Jury: Delmer Smith should die for murdering Kathleen Briles

ejohnson@bradenton.comAugust 14, 2012 

— After about 30 minutes of deliberation, the jury unanimously recommended the death penalty for Delmer Smith.

Smith showed no emotion while several in the gallery quietly cried with the hands over the mouths.

Judge Peter Dubensky said he expects a sentencing hearing to occur in two months.

The jury voted 12-0 to recommend that Dubensky sentence Smith, 41, to death for beating Kathleen Briles to death on Aug. 9, 2009.

The recommendation was announced about 4:45 p.m.

The jury started its deliberations shortly after 4 p.m., after hearing testimony and arguments during the punishment phase of the trial.

Smith was convicted last week of first-degree murder in the slaying of Briles. The state and defense presented evidenceT uesday to support the death penalty or life in prison, respectively.

Nicole Mitchell was watching CSI and making jewelry in her living room on March 14, 2009 in a Sarasota rental home, when she felt a presence.

“When I turned around, I thought my eyes were playing tricks on me,” Mitchell testified. “It was extremely quick. The lights went off right away. I was grabbed and I was pushed onto the couch face down. Of course I started screaming. The person grabbed my mouth and asked me to stop screaming and said if I didn’t cooperate, he said, ‘I have a gun. I will kill you.’”

Mitchell remembered feeling something hard against her temple. She was able to take off her jewelry and hide it under the couch. Smith then led her through the home, threatening her with the gun and looking for valuables.

“I was shaking. I was crying. My heart was beating very fast,” Mitchell said, recalling thanking Smith for his kindness. “You don’t want to die and you don’t want to get hurt, so I was really cooperating.”

Mitchell said she was forced back into the living room and told to lie on her stomach. Smith took a television set from the wall and bound her using electrical cords. Mitchell said her wrists were tied behind her back. Smith tied her ankles and connected them to a cord around her neck so “if I moved my legs, I would strangle myself.”

Mitchell said Smith ransacked the house, taking her wallet and watch before leaving.

Mitchell was able to free her right arm from the cords and untie the rest of the bonds.

Smith was convicted of armed home invasion and kidnapping in the case earlier this year and sentenced to life in prison.

Mitchell’s testimony is one of many ways the state is arguing aggravated circumstances. During testimony last week, the state said it was shown that Briles’ murder was committed during a burglary, for financial gain and was especially heinous or cruel.

The state also called Robert Feverston, Manatee County Sheriff latent print examiner, and Gerri Cotter, U.S. probation officer to show Smith was already convicted.

Smith was under Cotter’s supervision from September 2008 to October 2009 after being convicted of federal bank robbery and aiding and abetting.

Also called to the stand were Diane Brinker, Briles’ sister, and Dr. James Briles, her husband, to read prepared victim impact statements.

Brinker recalled having Briles as an anchor during times struggle.

“I have lost my security, my best friend and my sister,” Brinker said, adding that she has watched many of her sister’s dreams come true, including the birth of her first grandson Mason James Briles.

Dr. James Briles recalled falling in love with Kathleen Briles under a blue moon on Dec. 31, 1990.

“She always told me, ‘ it’s me and three.’ They (her children) were everything to her,” he said. “The biggest tragedy here is that her three children will never be able to share their lives with their mother again.”

Dr. Briles said he and his wife were able to make it through the good and bad because of their partnership.

“My heart is broken. My love is lost. And these are not recoverable,” Dr. Briles said.

The state rested after those witnesses.

The defense called Smith’s two nieces and a neuropsychologist to show a different side of Smith and possible mental mitigating factors.

Alicia Phillips, 29, recalled living with her grandparents – Smith’s parents – in Michigan.

“He was my favorite uncle,” Phillips said, mentioning when Smith stopped her grandmother while punishing her with a switch. “He gave me birthday presents, Christmas presents. He would take me out. He would try to guide me in the right direction.”

Phillips wrote Smith letters, talked to him on the phone and visited him in prison. Smith was incarcerated at the time his mother died, she said.

“He knew it happened, but we didn’t really discuss it,” Phillips said. “We didn’t want to tell him anything that was going to break his heart in there.”

Phillips said she loves Smith and he is in her prayers.

Christina Smith, 23, was emotional on the stand as she testified to being young when her uncle was incarcerated in Michigan.

“I was too young to know he had gone to prison. I just knew he was away from us,” Smith said, adding that she realized he was in prison when they began talking on the phone and writing letters. “It made me love him harder because I knew he needed love.

“I understand what their family is going through, but I don’t think it’s right for him to be away from us either,” Smith said, referencing the Briles family.

The defense also called Dr. Hyman Eisenstein, a neuropsychologist who evaluated Smith in July, to testify his findings.

Eisenstein said previous psychological evaluations showed Smith had academic failings, having to repeat second, third, fourth and fifth grades. Eisenstein said Smith’s attention deficit disorder went untreated. He also said there was documentation of physical, emotional and sexual abuse against Smith.

“Mr. Smith, he has several major issues that have plagued him really his entire life,” Eisenstein said.

Eisenstein said Smith suffers from brain impairments in his frontal lobe and has borderline intelligence.

Eisenstein went on to say Smith, while incarcerated, worked toward “self-improvement” while taking classes.

Smith’s brain impairments affect “judgment, reasoning, problem-solving,” Eisenstein said, adding that the controlled environment in prison led Smith to positive behavior while incarcerated.

Eisenstein said Smith has anti-social behavior and tries to deny his brain impairments.

“He wants to appear normal,” Eisenstein said. “He seems to think that talking about some of his impairments makes him less of a person. He only wants to look at his strengths.”

Eisenstein said Smith’s impulsivity and lack of frontal lobe cognitive functioning may have led to the events surrounding Briles’ death.

“The planning of the robbery was certainly impulsive,” he said. “It’s my best hypothesis that when confronted with the situation his reaction was one of shock. Rather than leaving the situation, he further got himself in more trouble with the inability to step away from a bad situation.”

The state will have a chance to cross-examine Eisenstein and call an expert psychiatrist after lunch. The prosecutors and defense attorneys will then give closing arguments and jury deliberation will begin.

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