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A mistrial was declared Tuesday night in the trial of Devaughn Holmes, who had claimed self-defense in the fatal noontime shooting of a Buffalo man last February on Linwood Avenue.

Holmes' lawyer today said the jailed Andover Street man maintains he shot Miguel Breckenridge while he was being shot and will continue to maintain his self-defense claims at his second trial in December.

Holmes, 22, ran into the emergency room of nearby Millard Fillmore Hospital holding the murder weapon moments after the shooting last Feb. 26.

Attorney Michael L. D'Amico said the defendant "will continue to assert his innocence because he grabbed that gun from Breckenridge and the other guy attacking him."

After two days of jury deliberations, State Supreme Court Justice Penny M. Wolfgang declared a mistrial about 7:45 p.m. Tuesday after the jury of seven men and four women told her they were still split, 10 to 2 for conviction, and couldn't reconcile their differences.

The judge sent Holmes back to jail, pending the Dec. 6 start of his second trial. The unsequestered jury deliberated 10 hours Monday and returned to court to resume deliberations about 9 a.m. Tuesday.

Authorities maintain Breckenridge and Holmes knew each other and were arguing when the shooting took place. Holmes told police he had managed to wrestle the gun from Breckenridge and another man who had just tried to rob him on Linwood.

Holmes, who did not testify or present any witnesses during the weeklong trial, had been jailed since his arrest at the Gates Circle hospital moments after the shooting in the 500 block of Linwood.

The unemployed Breckenridge, 23, of Lafayette Avenue, was shot in the back of the head, left shoulder and left knee during a scuffle.

While D'Amico stressed Holmes' self-defense claims and his statements to police about being shot at by Breckenridge and a never-arrested second man, prosecutors Christopher J. Belling and Brian K. Parker noted that Holmes was not injured.

The prosecutors also pointed to the gunpowder residue found on Holmes' body after his hospital arrest.


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