Wauwatosa hotel shooting: Kenneth Burney trial rescheduled

MILWAUKEE - A judge has rescheduled the jury trial for a man charged with shooting and wounding three Wauwatosa Police officers inside a hotel in November of last year, as a pending ballistics report could help the defense.

Jury selection for Kenneth Burney, 33, was scheduled to begin Monday, May 16. However, Judge Michael Hanrahan reset the trial date at the request of prosecutors and defense, because a state report could contain evidence that helps Burney in the case.

"As I understand it, there were more than 60 shots that were being analyzed, at the scene, and that this issue arose in regard to the identification and trajectory of two of the 60 shots," Hanrahan said. "It’s an issue that – as both parties have indicated – could be exculpatory. Meaning it would help the defense."

Given the circumstances, Hanrahan said it would be appropriate to adjourn the trial and reset it on the calendar.

Assistant District Attorney Chad Wozniak said during the hearing Monday morning that the ballistics report from the state crime lab is delayed and that evidence in the report could be exculpatory.

"There is a likelihood that that evidence, depending on how you choose to review that report, and the evidence contained therein, could potentially be exculpatory," Wozniak said. "I just think that that’s a very likely outcome, so I think both sides are requesting an adjournment to have that report completed and to provide us time to review it prior to trial."

Burney is charged with four counts of attempted first-degree intentional homicide, first-degree reckless injury, felony firearm possession, bail jumping and possession with intent to sell drugs in connection to the shooting at the Radisson hotel on Nov. 6, 2021.

Shots fired at Wauwatosa hotel (Credit: Incident Response)

Officers were originally called because of a shootout in a hotel hallway that started, according to court documents, because of an argument between two teenagers over a missing cell phone during a 17-year-old girl's birthday party in one of the rooms. Police would later learn the teens left the scene.

Documents say police began searching the hotel, door-to-door, and eventually came to a room a couple doors away.

Court documents say officers could hear a television in the background, knocked multiple times, and tried using a master key, but the door was blocked. After waiting for nearly ten minutes, officers hit the door multiple times with a battering ram. After the fifth blow, multiple gunshots were then fired from the inside of the room at the officers.

Body camera video shows the moments the gunfire erupted. Sgts. Kurt Svatek and Edward Tyrpak were hit, along with Officer Matthew Martell. One officer had hand and leg injuries, another had injuries to both legs and the third had leg and foot injuries. 

The officers returned fire and retreated to safety as backup arrived. About 15 minutes after the hail of bullets began, Burney surrendered.

Once the ballistics report is completed and reviewed, Hanrahan said he believes the issue could be ironed out in a couple of weeks. 

SIGN UP TODAY: Get daily headlines, breaking news emails from FOX6 News

A new, final pre-trial date is set for August 5, with a new trial date set for Sept. 19. Burney remains in custody, pending trial.

This is a developing story.