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District Attorney Jon Hopkins called the two witnesses as he continued to build his case against Bismarck Dinius, 41, of Carmichael.
Dinius is charged with felony boating under the influence with great bodily injury. The prosecution alleges that Dinius, while steering a sailboat owned by Willows Mark Weber, was under way without navigation lights and also was alleged to have had a blood alcohol of 0.12 on the night of April 29, 2006.
The sailboat was hit by a powerboat driven by an off-duty sheriff's chief deputy, Russell Perdock, who was not charged in the case. Weber's girlfriend, Lynn Thornton, 51, died in the crash.
The day's testimony began close to 9:15 a.m.. Shortly before that, Judge J. Michael Byrne scolded both Hopkins and defense attorney Victor Haltom about not being ready to go at 9 a.m. He said he had suggested both be in court by 8:45 a.m. in order to be ready to go.
However, Haltom said Hopkins had just handed him new discovery, specifically, a CD of photos that Haltom said he needed to be able to see them before testimony began. Hopkins also appeared to be running behind at the start of the day as he prepared to begin calling witnesses.
At the start of court Tuesday, Hopkins changed witness order. Although on Friday Lt. Charles Slabaugh of the Sacramento County Sheriff's Office had been on the stand land and was expected to continue testimony, Hopkins wanted to bring on another expert due to scheduling issues, which the court approved.
Hopkins' first witness of the day was Richard Snyder, a retired engineer with Mercury Marine, the company that built the engine on Perdock's 24-foot Baja Outlaw powerboat.
Snyder, who worked with Mercury Marine from February of 1959 until his 2001 retirement, has remained a consultant with the company. While actively working for Mercury Marine, he was an expert in propellers, gear cases and products testing, and was director of product safety. He also was on a small team that designed the company's first stern drive in 1961.
In his career Snyder has amassed 11 patents, testified in 41 trials and given 107 depositions, he told the court Tuesday.
On Monday, Snyder went to the sheriff's Boat Patrol facility at Braito's Marina on Buckingham to look at the sailboat and powerboat involved in the crash. He was accompanied by several people including Hopkins, Slabaugh, Boat Patrol Supervisor Sgt. Dennis Ostini and District Attorney's Investigator Craig Woodworth as he looked over the boats.
Snyder said he's been working on boating safety for many years. He worked closely with Mercury Marine's legal department in responding to civil lawsuits. He's also worked with national boating organizations on safety and regulations.
“I am always trying to find ways to reduce accidents and reduce injuries,” he said.
He also was involved with conducting a series of impact tests in 1999 to look at the resulting damage in crashes at 20, 25 and 30 miles per hour. Most of the crashes involved one boat going over another.
At 20 miles per hour, a boat would hit and drag its gear case over the other boat. At 25 miles per hour, the gear case might clear and not leave any marks. “Thirty was just way more of the same,” Snyder said, noting the “bullet” boat – the one hitting – would pass completely over the target boat.
They didn't look at collisions at speeds above 30 miles per hour, Snyder said. “They start all looking the same after that.”
Snyder said that the Baja's stern drive is powered by an inboard engine originally made by Chevrolet.
During the tests they found that the stern drive's gimbal ring shattered and the gear case fell off if there was a 45 mile per hour or more differential between the speed of the two boats involved, Snyder said.
If there had been more than a 45 mile per hour differential when Perdock's power boat hit the sailboat, Snyder estimated the stern drive should have broken off.
By hitting near the starboard stern of the sailboat and going diagonally over, the Baja had a longer way to travel, Snyder explained.
At the time of impact the Baja appeared to be on a slight left turn, Snyder said. During impact, the Baja's propeller left a number of marks on the sailboat's mast.
Hopkins asked if the stern drive broke during the collision. Snyder said there didn't appear to be breakage.
At Hopkins' request, Snyder then calculated the powerboat's speed at 3,000 revolutions per minute, arriving at roughly 35 miles per hour, Snyder said.
Snyder said you can't estimate boat speed based on the propeller marks on the mast without knows the engine's RPMs. He could only look at the circumstances and make an educated guess unless the boat had an engine black box, one of Snyder's patents, that would keep a running memory of the RPMs.
