A Billings man accused of killing his neighbor 18 months ago will argue that his alcohol use and post-traumatic stress disorder governed his actions.
The trial for Jose Pedro Cobos, 64, is set for May 15, when he would face either negligent or deliberate homicide charges. As the case nears its trial date, attorneys for Cobos have tried to take deliberate homicide off the table.
Cobos was first charged in October 2015 in the shooting death of his neighbor, 52-year-old Mark Kirby.
In June 2016, Cobos' attorneys filed a motion indicating that his defense would rely on the state's justifiable use of force statute. The law says that force is justified in defense of serious harm or death.
Cobos was charged with negligent homicide at that time.
In response, the County Attorney's Office added an alternative charge of deliberate homicide, while still keeping the negligent option in December 2016.
Deputy County Attorney Julie Mees argued in a later filing that "justifiable use of force is a defense to deliberate homicide, not negligent homicide, because of the mental state element."
Cobos' attorney, Robert Stephens Jr., has attempted to have the deliberate homicide option dropped prior to trial. In a brief filed Thursday, Stephens maintains Cobos' mental state prevented him from deliberately killing Kirby.
"Alcoholism accompanied by mental cognitive deficits, accompanied by post-traumatic stress disorder, and perhaps post-concussion syndrome, all combined to negate the concept that the defendant acted purposely and knowingly," Stephens wrote.
Cobos and Kirby were drinking in Cobos' garage late into the night on Oct. 10, 2015, charging documents state. Kirby's wife heard a loud bang at about 1:50 a.m. and went across the street to find Kirby lying on the ground in blood, charges state.
Cobos allegedly told Kirby's wife that Kirby attacked him. He allegedly told another neighbor that "it's Halloween. We're just having some fun."
Police noted that Cobos was highly intoxicated when they arrested him that night.
The maximum sentence for deliberate homicide is death or 100 years in prison. The maximum sentence for negligent homicide is 20 years.
If no court action interrupts the process, the case is still headed for trial on May 15.