Judge grants spending for medical tests, experts for convicted killer Delmer Smith

MANATEE -- Delmer Smith will receive brain scans analyzed by a specialized expert before he is sentenced for the Aug. 3, 2009, murder of Kathleen Briles, according to orders filed by Judge Peter Dubensky.

The orders granting defense's request for MRI and PET scans, as well as a motion appointing mental health expert Dr. Ruben Gur were filed Friday and sent to the state, Smith's attorneys and the Judicial Administrative Commission, which will fund related expenses.

Gur will be paid $8,740 to perform unique quantitative analyses of the brain tests and will also be compensated $450 per hour for additional evaluation or court-related duties. He will receive $175 per hour of travel, as well as reimbursement for any transportation, lodging or meal expenses.

His associates, Dr. Christos Davtzikos and Dr. Andrew Newberg, will be paid $4,000 and $1,200, respectively, to conduct the tests.

Funds totaling $6,500 were also granted by Dubensky for costs of the two scans.

Dubensky has not ruled on the defense's motion to seek a QEEG test, which measures subtle patterns among brain waves. Bjorn Brunvand, Smith's attorney, said at a hearing last week that the test is fairly new, controversial and not always allowed in court.

"If I don't request it and if at some point the court appoints the death sentence, someone is going to say, "Why didn't you guys do the QEEG?'" Brunvand said, explaining he learned of the test while seeking a more timely alternative at Dubensky's request.

Brunvand said the evidence from the scans will be used during a pre-sentencing hearing to argue for life in prison without parole instead of the jury-recommended death penalty, "assuming there is, in fact, brain damage as Dr. (Hyman) Eisenstein suggested."

Eisenstein, a neuropsychologist who evaluated Smith, said at trial there were signs of potential brain damage affecting Smith's cognitive abilities, and tests should be completed to determine if his findings were correct.

The state "will consult with other experts in the field" to rebut the evidence once the defense's findings are complete, said Assistant State Attorney Brian Iten.

In the two hearings regarding these motions, Dubensky and the prosecutors voiced concerns about the delay in sentencing.

"If the court did not allow it to take place, I think it would be an appellate issue," Brunvand said. "But because the court is allowing it, it won't have any impact whatsoever. If it's not done right, ultimately we'll be back doing it over again."

Smith was convicted in August. Gur will not be able to begin the analyses for several months, and will not be ready to testify until 2013.

"We want to make sure the defendant is able to present all evidence the law allows him to present," Iten said. "We'll work within the time line."

Dubensky has not set a new court date in the case.

Smith is already serving a life sentence for a home invasion robbery in Sarasota County. The state has decided, with input from the victims, to not prosecute a similar additional charge in Manatee County, in which Smith was accused of brutally beating a couple inside their home on April 20, 2009, and stealing valuable personal items.

Several factors contributed to closing the case without going to trial, according to a memorandum filed by the state.

The document notes that the Sarasota victim and a crime laboratory analyst, who do not currently reside in the U.S., would have to be brought to Manatee County for trial. In addition, there are security concerns of bringing a convicted murderer to court. Also, a conviction in the case would not increase Smith's imposed sentence.

It was decided a "burden" would be placed on the victims in the Sarasota and Manatee cases "that neither believe to be warranted," the memorandum states.

Brunvand said he has been preparing for the case, initially scheduled before the murder trial, but was not surprised by the state's decision.

"It certainly makes sense not to pursue that considering the conviction in Sarasota and the conviction in Manatee," Brunvand said.

Elizabeth Johnson, Herald crime reporter, can be reached at 941-745-7041. Follow her on Twitter@EJohnsonBHcrime.