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4:32 PM Sun, Sept. 23rd

Roseberry loses request for new attorney

PRESCOTT – A judge has denied Homer Roseberry's second request for a different attorney to represent him in his first-degree murder trial.

Both Homer Roseberry, 57, and his wife Diane, 53, of Indiana, face first-degree murder and drug trafficking charges. Homer Roseberry also faces the death penalty if a jury convicts him of the crimes.

The charges stem from the shooting death of Fred Fottler, 45, in October 2000. According to court documents, Roseberry allegedly participated in the theft of about 1,300 pounds of marijuana and, during that reported theft, someone allegedly shot Fottler in the back of the head three times with a .25-caliber pistol. A motorist found Fottler's body near Highway 93, near Wikieup, last year. Investigators used fingerprint records to identify him.

During a hearing Wednesday, Roseberry asked Yavapai County Superior Court Judge William Kiger to dismiss defense attorney Ray Hanna from his case. He made a similar request in April.

In a recent letter Roseberry wrote to the judge, he expressed his concerns.

"I feel Mr. Hanna is not competent enough to represent me in my defense," he wrote.

His other defense attorney, Dave Stoller, told the judge that if he removed Hanna from the case it would take him until March to prepare. The trial currently is to begin on Dec. 4.

"Mr. Hanna has done the bulk of the interviews," he explained. "I came in on this late."

Deputy County Attorney Steve Young called the allegations Roseberry made against Hanna "unfounded" and added that he did not think it would be appropriate to remove Hanna from the case. He also said that he wants to resolve the case.

"This is a case that has been pending for a long time," he said.

Hanna said that despite his client's objections, he would prefer to continue working on his defense.

Kiger told Roseberry and the attorneys that he would not even consider the request if Roseberry were not facing the death penalty. After listening to the attorneys and reviewing Roseberry's letter, Kiger denied the request.

"I don't agree with your conclusions and opinions," he told Roseberry. "I just don't think there's much grounds for them."

In other court news:

PRESCOTT – Officials set a tentative trial date for Joseph Lee Zylstra, the Tennessee man facing charges of sexual assault and kidnapping that stem from a 1993 incident involving children from Arizona.

The charges against Zylstra, 44, resulted from a Yavapai County Sheriff's Office investigation into the report of kidnappings and rapes that allegedly occurred in April 1993 in the Granite Dells area.

The two teen-age victims were students at Bradshaw Mountain High School at the time of the alleged crime.

They reportedly were hiking in Granite Dells when a man reportedly threatened them with a knife and raped one of them. He then reportedly drove the girls to a remote location near Mingus Mountain and raped another girl. The man then reportedly released them.

A passerby reportedly found the girls near Highway 89A. Doctors later examined both girls at Yavapai Regional Medical Center. They collected and stored the DNA evidence gathered during the examination.

Prior to Zylstra's release from a Washington prison stemming from an unrelated offense in 1995, he gave the state a blood sample. Officials entered the sample into the National DNA Index System.

In June 2001, officials in Washington told the YCSO Criminal Investigation Unit that they made a positive DNA match for the April 1993 case. Zylstra's DNA allegedly matches the DNA evidence removed from the two victims. Authorities brought him back to Arizona in January.

Zylstra's defense attorney, Ken Ray, asked Kiger to set a trial date for the case within the next few months. Kiger set the trial for Dec. 4, adding that Zylstra's case is in a secondary position because Homer Roseberry's first-degree murder trial is on the same day. Kiger said if attorneys are able to settle Roseberry's case without going to trial he will preside over Zylstra's trial. If not, Kiger said he "might have to send this case to another division."

Ray said he understood the situation and did not object to having another judge preside over the trial, if need be.

Kiger scheduled a hearing for Oct. 8.

Contact C. Murphy Hébert at mhebert@prescottaz.com.