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Defense attorney Victor Haltom called Dr. William Chilcott, a forensics engineer who specializes in small boat accident reconstruction, and sailboat owner Mark Weber of Willows to the stand in the defense of 41-year-old Bismarck Dinius.
Dinius was at the tiller of Weber's sailboat, the Beats Workin' II, on the night of April 29, 2006, when it was hit by a powerboat driven by Russell Perdock, an off-duty sheriff's deputy.
District Attorney Jon Hopkins is prosecuting Dinius for felony boating under the influence causing great bodily injury because Dinius allegedly had a blood alcohol level of 0.12 and the sailboat's navigation lights were alleged not to have been on.
Hopkins argues that those factors led to the proximate cause of fatal injuries for Weber's girlfriend, 51-year-old Lynn Thornton, who died three days after the crash.
Chilcott, who had worked for the District Attorney's Office on a fatal boat collision more than a decade ago, has extensive engineering training and is a sailor and boater himself.
He worked on safety standards for boats, improving life jacket design to protect the heads of race boat drivers. Along the way, he also became associated with Richard Snyder, now a retired engineer from Mercury Marine, who Hopkins had called to testify on Tuesday.
Chilcott has his own company, Marine Testing Co., to look into crash causes. “I tried to retire for the last 11 years,” he said. “The phone keeps ringing.”
The same was true for this case. When Chilcott first became involved, he was called by an insurance company investigator, within days of the crash. Under Haltom's questioning, Chilcott explained that he determined the angle of impact, noting a propeller cut on the sailboats starboard quarter was a “key landmark.”
“At that split second we know where each boat was relative to each other,” he said.
Chilcott also conducted a “needle slap” examination of the Baja powerboat's gauges, using a black light to try to detect phosphorescent paint left by the needles. He found none.
State Department of Justice criminalist John Yount testified last week that he also had done a needle slap examination. He used a low angle white light and also didn't detect needle slap marks.
Snyder had testified on Tuesday that marks on the sailboat's knocked-down mast were propeller strikes from the Baja. But Chilcott disagreed.
“Whatever put that on came from the front going to the back,” he said, while the crash took place with the powerboat coming from the back to the front.
He said the propeller also couldn't speed up and slow down as it would have needed to do to leave strikes in the distance apart show by the marks. The propeller would have needed to go the exact opposite of the axis of the mast to make the depth of cuts, and there was an “astronomical” probability of that happening.
“This looks very much to me like 'recovery rash' due to its variation,” he said. Recovery rash is damage done after a crash, usually when a vessel is being towed.
He said the other materials on the mast was not gel coat from the Baja's underside, but rather resembled plastic or paint.
Chilcott also disagreed with another key prosecution witness, Department of Justice criminalist Toby Baxter, who testified earlier this week regarding his tests on the sailboat's stern light bulb's filaments. Baxter said he believed the sailboat's stern light was off when the crash occurred.
A wave pattern in the stern light filament was typical of “lateral loading while hot,” said Chilcott, noting he was talking about the light being thermally hot rather than electrified.
He said that knowing the difference between alternating and direct current, which Baxter said he didn't know much about, was important.
Chilcott said he believed the sailboat's electricity was cut when the powerboat first hit it, which is why there would be signs of a “cold break,” leading to the conclusion that the lights had not been on at all.
“Bottom line, was this filament recently heated shortly before the breakage?” Haltom asked.
“My opinion is, yes,” said Chilcott.
Chilcott said Baxter's experiments of slamming a two by four board with a lamp fixture attached to try to show stresses and filament breakage “totally lacked scientific validity,” because they didn't use readily available instruments to track the g-load or do the slamming, which a person can't precisely each time.
Boat rules and responsibilities emphasized
Facing the jury, Chilcott then explained boating rules and who has responsibility for watching the 360 degrees around the vessel.
Because the sailboat was hit from behind, Chilcott emphasized, “The rule in overtake is, that the overtaking boat must stay out of the way of the boat being overtaken.” The boat being overtaken can do anything it wants and the overtaking vessel must stay away. Both boats have an obligation to watch portions of the 360-degree area around the vessel.
Haltom asked Chilcott if, in high velocity collisions, there is sometimes jostling of toggle switches. Chilcott said he's dealing with a boat crash case in Tyler, Texas, right now where the switch covers were completely knocked off.
The master of the boat usually is the owner except on larger vessels, Chilcott said. It's the master's duty to direct everything that's done on the boat, with the crew being an extension of the master's capabilities.
Three thing make any sailboat go – wind, sail setting and helm control, said Chilcott. “The master is the only one sailing the boat from a command position.”
Is the blending of shore lights and boat lights and issue? Haltom asked. Chilcott said it is, with a 10-watt all-around light a mile away and a 75-watt shore light from a house able to look the same. Approaching a boat from the rear, it would be easy to see a boat light and think it was on shore. “That's the reason why we have safe speed as one of the rules.”
When asked about Snyder's statement on the stand that he had driven his powerboat 60 miles per hour at night, Chilcott said he wouldn't do it.
Haltom had Chilcott go over inland navigation rules, from lookout to visibility to other responsibilities, including overtaking and crossing, and proceeding with caution to avoid collision.
Rule 18 states, “A boat under power will stay clear of a boat under sail.”
Chilcott said Perdock's powerboat did not stay clear of the sailboat.
During cross-examination, Hopkins also questioned Chilcott about boating rules, and looked closely at the visibility rules under Rule 13.
“There's a difference between being visible and being seen,” Chilcott said.
