A mental competency hearing for accused double murderer Tyler Miller was postponed Wednesday due to the unavailability of defense witnesses.

Miller is accused of shooting and killing his former girlfriend, Jaimi Hurlbert, 35, and her 15-year-old daughter Alyssa Burkett on Christmas Day 2010 west of Kalispell.

District Court Judge Steward Stadler asked Miller’s defense attorney, Noel Larrivee, when the hearing could be rescheduled.

But Larrivee argued that it shouldn’t be held until the Montana Supreme Court rules on the constitutionality of the death penalty.

Miller’s attorneys are challenging the state’s capital punishment laws while at the same time pursuing a defense based on Miller’s alleged mental instability.

“The state has filed a notice of intent to seek the death penalty, I think that by itself changes the tenor of the case throughout, including any issue with regard to the defendant’s competence,” Larrivee said. “My position would be that it is inappropriate for this court to exercise a substantive hearing as to the defendant’s competency while that issue is pending.”

County Attorney Ed Corrigan disagreed with Larrivee.

“The constitutionality of the death penalty has absolutely nothing to do with this phase of the proceedings,” Corrigan said.

Stadler agreed and rescheduled the hearing for Nov. 2 at 1 p.m. after looking at the availability of defense witnesses provided by Larrivee.

Reporter Jesse Davis may be reached at 758-4441 or by email at jdavis@dailyinterlake.com.