Monday, 04 March 2024

Prosecution rests in sailboat case; district attorney doesn't call Perdock


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THIS STORY HAS BEEN UPDATED.


LAKEPORT – Less than an hour after testimony in a fatal sailboat crash began on Thursday morning, the prosecution rested its case without calling the driver of a powerboat involved in the collision three years ago.


Shortly before 10 a.m., District Attorney Jon Hopkins announced to the court, “The people rest,” in the case against 41-year-old Carmichael resident Bismarck Dinius, on trial for felony boating under the influence causing great bodily injury.


Hopkins had just finished entering evidence and questioning one of his investigators, Craig Woodworth, about tests on the electrical lighting of the Beats Workin' II, the sailboat hit from behind by a powerboat driven by Russell Perdock, an off-duty chief deputy with the Lake County Sheriff's Office, just after 9 p.m. April 29, 2006.


Dinius was at the tiller of the Beats Workin' II, owned by Mark Weber of Willows, which Hopkins alleges was under way without running lights. The prosecution also alleges Dinius had a blood alcohol level of 0.12 at the time of the crash.


Weber's girlfriend, 51-year-old Lynn Thornton, sustained injuries in the crash that took her life on May 2, 2006.


Perdock was scheduled to come to the stand on Thursday as a prosecution witness, according to statements Hopkins made at the end of court on Wednesday.


Defense attorney Victor Haltom has argued Perdock, not Dinius, was responsible for the crash.


Haltom alleges Perdock was driving too fast on a very dark night – witnesses have estimated Perdock was driving anywhere between 35 and 50 miles per hour – and therefore violated safe boating rules by driving faster than was safe for conditions.


But Hopkins surprised the court by resting and not calling Perdock.


He offered no reason in court for the decision, and declined to explain the decision later out of court.


“It's not something I would want to comment on,” Hopkins said in a brief interview with Lake County News on Thursday afternoon.


The decision not to call Perdock caught Haltom unprepared. Haltom said he had expected Perdock to be on the stand for much of Thursday before Haltom would begin calling his own witnesses, who were told to be ready for testimony on Friday.


After court, both Dinius and Haltom said they were caught off guard by the turn of events.


“I was stunned. Everyone in that courtroom was stunned” – with the exception of Hopkins, Haltom said.


Haltom said he plans to call Perdock to the stand.


Despite the change in plans, Dinius was feeling optimistic at the end of the prosecution's case.


“I'm feeling good,” he said. “I'm feeling very confident.”


District attorney investigator describes testing lighting


Hopkins had started the day by calling Woodworth, a former police officer and certified mechanic who is now an investigator with the District Attorney's Office.


He recalled that other investigators had handled the crash case initially. In April of 2008 he was brought back from a computer crimes task force to fill in as acting chief investigator while another investigator was on medical leave.


Woodworth assigned Investigator John Flynn to assist the deputy district attorney who was prosecuting the case. Around the end of May or the first of June of this year, Woodworth became involved in the investigation.


On the stand Woodworth explained that he had experience investigating traffic collisions as a police officer, although he hadn't previously done a boat crash. He also was a mechanic for several years before getting into law enforcement, and as a hobby builds drag race engines.


He inspected the boats this summer, researched the powerboat's motor and got in touch with Richard Snyder, an engineer who retired from Mercury Marine and who testified in the trial on Tuesday.


Woodworth also examined a GPS device that had been on the sailboat.


“How did you discover there was a GPS?” Hopkins asked.


“You told me,” replied Woodworth.


Haltom moved to strike the comment as hearsay but Byrne allowed it to stand.


Woodworth said he contacted Det. Jerry Pfann of the Lake County Sheriff's Office to see if there was a GPS unit, then he went online to download an owner's manual and discovered the device had a feature that would track movements.


The next step was getting a search warrant to collect the data. The GPS in question was an older unit which has been discontinued, and Woodworth said he couldn't do a “data dump” but had to turn it on and photograph its readings.


Before he could get the device operating, he had to remove its dead, corroded batteries, clean it up and put in new batteries. He was able to get GPS coordinates, which he plotted on a map to show a route the boat had followed.


