RENO, Nev. – A 73-year-old former schoolteacher facing a murder charge in the death of an unarmed trespasser should have his $2 million bail reduced dramatically because he poses no flight risk and opened fire in self-defense when he thought the man pointed a gun at him, his new defense attorney said.
Wayne Burgarello has been in jail since his May arrest for killing Cody Devine, 34, and seriously wounding a woman he found inside the vacant home he owns in the city of Sparks on Feb. 13.
Prosecutors say it was unprovoked attack in a case that has brought attention to Nevada's "stand your ground law."
Burgarello armed himself with two handguns after a neighbor telephoned him about suspicious activity at the vacant, rundown duplex that he said had been burglarized before and sometimes inhabited by squatters using drugs, his lawyer, Theresa Ristenpart, said in a motion to release her client on his own recognizance or set bail at $150,000 at a hearing Wednesday.
Burgarello said he found garbage, syringes and drug paraphernalia when he entered the darkened home, calling out several times that he was the homeowner and was armed. When he entered a back bedroom, Devine's "arm came up like a gun" and Burgarello opened fire, striking Devine and Janai Wilson, 29, the motion said.
Detectives say Burgarello fatally shot Devine five times, once in the head.
Burgarello cooperated with police the night of the shooting and never attempted to flee during the lengthy investigation, showing he's unlikely to skip out on his arraignment Sept. 3 on charges of murder and attempted murder, Ristenpart said.
"While Mr. Devine's death is certainly tragic, the circumstances strongly support the theory that Mr. Burgarello acted in justified self-defense in direct response to an armed intruder in his house," the Reno attorney wrote in the motion filed Aug. 11 and supplemented with additional documents Tuesday.
Ristenpart said it will be up to a jury to decide if Burgarello acted in self-defense during the confrontation at the duplex his parents bought in the working-class neighborhood east of Reno in 1947. But she said his lifetime ties to the area and lack of a criminal record give the elderly man in failing health "every incentive to fight these charges, rather than to risk absconding and leaving behind a life he's built for himself."
The circumstances of Devine's death were "so murky" that it took police and prosecutors 3 ½ months to arrest Burgarello, she said.
Washoe County prosecutor Bruce Hahn said in June that the evidence will show Devine's "wound track belies his claim of self-defense."
Ristenpart waived Burgarello's preliminary hearing Monday and issued a statement saying there has been a rush to judgment among some regarding the applicability of Nevada's "stand your ground" law.
More than 30 states have such self-defense laws that allow deadly force against attackers posing an imminent threat regardless of whether the aggressor is armed. Nevada law says the shooter cannot be "the original aggressor."
"While 'stand your ground' laws have become a politically charged issue in the last year, we ask that the public and the media not imply such political overtones to this case," Ristenpart said.
An earlier motion to reduce bail filed by public defenders said Burgarello has suffered a heart attack and two strokes and is not a flight risk. They said he is suffering from "excruciating pain, crippling pain" and should be placed under house arrest so his own doctor can care for him.