LAKEPORT – The trial of a Carmichael man facing a felony boating under the influence charge for a fatal 2006 sailboat crash on Clear Lake got under way on Tuesday morning.
Bismarck Dinius, 41, was in court with his family, supporters and interested community members as opening arguments were presented in Lake County Superior Court's Department One before visiting Judge J. Michael Byrne.
By the end of the first day of testimony, the trial lost two jurors. The two young women were replaced by two males, changing the jury's composition from seven males and five females to nine males and three females.
Those developments also leave the proceedings with only two alternates – one male and one female – to get through the trial, estimated to take at least a month to complete.
District Attorney Jon Hopkins told jurors that he would present evidence that showed Dinius had responsibility for steering a sailboat owned by Willows resident Mark Weber during a nighttime cruised on April 29, 2006.
While the boat was under way – without lights, Hopkins alleges – it was hit by a power boat driven by Russell Perdock, an off-duty sheriff's deputy. Weber's girlfriend, Lynn Thornton, was fatally injured. As a result, Dinius is facing felony boating under the influence causing great bodily injury. Perdock was not charged.
Hopkins and Dinius' attorney, Victor Haltom, spent a total of an hour and 20 minutes presenting summaries of their versions of what happened that night.
Weber and Thornton were in Lake County on the day of the crash for the annual Konocti Cup sailing race, in which Weber's sailboat, the Beats Workin' II, took part, they said.
Later that night, after spending time with fellow sailors at Richmond Park Bar and Grill, Weber, Thornton and some new friends took a cruise across Konocti Bay.
Hopkins, in his opening, argued that the sailboat's lights weren't on, and that two fishermen that night saw a boat under way without lights.
Coming from the other side of the lake was Perdock, bringing with him a friend and the friend's daughter. People also saw Perdock's 24-foot power boat, said Hopkins, and there are a “wide range of estimates” about his speed that night.
After the crash, which occurred at about 9:10 p.m., sheriff's deputies and paramedics responded to the shore, while good Samaritans already had towed in the boat, so the exact location was hard to determine, said Hopkins.
“This is not like a car collision. You don't have skid marks. You don't have landmarks to tell you where it is,” he said.
Weber, said Hopkins, had a 0.18 blood alcohol level based on a blood draw, while Dinius' blood alcohol tested 0.12, according to test results. Perdock's blood draw showed no presence of alcohol or drugs.
When Hopkins asserted that, by law, Dinius was the sailboat's operator, Haltom objected. Byrne allowed it for the purposes of Hopkins' general introduction.
Hopkins alleged that the sailboat's light toggle switches showed the running lights weren't on, which he said is a crucial factor in the case.
He told the jurors that one of their biggest challenges will be having to listen to experts. “You're going to have to stay awake, pay attention and be patient.”
One of those experts, a Department of Justice criminologist, will testify that the filament in the sailboat's broken stern light has characteristics that indicate it was a “cold break,” meaning, the light was not on when it was broken, Hopkins said.
Hopkins stated that with Dinius at the helm, he was responsible for ensuring the running lights were on.
“Failure to have running lights on is a substantial factor in the cause of the collision,” said Hopkins.
During his statements, Haltom – accompanied by two attorneys from The Innocence Project – argued that Weber was “running the show” on the boat, not Dinius, who he said wasn't the operator.
“The evidence that you will hear in this case will show that that is not the case,” he said, noting that “any 6-year-old” can sit at a sailboat's tiller when there's no wind.
While the Beats Workin' II was on its cruise across Konocti Bay, “Things go horribly wrong,” with Haltom alleging that Perdock was going “very, very, very fast.”
A retired police officer saw Perdock's boat and noted to friends that the driver was “going to kill himself or someone else” said Haltom.
“The power boat is going so fast it literally devours the sailboat,” Haltom said.
Haltom told the jury that the key issue for them to decide is causation – and who, ultimately, is responsible for the crash.
He said the evidence actually show is that it is Perdock's “speed and recklessness” that is the crash's cause.
Haltom alleged that in the day after the crash, the sheriff's office left the sailboat unattended at the sheriff's boat yard, and that Perdock was treated “a little differently than you or I would have been.” That included getting a hug from Sheriff Rod Mitchell at the scene and not having a breathalyzer test administered to him on shore after the crash.
Also introduced to the jury was information about witnesses who Haltom said will testify that Perdock was at Konocti Harbor Resort & Spa in the hours before the crash, with one witness allegedly spotting him at the bar.
“The evidence in this case will show that Russell Perdock and Russell Perdock alone is the cause of this accident,” said Haltom.
Witnesses questioned closely on sailboat lights
During the morning session, Hopkins began calling witnesses to testify.
Jim Ziebell, who helped skipper Weber's boat during the Konocti Cup on April 29, 2006, was the first to testify. He discussed the hours before the crash and his experience sailing on Clear Lake.
Ziebell said he saw the sailboat's stern light when it left on the cruise, but couldn't see the bow lights. “There's a position where even people on the boat can't see them,” he said. Having sat at the tiller of Weber's vessel, he could say that neither the stern or bow lights are visible from that position.
