Prosecutor: Nevada man who killed trespasser worried about shooting child if he guarded home

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RENO, Nevada — A former school teacher charged with murder in the shooting of an unarmed trespasser told police he had considered guarding the often-burglarized duplex in the past but was concerned he might shoot a child, a prosecutor said Wednesday.

The statement came at a hearing for Wayne Burgarello, 73, whose bail was reduced from $2 million to $150,000 after a judge found that his failing health and lifelong ties to the community made it unlikely Burgarello would skip out on his Sept. 3 arraignment.

Burgarello was arrested in May in the killing of 34-year-old Cody Devine and the serious wounding of a woman he found in February inside his vacant home in Sparks.

Prosecutors say it was an unprovoked attack; Burgarello asserts he was defending himself. The case has drawn attention to Nevada's "stand your ground" law about using deadly force against attackers.

At the hearing, defense attorney Theresa Ristenpart said Burgarello cooperated with police the night of the shooting and repeatedly told officers he was sorry about the shooting in the rundown duplex his parents bought in 1947 in a working class neighborhood east of Reno.

Washoe County prosecutor Bruce Hahn countered that Burgarello showed little remorse at the time of the shooting.

"He still insisted he didn't do anything wrong even though he shot and killed one man and seriously wounded a woman who was lying on the floor," Hahn said.

Burgarello also explained that children had been breaking into and vandalizing the house, and that he had thought about waiting in the house with a gun but reconsidered after thinking about the consequences of shooting a child.

Ristenpart said Burgarello had made the comment about children while reporting a previous break-in to police, who told him the only thing he could do about the burglaries was lock the doors and board up the windows.

She acknowledged that her client had expressed concern about arming himself because he could possibly end up shooting a child instead of a burglar.

Ristenpart said Burgarello grabbed two handguns on Feb. 13 after a neighbor telephoned him about suspicious activity at the duplex that he said had been burglarized before and sometimes inhabited by squatters using drugs.

Burgarello said he found garbage, syringes and drug paraphernalia when he entered the darkened home, called out several times that he was the homeowner and was armed.

When Burgarello entered a back bedroom, Devine's "arm came up like a gun" and the defendant opened fire, striking Devine and Janai Wilson, 29, Ristenpart said in a motion seeking the bail reduction.

Detectives say Burgarello shot Devine five times, once in the head. Hahn said evidence involving the wounds will counter the self-defense claim.

Ristenpart said Burgarello never attempted to flee during the lengthy, "murky" investigation that took three months to produce charges.

Hahn said the facts were not murky at all.

"I actually have a witness who survived," he said.

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.

Ristenpart acknowledged that such laws have become a politically charged issue in the past year, but she asked the public and media to not cloud the case against her client with political overtones involving the issue.

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