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Sun, Oct. 13

Appeals court puts brakes on capital case sentencing<BR>

PRESCOTT – The Arizona Court of Appeals has granted Homer Roseberry a continuance of the penalty phase of his first-degree murder trial verdict.

In a petition for special action, the defendant's lawyers, David Stoller and Raymond Hanna, asked the Court of Appeals on Wednesday to overturn Yavapai County Superior Court Judge William Kiger's decision and allow their client more time to collect mitigation evidence and prepare for his sentencing.

Roseberry is the first Yavapai County defendant to face the death penalty at the hands of a jury rather than a judge.

On Tuesday, when Kiger denied seven out of eight defense motions including a motion to delay the penalty phase, the judge expressed concern over losing jurors if he postponed the sentencing again.

"My fear is, attrition may take place and we may lose other jurors," he said, noting that one of the jurors already is off the panel because of a family illness.

Stoller and Hanna stated in their appeal that if the court proceeded with sentencing, their client's constitutional

rights would suffer irreparable harm, and that the proceeding would result in an "unreliable, arbitrary and capricious determination of his sentence."

During Friday's proceeding, Kiger read an order to the jury stating that "an order has been issued in this case staying any proceedings at this time.

The order is regarding a legal question and therefore not something that the jury can decide. The stay will exist until the legal question can be decided."

Kiger concluded the proceeding by saying that "nothing further can be stated at this time."

The jury convicted 58-year-old Roseberry of first-degree murder in late December.

At that point, the judge dismissed the jurors until sentencing, keeping them under the court's admonition not to discuss or study the case during the recess.

The charges against Roseberry stem from the October 2000 shooting death of 45-year-old Fred Fottler.

Roseberry reportedly shot Fottler in the back of his 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.

A month ago, the jury also determined that there was an aggravating factor present – that he committed the crime for money – which moved the case into the next phase of the new sentencing structure.

The United States Supreme Court decided in 2002 that Arizona's former death penalty sentencing was unconstitutional.

As a result, the Legislature enacted new laws that require juries, not judges, to determine if the defendant deserves the ultimate punishment.

Contact Mirsada Buric-Adam at mburicadam@prescottaz.com or 445-8179, ext. 1099.

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