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Wed, Oct. 16

Local death case waits on appeals court ruling<BR>

PRESCOTT – Arizona's new death penalty sentencing law has complicated a Yavapai County capital case.

The U.S. Supreme Court decided recently that Arizona's method of capital sentencing by judge was unconstitutional.

As a result, the Legislature enacted new statutory provisions that require a jury to determine if a defendant deserves the ultimate punishment.

Homer Roseberry is the first Yavapai County defendant to go to trial under the new law.

In late December, a jury convicted Roseberry, 58, of first-degree murder for the October 2000 shooting death of 45-year-old Fred Fottler.

The jury also determined that there was an aggravating factor present – that he committed the crime for money.

Although the law requires the death penalty phase to start immediately, Yavapai County Superior Court Judge William Kiger dismissed the jurors after the conviction and asked them to return for sentencing a month later, all the while keeping them under the court's admonition not to discuss or study the case during the extended recess.

Meanwhile, the defendant's lawyers, David Stoller and Raymond Hanna, filed a motion to continue the penalty phase to allow them more time to collect mitigating evidence – evidence that would favor their client.

When Kiger denied that motion in January, he expressed his concern over losing jurors if he postponed the case again. Kiger noted at that time that one of the 15 jurors was already off the panel because of an illness in the family.

The defense then filed a petition for special action in the Arizona Court of Appeals, which overturned Kiger's decision, allowing Roseberry a temporary stay of proceedings, but then denied the oral argument.

The appeals court is likely to decide the case by the end of the month based upon written pleadings from the defense and the prosecution.

Now, with the case on hold pending the Court of Appeals decision, it is unclear when the trial will resume and what will happen if the jury falls apart because it has been in recess for more than two months.

Deputy Yavapai County Attorney Steve Young, who is the prosecutor in Roseberry's case, said this jury could stay in recess "technically indefinitely."

"I do not know the answer to that,' he said. "I hope that they can hold to the admonition and be able to come back when this case comes back from the Court of Appeals."

If the jury can't be re-grouped, "we have to pick another jury," he said, adding that the new jury would only determine the penalty.

"They wouldn't get into the issues of guilt or innocence or whether the aggravating factor was found," he said.

"The conviction for the first-degree murder and the marijuana offense would stand and the finding of the aggravating factor would stand."

Young said he would have to present some of the same evidence because the new jury hasn't heard anything. If that happens, the trial could be more costly, he said.

Based on the new law, he said, the penalty phase should start immediately after the jury finds an aggravating factor.

"When the jury came in, we were set to go into the penalty phase," he said, adding that, "the parties at that point agreed to put off the penalty phase for 30 days."

Since the new law took an effect, there havebeen at least two other death penalty cases in the state of Arizona, which went immediately to the penalty phase.

The first capital case in the state after the U.S. Supreme Court decision involved Richard Glasel, who killed several people at a Peoria homeowners association in April 2000. The case went into the sentencing phase immediately after the jury found the defendant guilty.

According to the Associated Press, on Wednesday the jury convicted a 36-year-old Phoenix man in the 2001 beating death of a 10-year-old girl and that case went into the sentencing phase Thursday.

Yavapai County Public Defender Dan DeRienzo said that "since the new statute took effect, it is all up in the air as to what would happen" in this case or any similar case.

"It all would depend on the facts of the case and how the law is interpreted at that time," he said.

If a new jury comes into a picture, "it would be up to the judge how much (evidence) he allows," he said.

DeRienzo said the way the new law reads, it will not be uncommon to have a jury in recess under admonition for long periods because gathering mitigating evidence takes time.

"The way the statute is written it is going to invite that in every death penalty case," he said. "The sentencing phase will take a long time to develop."

He said to avoid keeping the jury under admonition for long periods, the defense could collect mitigating evidence while preparing for the trial.

However, if the trial ends in acquittal, mitigating evidence wouldn't be necessary and it would be a waste of money, he said.

The death penalty sentencing phase alone, which includes hiring of a mitigating expert who collects evidence that favors a defendant, could cost about $100,000, he said.

Contact Mirsada Buric-Adam at or 445-8179, ext. 1099.

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