Delmer Smith heads back to death row as decision whether he can avoid death expected to take months

Convicted murderer Delmer Smith III will return to prison as the decision on whether or not he will get a new penalty phase of his trial is expected to take months.

Smith, 45, was convicted of first-degree murder in the brutal death of Kathleen Briles after a jury unanimously found him guilty and recommended he be put to death in August 2012. On May 28, he was sentenced to death by Circuit Judge Peter Dubensky.

Briles was found bound and gagged by her husband, Dr. James Briles, in the living room of their Terra Ceia home after she had been pummeled to death with her own cast iron antique sewing machine.

Smith was brought back to Manatee County last weekend so that he could appear at an evidentiary hearing this week as his new court-appointed defense attorney Eric Pinkard argued he should be entitled to a new penalty phase of his trial. Circuit Judge Diana Moreland had granted the hearing in June based on six of his seven claims in a motion for post-conviction relief that primarily dealt with allegations of ineffective counsel.

Late Tuesday morning, the hearing concluded and Smith was ordered to return to prison. Smith has been housed at Florida State Prison, which is one of two Florida prisons in Raiford where all male death row inmates are housed.

Moreland has not yet made a ruling.

Attorneys had agreed to submit written closing arguments and will have 30 days from the time the transcripts from the hearing are completed to submit their arguments to Moreland. She will then have 30 days to review the closing arguments and issue a written ruling.

Briles’ family including her husband and sister, Diane Brinker, sat in the courtroom throughout the hearing, which got underway Monday.

“I don’t care how long it takes to kill him,” Brinker said outside the courthouse Tuesday. “Him living in that cell satisfies me at this point.”

She does not expect she will see him executed in her lifetime, she added.

Smith’s defense during the penalty phase at trial had argued that he had brain abnormalities and had murdered Briles under extreme emotional and mental duress, and his ability to understand the criminality of his actions was impaired. The aggravating factors presented had been found to outweigh the mitigating circumstances presented, however.

Witnesses called to testify by Smith’s defense Tuesday included former Manatee County Sheriff’s Office homicide detective Jerome Diamond, expert Robert Aguero and Smith’s former defense attorney, Daniel Hernandez.

“I was primarily responsible for the guilt phase, and Mr. Brunvand was responsible for penalty phase,” Hernandez said.

Hernandez explained that he and Bjorn Brunvand have been court appointed together many times before, and usually work as a team even though each takes the primary role in a different phase. Pinkard showed him Diamond’s report on the cell phone tower data from Smith’s phone, and questioned if the data was retrieved without a warrant, why he didn’t seek to have the report suppressed.

Warrant-less searches of cell phones weren’t illegal at the time, Hernandez responded.

Pinkard followed by asking if he had known there was a case that the Florida Supreme Court had before it addressing the very same issue. Hernandez said he was not aware at that time, but had he been what he may have done is request a delay in the trial.

Assistant State Attorney Suzanne O’Donnell questioned him about his decision not to call a cell phone expert to testify and rebut Diamond’s report.

“Sometimes you don’t want to call an expert witness because you don’t want certain things being confirmed,” Hernandez said.

During Aguero’s testimony, he admitted that he did agree with the where and when Smith’s phone pinged on cell phone towers as illustrated by maps in Diamond’s report. His disagreement was in the range of a cell phone tower.

At trial with Diamond’s report and testimony, the state had proved that Smith’s phone had pinged off a cell phone towers leaving his home heading north, then near the Briles home and later returning. Diamond is a digital forensics expert.

Diamond testified that a cell phone would have to be within seven to eight miles to ping off a tower, but Aguero said the range was up to 30 miles.

Pinkard also questioned about the medical encyclopedia, recovered from a duffel bag belonging to Smith after his the girlfriend gave it to detectives, being admitted into evidence at trial. Dr. Briles testified that it had been taken from their home at trial, but Pinkard questioned why Hernandez didn’t have it suppressed as evidence since the sheriff’s office didn’t have a warrant.

“I didn’t think that Mr. Smith would have any expectation of privacy to file a motion to suppress items that were stolen,” Hernandez said.

This story was originally published October 3, 2017 at 5:14 PM with the headline "Delmer Smith heads back to death row as decision whether he can avoid death expected to take months."