Haltom asked Ziebell if he knew of a reason why someone would turn off the boat's lights while under way. “I would never turn off the light,” he said. “I can't imagine any reason why I would.”
The lights aren't bright enough that turning them off would help with stargazing, he said.
While traveling home on his own power boat from Richmond Park at around 9:30 p.m. the night of the crash, Ziebell said he saw the silhouette of the sailboat being towed, but thought it was because someone ran out of gas.
Haltom asked Ziebell how long it would take to execute a turn in a sailboat if a boat was bearing down on it.
“I don't think it would be possible,” said Ziebell. “The boat behind me has the burden of missing me. I don't have the burden of missing him.”
The morning after the crash, Ziebell and some friends saw the unsecured sailboat sitting at Braito's Marina on the lakeshore at Buckingham Point.
Also called to the stand was Doug Jones, the past commodore of a local sailing club who knew Weber and had worked on his boats. Jones was at Richmond Park after the Konocti Cup and saw Weber, who he said was “loud” and intoxicated.
Jones said he “grabbed a burger and a couple of beers and came home” at around 6:30 p.m. After being driven home by a friend, he sat at his tenant's home on the lakeshore and spotted Weber's boat sailing by, about 300 to 400 yards out, at “deep dusk.”
“I did not notice any bow light,” said Jones, which caused him to pay attention because he was concerned about not seeing the light. “The light should be on by that time.”
Jone said he saw a bright stern light and a red glow that he realized were cabin lights. The sailboat also was running under full sail.
The night of the crash, Jones said close to 10 sheriff's patrol cars came down his driveway and said there was a boating crash. Jones went out to his dock and saw the boat being towed into view.
The next day he said he spoke to Lloyd Wells, a deputy sheriff with the Lake County Sheriff's office, who came to pick up Weber's boat trailer in Jones' boat yard.
Jones asked about the crash and said Wells didn't identify who drove the power boat. Wells also reportedly said the sailboat didn't have any lights one. Jones said he saw the lights on, and Wells replied that he couldn't have.
Fishermen describe night on the water
Most of the afternoon was devoted to hearing the testimony of Anthony Esposti and Colin Johnson, who were prefishing for a catfish tournament on the night of the crash.
The men, in a 14-foot aluminum fishing boat, noted in their separate testimony that the night was extremely dark. They both said they saw a sailboat without lights before witnessing the boat crash later in the night.
Esposti, who was more familiar with Clear Lake, said they put into the water at about 4 p.m. and fished until after dark.
He said he saw no lights on the sailboat, only seeing it after Johnson flashed it with a spotlight. However, he did see the stern light on Perdock's boat, which he said was very loud. Esposti estimated it was traveling about 40 miles per hour.
“We watched it on its course until it collided with something,” he said.
It was so dark, with no moon, that they didn't know what it hit, but he could hear the engine when it came out of the water as the powerboat flew over the sailboat, said Esposti. They could hear yelling for help, so he and Johnson approached the boat and found it with a broken mast.
Esposti said they heard screaming from the boat. Asked what he saw on the sailboat, he replied, “God ... blood.”
He and Johnson helped tow Perdock's boat to shore while two other boats which had come out to render assistance towed the sailboat.
In cross-examining Esposti, Haltom asked him about statements he'd made previously to investigators, including comments about going out later in the evening, at 7 p.m. Esposti insisted there were several hours of daylight when they started.
He believed he had seen the sailboat on its cruise between 7 p.m. and 7:30 pm. but couldn't remember it being under sail. Esposti believed the crash happened about two hours later, with the power boat traveling on a straight line before the crash.
When Johnson took the stand, his testimony contained several notable differences from Esposti's beginning with his assertion that they headed out for their fishing trip close to the time it began getting dark.
He said he heard people laughing and talking on the sailboat, but saw no lights of any kind – not even cabin lights. Johnson also didn't see a sail. Without his spotlight, they couldn't see the boat at all.
Johnson said they heard and saw the power boat as it moved across the bay. “Then all of a sudden it just jumped up in the air,” he said, describing how he saw the boat's navigation lights spin 360 degrees and they heard the crunching of the crash.
“I was clueless about what it ran into,” he said.
He and Esposti made their way over the sailboat; when they got there, Johnson stood and pulled himself up to look into the sailboat, where he saw a man doing cardiopulmonary resuscitation on Thornton. The side of the boat had blood on it, he noted. He then started yelling to the shore for help. Boats arrived to help shortly afterward.
When Haltom asked him about the speed of Perdock's boat, Johnson replied, “I think that it was somewhere between 40 and 50 miles per hour.”
During his testimony, Johnson said he flashed Perdock's boat with his spotlight when the boat was coming straight toward him. It then “tailed off” toward the sailboat.
With no speed limits on the lake, boats can travel at any speed, Johnson said. “You've got to watch out for yourself,” he said. “He was just coming too close to me for my comfort.”
Haltom wanted both Esposti and Johnson subject to recall for possible further testimony at some point during the remainder of the trial.
At the end of the day, Byrne admonished jurors not to read about the case or talk to anyone about it.
He said the evidence will come in phases. “It's important to keep an open mind,” he said.
The trial resumes at 9 a.m. Wednesday.
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