Jury begins deliberation in murder trial of Pueblo County man claiming self-defense
A jury has begun deliberations in the second trial of Max Struck, who is accused of first-degree murder in the death of 73-year-old Patty Magby.
Magby was shot and killed by Struck while trespassing on Struck's Bergemann Road property in October 2022. Struck has admitted to shooting Magby but argued throughout his trial that the shooting was in self-defense.
Here's how the last two days of the trial played out.
Struck testifies in own defense
Struck testified during the trial that he believed he was in danger when he saw a light go on in his home and heard two gunshots fired while he was sitting in a vehicle and smoking a cigarette.
Struck testified Thursday that he saw an unknown, shadowy figure move around the house taking pictures, including of the vehicle he sat in.
Struck testified that as the stranger moved away from his vehicle, he exited, yelling that he was getting a gun and that they should leave. Struck said he locked two of the doors to the house, including the front door and the laundry room door he came in, but not the patio door, and retrieved a gun from his room.
Struck said he then yelled out the door at the intruder, who he said he could not see in the darkness, and heard what he believed to be a female voice say, "Well, come here," at which point he opened fire, pulling the trigger seven times and ducking back behind a wall, closing the door between each shot.
Five of those trigger pulls resulted in bullets being fired, two of which struck Magby in the ankle and stomach. The gun jammed three times, with Struck failing to clear the jam the last time.
Struck stated he went to find and load a second magazine but did not continue firing as he did not see movement anymore.
Struck testified that he feared for his life during the encounter, and was not thinking as clearly as he might have if he had not been terrified. He stated that he never saw Magby's face and that he never meant to kill anyone, and was extremely upset when he heard that Magby had died.
Struck also testified that the reason he did not tell law enforcement that night about the shots he heard was because an attorney he and his husband had spoken to on the phone told him not to say anything more to law enforcement without an attorney present.
Prosecution argues Struck's actions constituted murder
During closing statements Wednesday morning, district attorneys Suzanne Marsh and Anne Mayer argued that Struck acted with intent and deliberation to kill Magby, and did not act in a "reasonable manner" required to justify his self-defense claim.
Marsh stated that if Struck had been terrified as he claimed to be, he would not have drawn attention to himself by yelling at the intruder as he ran into the house and telling them he was getting a weapon, nor would he have opened the screen door to further warn the intruder to leave before opening fire into the dark.
Marsh argued that there also must have been enough light to aim at and hit Magby, a moving target, at a distance of 68 feet with a handgun, as the odds of striking a target you couldn't see at that range would be very low.
Marsh also questioned Struck's statements that he had "heard two shots," pointing to a difficult-to-make-out audio clip of a 911 call in which Struck can be heard saying something to his husband. Marsh pointed out that Struck did not directly tell a dispatcher or any law enforcement officer about the shots, and did not mention them himself until testimony in his first trial in June. Instead, the prosecution contends that Struck said, "The light came on and then she stopped."
Struck never testified that he had seen Magby with a firearm, nor had he seen or heard Magby threaten him in any way, Marsh pointed out.
Marsh claimed Struck deliberated before he shot Magby, as he'd announced his plan to shoot her as he left the vehicle, ran into the house, retrieved a firearm, opened the patio door, and fired several times with a pause between each shot, according to Struck's testimony.
"Struck decided that death was an appropriate punishment for trespassing," Marsh said.
Mayer also argued that Struck had acted not out of fear, but anger. Mayer portrayed Struck as "the aggressor" who felt comfortable enough to leave his vehicle and yell at her while still unarmed.
Mayer also argued that Struck acted not with fear but in a calm, deliberate manner when he opened the screen door, fired, and closed the door between each shot. "He wanted to make sure the job was done," she said. Mayer stated that Struck continued firing until he saw no movement in the yard because he "wanted to make sure that the intruder was dead."
Struck's lawyer paints picture of self-defense
James "David" Henderson, a public defender representing Struck, argued that Struck acted with reasonable fear when Magby trespassed on his property, in the dark, with a blood alcohol content of .155, two loaded guns, and two prescription drugs also in her system.
Struck, he reminded the jury, was alone that night at the "place he should have felt safest." Henderson stated that his client had never planned to kill anyone and reminded the jury that Struck's residence, which is located in a rural part of southwest Pueblo County, was 20 minutes away from any help from law enforcement.
Henderson also argued that it was very dark that night. He pointed to photos taken on Magby's phone, which clearly show the night sky above Struck's residence. Several photos, he indicated, were taken with flash on, meaning it was too dark for a cell phone to use night mode.
Henderson also showed body cam footage from a deputy the night after the shooting. In the footage, as Pueblo County Sheriff's Office Detective Steven Chavez walks the route that Magby allegedly walked around Struck's house the night she was shot and killed, Chavez fails to trigger the shed light that the prosecution contended would have illuminated the backyard during the incident.
A deputy can be heard on the body camera saying, "We can see movement," lining up with Struck's claims that all he saw during the shooting was a shadowy figure.
"In the 911 call, (Struck) didn't say the magic words, 'I was placed in a reasonable fear of my life and responded with an appropriate level of force,'" Henderson said. "People don't talk like that. What he did say is, 'The light came on, and I heard two shots."
A loaded gun containing two spent shell casings was found later on top of Magby's car, Henderson said. Magby's DNA was also found on Struck's front door, he said.
While the state is in possession of a swab of Magby's hands taken that night, the swab remains untested for gunpowder, Henderson stated.
Henderson questioned if the roles were reversed, whether the state would have charged Magby. "If Max Struck, hopped up on alcohol and prescription drugs, had come onto her property at night, going into her house, taking pictures of her property, and he had scared her, she had gotten a gun and shot him, do you think you would even be here?" Henderson asked the jury. "If not, there's a problem."
"The district attorney argues that it's not reasonable to be afraid if you're home alone, it's dark, and an armed intruder trespasses on your property and refuses to leave," he said. "There's nothing more terrifying."
Deliberations will continue until the jury reaches a verdict. If not found guilty of first-degree murder, a jury could find Struck guilty of the lesser charges of second-degree murder or criminally negligent homicide.
More public criminal justice news: Pueblo man who shot and killed ex-girlfriend in 2022 pleads guilty to murder charge
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.
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This article originally appeared on The Pueblo Chieftain: Jury begins deliberation in Pueblo County murder trial