Doing another set of calculations, Snyder estimated that the Baja could have been going 25 miles per hour when its propeller marked up the sailboat's mast, which already had been knocked over by the impact with the powerboat.
Snyder estimated that the impact could have slowed the Baja 10 to 15 miles per hour, putting it in the 40 to 50 mile per hour range at impact.
Could the boat have been going 35? Hopkins asked. Snyder said he believed that was unlikely given that the powerboat sailed over and didn't rip off the sailboat's stanchions – which are upright posts which hold lifelines.
Hopkins had Snyder explain a series of pictures put on an overhead projector, including several of the Baja and the sailboat, both with damage. The Baja had a black smear from the sailboat's stern light's plastic housing extending down its bow side. The sailboat had significant damage along its starboard rear.
Snyder said the Baja wasn't going perfectly straight, and that something caused the boat to rotate slightly, possibly Perdock pulling the wheel down, instinctively or not, as the powerboat started to go over the sailboat.
Another picture showed ropes wound tightly around the Baja's prop. “This would have been dead in the water at this point,” said Snyder.
If the Baja was traveling between 20 and 25 miles per hour, what would Snyder have expected to see? Hopkins asked.
Snyder said the sailboat's stanchions would have been taken off. “It would have been significantly different from the way it turned out.”
Was the impact enough to cause serious injury to a person sitting at the right rear corner of the boat? Hopkins asked. “Without question,” Snyder said.
During cross-examination, Haltom asked Snyder when he was first contacted by the District Attorney's Office. About a month ago, Snyder said.
Haltom asked if Snyder knew what part of the sailboat was embedded in the Baja's bow. Snyder said he didn't know. Snyder also couldn't say for sure which boat would have sat higher in the water.
Using a projector, Haltom showed a picture of the sailboat's broken mast with seven propeller marks on it. Snyder said the distance between the marks could be affected by whether or not the mast had been rigidly fixed. “There's some dynamic things happening here.”
Haltom noted there was some material between the strike marks. Could it have been the gel coat from the bottom of the Baja? Snyder didn't know.
Snyder emphasized, however, that the mast would have had to have been lying parallel to the path of the Baja for the propeller to make the marks. He didn't appear to think the marks could have been made afterward, by an officer towing the boat.
Haltom asked about the Baja turning. Snyder said it didn't necessarily have to have happened at impact. Would the boat's side have risen up if someone turned, say, in response to a fisherman flashing a light at the operator? Haltom asked. Snyder said it could have risen up.
The longer the boat vaults over another boat, the faster it was going, right? Haltom asked. Yes, said Snyder. Haltom asked if Snyder had heard that the Baja had landed on the other side of the sailboat and bounced. Snyder said that's not uncommon and wouldn't affect his speed analysis.
Haltom asked if the Baja was going between 40 and 50 miles per hour at impact? Snyder replied yes.
At Haltom's request, Snyder then did calculations of RPMs at 50 miles per hour, estimating 4,300 RPMs.
Haltom questioned Snyder about visibility standards he had mentioned earlier relating to the American Boat and Yacht Council. Snyder said that group's H1 visibility standard, which requires a minimum of four boat lengths of visibility in front of the boat's bow to pass a standards of visibility.
“Day or night?” asked Haltom.
“It has to be seeable,” said Snyder, explaining that, during daylight, nothing – the bow or anything else – should block the driver's view.
Snyder said at a 45-mile-per-hour differential between the speed of the two boats, he would expect the gimbal ring to fail. If the sailboat was going 5 miles per hour, that would put the powerboat's speed at a maximum of 50 miles per hour.
He explained that a side impact on the stern drive can cause more damage than a direct hit, although that has not been tested.
However, adding in side load Snyder said, “If it has any effect at all I think it would lower the speed.”
Snyder said if the Baja had been going 55 miles per hour he would have expected gimbal failure.
“That's why my top-end estimate was 50, because it didn't break,” he said.
