Defense of Alleged Wayne Assailant Under Way : Trial: The accused was having work done on an artificial foot at the time of the assault, his lawyer said. But both victims identified him as one of their attackers.

The lawyer for Jerrel L. Hintergardt, accused of beating up John Wayne’s daughter and her former boyfriend on her ex-husband’s behalf, told jurors Monday that his client wasn’t present when the attack occurred, even though both victims and two accused co-conspirators have identified him.

In an opening statement, defense attorney Todd A. Landgren said Hintergardt, 38, was having work done on an artificial foot when the Oct. 3, 1988, daytime attack on Aissa Wayne and financier Roger W. Luby took place at Luby’s Newport Beach estate.

Wayne and Luby both identified Hintergardt on Monday as the man who bashed their faces into a concrete garage floor and slashed Luby’s right Achilles’ tendon with a knife.

Prosecutors claim that it was Wayne’s ex-husband, Dr. Thomas Gionis, a Pomona surgeon, who ordered the attack through a Century City private investigator, O. Daniel Gal. Also charged in the assault, Gal testified at a previous hearing that he hired Hintergardt and Jeffrey K. Bouey, 35, to carry out the attack. He said he told them Gionis wanted to “teach his ex-wife a lesson.” Gionis and Wayne at the time were engaged in a bitter custody battle for their 2-year-old daughter.

Gionis, who faces the same felony assault charges as Hintergardt, is scheduled to go to trial in June. He denies ordering the attack.

Wayne and Luby testified that they had just returned from a gym workout when Hintergardt and Bouey approached them at the rear of Luby’s garage and pointed guns at them. The victims said Hintergardt then knocked Luby down by striking him with the gun and bashed his face hard into the concrete several times. Wayne said that Bouey forced her to the ground too but that it was Hintergardt who came over and smashed her face twice into the concrete, telling her: “You are (messing) with the wrong people.” The two victims were left tied up as the assailants fled on foot.

It was Luby who told police that the principal attacker appeared to have a limp. Hintergardt lost his left foot in a motorcycle accident six months before the attack and walks with an artificial foot.

Bouey, in his testimony Monday, not only supported the victims’ version of what happened but attacked Hintergardt’s alibi. He told jurors that Hintergardt had boasted a month after the incident that he knew a way to get false hospital records to provide him with an alibi for the day of the attack.

Defense attorney Landgren told jurors that “Mr. Bouey has sold his soul to the devil” by lying about Hintergardt in hopes of making a better deal for himself. Bouey’s case on assault charges is still pending.

Superior Court Judge John J. Ryan interjected, “Is the devil being called as a witness?”

It was the only note of humor the entire day, as Luby and Wayne testified about how frightened they were during the attack.

When Luby described how the assailants at first held their guns toward the sky, Landgren asked, “You mean, like a starter’s pistol?”

Luby cooly answered, “No, like a weapon.”

Wayne and Luby are no longer together. But during her testimony, the only time Wayne showed emotion was when she was shown pictures of Luby’s injuries after the attack. When Luby testified, his voice cracked when he recalled Hintergardt smashing Wayne’s face into the ground.

Wayne had no trouble identifying Hintergardt in both photo and in-person lineups. She said on cross-examination Monday that Hintergardt’s “smirk” gave him away in the lineup. Luby did not identify Hintergardt in the lineup but said in court that he has no doubts now that Hintergardt was the assailant.

Bouey is scheduled to return to court this morning for further cross-examination by Landgren.