As penalty phase begins, Delmer Smith won't get new lawyers, judge rules

ejohnson@bradenton.comAugust 14, 2012 

BRADENTON -- Delmer Smith voiced his lack of confidence again in his attorneys and deemed them ineffective during a status hearing Monday, but new representation will not be appointed.

The jury, which convicted Smith on Thursday of first-degree murder in the Aug. 3, 2009, death of Terra Ceia's Kathleen Briles, this week will recommend a sentence of death by lethal injection or life in prison.

In an emergency hearing Friday, Smith asked for new representation and was refusing to speak with the state's psychiatrist.

Though Smith agreed to meet with the state's witness Sunday, he continued Monday to express discontent with his attorneys.

"They never presented what should have been presented in my defense," Smith told Judge Peter Dubensky. "It may have been a different outcome. What they told you and what they told me were two different things … and I'm sitting here looking like a bad person."

Smith said he was unaware the state would play phone conversations he had with a former girlfriend while incarcerated. He said the calls, in which he asked Martha Tejeda to retrieve his duffel bags from storage, were altered and unrelated to the case.

Smith's attorneys Daniel Hernandez and Bjorn Brunvand said their actions have been in the best interest of their client.

Dubensky said Smith's assertions were vague and that a lack of confidence or differing opinions over strategy is not a basis for the defense being deemed ineffective.

"It is what it is," Smith said when asked if he wanted to discharge his defense. "No, I don't want to fire them."

Smith has expressed that he

does not want the defense's neuropsychologist or his family called to the stand.

"My family has nothing to do with this," Smith said, adding that calling them to the stand would humiliate them.

Smith's two nieces sat in the gallery, crying and leaning on each other. Smith made an effort when entering and exiting the courtroom to avoid looking in their direction.

Brunvand said calling Smith's family to the stand would show "he is someone capable of caring and someone capable of being loved."

When asked if he did not want mitigating evidence presented, Smith responded, "Whatever. I don't care. Do I really have a choice?"

Brunvand explained Smith's concerns of presenting the neuropsychologist with Michigan's juvenile records laws. The defense's witness has had access to Smith's records. If the neuropsychologist testifies, all documents he has used to form his opinion would be given to the state.

Later Monday, Dubensky granted the state's motion to compel records relied upon by the defense expert regardless of the witness' testimony.

The state and defense attorneys went over jury instructions and the aggravating or mitigating factors for which they will present evidence, respectively.

The state plans to call two witnesses to read prepared victim impact statements, as well as their psychiatrist and a victim of Smith's from a Sarasota home invasion for which he is already serving a life sentence.

The defense intends to call their psychologist and Smith's nieces. Smith may take the stand if he wishes.

Testimony will begin at 8:30 a.m. Tuesday in courtroom 5-A. Dubensky said closing statements and jury deliberation will follow evidence presentation either Tuesday or Wednesday.

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