BRADENTON -- Convicted killer Delmer Smith awaits a judge's decision on whether he will be granted a new trial.
Smith, 40, was in court Wednesday petitioning Judge Peter Dubensky for a new trial or, alternatively, a new penalty phase in the murder of Kathleen Briles.
Dr. James Briles, her husband, was in court alongside other family members waiting for the end of a case that has dragged on for nearly four years.
"He got a fair trial. He got the sentence he earned and deserved," Briles said. "I want to know why he is not serving his sentence."
Kathleen Briles was beaten to death Aug. 9, 2009, in her Terra Ceia home.
Smith was convicted Aug. 2, 2012, and sentenced to death May 28 by Dubensky.
Defense attorney Bjorn Brunvand filed the latest motion June 3 on Smith's behalf.
After an hour of testimony, Dubensky did not make a ruling.
"I'll get an order out," Dubensky said.
Assistant State Attorney Brian Iten was not surprised.
"I fully expected him not to rule from the bench," Iten said. "This is a very serious capital case."
The hearing focused on two primary components of the defense motion.
The defense claims an alleged mutual "misperception" by the defense and the prosecution about a piece of evidence during the trial. The defense claims a medical encyclopedia found in Smith's possession is not one from the Briles' home.
"Throughout the case the defendant has maintained that the encyclopedia that is in evidence is his, that he did not take it from Briles' home," Brunvand said.
Dubensky questioned the timing of Brunvand's finding.
"Why did it become apparent after the trial, if you looked so many times?" Dubensky said. "It does not seem like you are arguing new evidence, but a newly discovered perception."
The state attributed differences in encyclopedia photos to lighting. A 50-year veteran photographer, whose expertise has been sought by GE, IBM and the state of Florida, testified as to why the images appeared different.
"The difference is exposure," Robert Lorenzo said.
A second factor in the motion involved a disclosure by a first responder in a Sarasota kidnapping and home invasion case where Smith was convicted.
Sarasota County Deputy John Thomas, in a May 17 deposition, admitted lying about his employer asking for a personal DNA sample to eliminate himself as a witness.
At the May 28 sentencing, Dubensky stated he was aware of the deposition discrepancy and did not consider it an aggravating factor. In the new motion, the defense argued it was still taken into account by the jury that unanimously recommended the death penalty.
Assistant State Attorney Elizabeth Scanlan, who prosecuted Smith in the Sarasota case, testified she chose not to call Thomas to the stand as he was not needed to prove the case against Smith.
She was asked how the presiding judge ruled on the disclosure.
"She ruled the entire issue was irrelevant when discussing the defendant's innocence," Scanlan said.
Dubensky looked over the photos with a magnifying glass briefly at the end of the hearing and thanked everyone.
For Dr. Briles, the evidence speaks for itself.
"He can appeal all he wants," Briles said. "Kathleen doesn't get an appeal to come back and live her life."
Jessica De Leon, law enforcement reporter, can be reached at 941-745-7049. You can follow her on Twitter @JDeLeon1012.