Judge won’t bar death penalty in homicide
Burd charged with smothering girlfriend’s child
HOLLIDAYSBURG — A Blair County judge has declined to bar consideration of the death penalty in prosecuting Drue S. Burd, a 20-year-old Altoona man accused of smothering his girlfriend’s 16-month-old baby, leading to her death a few days later on May 25, 2018.
In an opinion filed this week, Judge Elizabeth Doyle ruled that the defense may be in a position, during trial, to repeat its death penalty objections after prosecutors finish presenting their evidence.
But at this point, Doyle concluded, the motion to remove torture as an aggravating circumstance is denied and the case remains a capital case.
Doyle’s ruling falls in line with positions taken by District Attorney Richard Consiglio and Assistant District Attorney Derek Elensky.
The prosecutors are seeking the death penalty based on the aggravating circumstances of torture (that the child suffered as she died), the child’s age and the fact that the death occurred during commission of a felony.
Altoona police charged Burd with criminal homicide, aggravated assault, strangulation, endangering the welfare of children and simple assault. Arrest documents indicate that Burd put his hand over the face of the crying child who stopped breathing and lost consciousness.
At a court hearing in late August, Elensky told Doyle that prosecutors aren’t obligated to provide evidence of torture as an aggravating circumstance prior to trial. He said that evidence would be offered to a jury, along with mitigating circumstances, if and when a jury considers a death penalty sentence.
Chief Public Defender Russ Montgomery and Assistant Public Defender John Siford tried to convince Doyle that she should strike torture as an aggravating circumstance, in consideration of the death penalty, for lack of evidence.
There is no evidence that the killing in this case was achieved by what the law defines as torture, the defense attorneys maintained.
Doyle’s ruling also recognized that the defense attorneys challenged only one of the three aggravating circumstances the prosecutors identified when giving notice on their intent to seek the death penalty.
“In order to meet its burden that the designation of this case as a capital homicide is improper, Burd must demonstrate that there is no evidence of any of the aggravating circumstances,” the judge wrote. “He does not even undertake this task.”
Mirror Staff Writer Kay Stephens is at 946-7456.