http://www.azcentral.com/news/articles/0407lemke-ON.html

New trial for stripper in murder of TV pitchman

Michael Kiefer and Brent Whiting The Arizona Republic Apr. 7, 2006 07:41 PM

A judge on Friday ruled that male stripper Robert Lemke can be retried for the 2002 murder of auto-glass mogul Rick Chance without risking double jeopardy.

The decision by Judge Douglas Rayes of Maricopa Superior Court hinged on an interpretation of Arizona's felony-murder statute, a law that allows a charge of first-degree murder to be filed when a slaying occurs during the commission of another crime, such as armed robbery.

Prosecutors alleged that Chance, known across the Valley as the TV pitchman for his windshield repair company, was killed during an armed holdup.

But in September, a jury deadlocked on the first-degree murder charge against Lemke. And instead of finding him guilty of armed robbery, the jury came back with the lesser verdict of theft.

The defense had argued that since Lemke was not found guilty of the underlying armed robbery, or "predicate" felony, the murder charge must go away.

Sam Myers, a deputy county attorney, argued that certain earlier appellate court rulings would allow him to retry Lemke for felony murder, using armed robbery as the predicate felony even if it he could not retry him for the robbery itself. A conviction of a lesser offense, he maintained, was not an acquittal.

Rayes, who presided over the trial, agreed, saying the jury left blank the verdict form for armed robbery.

"Therefore, the jury's silence as to the armed robbery charge can serve neither as evidence of an acquittal nor as evidence of a hung jury," Rayes wrote.

The judge also rejected defense arguments that retrying Lemke for first-degree murder would amount to impermissible double jeopardy.

Bruce Peterson, a deputy legal advocate representing Lemke, could not immediately be reached for comment.

"We look forward to moving forward with the case," said Krystal Garza, a spokesperson for the County Attorney's Office.

Lemke's accomplice, a fellow stripper and escort named Brandi Hungerford, pleaded guilty to second-degree murder and armed robbery in exchange for her testimony against Lemke, 27.

Hungerford, 28, admitted in court and in police confessions that in August 2002, she had lured Chance, 44, to a Tempe hotel with promises of sex. Then, she claimed, the two robbed Chance of nearly $1 million in jewelry and watches and that Lemke shot him to death while she was out of the room.

Hungerford was photographed by hotel security cameras as she and Chance checked into the hotel; the next day, a maid found Chance face-down on the floor with a bullet through his chest.

A week later, police arrested Lemke and Hungerford in Tacoma, Wash., with some of Chance's jewelry that they had not yet sold. But there was not enough conclusive evidence that Lemke had even gone to the hotel.

The jury of 11 women and one man apparently did not believe Hungerford's testimony beyond a reasonable doubt and deadlocked on the murder charge. Then, instead of armed robbery, the jury found Lemke guilty of theft, a felony that does not meet the criteria of felony murder.

Lemke has already been sentenced to more than 33 years for the theft and for an aggravated robbery that he committed with another stripper. Hungerford's sentencing has been repeatedly postponed pending her testimony in a second trial.

A pretrial conference for Lemke was set for April 19.