Lawyer: Property owner in Nevada trespass killing may have mistaken flashlight for gun

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RENO, Nevada — An unarmed trespasser who was shot to death in a vacant Nevada duplex had been investigated in a previous killing, and a woman who was wounded had conspired to take items from the residence, a defense lawyer said.

It also appears the male trespasser was holding a black flashlight that Wayne Burgarello, the shooter and owner of the Sparks property, could have mistaken for a gun, attorney Theresa Ristenpart told The Associated Press.

The allegations are also included in new motions filed Wednesday in the Washoe District Court case that has brought attention to Nevada's stand-your-ground law.

Burgarello has said he acted in self-defense on Feb. 13 in the killing of Cody Devine and serious wounding of Janai Wilson.

Prosecutors, however, say Burgarello, a 73-year-old retired school teacher, planned the killing as revenge for prior burglaries and from "festering frustration from a stove theft."

Ristenpart's description of events before the shooting challenged the prosecution's portrayal of the trespassers as innocent victims.

She wants to call as a witness Shaunna Dodd, a friend of Devine who is currently serving life in prison for murdering her husband at their Washoe Valley home in 2012.

Devine also "apparently was investigated" as a "suspect in that murder," Ristenpart said in the motion seeking Dodd's testimony at the trial of Burgarello set to begin Jan. 20.

Dodd told Burgarello's lawyers during a prison interview that she had known Devine for years and "he would get aggressive and violent when drunk and/or high," Ristenpart wrote in her motion.

The lawyer went on to contend that Devine "first made aggressive movements" when Burgarello entered the bedroom of the duplex where he and Wilson had injected methamphetamine.

"These initial aggressive movements lead to Mr. Burgarello's split-second decision that he needed to use his gun in order to protect his life," the motion states.

She also suggested Burgarello could have mistaken the flashlight for a weapon. Burgarello has told detectives that Devine's "arm came up like a gun" before he started shooting. Devine was shot five times and Wilson three.

The defense lawyer also wrote that Wilson had bragged about stealing a boat from Burgarello's residence and discussed trying to take possession of the property through squatter's rights.

Prosecutors say Burgarello's self-defense claim is undermined by his statements to neighbors and police the week before the shooting suggesting he would take the law into his own hands.

When an officer who responded to the stove theft recommended Burgarello board up the duplex windows, Burgarello said he "'could wait inside and shoot someone,''" Reno Chief Deputy District Attorney Bruce Hahn wrote in a court filing.

"Despite prior break-ins to Burgarello's property, someone was going to pay for the very next one," Hahn wrote.

On the day Devine and Wilson were shot, Burgarello "never called the police in advance, despite calling police at least 20 documented times in the past 25 years," Hahn said.

Ristenpart said most of those past calls were not relevant.

"The fact that Mr. Burgarello had to call the police numerous times 20 years ago regarding his neighbor neglecting their animal is not even remotely relevant to the state's proposed argument that Mr. Burgarello was planning to kill in cold-blood," she said in her motion.

"There is no duty in the state of Nevada that one must call the police before entering his own residence to inspect it," she wrote.

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