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RENO, Nev. (AP) — A judge has postponed a decision on whether to further delay Wayne Burgarello's murder trial after his lawyer reported the 73-year-old Sparks man who killed an unarmed trespasser has suffered another stroke.
Defense attorney Theresa Ristenpart told Washoe District Judge Patrick Flanagan on Friday that they are awaiting a doctor's report on the stroke that occurred while Burgarello was in jail or shortly after he was released on $150,000 bail in November.
The former school teacher already had suffered a heart attack and two strokes before he was arrested in the fatal shooting of Cody Devine and wounding of Janai Wilson inside a vacant, rundown duplex Burgarello owns in February 2014.
Ristenpart said a doctor's examination had only recently determined that Burgarello had suffered another stroke last fall, "either while he was incarcerated or shortly after."
The judge had cited Burgarello's medical condition when he ruled in November that he did not pose a serious flight risk and dropped the bail that had been set at $1 million. He has scheduled another status hearing April 10 to determine whether they will have to push back the trial set to begin May 18.
"One of the reasons we have these status conferences is to avoid surprises, so when we get to the trial date we won't have to have a continuance, so we can try this case fairly to both sides," Flanagan said about the trial that originally was scheduled to begin two months ago in a case that has brought national attention to Nevada's "stand-your-ground law."
Ristenpart said she expects to be prepared to go forward with the current trial date.
Chief Deputy District Attorney Bruce Hahn indicated earlier this month that he thought another delay would be necessary. But on Friday, Hahn said he's "fairly confident the state is going to be ready."
Burgarello says he was acting in self-defense when he shot the Devine and Wilson.
But Hahn says Burgarello acted in revenge for prior break-ins at the property his family has owned since World War II. He said Burgarelllo's self-defense claim is undermined by statements to neighbors and police the week before, suggesting he'd take the law into his own hands.
Nevada law allows property owners who fear for their lives to use deadly force, but not if they're the initial aggressor.
Ristenpart argues that Burgarello perceived Devine as the aggressor and may have mistaken a flashlight for a gun. She wants to introduce evidence that Devine and Wilson had histories of aggression exacerbated by drug use.
She says a social worker who terminated Wilson's parental rights in 2012 documented that Wilson acknowledged being bipolar, suffering from post-traumatic stress syndrome and having an "explosive anger disorder."
Flanagan said he expects to decide by April 10 whether to grant a defense motion to order the state to turn over Wilson's confidential mental health records.
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