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Accident or reckless behavior?

SPIRIT LAKE, Iowa -- A jury will decide if the shooting death of Marlan Lutterman was a "pure accident" or happened because of reckless behavior, which will determine if Kenneth George Neilson Jr. will be found guilty of involuntary manslaughter and/or reckless use of a firearm.

Opening statements were delivered today in Dickinson County District Court to begin the trial of Neilson, who is accused of firing a .357 Magnum Colt Python handgun out a window and striking Lutterman in the back.

Lutterman, from Worthington, was on a motorcycle ride with friends when they stopped in Spirit Lake. Shortly after getting off his motorcycle, the shot from Neilson's gun hit him in the back, lodging in his heart.

"The wound was incurable, untreatable," Iowa Assistant Attorney General Virginia Barchman told the jury during her opening statement. "It was not survivable."

Barchman, who is prosecuting the case for the state, painted a picture of a man out for a ride on a sunny afternoon, who stopped at Buck's Pub to eat free peanuts and chat while drinking a beer, something Lutterman and his friends did often.

"But the 53-year-old husband and father was pronounced dead at 4:15 p.m. that afternoon," Barchman pointed out.

At 3:31 p.m., Lutterman's friend called 911. Within a few minutes, another call came in to 911 from Neilson.

Neilson claimed he had accidentally discharged the weapon, something Barchman seems to find unlikely.

"A Colt Python is a finely-made handgun," she said. "It will not go off if dropped. It will not go off if the hammer is cocked and it is thrown against a wall."

In this country, she continued, people are not punished for pure accidents, but if Neilson pointed the gun recklessly out a window and pulled the trigger for whatever reason, she wants the jury to find the defendant guilty at the end of the trial.

"It was an accident," defense attorney Edward Bjornstad told the jury during his opening statement. "Kenneth Neilson did not intentionally shoot that gun. He did not intend to harm anyone."

Neilson, Bjornstad admitted, likes guns and collects guns as a hobby.

"And he took magnificent care of his guns," he added.

He told the jury that Neilson had been cleaning his guns and had just coated the Python down with gun oil. With a 9 mm handgun in one hand, he reached down to pick up the Python with the other, then started to drop it. It happened, Bjornstad said, in a split second.

"The gun slipped, and in some inexplicable way, the gun discharged," he stated, adding that the incident was unfortunate and tragic. "At the end of the case, the evidence will be no greater than it is now. It was an accidental discharge that took the like of Marlan Lutterman, and I am going to ask you to return a verdict of not guilty."

The first witness on the stand was Spirit Lake Police Officer Shane Brevik, who was on duty July 29 when the call came in from dispatch. He proceeded to the 1600 block of Hill Avenue, where he found a crowd of people gathered around a man, who was lying face down on the street in a parking space. Brevik testified he got no response when he spoke to the victim, and was having a hard time finding a pulse. After medical personnel showed up, Brevik was advised by dispatch the shooter had been located.

Brevik had no direct contact with Neilson that day, but was with Police Chief Jeff Hanson when they swept the apartment to make sure there was no one else inside and noted the bullet hole in the window. Brevik also testified that Neilson is 5 feet 8 inches tall.

Hanson testified next, and told the jury he was the one that located the metal jacket from the bullet by stepping on it. Neilson, he said, was cooperative and quiet when he came out of the apartment building with his teenage daughter. When Hanson asked Neilson what had happened, Neilson said he had dropped the gun and it went off.

Testimony continues today with witnesses and medical personnel slated to take the stand. The trial, originally scheduled to take almost two weeks, is now expected to wrap up by the end of the week.