After court reconvened for the afternoon, Hopkins asked about what it would take for the powerboat to make a sharp left turn and still hit the sailboat. Snyder said it would have had to have come across the back of the sailboat, and making such a turn would have dipped the side of the boat, making a stern light more visible.
Would traveling at 40 to 50 miles per hour create any bow visibility problems with seeing the stern light, asked Hopkins. Snyder said there would be no issues. The Baja has some of the best visibility possible.
Haltom asked Snyder about the impacts of shore lights on nighttime boating.
“That issue is a major issue with nighttime boating and it's been talked about for years and years by the people I work with,” said Snyder, adding it's conceivable that you can confuse a white boat light and a white shore light.
Haltom asked if that confusion would be enhanced if a person who is supposed to wear prescription glasses wasn't wearing them. Hopkins objected; Byrne suggested Haltom ask it different. He asked if not wearing glasses would create visibility problems. Snyder said he couldn't answer that, because he also has glasses nighttime driving but doesn't notice a very large difference.
Snyder said he frequently drives a powerboat at night, sometimes as fast as 60 miles per hour, on Lake Winnebago in Wisconsin, where he lives. Driving that fast, he noted, doesn't bother him. He said he couldn't put a universal maximum speed on nighttime boating.
Under Hopkins' questioning Snyder said shore lights wouldn't be a problem for navigating if the lights were a mile or a half-mile away and another boat was 100 yards away. In those cases, there shouldn't be a problem differentiating between a boat and the shore.
Slabaugh returns to the stand; discusses investigation
Following Snyder, Hopkins recalled Lt. Charles Slabaugh to the stand. Slabaugh was brought in from the Sacramento County Sheriff's Office to assist in the original investigation.
He explained beginning his investigation and assessing the damage to the boat. The sailboat had its railings ripped off, a damaged hatch, a knocked down back bulkhead, debris in the cabin and on the deck, propeller marks and other destruction. When the powerboat went over the sailboat it struck the sailboat's Honda outboard engine, which left marks on the powerboat.
Haltom asked if Slabaugh was at the boat barn on Monday with Snyder. He said yes. Haltom asked if they had any disagreements. They didn't, said Slabaugh.
When Haltom tried asking Slabaugh a series of questions about his time out on Clear Lake on the night of May 2, 2006, and his estimate of the location of the crash, he ran into repeated and successful objections from Hopkins.
Slabaugh went out that day on the lake with Ostini twice – once during the daytime and again at about 9 p.m., close to the time the crash took place days before.
“It got dark relatively quickly,” he said, recounting there was a crescent moon as they came around Fraser Point.
“There was quite a bit of lighting on the shoreline from Fraser Point as it circles around to some of the resorts on the other side,” he said.
Slabaugh, who helped cover BoardStock, said he'd seen many boat travel at high speeds at night on the lake. At a great distance it could take a moment or two to distinguish navigation lights from shore lights.
On the night he was out with Ostini, they saw a bow light about 300 yards away from their boat; the other boat was about 150 yards offshore, he estimated.
Under Hopkins' questioning, Slabaugh confirmed that when he worked on the case he consulted with Wes Dodd, his friend and instructor in boating investigations. Dodd now is working with Dinius' defense team.
Slabaugh asked Dodd to look at his original report and sent it to him, asking for his feedback. They talked afterward on the phone.
Hopkins asked Slabaugh if Dodd read his report. Haltom objected, saying there had been an in limine motion to exclude that information; Hopkins said the two things weren't related. The judge had them approach the bench to discuss it and afterward allowed Hopkins to ask the question.
The prosecutor then handed to Slabaugh a two-page fax from Dodd, sent to Slabaugh on May 11, 2006. Hopkins asked Slabaugh if, based on that fax – the contents of which weren't stated in court – Slabaugh changed his report. No, Slabaugh replied.
In further cross-examination of Slabaugh, Haltom asked him if he had examined the sailboat's cabin lights. He hadn't but at the time of the preliminary hearing last summer he had one of the local investigators look at them. When Haltom asked why that step was taken two years after the crash, Hopkins objected, saying it was irrelevant and Byrne sustained.
