BRADENTON -- Delmer Smith will once again be in a Manatee County courtroom Wednesday as he attempts to get a new trial for his murder conviction in the slaying of Kathleen Briles.
Briles was beaten to death in her Terra Ceia home in August, 2009.
Smith, 41, was sentenced to death May 28 by Manatee County Judge Peter Dubensky after a jury convicted him and unanimously recommended the death penalty.
Smith's attorney, Bjorn Brunvand, filed a motion June 3 for a new trial or, alternatively, a new penalty phase based on discovered evidence on his behalf.
"The fact that the judge set a hearing I think means he felt that it was significant enough that it needed to be heard," Brunvand said.
Smith's motion is based primarily on two factors. The first was a disclosure brought to Dubensky's attention at the start of the May 28 sentencing hearing by Assistant State Attorney Brian Iten.
Sarasota County Deputy John Thomas, one of the first responders in a kidnapping case of which Smith was convicted, admitted in a May 17 deposition that he lied about being asked by his employer to submit a personal DNA sample to eliminate himself as a witness.
At sentencing, however, Dubensky refused to delay sentencing despite the disclosure, stating he was aware of it but did not take it into account when making his decision.
The second claim for the motion for new trial is that there was a mutual "misperception" by the defense and the prosecution of a piece of evidence during the trial.
The claim is that a medical encyclopedia that had been in Smith's possession was not the same one belonging to Briles' husband, as claimed in the trial.
Brunvand says he examined the photos again recently and noticed a difference in the logo on the spine of the book, which he previously had disregarded as a difference in lighting.
"To me, the logo looks different," Brunvand said. "That is what the judge will have to look at and make his own conclusion."
The State Attorney's Office refutes both of the defense claims.
In their response filed June 13, Iten stated the judge presiding over the Sarasota case found Thomas' disclosure to be "irrelevant."
Iten also writes that the disclosure was not a factor in Dubensky's sentencing as he stated in his order.
The state's response to the motion attributes the differences in the images of the medical encyclopedia to lighting.
"The variation can be easily attributed to the lighting in the area when the camera's shutter snapped, perhaps with more camera 'flash' in one than the other," Iten wrote.
Iten further refutes the fact it is new evidence or that it was the key piece of evidence tying Smith to the crime.
Jessica De Leon, law enforcement reporter, can be reached at 941-745-7049.