Prosecutors seek competency evaluation for Nevada man accused of trespassing murder

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RENO, Nevada — Prosecutors on Friday asked a state judge for a competency evaluation for a Nevada man who killed an unarmed trespasser in a case that has put the spotlight on Nevada's "stand-your-ground law."

Washoe County Chief Deputy District Attorney Bruce Hahn made the request after a defense expert concluded in a report released this week that Wayne Burgarello suffered severe brain damage from a stroke last year.

Defense attorney Theresa Ristenpart told District Judge Patrick Flanagan that she also wants a second opinion to determine whether Burgarello's medical condition could affect his competency to stand trial. The stroke occurred while the 74-year-old Burgarello was in jail or shortly after he was released on $150,000 bail in November, she said.

The former school teacher already had suffered a heart attack and two strokes before he was arrested in the February 2014 fatal shooting of Cody Devine and wounding of Janai Wilson inside a vacant, rundown duplex Burgarello owns.

Flanagan did not immediately rule on prosecutors' motion, but he suggested he intends to grant it. "I expect Mr. Burgarello to be available for a timely examination once an expert is selected," Flanagan said, adding he was pleased after both sides expressed hope the trial still can begin May 18 as scheduled.

Flanagan on Friday also denied a defense request to subpoena a Washoe County Social Services supervisor concerning records that Ristenpart says show Wilson was bipolar and suffered other mental health issues. The judge earlier rejected a similar request to make the department turn over the records, saying they are confidential under state law.

Ristenpart argued the records are needed to determine if Wilson's recollection of events is colored by her mental health issues. The defense has been unable to obtain information about her mental health from other sources, she added.

But Flanagan said other avenues exist to question her ability to testify, and the matter can be addressed if it becomes a problem at the trial.

Burgarello, who was a teacher at Carson High School and Reno's Traner Middle School for over 20 years, says he was acting in self-defense when he shot Divine and Wilson. But Hahn has said Burgarello's self-defense claim is undermined by statements to neighbors and police the week before, suggesting he would take the law into his own hands.

Ristenpart says Burgarello perceived Devine as the aggressor, and she wants to introduce evidence he and Wilson had histories of aggression exacerbated by drug use.

Nevada law allows property owners who fear for their lives to use deadly force, but not if they're the initial aggressor.

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