2014 Opinion No. 114.
Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. John P. Luster, District Judge.
The district court's denial of Defendant's motion for new trial is affirmed.
Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Erik R. Lehtinen argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Mark W. Olson argued.
J. JONES, Justice. Chief Justice BURDICK, and Justices EISMANN and HORTON and Justice Pro Tem WALTERS CONCUR.
[157 Idaho 482] J. JONES, Justice
Jonathan Wade Ellington was convicted of second-degree murder and two counts of aggravated battery. Ellington moved for a new trial, arguing that he discovered new material evidence that could not have been produced at trial through reasonable diligence. The evidence consisted of statements in a textbook authored by the State's accident reconstruction expert that, according to Ellington, directly conflicted with the expert's trial testimony. The district court denied Ellington's motion, which he timely appealed.
FACTUAL AND PROCEDURAL BACKGROUND
On January 1, 2006, Jovon Larsen, then twenty-two, was driving her Honda Accord near Athol in Kootenai County with her sister, Joleen Larsen, then eighteen, as her only passenger. Sometime around 11:00 a.m., Jon Ellington pulled behind the Honda in his Chevy Blazer. The Larsen sisters claim that Ellington passed them after following " within feet" of their rear bumper and cut them off in the process. Ellington's attorney suggests that Jovon was playing " cat and mouse" with Ellington, adjusting her speed to prevent him from passing the Honda. At the next stop sign, the Larsen sisters were stopped behind the Blazer when Ellington stepped out, walked back to the Honda, swore at the Larsen sisters, and struck the driver's side window with his fist.
As Ellington returned to the Blazer, Joleen called 911. Ellington turned at the stop sign and Jovon followed because, she claims, Ellington's vehicle did not have a license plate and she wanted to assist the police in locating Ellington. Shortly thereafter, the Larsen sisters lost track of Ellington and, following the advice of the 911 operator, pulled over to wait for an officer. Joleen then called her parents, Joel and Vonette Larsen, who arrived roughly ten minutes later. An officer with the sheriff's department arrived shortly after Joel and Vonette, spoke with the Larsen sisters, and left to investigate. Just after the officer left, Joel, Vonette, and the Larsen sisters saw the Blazer pull out of a nearby driveway. Back in the Honda, Joleen called 911 and Jovon resumed the pursuit of Ellington. Joel and Vonette joined the pursuit in the Subaru. The vehicles were travelling at speeds in excess of ninety miles per hour, with the Blazer leading and the Subaru bringing up the rear.
Heading west on Scarcello Road, Ellington made a left-hand turn into a driveway, apparently attempting to reverse direction and drive east. As Ellington pulled into the driveway, the Larsen sisters stopped in the westbound lane of traffic. The State presented evidence that the Honda was angled slightly towards the eastbound lane, with the front, driver's side tire near the double yellow lines of Scarcello Road. Vonette passed the Honda in the eastbound lane, partially blocking that lane of traffic. When Ellington backed out of the driveway and attempted to proceed east on Scarcello Road, the front, driver's side corner of the Subaru collided with the Blazer near its driver's side door.
The Blazer moved around the Subaru, proceeded left towards the westbound lane, and collided head-on with the Honda. The Blazer pushed the Honda back onto the shoulder of the road. The State's accident reconstruction expert testified that Ellington was turning left, into the Honda, and fully accelerating as he pushed the Honda to the edge of the road.
Joel and Vonette left the Subaru and headed towards the collision, with Joel carrying a .44 magnum revolver he retrieved from under the passenger seat of the Subaru. As Joel approached the passenger-side window
[157 Idaho 483] of the Blazer, Ellington was reversing and pulling away from the Honda. According to Joel, he leveled his revolver at Ellington directly outside the passenger window, but did not fire out of concern that he might hit one of the Larsen sisters. Instead, Joel claims, he fired once at the front of the Blazer, just above the passenger-side wheel well, in an apparent attempt to disable the engine and out of concern that Vonette may have been in the Blazer's path. Joel claims that he only later--as the Blazer was leaving the scene--emptied the remaining rounds in his revolver, hitting the Blazer once more in the rear, passenger-side window. Ellington's attorney suggested that Joel may have fired the round that hit the rear window as Joel approached the Blazer while it was still engaged with the Honda.
As Ellington disengaged from the Honda and reversed to pull around it, Vonette was crossing Scarcello Road in front of both vehicles. The State's accident reconstruction expert testified that as Ellington accelerated around the Honda, he turned to the left into the westbound lane, towards Vonette, though he could have left the scene in the unoccupied, eastbound lane of Scarcello Road. Both Joel and Jovon testified that Vonette was just inside of the westbound lane as the Blazer accelerated towards her, struck her near the center of the Blazer's hood, and drove over her. The State offered the testimony of a medical examiner who stated that Vonette's injuries were consistent with Joel and Jovon's testimony. Ellington's attorney suggested, ...