Originally Published: January 7, 2010 10:18 p.m.
In an unusual move, prosecutors said they plan to call one of Steven DeMocker's defense lawyers as a witness in the upcoming murder trial.
DeMocker, 56, who is charged with first-degree murder in the July 2, 2008, death of his former wife, Carol Kennedy, could face the death penalty if a jury convicts him.
The prosecution contends that DeMocker, a stockbroker, beat Kennedy, 53, to death with a golf club at her Williamson Valley home to avoid paying $6,000 per month in alimony. A deputy county attorney asked the judge to permit testimony from an expert regarding DeMocker's financial status.
DeMocker, meanwhile, maintains his innocence.
In a flurry of documents filed with the court on Monday, Deputy County Attorney Joseph C. Butner III said he plans to call defense lawyer John Sears as a witness to testify about a Big Bertha golf club cover that law enforcement officers found on a shelf near a set of golf clubs in DeMocker's Prescott garage and photographed during their first search of his Alpine Meadows Lane property.
"After it was determined that Carol's death was due to blunt force trauma, that in the opinion of the medical examiner appeared to be inflicted by a golf club, another search warrant was obtained to seize the clubs," Butner wrote. By then the Big Bertha cover had disappeared. On Oct. 23, 2008, the day that DeMocker was arrested, Sears turned the club cover over to police.
"These are important foundational facts that tend to demonstrate the defendant knew or suspected the cover was inculpatory (incriminating) evidence and that his lawyer knew or suspected the cover was inculpatory evidence, and yet they both kept the cover from law enforcement for a significant period of time during this investigation," Butner alleged.
Sears said that he could not comment on "matters pending before the court"; however, he filed a motion to ask the court to preclude the prosecutor from calling him as a witness.
Butner also asked Superior Court Judge Thomas B. Lindberg to rule on whether a jury can learn about DeMocker's alleged extramarital affairs, computer searches related to killing and murder, "false and misleading statements to the court in his divorce case," and "hiding of assets" during the divorce, plans to flee before his arrest and use of a human growth hormone. Butner would also like to let the jury know about complaints from DeMocker's clients, DeMocker's claim that he killed a neighbor's cat, his "dysfunctional" childhood and his alleged attempt to influence witnesses, according to court records. While these allegations may not be admissible as evidence of DeMocker's character, a jury could learn of them to prove motive, opportunity, intent, or preparation, Butner stated.
While defense lawyers argued that two juries - one to determine guilt and another for the penalty phase if needed - should hear DeMocker's case, Butner objected to that request. Defense lawyers argued that studies show those who serve on juries hearing capital cases are more likely to convict.
However, DeMocker failed to prove that one jury for both phases would violate his constitutional rights or go against "fundamental fairness," Butner wrote. The state would have to present its case twice if two juries were impaneled, he noted. Also, finding a second jury not familiar with the case after a first trial "will be difficult if not impossible," he wrote.
Butner also asks to be allowed to show a video of a reenactment of a bike ride on Granite Mountain that DeMocker told detectives he took during the time of his ex-wife's slaying. While DeMocker claims the reenactment is not "sufficiently similar" to his ride, Butner said detectives were shown the route by DeMocker's girlfriend, Renee Girard, who said DeMocker told her his whereabouts and showed her the trail he followed.
In addition, Butner asked that shoe prints and bicycle impressions found on land adjacent to Kennedy's house and a shoe print left close to her exterior door should be admitted as evidence. Butner also asked the judge to review photographs of the victim in his chambers to determine if "any are unduly gruesome or prejudicial" and should be kept from the jury.
In another brief, Butner asked Lindberg to maintain the $2.5 million bond that DeMocker has been unable to post. The state is working with the staff at the Yavapai County jail to provide videoconferences and a secure telephone line for talks with his lawyers and a computer to allow him to review digital evidence to prepare for his May 4 trial.
A hearing on 12 pretrial motions will begin on Tuesday.