Newly found bullet could delay trial in trespasser killing | NevadaAppeal.com

Newly found bullet could delay trial in trespasser killing

Scott Sonner
Associated Press

RENO — The murder trial of a 73-year-old Sparks man who fatally shot an unarmed trespasser could be delayed after a private investigator found a previously undiscovered bullet lodged in the floor at the scene of the killing inside a vacant, rundown duplex.

Wayne Burgarello claims he was acting in self-defense at the residential property his family has owned since World War II when he killed Cody Devine and seriously wounded Janai Wilson in February.

New documents filed in advance of a hearing scheduled Friday include an autopsy report that shows Devine was shot once in the chest and four times from behind, including once through the head. Wilson also was hit at least twice but survived.

Washoe District Court Judge Patrick Flanagan plans to hear from lawyers on a series of motions regarding evidence and witnesses in the case that’s bringing attention to Nevada’s “stand your ground” law. The trial is scheduled to begin Jan. 20, but a hearing that had been scheduled for Wednesday to confirm the trial date was postponed, and both sides say the trial may need to be delayed.

Burgarello, a retired schoolteacher and art instructor, told police he started shooting in the dark bedroom after “Devine’s hand came up and (he) perceived a gun,” defense attorney Theresa Ristenpart wrote in court documents filed last week. She said earlier that a black flashlight found next to Devine’s hand could have been mistaken for a weapon.

Prosecutors argue that Burgarello entered the duplex with revenge on his mind after a series of previous break-ins and opened fire unprovoked at the two trespassers who were lying beneath a white comforter on the floor of the room where they’d been injecting methamphetamine.

But Ristenpart said the prosecution’s theory is based “on the fact that — prior to discovery by a defense investigator — seven bullets had been recovered from the scene and that there were seven bullet holes in the comforter.”

“The discovery by defense of a missed eighth bullet is therefore significant,” she wrote.

Chief Deputy District Attorney Bruce Hahn agreed and acknowledged a delay in the trial may be necessary.

More than 30 states have self-defense laws that allow deadly force against attackers who pose an imminent threat, regardless of whether the aggressor is armed. Nevada law says the shooter cannot be the original aggressor.

One of the matters the judge is expected to address on Friday is whether defense attorneys can call witnesses to testify about the victims’ history of drug use and aggression.

Devine, 34, had been investigated as a suspect in a previous killing, Ristenpart said. She said Wilson, 29, had conspired to take items from the residence and discussed trying to take possession of the property through squatter’s rights.

Hahn filed a motion on Dec. 26 to bar most testimony regarding the victims’ past “bad acts,” including claims of “Wilson’s poor character.

— namely a thief, a trespasser, etc.”

“While an attractive tactic to the defense to make Wilson less sympathetic, the claims — even if true — have no merit to the issues before the jury,” he wrote. “They have no bearing on the defendant’s intent or his actions.”