BRADENTON -- Delmer Smith III, charged and sentenced for the murder of Kathleen Briles, had his attorney file a motion June 3 for a new trial.
Smith, 41, was sentenced to death by Manatee County Judge Peter Dubensky May 28 after months of delay following his Aug. 2 conviction for first-degree murder and armed burglary. Smith maintains he is innocent and a victim of the justice system.
Smith previously had been convicted of a 2009 armed home invasion and armed kidnapping in Sarasota.
At the start of the May 28
hearing, Assistant State Attorney Brian Iten disclosed that during a deposition taken May 17, Sarasota County Deputy John Thomas, one of the first responders in the Sarasota case, admitted lying about being asked by his employer to submit a personal DNA sample to eliminate himself as a witness.
"Now knowing that he lied about that, we should be able to retry, at the very least, the penalty portion of the trial," Smith's attorney Bjorn Brunvand said.
Thomas is currently filing a civil suit against Sarasota Sheriff Tom Knight.
At the May 28 hearing, Dubensky refused to delay sentencing, recognizing the new facts and an appeal in the Sarasota case but not giving it any weight in determining sentence. Instead Dubensky said he assigned "great weight to this circumstance" based on previous robbery and armed bank robbery convictions in 1991 for which Smith did prison time and had been on parole.
Brunvand however feels that the jury did take the Sarasota case into account therefore giving cause for a new trial.
"The jury came back with a 12 to 0 recommendation, and one of the things they considered was Sarasota," Brunvand said. "Had we had that, we may have used it to discredit the Sarasota case."
The motion for a new trial also states that there was a mutual "misperception" of a piece of evidence during the trial. The defense now states that the medical encyclopedia that had been found in Smith's possession and had been entered into evidence as having belong to Briles's husband, in fact are not the same.
"Initially when I looked at it, the color of the binder appeared to be different but I thought it could be the light," Brunvand said. "But then a couple weeks ago I looked at it again I noticed the logo was different."
Brunvand stated that this was an oversight by both the defense and the prosecution.
Jessica De Leon, law enforcement reporter, can be reached at 941-745-7049. You can follow her on Twitter @JDeLeon1012.