Delmer Smith's fate left undecided in hearing

MANATEE -- The fate of convicted killer Delmer Smith III remains in the hands of Judge Peter Dubensky after a motions hearing Thursday was postponed until Oct. 11.

Court convened for Dubensky to hear motions filed last week by the defense asking for MRI and PET scans, appointment of a medical expert and continuance of Smith's pre-sentencing hearing, but no decisions were made.

If Dubensky grants the requested continuance to April 2013, there would be an eight-month delay between the jury's guilty verdict and death penalty recommendation and the so-called "Spencer hearing," where the defense could present mitigating evidence to try to convince the judge to opt for a life sentence. As a result, the sentencing hearing would also be delayed.

"I'm not familiar in any case where a delay that long has been countenanced by the courts," Dubensky said.

But Dr. Ruben Gur of Pennsylvania will not be ready to testify until then, argued Smith's attorney Bjorn Brunvand. Dubensky was skeptical when Brunvand said Gur is one of only two experts in the U.S. who perform quantitative analysis on those medical tests for capital cases.

Dubensky said Gur may have more experience than other doctors, but "it's hard for me to believe there are two people in the U.S." who can give opinions on these tests.

The state did not oppose any of the defense's motions, but also expressed concerns about the suggested time line.

"I would certainly hope the

defense could possibly make efforts to see if there are other experts who could review these scans," said Assistant State Attorney Brian Iten. "April is a long way off."

Smith sat emotionless in his inmate garb at the hearing. The Briles family filled the courtroom, many wearing T-shirts printed with a photo of the late Kathleen Briles.

Brunvand said he will check with the only other known expert, in California, and reach out to other capital case attorneys to find an alternative. The defense is also waiting for a decision from the Judicial Administrative Commission regarding funds for the scans and expert.

Last month, Smith, 41, was found guilty of the Aug. 3, 2009 bludgeoning murder of Kathleen Briles. The 12-person jury unanimously recommended the death penalty. Before Dubensky sentences Smith, the state and defense can present additional evidence at a Spencer hearing.

According to a Florida Supreme Court decision in the 1993 case of Spencer v. State, capital cases require a hearing prior to a judge rendering a sentence "to give the defendant, his counsel, and the state the opportunity to be heard."

Brunvand indicated the defense's only evidence will be medical.

Dubensky questioned the timing of the requests for the brain tests to be completed, stating that in Smith's case the motion came between the conviction and sentencing, unlike the supporting case cited by the defense.

"Obviously the state of Florida is trying to kill my client," Brunvand said. "I would propose if I made a mistake by not seeking it earlier, my client should not be penalized for my delinquency."

Before and throughout Smith's trial, the defendant expressed discontent with his representation. After his conviction, Smith refused the medical tests advised by the neuropsychologist who testified on his behalf.

"We recognize that was a very emotional time," Brunvand said, indicating that Smith later agreed to the exam in a meeting with co-counsel Daniel Hernandez.

"We have a doctor that says it's necessary and important."

Again, Dubensky appeared skeptical.

"I'm a little concerned about Mr. Smith's vacillation," Dubensky said. "This is probably the third time that he comes up to the edge and all of a sudden he decides, 'OK, I'll do something' he's been resisting for months."

Dubensky asked the State Attorney's Office to come prepared to the 2 p.m. Oct. 11 hearing to discuss plans to prosecute Smith in a pending Manatee County home invasion.

If the murder hearings are continued until next spring, Dubensky said he does not intend to delay the beginning of the additional trial.

In the pending case, Smith is charged with home invasion with a deadly weapon when he allegedly entered a couple's home on April 4, 2009, inflicted severe trauma to their faces and stole several personal items, according to the sheriff's office. The first-degree felony charge is punishable by life.

Smith is already serving a life sentence after being convicted in another home invasion in Sarasota County.

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