BRADENTON -- The death penalty is still in play for Delmer Smith III, 41, charged with first-degree murder in the Aug. 3, 2009, death of Kathleen Briles.
And jury selection for the trial will still begin Monday after Judge Peter Dubensky has denied both the state’s and defense’s motions to continue.
Dubensky Thursday morning ruled against the defense’s motion to bar the death sentence, and is expected to rule this afternoon on whether to postpone the murder trial which is set to begin next week.
Dubensky also ruled against a defense motion asking for special jury instructions to define the word “premeditation.” The state argued standard jury instructions are appropriate.
Dr. James Briles, the victim’s husband, found his wife, bound and gagged in their Terra Ceia home. Police identified an antique sewing machine, which was found next to the victim, as the weapon used to beat Kathleen Briles to death.
Smith attended the hearing in inmate garb, with his ankles and wrists shackled. He stared ahead, occasionally looking at papers on the table or whispering to his attorney, Daniel Hernandez.
At one point, Dubensky questioned if Hernandez is communicating regularly with Smith regarding the defense’s strategy. Brian Iten, assistant state attorney, mentioned during the hearing that Smith’s defense has not obtained depositions from the medical examiner in the Briles’ homicide, nor has it sought to interview several persons who were documented in Smith’s cell phone records.
“I have concerns that the majority of our witnesses have not been deposed,” Iten said.
Dubensky granted a recess to allow Hernandez to speak with his client.
As a result, Hernandez said if the continuance is approved, the defense will get the depositions in question.
“I sense a back-pedaling on your part and that concerns me,” Dubensky said, adding he would not let “doubts seeded” by the state control the case.
When Dubensky questioned if Smith has been happy with his defense up until Thursday’s hearing, the defendant nodded.
Smith, who usually shows no emotion in the courtroom, furrowed his brow, while Iten argued his intent to have a witness testify that Smith asked him to pass along a “threatening” message to James Cellecz, who allegedly pawned Briles’ jewelry following her death.
Hernandez argued the value of presenting allegations of witness tampering against Smith would be outweighed with prejudice. Dubensky will rule Thursday afternoon as to whether that evidence will be admissible during the jury trial.
Dubensky will also rule on the state’s motion to allow three members of the Briles family, set to testify, to be present at all phases of the trial.
Two of the victim’s children are expected late in the trial to identify stolen property taken from the murder scene.
Dr. James Briles, who discovered his wife’s body, is expected to testify in the early stages of trial.
The state cited several cases in which the right of the victim or next of kin to be in the courtroom outweighed the witness’ right to appear at trial.
The state said James Briles would be one of the first witnesses called to the stand to avoid concerns of his statement changing after hearing other testimonies.
However, Hernandez argued if the family is allowed in the courtroom the jury could be influenced by their reactions, causing prejudice through sympathy.
“How can you keep us out?” James Briles questioned after the hearing. “I can control myself. I’ve done it for many years.” The state offered the alternative of James Briles viewing the trial from the media room looking into the courtroom.
Briles said the jury may question his absence and should be instructed if he is kept out of the courtroom.
Both the defense and state have filed motions to continue the trial, set to begin with jury selection Monday.
“It’s been a long and tough wait to begin with,” Briles said after the hearing. “With that said ... we want to make sure everything is done correctly the first time around.”
On July 20, prosecutors disclosed evidence regarding phone calls allegedly made to and from Smith’s cell phone. As a result, the defense filed a motion stating a continuance is needed to allow time to review the records and possibly obtain evidence for response.
The state said while some new names were disclosed, the defense has known for more than a year that phone records would play a role in the state’s evidence.
The state filed another motion Monday to delay the trial as a “remedy for the defense’s failure to comply” with a Florida Rule of Criminal Procedure requiring notice to present an expert testimony at least 20 days before trial.
The state received a phone call Monday that neurologist Dr. Hyman Eisenstein of Miami would be an expert witness in the case. The state has not received a written notice.
Hernandez said the delay is because Smith did not want to involve his family or mental mitigation in the case. Only recently did Smith agree to a personal evaluation with Eisenstein.
Dubensky granted the state’s motion to compel new finger and palm prints from Smith. He also granted the state’s motion in limine requesting the certain evidence or comment be excluded in the defense’s arguments.
Dubensky also granted two motions filed by the defense in reference to the state providing pretrial notice of aggravating factors and circumstances.
The state has not made any offers in the case. Hernandez said he has discussed pleading guilty with Smith who is “not inclined to do so.”
Elizabeth Johnson, Herald crime reporter, can be reached at 941-745-7041. Follow her on Twitter @EJohnsonBHcrime.