Judge denies Delmer Smith's motion for new trial

jdeleon@bradenton.comJuly 19, 2013 

MANATEE -- A Manatee County judge has denied convicted killer Delmer Smith's motion for a new trial.

Judge Peter Dubensky filed an order Friday denying Smith's motion for new trial and alternatively, a new penalty phase.

A hearing was held after the filing of the motion on June 3 on Smith's behalf.

Dubensky listened to testimony from both sides for an hour but did not rule from the bench.

Smith, 41, was convicted Aug. 2, 2012, for the murder of Kathleen Briles. On May 28, Dubensky sentenced Smith to death, concurring with a unanimous recommendation from the jury.

Briles was found beaten to death in her Terra Ceia home on Aug. 9, 2009.

The motion for a new trial made two claims.

Dubensky denied the claim of a "mutual misperception" of evidence and stated it did not constitute as newly discovered evidence. Dubensky also ruled that the second claim of newly discovered evidence was in fact not new evidence.

The first was the alleged mutual "misperception" by the defense regarding the medical encyclopedia that had been entered into evidence during the trial.

Based on photos, the defense claimed that the encyclopedia in the Briles' home in fact was not the same one found in Smith's possession at the time of his arrest.

The state's expert witness attributed the difference in the encyclopedia photos to lighting.

"The court finds (the) testimony very persuasive, and the court also concludes that the AMA encyclopedia in evidence is the same one depicted in the photographs," Dubensky wrote.

The second component in the motion dealt with a disclosure by a first responder, Sarasota County Deputy John Thomas, in a Sarasota kidnapping and home invasion case in which Smith was convicted.

Thomas admitted during a May 17 deposition that he lied when questioned on whether his employer asked him for a personal DNA sample to eliminate himself as a witness.

Dubensky did recognize this factor during the May 28 sentencing and said he did not consider it an aggravating factor. However the defense argued the jury still took it into account.

The state's witness, a prosecutor in Smith's Sarasota case, said Thomas was intentionally not called or needed to prove Smith's guilt.

"Thus this 'new evidence' regarding the testimony of Deputy Thomas' admission about lying about the request for DNA samples is irrelevant and immaterial for the purposes of this cases, "Dubensky wrote.

Jessica De Leon, law enforcement reporter, can be reached at 941-745-7049. You can follow her on Twitter@JDeLeon1012.

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