Judge denies delay for Roseberry; jury to decide penalty

PRESCOTT – Yavapai County Superior Court Judge William Kiger on Tuesday denied Homer Roseberry's motion to delay the penalty phase of his first-degree murder trial.

His lawyers had asked for more time to collect mitigating evidence for their client, who will be the first Yavapai County defendant to face the death penalty at the hands of a jury rather than a judge.

Explaining his ruling, Kiger expressed his concern over losing jurors if he postpones the trial again. He said one juror is already off the panel because of an illness in the family.

The jury, which consists of 12 regular members and three alternates, convicted Roseberry of first-degree murder in late December. At that time, Kiger dismissed them until sentencing while keeping them under the court's admonition not to discuss or study the case during their hiatus.

"My fear is attrition may take place and we may lose other jurors," he said, adding that, an hour before the jury returns at 9 a.m. on Friday, he will meet with the prosecution and the defense to discuss any other issues.

Kiger did grant a defense "voir dire" motion, allowing the lawyers to speak with each individual juror to determine whether any of them committed misconduct or had improper contact during the month-long recess.

The charges against Roseberry, 58, stem from the October 2000 shooting death of 45-year-old Fred Fottler. Roseberry reportedly shot Fottler in the back of the head three times during a plot to steal more than 1,000 pounds of marijuana. A motorist discovered Fottler's body along Highway 93 near Wikieup this past year.

A month ago, the jury also determined that there was an aggravating factor – that he committed the crime for money – in Fottler's death, which moved the capital case into the next phase of the new sentencing structure recently authorized by the Legislature.

In Ring vs. Arizona, the U.S. Supreme Court decided that Arizona's former death penalty sentencing method was unconstitutional. In response to that decision, the Legislature enacted new statutory provisions requiring that a jury, not a judge, determine if a defendant deserves the ultimate punishment.

In Roseberry's motion to continue the penalty phase, his attorneys, David Stoller and Raymond Hanna, stated that the court's brief delay between the aggravation and penalty phases was not sufficient to gather mitigation evidence.

Requesting a 180-day penalty phase, the attorneys stated they will need months to collect evidence they recently learned from the defendant's family.

"I'm making a motion not for the purpose of delaying it, but because I lack the evidence," Stoller said.

After the proceeding, Hanna said he will file a "petition for special action" today with the Arizona Court of Appeals "to force them (the lower court) to give us some more time."

Before this new law came about, the defense had at least six months to gather mitigating evidence to present during a capital case's penalty phase, he said. Now, they are forced to do the job in one month, he said.

The judge denied six other defense motions, including a "motion to preclude application of the death penalty statute due to unconstitutionality of the penalty phase provisions."

Hanna said penalty phase provisions are unconstitutional because the new law didn't exist at the time his client committed the crime. Previous penalty provisions should apply to him, and not the new ones, he said.

"That is the big issue here," he said.

Contact Mirsada Buric-Adam at

mburicadam@prescottaz.com

or 445-8179, ext. 1099.