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JURORS MUST DECIDE IF KILLING AT APARTMENT BARBECUE WAS JUSTIFIED

Lionel A. Michaud shot and killed John Spina after Spina disrupted the Midtown Apartments' barbecue last summer.

But whether the killing was justified or a cold-blooded murder is the question a three-man, five-woman jury will decide this week.Two "intruders" showed up at a barbecue at the apartment complex, 254 S. 300 East, on July 26, 1991, and began swearing and picking fights with some of the tenants, defense attorney Patrick Anderson said.

"At some point, Lee Michaud reaches in his back pocket and pulls out his gun," the attorney said.

D. Rick Anderson, who lived at the complex, testified Tuesday that he looked out the window to see Spina yelling at Michaud and another man. Spina yelled at Michaud to put his weapon away.

The arguments continued, and Spina apparently pushed Morris V. Harding onto a hot barbecue grill. Then a shot rang out.

Rick Anderson said he didn't see the shot fired but looked at Michaud immediately afterward. He at first thought that Michaud had shot himself in the foot because his gun was at his side pointing downward.

Another tenant then pushed Spina into the street and kicked him, he said. A second shot was then fired - about six or seven seconds after the first shot.

"He (Michaud) thought he fired one into the ground (as a warning shot) and one at Mr. Spina," said Salt Lake County deputy attorney Glenn Iwasaki.

But Iwasaki said Spina died from two gunshot wounds. He plans to show the jury a video from a weapons expert that will prove that the wounds Spina suffered were from direct shots from Michaud's .25 caliber automatic pistol.

"There was absolutely no ricochet at all," he said.

Former resident Lowell Dailey said Michaud had warned Spina several times to leave and reminded him that he had a gun. But Spina indicated that he, too, had a weapon and "patted his pocket."

Defense attorneys have argued that Michaud believed Spina had a weapon and fired the shots to protect himself and the other apartment residents. But prosecutors say no weapon was ever found and even if he had one, Spina never reached for it or indicated he would use it.

Michaud, 35, pleaded guilty to manslaughter in January and prosecutors agreed to recommend that he serve a year in the county jail. But he was allowed to change his plea to not guilty after 3rd District Judge David Young refused to go along with the recommendation that he be spared a prison sentence.

"I have the impression . . . that Mr. Michaud thought he was the building protector or something," the judge said. "This deserves more than one year in the county jail. I think there's more behind this."

The jury will likely have the option of acquitting him or finding him guilty of murder (the charge he now faces), manslaughter or negligent homicide. The trial is expected to finish by Thursday.