LAKE CHARLES, LA (KPLC) - Just 10 minutes before midnight, the jury in the trial of Devin Badon is hung and a mistrial is declared.
The state says they will retry Badon. The jury had been deliberating since 5:17 p.m. Wednesday.
Badon is charged with second degree murder of Stephin Bergeron and attempted second degree murder of Chance Bourgeois.
In closing arguments prosecutor Rick Bryant said there is no dispute that David Dice Fontenot was the shooter in the murder of 20 year old Stephin Bergeron April 13, 2011. But Bryant told jurors Stephin Bergeron would be alive today except for the action, cooperation and participation of Devin Badon.
Bryant recapped testimony and evidence for jurors.
However, when it was his turn, defense attorney Todd Clemons argued the only just verdict is not guilty. Clemons told jurors Devin Badon is not a killer and disputes that Bergeron would still be alive if not for Badon. He called the shooter, Fontenot, a maniac and cold blooded killer who should spend the rest of his life in Angola Prison.
But as far as Badon, Clemons argues the only just verdict is not guilty. Clemons argued the case was a sloppy investigation and a sloppy prosecution and even seemed to attack the integrity of both the prosecution and lead detective.
Clemons also told jurors Stephin Bergeron precipitated the events that led to his death because he and Chance Bourgeois were so determined to fight Badon.
Clemons went so far as to suggest one statement testified about by several witnesses was an orchestrated lie.
And as far as Nikita Julian--Clemons told jurors she lies so much she lies just to be lying. He asked jurors, "where is Nikita and why is she walking free?". He reminded jurors she threatened to stick a gun down Stephin's throat after she became upset with him.
Clemons argued that Nikita got a "get out of jail card."
Clemons also criticized the lead detective in the case saying his 16 year old son in high school could have done more investigating.
However on rebuttal Bryant countered that saying Fontenot and Badon had a gun, bought rounds and loaded it.
He told jurors Badon aided and abetted and that Nikita Julian was with him which is not a crime. He told jurors the state and law enforcement are not the issue-- he says Stephin Bergeron was killed that night as a result of two people working in concert: Fontenot and Badon.
Earlier today the jury heard a voicemail left on the phone of Stephin Bergeron before he was murdered. During the message Nikita Julian tells Bergeron she will stick a gun down his throat if anything like what happened happens again.
She testified she was upset with Stephin for letting Chance Bourgeois bang on her truck and damage it.
The defense has also recalled Bergeron's mother Christy to the stand and brought that out she did not tell detectives early on about hearing a comment she testified about last week. Bergeron testified then that she heard Devin Badon say he didn't want to fight because he had something better planned. The defense is apparently trying to suggest that prosecution witnesses are trying to bolster the state's case by testifying to statements they didn't really hear.
Bergeron says she was so distraught in the weeks and months after her son was killed she doesn't remember a lot.
All along in the trial of Devin Badon the defense has been trying to show that his former girlfriend, a key witness for the state, is a liar who somehow avoided prosecution in connection with murder of Stephin Bergeron.
The defense called Detective Mark Clark to the stand who testified that, while Nikita Julian was handcuffed and sitting in the back of a patrol car she was crying and said that she didn't do anything and didn't know what was going on.
Before Julian was detained, deputies had used a loud speaker calling for her and Badon to come out of the shed where they were staying with their hands up. When the couple did not emerge deputies forced their way in and set off what they call a flash bang that makes a loud noise and bright light and is used to distract suspects about to be arrested.
The defense also asked questions of deputies in charge of keeping custody of the evidence-- apparently trying to suggest the defense was not furnished with all the evidence it should have received in time to prepare for trial.
Bergeron died April 13 after being shot on the side of Highway 27.
On the charge of murder the jury had four choices for a verdict:
1. Guilty of second degree murder
2. Guilty of manslaughter
3. Guilty of negligent homicide
4. Not guilty
On the charge of attempted second degree murder of Chance Bourgeois the jury also had four choices for a verdict:
1. Guilty of attempted second degree murder
2. Guilty of attempted manslaughter
3. Guilty of aggravated battery.
4. Not guilty
Copyright 2012 KPLC. All rights reserved.