However, the device's dating function wasn't accurate, he said. The last point it logged a location at was Richmond Park Bar & Grill. Testimony has been provided during the trial that the Beats Workin' II left from the restaurant to take its nighttime cruise across Konocti Bay, where the crash occurred.


On June 8 Woodworth went to view the sailboat and powerboat, taking photos of them and looking at the sailboat's cabin lights to determine if they were operational.


Haltom asked to question Woodworth's qualifications. Woodworth explained his various licenses and automotive repair courses. Then Haltom asked if he knows the difference between direct current and alternating current. Woodworth said he had training in direct current but none in alternating current.


Based on those responses, Haltom objected to Woodworth's testimony, saying the difference between the two currents is “a fairly fundamental basic electrical principal.”


“Actually, it's not,” said Hopkins.


Byrne allowed the questioning but said he would sustain the objection if it became more in-depth.


When Hopkins resumed his direct questioning, he asked Woodworth about testing the various lights to see if power was going to them. One of the lights in a bow storage area of the cabin had a “sticky switch,” which Woodworth said isn't uncommon. He said he believed it was on although the switch didn't appear to be working properly.


During a brief cross-examination, Haltom asked Woodworth if he was friends with Perdock. He said no. What was Flynn's relationship with Perdock? Haltom asked. Woodworth said they were both members of the Masonic Lodge in Clearlake.


Haltom showed Woodworth a picture of the Masonic Lodge's members. Woodworth said he had never seen the picture before, but he recognized Flynn in it.


Regarding the GPS readings, Woodworth stated in court that he got the readings off the device on July 8.


“Had anybody in this case attempted to get those GPS coordinates, say, back in the summer of 2006, would they have been able to get accurate information out of the GPS device?” Haltom asked.


“It's possible,” said Woodworth.


Did no one at the District Attorney's Office or the Lake County Sheriff's Office attempt to get the information? Haltom asked. Woodworth said he was not aware of such attempts by either agency.


Woodworth sat in with Flynn on an interview with Perdock held this past April 27 at the District Attorney's Office. When Haltom asked if it was in June that the District Attorney's Office first endeavored to look at the cabin lights, Woodworth said yes.


On redirect, Hopkins asked if the cabin lights appeared to be in the same condition as they would when the sailboat was first stored. Haltom objected on the basis of lack of foundation, and Byrne sustained.


Were any of the lights taken apart? Hopkins asked. No, Woodworth said, getting another objection from Haltom, which Byrne also sustained.


Did the lights appear to be in a whole state? Hopkins asked. Woodworth said all of them did except for one he had found on the floor, where it appeared to have been knocked down by the collision.


If the GPS was turned on, it wouldn't record? Hopkins asked. No, said Woodworth.


Evidence, stipulation and a surprise


After Woodworth left the stand shortly before 10 a.m., Byrne suggested that it might be time to take a break before the next witness took the stand, because the witness was going to take a long time, he said, referring to Perdock.


Hopkins said first he wanted to introduce evidence, which both he and Haltom did.


Hopkins then entered a final exhibit, people's 80, that included Thornton's six-page autopsy report accompanied by a stipulation he and Haltom agreed on, that stated that Thornton was driven by Kelseyville Fire ambulance to Sutter Lakeside Hospital on the night of April 29, 2006.


“The parties stipulate that Lynn Thornton died as a result of injuries she suffered in the boating accident in this case, which occurred shortly after 9 p.m. April 29, 2006,” Hopkins said, reading from the document.


Thornton suffered head and neck injuries in the crash that were the cause of her death, which occurred on May 2, 2006, the stipulation stated.


The judge told the jury that, although he often reminds them that what the attorneys say isn't necessarily fact, “This is the one exception where both sides have agreed to a fact.”


After that, Hopkins stated, “The people rest.”


He then said, “It would probably be a good time to take a recess.”


After Byrne let the jury go for a break, Haltom said he had anticipated Perdock being on the stand all day, and he wasn't prepared to call any of his other witnesses.


“I could call Perdock,” he said.


Hopkins said that the trial is still on a good schedule even if they lost the afternoon.


Haltom asked if Perdock was available Thursday. Hopkins said he didn't know.


