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Associated Press, Published June 26 2012

Suspects in fatal ND shooting on trial

BISMARCK — Two men accused in a fatal shooting went to a Beulah apartment with loaded guns but did not intend to kill anyone, their attorneys said as a weeklong trial began in Bismarck.

Prosecutor Ladd Erickson told jurors in his opening statement Monday that Richard Whitman, 29, and Cody Borner, 24, had developed "bad blood" with people in the apartment over drugs, and that up to nine shots were fired during the Jan. 31 scuffle.

Whitman and Borner both have pleaded not guilty to a murder conspiracy charge in the death of Mike Padilla, 22, in his apartment and the wounding of his 21-year-old brother, Timothy Padilla, of Billings, Mont.

Timothy Padilla has since recovered and testified Monday. He said that after the two suspects entered the apartment with a handgun and an assault rifle, he heard shots "going off all over." He wrestled the rifle way, pushed Whitman and Borner out the door and pointed the rifle at them but it jammed and didn't fire. He said he then realized that his brother had been shot.

"Shortly after that, he died in my arms," Padilla testified.

Erickson told the jury that evidence will show Whitman and Borner planned to go to the apartment after a series of threatening phone calls and text messages. Alvino Lopez, 18, who was in the apartment during the shooting, testified that Mike Padilla and Whitman had exchanged text messages and phone calls in which Whitman initially had told the Padilla brothers to leave town, then said he wanted to come to the apartment to smooth things over.

Travis Finck, who represents Whitman, said the intention of Whitman and Borner was not to harm anyone but to possibly steal drugs or video game equipment. Steven Simonson, Borner's attorney, also said the plan was robbery and not murder.

Copyright 2012 The Associated Press.