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4:53 AM Sat, Sept. 22nd

If jury convicts, state won't seek death penalty

PRESCOTT – Deputy County Attorney David Mackey said he will probably not seek the death penalty if a jury convicts Earl Ray Lappe, a Prescott man accused of first-degree murder.

Police arrested Lappe, 25, on Oct. 8 in connection with the death of Anthony Smith, 47.

Investigators found Smith's body in his Prescott home on Sept. 7 after receiving an anonymous phone call. He suffered a fatal gunshot wound to the head, reportedly from a 20-gauge shotgun.

Mackey told Yavapai County Superior Court Judge William Kiger that he does not think that the death penalty would be appropriate if Lappe is found guilty, given the nature of the crime.

Lappe's defense attorney, Ken Ray, asked Kiger to extend the deadline to file any motions related to last month's preliminary hearing.

Mackey did not object to the extension. Kiger gave Ray until 5 p.m. on Dec. 10 to file any motions.

Kiger also said Lappe has been involved in several other cases in his court and so have some of his family members. Kiger reassured him that his past experiences will not "interfere with (my) judicial duties."

"I remember Mr. Lappe … I don't believe that I have any predisposition or any problem handling these cases," Kiger said.

Kiger scheduled a case management conference for 9:30 a.m. on Monday, Dec. 3.

In other court news:

• Diane Roseberry's defense attorney Chester Lockwood told Kiger Monday that he will ask the judge to sever her case from her husband's.

Diane Roseberry, 53, of Indiana, faces charges of conspiracy to transport marijuana for sale, transportation of marijuana for sale and conspiracy to commit first-degree murder.

Her husband, Homer, 57, and Charles Dvoracek, 52, both face similar charges. The jury could sentence Homer Roseberry to death if it convicts him.

The charges stem from the shooting death of Fred Fottler in October 2000. According to court documents, Roseberry allegedly participated in the theft of 1,300 pounds of marijuana. During that theft, someone shot Fottler in the back of the head three times.

Diane Roseberry's privately retained attorney from Indiana, Dale Gantz, is now actively participating in her defense, Lockwood said. He indicated that he spoke with Gantz prior to Monday's pretrial conference.

"He's planning to be here for trial," Lockwood said.

Kiger said if he severs the Roseberry's cases, Diane Roseberry will likely keep the Jan. 30 trial date and her husband's case probably would go to trial some time in February.

Lockwood said it would have been difficult for Diane Roseberry to have a fair trial if the judge did not sever the cases.

"They have inconsistent defenses and it's a death penalty case for him and not for her," Lockwood said.

Kiger scheduled another pretrial conference for both Diane and Homer Roseberry at 4 p.m. Tuesday, Dec. 11.

• Deputy County Attorney Steven Jaynes said Monday that the state will not offer Jesus Peralta a plea agreement.

Peralta, 23, pleaded not guilty to three counts of felony murder, two counts of aggravated assault against a police officer, theft of a means of transportation, felony flight and felony criminal damage in February.

These charges stem from allegations that he stole a vehicle on Jan. 25. Police reportedly saw him in the vehicle the next day at a Circle K in Prescott Valley and tried to confront him.

Peralta reportedly fled and attempted to run over Officer Kell Palguta, who fired a gun at Peralta – hitting him in the chest and the right hand.

Prescott Valley police chased Peralta at high speeds into downtown Prescott where he allegedly collided with a pickup truck at the intersection of Montezuma and Gurley streets, killing Daniel Kamholtz, 19, Evan Spencer, 18, and Wylld Ferro, 25.

One of Peralta's attorneys, Dave Stoller, said that he and Damon Rossi, Peralta's second attorney, were not expecting a plea offer. Stoller said the case has been on a "trial track" for a long time.

Yavapai County Superior Court Judge Howard Hinson Jr. confirmed the Jan. 9 trial date and scheduled another pretrial conference for 10 a.m. on Dec. 10.

Contact C. Murphy Hébert at mhebert@prescottaz.com