during the trial. The defense called no witnesses to the stand, including Smith, indicating that was a collaborative decision with their client. When questioned about not presenting evidence by the judge Thursday, Smith confirmed that he agreed to the decision.

"The stuff that should have been presented would have been presented," Smith said, after suggesting his lawyers gave him poor counsel.

The issue will be resumed at 8 a.m. Monday.

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

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