Jurors couldn’t agree Friday on whether a male stripper committed the murder of Paradise Valley millionaire Rick Chance, but they did agree he is a thief.
Their verdict and the manner in which 27-yearold Robert Lemke was indicted now leaves the lingering question of whether he can be tried again on the murder charge.
"Our position is he can’t," said defense attorney Bruce Peterson. "But the state will have its own position."
The state intended to seek the death penalty if Lemke were convicted of first-degree murder.
The verdict left Chance’s family disappointed. They believed the state proved beyond a reasonable doubt that Lemke gunned down Chance on Aug. 8, 2002. The former Empire Glass owner was found slain in a Tempe hotel room and his satchel of jewelry and a valuable watch were missing.
"Evidently, some on the jury didn’t feel that way," said Chance’s brother, Mike Chance.
The jury of 11 women and one man returned a guilty verdict of theft and conspiracy to commit theft after 12 days of trial and six days of deliberations.
They informed Maricopa County Superior Court Judge Douglas Rayes late Thursday they had reached an impasse on the murder charge, but they told him Friday morning they would keep trying to reach a verdict.
Rayes later declared a mistrial on the murder charge after the jury deadlocked on it.
The state can normally try someone again after a hung jury, but Rayes called into question whether that can happen in Lemke’s case because of how he was charged under the state’s felony murder provision.
The provision allows for a murder charge if someone dies during the commission of certain felonies, including armed robbery. If Lemke had been convicted on a robbery charge, that would have triggered an automatic murder conviction. But the jury convicted him on the lesser theft charge, which isn’t part of the felony murder provision.
Prosecutor Sam Myers, a deputy Maricopa County attorney, said his office will have to research the issue of a retrial.
Jurors were unavailable for comment because they are under a gag order and they must return Monday to hear evidence that will impact Lemke’s sentence on the theft conviction.
"You can look at it as partial justice," Mike Chance said. "We don’t know that it’s over yet. We’ll know in due time whether there’s going to be a retrial."
The trial featured competing testimony of Lemke and the state’s star witness, Brandi Hungerford, a 28-year-old stripper.
Hungerford said Lemke enlisted her to lure Chance, 44, to the Best Western Hotel in Tempe, where Lemke shot and robbed him.
Hungerford pleaded guilty to second-degree murder and testified against Lemke as part of her plea deal.
Lemke testified that he was with a woman in her Tempe apartment at the time that the murder took place. He said Hungerford came over and said she had robbed a "client" and she wanted him to get rid of a gun for her.
The jury wasn’t allowed to hear testimony related to the most recent of Lemke’s four felony convictions.
A jury convicted him in October of aggravated robbery, for which he is serving a 6 1/2-year sentence.
In that case, Lemke enlisted an attractive escort to spike the drink of his friend so he would pass out and she could steal his $20,000 Rolex watch in April 2002.
Hungerford testified that they had a similar plan for Chance at first, and she actually got sleeping pills into his drink, but he didn’t pass out.
Lemke is subject to four to 12 years in prison for each of the theft convictions, but that could be increased due to prior convictions.