Authorities work at the scene of a fatal shooting in Sparks, Nev., where a man shot two people he allegedly found inside his vacant property. / Marcella Corona, Reno (Nev.) Gazette-Journal
RENO, Nev. -- The arrest this week of a 73-year-old Nevada man in the shooting death of a trespasser has elicited debate on the state's "stand your ground" law.
Wayne Burgarello was charged with murder and attempted murder in the February shooting of two people in a Sparks duplex.
According to a police affidavit filed this week, on Feb. 13, Burgarello entered a vacant duplex he owned where two people were staying without his consent.
Burgarello entered with two guns and fired several rounds, followed by a pause and a final shot, killing Cody Devine, 34, and seriously injuring Janai Wilson, 29, the affidavit said.
Burgarello said the shooting was self-defense. He told police he shot after Devine, who was lying on the floor, appeared to move his arm parallel to the ground as if he had a gun.
Wilson had met Devine that morning. She had used Burgarello's vacant property to store possessions and live on and off for about three years, the affidavit said. She is recovering from multiple gunshot wounds to the arm, stomach and leg, and will not be charged with trespassing, Sparks police said.
"If the case is tried, a judge will tell a jury to apply a subjective test and an objective test," said Reno attorney John Ohlson, who has tried several "stand your ground" cases in Nevada. "The subjective test: Did the shooter actually believe himself that his life was in danger? The objective: Was that belief reasonable?"
Nevada's "stand your ground" law was passed in the 2011 Legislature with little fanfare and plenty of bipartisan support.
A Democrat proposed the bill and only three in the Assembly voted against it, making Nevada one of more than 20 "stand your ground" states.
The reason for the easy passage? The law basically codified established Nevada case law upholding use of deadly force in self-defense.
"If somebody went out and was accused of a crime and used 'stand your ground' as a defense, before it was codified or after, it would have been the same result," said John Oceguera, former Nevada Assembly speaker who proposed the bill in 2011.
The Nevada law says a person is not required to retreat before using deadly force if the person:
-- Didn't start the incident.
-- Has a right to be there.
-- Isn't committing a crime.
"'Stand your ground' means you don't have to retreat," Oceguera said. "If someone is aggressively coming at me, I don't have to find the nearest window and jump out. I can use a weapon and stop them from doing that."
Some states have "duty to retreat" laws, which vary in degree, but generally demand that a person flee from an attacker. Then there is the Castle Doctrine, which basically applies the concept behind "stand your ground" to the home.
Oceguera said, based on preliminary facts, Burgarello didn't act in self-defense because he entered the residence and approached a sleeping unarmed man, and therefore Nevada's "stand your ground" law would not apply.
But even if Devine was unarmed and not the aggressor, that doesn't mean Burgarello didn't believe he felt his life was in danger. Additionally, several variables could influence a jury, Ohlson said.
"You got to have truth on your side," Ohlson said. "Maybe the truth was he was scared."
The Sparks Police Department and the Washoe County District Attorney's Office didn't buy Burgarello's claim that Devine's arm "came up like a gun, and I reacted."
Police said in the affidavit that Burgarello "provided inconsistent details of the incident" and the man with him, longtime friend Alvin Lilla, said Burgarello approached the duplex "determined" with a .357 Smith and Wesson in one hand, a 9 mm semi-automatic in the other and another gun in his car.
According to the affidavit, Burgarello told police: "I don't know which arm it was. I think it might have been the left arm. That makes sense because there's another person next to him. The arm came up ... right at the center of me. I think I said, 'Who are you? What are you doing here? Something like that. I don't know if I said anything or not. The arm came up like a gun, and I reacted."
Burgarello, a longtime teacher in the Washoe County School District, was arrested after a traffic stop in Sparks on Tuesday. He appeared in Sparks Justice Court for an initial hearing Wednesday. His next hearing to determine if he is eligible for bail is scheduled for June 2.
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