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RENO, Nev. (AP) — The murder trial for a 74-year-old Sparks man who claims he was acting in self-defense when he fatally shot a trespasser will begin as scheduled Monday despite objections from a defense lawyer who wants to challenge the state's finding that he's legally competent.
Washoe District Judge Patrick Flanagan said after a daylong hearing Thursday he'll issue a formal ruling Friday but intends to start picking jurors Monday morning for Wayne Burgarello's trial in the February 2014 killing of Cody Devine and serious wounding of Janai Wilson inside a vacant, rundown duplex Burgarello owns.
"Your honor, I'm confused as to the fact we are going to proceed to pick a jury when the issue of competency is still pending," said defense attorney Theresa Ristenpart, who argues Burgarello's stroke-induced mental impairment undermines his ability to testify in his own defense.
Flanagan agreed she has a right to question the doctors who conducted the most recent competency exam last week, and scheduled a hearing for Tuesday morning. But he said he's going forward with the trial because he's seen no evidence the retired school teacher is incompetent.
Flanagan said he'd withhold a formal ruling until Friday so he can review the testimony heard via telephone hookup Thursday from Dr. Robert Bilder, chief of medical psychology and neuropsychology at UCLA's medical school.
"I don't know whether it will make a difference or not, but I want to consider it," the judge said. "I didn't hear him testify Burgarello is incompetent to stand trial, so we're going ahead."
Bilder said Burgarello is a "very bright man" with many cognitive thinking skills that hide his impairment in some areas, especially his ability to process information. He said Burgarello's test scores in those areas ranked below the IQ level used to establish mental retardation, adding that he is "easily confused by complex statements and questions."
"Attorneys are often very clever the way they word questions. It would be very difficult for Mr. Burgarello not to be led intentionally down a path," Bilder said.
Ristenpart said the impairment makes it difficult if not impossible for Burgarello to exercise his right to testify about how he felt his life was in danger when he confronted Devine and Wilson.
Flanagan responded, "No one is forcing him to testify."
"All criminal defendants have a right to testify, but there is no authority guaranteeing their right to testify persuasively," he said.
Nevada law allows property owners who fear for their lives to use deadly force but not if they are the aggressor.
Burgarello said he had problems before with break-ins and graffiti at the duplex in a working-class neighborhood just east of Reno.
Chief Deputy District Attorney Bruce Hahn maintains Burgarello was acting out of revenge, not self-defense, when he armed himself with two handguns before he entered the darkened home and opened fire without provocation. Hahn said Burgarello made statements to neighbors and police days before suggesting he was ready to take the law into his own hands.
Flanagan on Thursday agreed to allow the defense to present evidence that Devine and Wilson were injecting methamphetamine inside the abandoned residence before the shooting. But he denied a defense motion to allow evidence of past drug use, including Wilson's statement to medical staff the night she was shot that she had used meth for years on a daily basis.
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