Delmer Smith to remain on death row

Delmer Smith will remain on death row after a judge denied his attempt to get a new sentencing phase of his trial.

Kathleen Briles, 48, was found bound and gagged inside her Terra Ceia home on Aug. 3, 2009, after having been pummeled to death with her own cast iron antique sewing machine.

Smith, 45, was convicted in August 2012 of first-degree murder for the brutal death. The same jury that found him guilty, unanimously recommended he be put to death days later. On May 28, 2013, Smith was sentenced to death by Circuit Judge Peter Dubensky.

In October, Smith was back in a Manatee County courtroom for an evidentiary hearing in which Circuit Judge Diana Moreland heard testimony over two days regarding his claims of ineffective counsel.

Smith’s motion for post-conviction relief was denied in a 31-page order dated Dec. 12 in which Moreland denied all six of his claims of ineffective counsel.

The six claims were denied, according to the court order, as follows:

▪ Smith alleged that his trial attorney, Daniel Hernandez, failed to file a motion to suppress evidence found when detectives seized his duffel bag from his girlfriend. Moreland ruled that since Smith was heard in recorded jail calls directing his girlfriend to retrieve the bag from his storage, thereby giving up ownership and any legitimate expectation of privacy, and she willingly gave it to detectives, such a motion would have been denied.

▪ Smith claims that his trial attorney failed to file a motion to have his cell phone records suppressed as evidence since detectives did not have a warrant. Moreland ruled that since warrant-less searches of cell phones were lawful at the time, and the Florida Supreme Court has ruled repeatedly that trial attorneys cannot be held ineffective for failing to anticipate changes in the law, such a motion would have been denied.

▪ Smith alleges that the U.S. Supreme Court’s ruling in Riley vs. California requiring law enforcement to have warrants to search cell phones should be applied to his case retroactively. Moreland ruled not only is this claim procedurally barred under the Riley decision, but most of the evidence used at trial were call logs and cell phone tower information obtained from Metro PCS, not Smith’s cell phone.

▪ Smith claims his attorney was also ineffective for failing to hire a cell phone expert to counter the state’s witness. Moreland denied this claim in finding that his attorney made the strategic and professional decision to use cross-examination to call into question the expert’s testimony, and further that the defense’s proposed expert during the evidentiary hearing testimony under cross-examination was fairly consistent with the state’s witness.

▪ Smith alleges his attorney was ineffective for agreeing to not question a state’s witness about his 35 counts of child pornography of which his convictions were withheld and a violation of probation for failing to register as a sex offender. However, Moreland ruled that his attorney did question the witness and argue to the jury that the testimony was motivated because of his desire to get help with his pending case.

▪ Smith claimed that his attorney for the penalty phase, Bjorn Brunvand, was ineffective for failing to complete an investigation of potential mitigating circumstances. Moreland denied the claim since it was Smith himself who did not want his family to be contacted, and because ultimately the additional mitigating circumstances presented during the October hearing would still not have outweighed the aggravating factors presented by the state.

This story was originally published December 28, 2017 at 4:41 PM with the headline "Delmer Smith to remain on death row."