Attorneys outline arguments in second trial of Pueblo man who shot and killed neighbor

Opening statements in the second homicide trial of Max Struck — whose first trial ended in a mistrial in June — largely echoed the first, with the 10th Judicial District Attorney's office claiming Struck deliberated before killing his neighbor and the defense claiming he acted in self-defense.

Struck, 35, is on trial for first-degree murder and is accused of fatally shooting Patti Magby on Oct. 21, 2022, outside of his home in the 4700 block of Bergemann Road in rural southwest Pueblo County. Struck was first tried in June, but the trial ended in a mistrial due to a "jury issue," according to court documents.

In an initial 911 call, Struck stated that he had shot at an unknown figure who was taking pictures of vehicles and structures on his property for an unknown reason. Magby's body was found on the property with a gunshot wound to the lower leg and a mortal gunshot wound to the abdomen.

Pueblo DA's office lays out its case

Tenth Judicial Deputy District Attorney Suzanne Marsh argued in her opening statement Thursday afternoon that Struck acted deliberately to kill Magby.

In a recorded 911 call, Struck told an emergency dispatcher on the night of the shooting that he was sitting in a vehicle in his driveway when he saw lights come on inside his home. In the 911 call, Struck said he then saw an intruder exit the residence and circle around the side of the house, taking pictures of his property, including the vehicle he was sitting in.

He told the 911 operator he yelled at the intruder to leave before going into his house and arming himself with a 9mm pistol. He said he then exited a patio door and yelled again for the intruder to leave his property.

Struck stated in the call that the unknown intruder replied, "Well, come here," at which point he said he fired into the darkness.

Marsh also noted that despite Magby having two loaded guns in the vehicle she had parked right in front of Struck's residence, Magby was unarmed at the time she was killed, having left one of the guns inside the vehicle and the other on top of it.

Adding to the arguments made in her original opening statement, Marsh attempted to refute a piece of audio evidence that the defense had previously leaned on. In a snippet of a 911 call, Struck, through sobs, stated something hard to decipher, which defense counsel claims was "The light came on, and I heard two shots."

During the first trial, prosecutors stated that it was too difficult to make out and could have been anything. However, in Marsh's opening statement, she offered her own interpretation — "The light came on, and then she stopped."

Marsh claimed that the DA's office had consulted with an "audio expert" who was able to isolate and clarify the audio, making it easier to hear.

Like the first trial, Marsh claimed Struck acted with deliberation, having had several moments to weigh his plan to shoot Magby before acting on it — leaving his vehicle, yelling at Magby that he planned to get his firearm, putting on a robe, selecting the gun that, in Struck's words, "he'd prefer to use," repeatedly opening the door, firing, and closing the door, and clearing two weapon jams. Struck fired a total of seven times, she noted.

He then loaded a second magazine, "just in case," but didn't see any further movement and ceased firing. Each of these steps constituted an opportunity to deliberate, Marsh argued.

"Is trespassing an offense warranting taking another's life? The answer is no," Marsh said.

Defense argues Struck felt afraid and 'under attack'

James "David" Henderson, an attorney representing Struck, said in his opening statement that Struck had a reasonable fear for his life.

"Bang, bang — that's the sound my client heard when he was isolated on his property that night. He was isolated, he was alone, and he was afraid," Henderson said.

Henderson pointed to the audio clip of the 911 call, which he claimed stated that "the light turned on, and I heard two shots."

Magby, who had a blood alcohol content of .155 — nearly twice Colorado's legal limit to operate a motor vehicle — along with evidence of two prescription drugs in her system at the time of her death, did not have permission to be on the property, Henderson noted, and had ignored a "no trespassing" sign on the way down Struck's long driveway.

As he did in the first trial, Henderson noted that the house was in an isolated area of rural Pueblo, and that if Struck had called law enforcement to solve the problem, response times could "take a while," up to 20 minutes. Henderson also pointed to Magby's loaded handgun on top of the vehicle, which detectives took nine days to find after the shooting.

The gun was photographed on top of the vehicle the night of the shooting but only found after the vehicle was towed into Pueblo, miraculously staying on the roof of the vehicle during the tow. The revolver was loaded with five "snake shot" rounds, two of which appeared to have been fired in succession, according to Henderson.

Henderson also stated that Magby's hands were swabbed for gunshot residue, but the state refused to test the swab. Finally, Henderson argued that despite the prosecution's claims that the yard where Magby was shot was well-lit, it would have been very difficult for his client to see well, pointing to photos taken of the yard with lights off taken the next day.

A photo from Magby's phone, which appeared to be an accidental selfie, also showed the night sky above Struck's roof. Henderson argued that his client acted in a reasonable manner to defend himself against an unknown intruder and that Struck cooperated to the fullest extent with investigators in the case.

He also argued there was a bias against Struck from the beginning, as a member of Magby's family works for the Pueblo coroner's office.

"He had a reasonable fear of losing his life. He was alone, isolated, and afraid," he concluded. "My client is not guilty."

The trial is scheduled to continue through Sept. 22.

All suspects are innocent until proven guilty in court. Arrests and charges are merely accusations by law enforcement until, and unless, a suspect is convicted of a crime.

Questions, comments or story tips? Contact Justin at jreutterma@gannett.com. Follow him on Twitter @jayreutter1. Support local news, subscribe to The Pueblo Chieftain at subscribe.chieftain.com.

This article originally appeared on The Pueblo Chieftain: Attorneys outline cases in second trial of Pueblo man accused of murder