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7:26 AM Tue, Sept. 18th

Jury returns June 4 to sentence Roseberry for murder<BR>

PRESCOTT – After almost five months of being under the court's admonition, the jury will return on June 4 for the sentencing phase of Homer Roseberry's trial.

This past December, the jury convicted the 58-year-old Roseberry of the first-degree murder of a California man, Fred Fottler.

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

In its recent Ring vs. Arizona decision, the U.S. Supreme Court ruled that Arizona's method of capital sentencing by judges was unconstitutional. As a result, the Legislature enacted new statutory provisions that require a jury to determine if a defendant deserves the death penalty.

The defense and the prosecution agreed Wednesday during a scheduling conference that three days will be sufficient time to interview jurors to find out if they have to follow the rules of the admonition and to present mitigating evidence – evidence that favors the defendant.

"Assuming that we have the jury, then we'll have to go with the final phase," Yavapai County Superior Court Judge William Kiger said.

Raymond Hanna, one of the two Roseberry lawyers who was present at the hearing, said he expects to call a few witnesses to testify, while Deputy Yavapai County Attorney Steve Young said he doesn't anticipate calling anyone.

In January 2001, authorities arrested Roseberry on charges including first-degree murder of the 45-year-old Fottler after a motorist on Highway 93 south of Wikieup discovered his body. The victim suffered multiple gunshot wounds to his head. Yavapai County Sheriff's Office (YCSO) detectives were also able to determine that Fottler had been involved in the illegal transportation and sale of marijuana.

Police in Indiana took Roseberry into custody on a YCSO homicide warrant at the home of his mother-in-law there, and officials extradited him to Yavapai County in March 2001.

During their investigation, YCSO detectives discovered that Roseberry's wife, Diane Roseberry, was also involved, as was a family friend, Charles Dvoracek. Authorities arrested and extradited both of them to Yavapai County.

In January 2003, just as the Yavapai County Superior Court was about to proceed with the sentencing phase after Mr. Roseberry's trial, the Arizona Court of Appeals overruled Kiger's decision and allowed a continuance of the penalty phase. Roseberry's lawyers, Hanna and David Stoller, filed a petition for special action, asking the appeals court to grant them a stay so they could collect mitigating evidence and prepare for his sentencing defense.

Then, the Court of Appeals declined jurisdiction – meaning that the court would not hear the merits of special action – and returned the case to the Yavapai County Superior Court.

During an April 9 status conference, the Yavapai County Superior Court acknowledged that the Arizona Supreme Court has handed down its decision in State vs. Ring that covers the issue of who determines Enmund-Tison findings.

The U.S. Supreme Court ruled in the Enmund vs. Florida and Tison vs. Arizona cases that "the death penalty could not be imposed for felony murder cases unless there was a factual finding that the defendant killed, intended to kill or attempted to kill the victim or that the defendant was a major participant in the underlying crime and acted with reckless disregard for human life."

According to court files, Kiger concluded that the latest Arizona Supreme Court ruling indicates that "Enmund-Tison findings must be made by the court rather than by the jury."

Prior to this ruling, the court and counsel believed that the jury was to determine those findings.

Then, during an April 15 proceeding, Kiger ruled that a requirement for the death penalty as set out in the Enmund-Tison decision had been met in Roseberry's case.

Meanwhile, he sentenced Dvoracek to 10 years in the Arizona Department of Corrections after he pleaded guilty to three charges including conspiracy to commit transportation of marijuana for sale, transportation of marijuana for sale and facilitation of first-degree murder.

Mrs. Roseberry pleaded guilty to conspiracy to commit transportation of marijuana for sale, transportation of marijuana for sale and hindering prosecution. She will serve seven years in prison. Both defendants will have to pay $265,500 in fines and surcharges.

Dvoracek and Mrs. Roseberry testified as state witnesses in Mr. Roseberry's trial.

Contact the reporter at

mburicadam@prescottaz.com.