The prosecution and defense had an agreement to notice law enforcement and make them available to testify, said Haltom.


Byrne said that everyone had expected Perdock to be called, and he suggested that Hopkins find a way to make him available.


Defense moves for acquittal


The court took a morning recess, after which Judge J. Michael Byrne heard Haltom's motion for acquittal on the felony boating under the influence count.


Haltom argued that the court had failed to offer any evidence that Dinius was the person responsible for turning on the boat's lights.


“If he had no duty to turn on those lights there can be no proximate cause due to some failure to turn on the lights,” said Haltom. “That's No. 1.”


No. 2, said Haltom, was that eyewitnesses – including prosecution witnesses – have stated the lights were on.


Hopkins had presented witnesses who stated that they didn't see what Perdock's boat hit until after he hit it. But Haltom presented information about a 1902 ruling involving an 1899 collision in Chesapeake Bay, Virginia, between the steamship Richmond and the three-masted schooner, the George Clark.


The steamer was charged with failing to keep out of the schooner's way, “slacken her speed, stop or reverse, or to take any other precautions necessary and prescribed to avoid a collision, and that the collision was caused entirely and exclusively by the fault and negligence of the steamer's navigators,” according to the original opinion.


At the same time, the schooner was charged with having unskilled navigators and the failure “to have and maintain lawful lights, properly set and burning,” as well as proceeding at too rapid a speed and improperly changing her course.


Of four steamship officers interviewed in that case, only two testified to not seeing the light.


In that case the justices ruled, “The failure to observe a light cannot be said to disprove its existence.”


He also quoted another case, Clary Towing co. v. Port Arthur, which had witnesses testifying to seeing the lights burning on a boat when it left the dock shortly before a collision. The presumption in that case was that the lights continued burning until the collision.


“That presumption applies in this case,” said Haltom.


Hopkins argued that Dinius was under the influence and was the boat's operator, and that his failure to have the boat's light's on was the proximate cause of Thornton's injury.


The defense said the lights were seen on at dusk, but by the time of the crash it was pitch black, said Hopkins.


He said it's not like the “old time cases” Haltom quoted. In those situations, “It comes down to a matter of credibility on whether the lights were on or off on the boat and that's one of the factors that they were taking into consideration.”


While Hopkins hadn't read those cases, he said he'd be willing to bet there was more going on than the court simply concluding that the lights were on before the crash.


“The test here is whether we failed to present sufficient evidence to sustain a conviction on appeal,” Hopkins said.


He said he's presented six witnesses so far that saw the motorboat's lights clearly but didn't see what it hit. The fact that people saw lights on the sailboat 40 minutes earlier doesn't mean the lights were still on at the time of the collision.


He said the light panel is right there to see, “and those switches are off.”


“The matter has to be resolved,” said Byrne, and he believed that, ultimately, the case was for the jury to decide.


Byrne said he was concerned about the duty of turning on the lights. On Wednesday, Lt. Charles Slabaugh of the Sacramento County Sheriff's Office, who conducted the crash investigation and teaches classes on inland navigation rules, said turning on the lights was a responsibility shared by those on the vessel.


“There is evidence that Mr. Dinius was at the tiller by his own statements,” said Byrne.


Byrne ended by denying Haltom's motion.


Defense wants to call Perdock


Haltom indicated that he wants Perdock brought to court. “I'd like to take him as a hostile witness.”


Hopkins replied, “I don't think he's available today.”


Haltom said he wanted the jury told that they were expecting Perdock. Byrne said he wouldn't blame the district attorney before the jury, and in dismissing the jury told them simply there had been scheduling issues.


The judge asked if Perdock could be made available to testify on Tuesday. “I'll have to check,” said Hopkins. Byrne said he should be there.


Then, at Hopkins' request, Byrne, Haltom and Hopkins went into chambers for an on-record but confidential discussion on a case issue. Dinius himself remained in the courtroom, excluded at the judge's order.


When the attorneys emerged just over a half-hour later they offered no information on what has taken place behind closed doors. Court adjourned for the day just after 11:15 a.m.


Testimony is expected to resume at 9 a.m. Friday, when the defense begins to present its case.


E-mail Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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