864 P.2d 654 (Idaho App. 1993), 20416, State v. Atkinson
|Citation:||864 P.2d 654, 124 Idaho 816|
|Party Name:||STATE of Idaho, Plaintiff-Respondent, v. Melvin J. ATKINSON, Defendant-Appellant.|
|Attorney:||Loveless, Neilsen & Neilsen, Pocatello, for appellant. Michael B. Nielsen, argued. Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent. Michael A. Henderson, argued.|
|Judge Panel:||WALTERS, C.J., and LANSING, J., concur.|
|Case Date:||November 17, 1993|
|Court:||Court of Appeals of Idaho|
Petition for Review Denied Jan. 6, 1994.
Melvin J. Atkinson was found guilty of aggravated battery. I.C. §§ 18-903(c) and 18-907(b). Atkinson made a motion for a mistrial pursuant to I.C.R. 29.1., which was denied by the district court. Atkinson appeals his conviction, claiming that certain testimony presented at trial warranted a mistrial. For the reasons stated below, we affirm.
FACTS AND PROCEDURE
In May of 1992, Atkinson, along with four other men, climbed aboard a boxcar on a train headed west from Pocatello. The four other men included Sam Thurman, Heinz Eppelman, Donald Hastings and the victim in this case, William "Tennessee" Nothey. After the train was underway and traveling approximately 40 to 50 miles per hour, Eppelman and Hastings observed Atkinson throw Tennessee out the door of the boxcar while in Power County. Tennessee testified that he recalled being manhandled and later waking alongside the railroad tracks, bleeding from head wounds and barely able to walk or breathe.
After Atkinson threw Tennessee from the train, he attempted to eject Eppelman as well. Eppelman was able to avoid being thrown from the train and retreated to a corner. Sometime later, however, while the train was in Lincoln County, Atkinson succeeded in throwing Sam from the train, killing him. In response to Atkinson throwing Sam from the train, Eppelman, who was a friend of Sam, confronted Atkinson. During the confrontation, Eppelman kneed or pushed Atkinson in the chest and Atkinson threatened him with a knife. Fearing he would be thrown off next by Atkinson, Eppelman jumped from the train. Atkinson was charged with aggravated battery, a felony, under I.C. §§ 18-903(c) and 18-907(b) in Power County for throwing Tennessee off the train. 1
During the state's direct examination of the victim in this matter, Tennessee related the following events that occurred before the five men boarded the train:
And the guy that died and I went for a liquor run; and we went up here to a deli, which is located across from the park. And I, I had the money for a twelve-pack for supposedly me; Don; and him, Butch [Atkinson]. And the kid was buying a--the kid that died, he bought a quart or two quarts of beer. I'm not sure. But whatever it was, he was short some change on it, you know; and I helped him get it. Then we came back. We drank the beer.
Tr., p. 42. Counsel for Atkinson made no objection to the testimony. The court, however, requested that the attorneys approach the bench to discuss this line of testimony concerning Sam's death.
Later in the trial, Hastings was called to testify for the state. During direct examination, Hastings testified that at Mountain Home only he and Atkinson were left on the train. He went on to testify that both he and Atkinson were taken into custody at that time. The defense objected to the line
[124 Idaho 818] of questioning involving the incident that led to the death of Sam. As a result, the state did not question Hastings any further concerning Sam's death.
Prior to Eppelman's testimony for the prosecution, the trial court instructed Eppelman that testimony regarding Sam being thrown from the train, and his subsequent death, would not be allowed. During cross-examination, however, in response to a question by defense counsel, Eppelman responded "After he [Atkinson] threw Sam off." Defense counsel moved for a mistrial pursuant to I.C.R. 29.1. After argument and consideration, the district court denied the motion for a mistrial.
The jury found Atkinson guilty of aggravated battery for throwing Tennessee off the train. On appeal, Atkinson asserts error in the denial of his motion for a mistrial following statements of Tennessee and Eppelman regarding Sam's ejection from the train and his subsequent death. We conclude that the district court correctly denied this motion and, therefore, we affirm.
STANDARD OF REVIEW
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