- Associated Press - Wednesday, May 6, 2015

RENO, Nev. (AP) - A judge has pushed back until next week a decision on whether a murder trial can begin May 18 for a 74-year-old Sparks man who shot and killed an unarmed trespasser in February 2014.

Washoe District Judge Patrick Flanagan said Wednesday he wants lawyers for both sides to return next Thursday to review the competency of Wayne Burgarello and determine if another delay is necessary.

Flanagan granted a defense motion requiring the state to produce a prison inmate Burgarello’s lawyer wants to call as a witness to try to demonstrate the shooting victim, Cody Devine, had a history of aggression.

But he postponed rulings on a number of other motions filed by both sides that will have to be resolved before the trial moves forward.

The motions include one from defense attorney Theresa Ristenpart seeking to dismiss the charges based on arguments Burgarello is mentally impaired after suffering a pair of strokes. Ristenpart contends her client can’t be tried without violating his constitutional rights and the Americans with Disabilities Act.

Burgarello claims he was acting in self-defense when he killed Devine and seriously wounded Janai Wilson in a vacant Sparks duplex owned by Burgarello’s family.

Chief Deputy District Attorney Bruce Hahn argues the retired schoolteacher can’t claim self-defense because he was the initial aggressor.

Hahn said after Wednesday’s hearing he is eager to begin the trial, which originally was set for Jan. 20. He declined to comment on whether there have been any attempts at plea negotiations.

“He’s asked for his day in court, and he’s going to get it,” Hahn told The Associated Press.

Ristenpart responded to Hahn’s remarks in an email to the AP later Wednesday.

“Mr. Burgarello did not ‘ask for his day in court,’” she said. “He is being forced to defend for his life against an overzealous prosecution which chooses to ignore evidence that shows Mr. Burgarello acted in lawful and justified self-defense.”

Ristenpart also is seeking to introduce evidence that Devine and Wilson have histories of drug use and injected methamphetamine just before Burgarello found them in the duplex and opened fire.

A friend of Devine and Wilson’s families says Ristenpart is trying to put the blame on the victims.

“Cody Devine did not deserve to die. A 911 call could have prevented this entire tragedy,” said the Rev. Howard Dotson, a former Sparks minister and crime victim advocate in Minnesota.

The judge granted Ristenpart’s motion to compel the state to produce as a witness Shaunna Dodd, a friend of Devine who is serving life in prison for murdering her husband at their Washoe Valley home in 2012.

Dodd told Burgarello’s lawyers she knew Devine for years, and “he would get aggressive and violent when drunk and/or high,” Ristenpart said.

Hahn has not formally responded to the motion to dismiss the charges. But he wrote in a filing Monday that Nevada law doesn’t allow for a defense that argues the accused was suffering from a “mental defect.”

He cited a 2003 state Supreme Court ruling that concluded “defendants with physical or mental frailties, individuals prone to outburst of temper, or social misfits with hair-trigger personalities spring-loaded to take offense at mild provocation, cannot be permitted under the law to use their personality defects as a license to murder under the guise of self-defense.”

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