- Associated Press - Friday, January 9, 2015

RENO, Nev. (AP) - The lawyer for a Sparks man accused of murder in the fatal shooting of an unarmed trespasser said Friday she intends to challenge the competency of the prosecution’s “star witness” - a second trespasser who survived the shooting at the vacant, rundown duplex.

Washoe District Judge Patrick Flanagan granted a defense motion to postpone until May 18 Wayne Burgarello’s trial that was scheduled to begin Jan. 20. Burgarello, a 73-year-old retired teacher, insists he was acting in self-defense at the property his family has owned since World War II.

Defense attorney Theresa Ristenpart asked for the delay after a private investigator found an eighth, previously undiscovered bullet at the crime scene in a case that has brought attention to Nevada’s “stand-your-ground” law.

Flanagan said he wanted to give both sides additional time to sort through the new evidence and assess the relevance of various witnesses.

“I want to avoid any surprises so when we get to trial everyone is on a level playing field,” the judge said.

Flanagan also postponed a ruling on Ristenpart’s request to subpoena a state social worker to testify about the mental health of Janai Wilson, 29, the woman who was shot three times but survived at the Sparks residence where Cody Devine, 34, was shot five times and died in February.

“The district attorney indicates Ms. Wilson has numerous, self-reported mental health diagnoses and the state has referred to her many times as the main witness, if not the star witness,” Ristenpart told the judge. “Mental illness can dramatically impair the ability to testify.”

Chief Deputy District Attorney Bruce Hahn said Wilson’s past condition is irrelevant to the events the day of the shooting. He argues the defense is trying to distract from the fact Burgarello should have called police instead of taking the law into his own hands.

Wilson told police she and Devine injected methamphetamine in the abandoned duplex hours before Burgarello opened fire on the two unprovoked while they were lying on the floor beneath a comforter.

Burgarello said Devine’s “arm came up like a gun” and he thought he saw a weapon before he started shooting.

Hahn says it was a revenge killing fueled by his frustration over past burglaries at the home that had been abandoned since 2006.

More than 30 states have so-called stand-your-ground laws that allow deadly force against attackers posing an imminent threat regardless of whether the aggressor is armed. Nevada law says the shooter cannot be the original aggressor.

Ristenpart argues Burgarello perceived Devine to be the aggressor. She wants to introduce evidence that both Devine and Wilson had a history of aggression acerbated by their drug use.

Flanagan earlier granted a prosecution motion to quash a defense subpoena for state records about the termination of Wilson’s parental rights in 2012. Hahn said Friday the attempt to elicit testimony directly from a state social worker was merely an end-run around the earlier order.

Ristenpart said the social worker who terminated the rights documented that Wilson acknowledged being bipolar, suffering from post-traumatic stress syndrome and having an “explosive anger disorder.”

“Bipolarism does not magically get better over a period of two years,” she said.

Hahn said his understanding was Wilson was a teenager when she was diagnosed. He said testimony isn’t allowed regarding “a diagnosis a witness may have had at any time in her life.”

Flanagan stood by his earlier ruling that the parental termination is “statutorily confidential and not relevant to the actions that occurred.” But he will revisit the question of whether Ristenpart can subpoena the social worker at a hearing April 10. He also set a status hearing for Feb. 25.

“This court is not going to preclude a defense inquiry of any witness about their ability to comprehend, or remember, relate, or test their memory,” Flanagan said. “But we’re not going down a rabbit hole that would distract the jury.”

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