Judge denies Southworth's motion for new trial

jhewlett@herald-leader.comFebruary 23, 2012 

  • Donald Southworth arrived for his court hearing Thursday.

A Fayette circuit judge has denied a request to grant a new trial for Donald Southworth, convicted of murder last month in the June 2010 beating death of his wife.

Judge Kimberly Bunnell, who overruled all but one of several defense arguments for a new trial for Southworth at a hearing earlier this month, overruled the final defense argument for a new trial on Thursday.

The remaining argument in the defense motion for a new trial for the judge to consider stemmed from the apparent inadvertent removal from the courthouse of an exhibit by a witness after his testimony at the January trial.

Southworth, 49, was convicted of fatally beating his wife, Umi, 44. She was found severely beaten beneath a box spring in a brushy area behind her Meadowthorpe Avenue home on June 9, 2010, and she was pronounced dead the next day, after she was removed from life support. The case drew international attention because police did not realize for hours after they arrived that she was still breathing.

After finding Donald Southworth guilty of murder, the jury recommended he be sentenced to life in prison.

Southworth's attorneys filed the motion for a new trial just a few days later.

On Thursday, before denying a new trial, Bunnell said that a substitute document provided to jurors while they were deliberating was not significantly different from the document introduced at the trial as evidence that the jurors had asked to see. Defense attorneys had maintained that the jurors had relied on a document that had not been introduced into evidence in reaching their verdict.

The exhibit jurors wanted to see was a petition for dissolution of marriage that police had found in a trash container at the Southworth home. But Dr. John Hunsaker III of the state medical examiner's office had taken the actual document from the courthouse. Jurors were provided with a copy of the document printed from a police report.

Defense attorneys and prosecutors disagreed over what happened after that.

On Wednesday, the attorneys involved in the case and the judge hashed out an "agreed narrative statement."

According to the narrative, the following events occurred at the same time: The attorneys and the judge began drafting a note advising the jury to disregard the substitute document, with the attorneys, at the same time, calling witnesses to try to find the actual exhibit. It was discovered that Hunsaker had the actual exhibit, and the judge told his office to fax a copy of the actual exhibit to her office. According to the narrative, the jury advised the court bailiff that it had reached a verdict.

Then, according to the narrative, the judge knocked on the jury room door, read the note to disregard the substitute exhibit and handed the note to the jury. After that the judge received the fax from the medical examiner's office. She knocked on the jury room door and gave the jury the fax.

Then, according to the narrative, the judge asked the bailiff to verify with the jury that, having had an opportunity to review the fax, they were still prepared to reach a verdict. The bailiff went to the jury room, and then reported to the judge that the jury was prepared to return a verdict.

In addition to denying the motion for a new trial on Thursday, Bunnell also ruled that she would admit into the court record victim impact statements from people such as Hesti Johnson, who had lived with the Southworths and had a child with Donald Southworth; co-workers of Umi Southworth; and a woman who is now a guardian for the Southworths' daughter, Almira.

Defense attorney Russell Baldani argued that, under state law, they were not victims.

Southworth is to be formally sentenced Friday.

Jennifer Hewlett: (859) 231-3308.Twitter: @HLpublicsafety

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