Originally Published: May 19, 2010 9:57 p.m.
The state Appellate Court Wednesday declined to hear an interim appeal by the Yavapai County Attorney's Office on a decision by a trial court judge to knock out two death penalty aggravators in the Steven DeMocker murder trial.
Superior Court Judge Thomas B. Lindberg left one death penalty aggravator in effect - murder for financial gain - when he sanctioned the state for late disclosure of evidence by dismissing the other two aggravators in April.
Prosecutors allege DeMocker, 56, a Prescott stockbroker, bludgeoned his former wife, Carol Kennedy, to death in her Williamson Valley home. DeMocker and Kennedy, 53, reached an out-of-court divorce settlement just three months before her death, with DeMocker paying her $6,000 a month in alimony, along with the proceeds of a retirement plan. Deputy County Attorney Joseph C. Butner III also claims that DeMocker sought control of $750,000 from life insurance policies on his ex-wife.
Kennedy, a former psychotherapist, devoted herself to artistic endeavors in the years before her death.
Kathleen O'Meara, one of DeMocker's defense lawyers who wrote the response to the state's appeal, said the defense team is "obviously very pleased."
Because jury selection continued during the process and jurors needed to answer questions about their views on the death penalty regarding all aggravators charged, the appeal added complications to the selection process, she said.
"We're reviewing that (appellate) decision and exploring whether we want to seek review from the Supreme Court," said Chief Deputy County Attorney Dennis McGrane. Meanwhile, jury selection will continue, he said.
So far, the lawyers picked 35 out of a goal of 38 possible jurors. The defense and prosecution then can strike 10 each for a final panel of 12 jurors plus 16 alternates. However, defense lawyers asked Lindberg to consider giving each side three more challenges.
Also Wednesday, lawyers locked horns over whether to permit testimony from FBI shoeprint expert Eric Gilkerson and state Department of Public Safety forensic scientist John Hoang. Defense lawyer John Sears asked Lindberg to bar both proposed expert witnesses because of a recently enacted Arizona law that raised standards for expert witnesses.
Prosecutors hope to link shoeprints found near Kennedy's Bridle Path home and bicycle tire impressions to DeMocker. DeMocker told detectives that he was riding his mountain bike when Kennedy died.
Sears said the new law "moves Arizona into the 21st century" so that "only a qualified witness can offer scientific and technical evidence" and these witnesses don't rise to that level, he said. When defense lawyers interviewed Gilkerson, he couldn't cite specific standards for shoeprint comparison, Sears said.
"It's not really science," Sears said. "Just 'this looks a lot like that.'" Sears worries that the jury might give the shoe testimony undue weight because Gilkerson works for the FBI. He put forward a similar argument about Hoang, the DPS scientist.
But Butner argued the experts were "much more qualified than the average juror" to assess the shoeprint and tire track evidence and give their opinions.
"These witnesses are pivotal in this case," Butner said.
Lindberg said he would like to schedule a hearing Wednesday to listen to what Gilkerson and Hoang might say if called to the stand.
DeMocker remains in custody in lieu of $2.5 million bond. Lindberg hopes lawyers will present their opening arguments late next week.