Fayette commonwealth's attorney's office argues against new trial for Southworth

jhewlett@herald-leader.comFebruary 9, 2012 

The Fayette County Commonwealth's Attorney's office has asked Fayette Circuit Judge Kimberly Bunnell to deny a new trial for Donald Southworth, who was convicted last month of murdering his wife.

In a court document filed this week in response to a recent defense motion for a new trial, Assistant Commonwealth's Attorney Lou Anna Red Corn said that grounds set forth by Southworth in support of his motion for a new trial did not prevent him from having a fair trial, and "the interests of justice do not call for a new trial."

Southworth, 49, was found guilty of murder in the June 2010 death of Umi Southworth, 44. She was found severely beaten beneath a box spring behind her home on Meadowthorpe Avenue on June 9, 2010, and was pronounced dead the next day after life support was removed.

Southworth filed the motion for a new trial a few days after the guilty verdict and jury's recommendation of a life sentence.

Red Corn, in her filing, addressed two issues in particular. One concerns an exhibit the jury asked to see while deliberating; the exhibit was found to have been taken from the courthouse by a witness inadvertently. The other concerns the object or objects allegedly used to beat Umi Southworth.

The jury, which asked while deliberating to see a petition for dissolution of marriage that had been found by Lexington police in a trash container in the Southworth home, was given a substitute exhibit, Red Corn said. She said the actual exhibit was taken from the courthouse by Dr. John Hunsaker III of the state medical examiner's office after he testified.

The substitute document was printed from a police report provided to defense attorneys before the trial, Red Corn said. She indicated that the substitute document was not significantly different from the document admitted into the court record. Hunsaker faxed a copy of the exhibit to the judge's office, Red Corn said. At the same time, the judge, with input from prosecution and defense attorneys, prepared a note of admonition to the jury to disregard the substitute exhibit because it was not identical, Red Corn says.

"It was during this time that the jury indicated it had reached a verdict," the prosecutor said. While the record is not clear, the jury was told to disregard the substitute exhibit and was provided the faxed version of the original exhibit before the verdict was returned, she said.

Defense attorneys maintain that the jury indicated it had reached a verdict before the court could give jurors the note to disregard the substitute exhibit and provide them with the copy of the original.

Defense attorneys, in their motion for a new trial, said jurors were instructed they could find Southworth guilty of murder if he killed his wife with a log "and/or another object," while the indictment against Southworth and the discovery provided by prosecutors before the trial contain no allegations that a weapon other than a piece of wood or a log was used. They say Southworth was prejudiced by the prosecution's decision to change its theory after the trial began.

But Red Corn, in her filing, said the additional language was based on Hunsaker's testimony and his report on Umi Southworth's autopsy, which was provided to defense attorneys during discovery. She said Donald Southworth was not required to "defend a vastly different proposition."

A hearing on the motion for a new trial had been scheduled for Thursday, but Bunnell rescheduled it for Tuesday.

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