Was Slabaugh aware that people had seen the cabin lights? Hopkins objected and Byrne sustained. Haltom approached the bench to offer proof of the value of the questioning.
He was allowed to continue his questioning, and asked if the cabin lights were on at the time of the crash could they been seen from a distance? Hopkins objected, saying it was hypothetical. When Haltom tried to ask the question in another way, Hopkins again objected, saying there were too many hypothetical aspects to his question. At that point, Byrne overruled.
Haltom asked if cabin lights provide illumination; yes, inside a vessel, said Slabaugh. On a dark light is that illumination detectable? He asked. Hopkins objected, saying it was again hypothetical.
Had Slabaugh ever seen a cabin light illuminate a sail? No, he replied. When Haltom asked Slabaugh how much sailboat experience he had, he said very little.
Haltom asked Slabaugh the scope of his investigation. He said he did the reconstruction of the crash scene and investigation. At first he thought he would do the interviews, but as the investigation went on and took more time, and since Slabaugh had his own unit to oversee in Sacramento, he asked the Lake County Sheriff's Office to continue to do the interviews because it turned out “there were a few more than they had originally taken.”
Slabaugh did conduct a few interviews, including a face-to-face interview with Perdock and phone interviews for Hans Peter Elmer and Karen Elmer.
Haltom asked if Slabaugh was brought in due to concerns about the appearance of impropriety due to the sheriff's office investigating one of its own. Slabaugh said yes.
He was asked if he stated, “It was their investigation,” referring to the sheriff's office. Slabaugh said yes. Reading to him from a deposition in the civil case, Haltom quoted Slabaugh as saying he had to trust the local officers.
Slabaugh attempted to pinpoint a location for the crash, but when Haltom questioned him about it Hopkins objected repeatedly, saying it was based on hearsay. Byrne sustained, questioning Slabaugh's expertise in answering the question.
Haltom asked if Slabaugh had training in crash reconstructions. Yes, he said. “Were you trying to determine the location of the accident in this case?” Yes, Slabaugh said.
Slabaugh also acknowledged receiving information about the speed of Perdock's boat, with estimates ranging between 40 and 45 and 50 and 55 miles per hour. He used 40 miles per hour as his baseline.
Perdock told Slabaugh that the crash happened about a minute after he rounded Fraser Point. What was the distance of the crash from Fraser Point? Haltom asked. Hopkins objected, saying it was a speculative question.
Slabaugh spoke to Sheriff Rod Mitchell during the investigation. He said Mitchell thanked him for taking the time to do the work.
When Haltom asked about the light on May 2, 2006, compared to the night of the crash, Hopkins objected. Byrne instructed Haltom to ask the question as a hypothetical, so Haltom asked if there would be more moonlight with a bigger moon. Hopkins objected once again, pointing to there being a different phase of the moon when Slabaugh was out.
Hopkins also objected when Haltom attempted to get Slabaugh to state a safe speed for traveling on the lake the night we was out with Ostini. Slabaugh said that it was very difficult to see.
The day ended with Haltom asking Slabaugh a series of questions about navigation rules, including the rule for responsibility of a vessel.
“Who is the master of the boat?” he asked.
Slabaugh responded that, in maritime law, the master can be an absent owner or person who is on board directing the crew but who doesn't have actual help control. Haltom asked if the owner is usually the master. Yes, Slabaugh replied.
They also briefly discussed lookout and safe speed rules, and assessing risk of collision before court adjourned at about 4:10 p.m.
Once the jury was dismissed, Byrne and the attorneys discussed the objections to Haltom's questions, which Byrne said was an issue of “bringing things in that are beyond the scope.”
Explaining his issues, Hopkins said, “Since when are you entitled to take a witness from the prosecution and make it your own witness during the people's case when it's not within the scope of what that witness has testified to?”
During the discussion, Haltom also wanted to be able to ask the jury if they were willing to take a trip out on the lake at night to get a sense of conditions and to take part in the “jury view.” Hopkins said he didn't want to even pose the question until they determined there was adequate foundation in the case to justify taking the trip.
Testimony continues on Wednesday.
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