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Defendant: Dismiss charges because location of killing not known, cremation of body
By Ed Runyan
WARREN
The attorney for Austin T. Burke, 19, charged with killing Brandon Sample, 22, and leaving his body in a rural area of Bristol Township, has asked for Burke’s aggravated-murder charge to be dismissed, saying there’s no proof of where the crime occurred.
Defense lawyer Bradley Olson Jr. of New Castle, Pa., also argues he’s been prevented from determining whether a gunshot actually caused the fatal wound because Sample’s body was cremated.
Burke, of Bristolville, is set to go on trial Jan. 8 in Trumbull County Common Pleas Court in the June 14 aggravated murder and aggravated robbery of Sample and the June 21 aggravated robbery of the Pizza Joe’s restaurant in Cortland.
Burke is accused of killing Sample in a wooded area off Peck Leach Road in the Grand River wildlife refuge and leaving his body there. But Olson’s filing says there is no evidence proving Sample died there.
Sample’s death certificate lists the place of death and place of injury as “unknown,” the filing says.
Logic would suggest the murder charge cannot be prosecuted “if the state fails to establish the venue of the court where the charges are filed,” the filing says.
Another filing says Dr. Humphrey Germaniuk, county coroner, concluded Sample died of a penetrating gunshot wound to the head, but forensic analysis by the Ohio Bureau of Criminal Investigation later indicated no bullet fragment was found, only a nonbullet fragment.
Furthermore, because a urine sample from Sample tested positive for drugs, it’s not clear whether that might be the cause of his death, that filing says.
Sample’s clothing was destroyed, and his body was cremated, so the defense was never able to check for gunshot residue or conduct its own testing to rebut prosecutors’ “claims that Mr. Sample was shot by a firearm,” the fling says.
The defense was also prohibited from determining the caliber of weapon used and time of death.
Judge Andrew Logan earlier denied Burke’s request to have separate trials for the murder charge and the pizza-shop robbery and for the court to pay for a witness who is an expert in cellphone data.
Olson also filed a motion this week asking that prosecutors be prohibited from using evidence they obtained when they arrested Burke because they located him through illegally-obtained cellphone data.
The data enabled police to locate Burke in Cort- land, arrest him in the robbery and killing and take possession of a firearm they believe belonged to Burke. The filing says there’s no evidence police obtained a search warrant for the cellphone data.
Neither prosecutors nor Judge Logan has responded to Olson’s latest filings.