Hopkins suggested that, in other words, you can't close your eyes. Chilcott replied that if you don't see something, it doesn't lessen your onus or responsibility. Boaters must watch out for unlit objects, like logs and derelict boats, and can't proceed in a manner that endangers life, limb or property.
What if a sailboat wasn't lighted, as it's supposed to be between sunset and sunrise, and it's hit by another boat? Hopkins asked.
“That's a complete hypothetical,” Judge J. Michael Byrne pointed out.
Quoting federal case law, Hopkins referred to a ruling in which a federal court said a sailing vessel that wasn't displaying its lights in one case was “virtually invisible.”
If a vessel isn't displaying its lights, is it not in the sight of another vessel? Chilcott said said it wasn't.
If the sailboat did not have its lights on and was virtually invisible to a powerboat, would the visual rules apply? Hopkins asked.
Haltom objected. Byrne replied, “Then we're going to get into sight issues,” said Byrne. Hopkins said they already were. Byrne sustained, telling Hopkins he had plenty of other issues to question.
Hopkins asked if cabin lights can be a substitute for navigation lights. No, said Chilcott.
He then questioned the lookout rule, and asked if there is a responsibility of overtaking rules applying if a boat isn't lit. Chilcott said the onus is on the overtaking vessel.
Hopkins asked if there are a series of horns and signals used for crossing the path of another vessel. “Now you're mixing maritime ocean rule with inland navigation rules, and the inland navigation rules are what apply here. Those in the ocean don't,” said Chilcott.
Based on a federal court's interpretation, Hopkins questioned Chilcott about if he disagreed that a lookout must “methodically scan” all 360 degrees around a vessel. “I don't disagree or agree with the federal courts. That's not my job,” Chilcott said.
In California law, who is the operator of the boat? asked Hopkins. Chilcott said the master. Hopkins quoted law which said the operator is the person at the helm.
Is an operator who doesn't look out for someone crashing into them, from the back or not, in violation of the rules? Hopkins asked. Not if the crash comes from the rear, said Chilcott.
What if the sailboat doesn't have its required lights? Hopkins continued. Chilcott said that's a different situation and not, in his opinion, what occurred in this case.
Byrne asked where the speed comes into play in overtaking a boat. Chilcott said the boat's operator has to operate so they are able to avoid a hazard.
Hopkins referred to testimony given earlier from Jim Ziebell, who had helped race the Beats Workin' II during the Konocti Cup race and stated he was the helmsman. Chilcott said Ziebell wouldn't have been the master.
“If you were coming up on another vessel and you are to their starboard side and they are going the same direction you are, do you sound a signal to let them know you're coming under inland navigation rules?” asked Hopkins.
In theory, yes, said Chilcott, but it's usually not done in a small boat. Once boats have communicated by horn, they can't say they aren't aware of the other's presence.
During his testimony, Chilcott stated, “I think there was gross failure to apply to the rules and there have been no consequences,” referring to Perdock.
Hopkins said it sounded like he had a position in the case that went beyond that of an expert, to which Haltom objected. Byrne sustained the objection.
“Do you have an opinion as to who should be prosecuted in this case?” Hopkins asked.
“I have an opinion as to who violated the rules,” Chilcott responded.
Hopkins asked if that colored how Chilcott looks at the case. Chilcott replied that the rules are clear.
Chilcott explains evidence, disputes findings
Under Hopkins' questioning, Chilcott explained that he went to inspect the boats after h was first hired by an insurance company. When he asked to see the lights, the sheriff's office told him he couldn't.
“They didn't say why, they didn't describe it as evidence, they just said they had removed them,” he said.
Chilcott said he was concerned about the evidence. “Removal of lights can be a very delicate situation if they don't know how to remove them,” said Chilcott, who has seen other law enforcement agencies destroy lights they remove.
Hopkins questioned Chilcott about a January 2008 report he submitted on the crash, which incorrectly listed 2007 on it, which Chilcott attributed to “geezerhood.” Hopkins asked if a person with a PhD in engineering and physics would be less likely to make that mistake than a police officer. Chilcott said he couldn't answer.
When Hopkins asked if everyone was subject to such a mistake, Chilcott replied, “I don't speak for all of us.” He added, “My wife never misses a date so it's not common for her,” which got laughter. “I can join you on that one,” said Hopkins.
Chilcott said his analysis of the lights didn't include the switches. “Having switches in a given position is meaningless as far as a clinical analysis,” he said, as it's common for switches to be flipped on and off after a crash in order to check them.
In the case of a Tyler, Texas, boat crash he's investigating, the switch covers were knocked off. Law enforcement picked them up, replaced them and tried turning on a switch, which fried the filament, Chilcott said.
He said criminalist Toby Baxter'e experiments on g-load – conducted by slamming a two by four with a lamp attached to test filament reaction – has “nothing reproduceable about it.” He said instruments are readily available that could have been used. “I wouldn't use that fashion of testing for anything,” Chilcott added.
Hopkins also questioned why Chilcott was critical of criminalist John Yount's tests of the powerboat's instrument needles for signs for needle slap. Chilcott didn't find needle slap with a black light, so why should Yount have done the same test?
“I was worried about spoilation of evidence,” said Chilcott, explaining that, when you take face off a dial, “frequently you alter things.”
He added, “It would have been inappropriate for me to have done that.”
Hopkins asked Chilcott about water drop experiments he had done, which involved dropping people out of speeding boats to check their physiological reaction. The test eventually was incorporated into astronaut training.
Chilcott said he's been dropped out of a boat at 84 miles per hour. He's also been out of a hydroplane at 120 miles per hour, “but that was not anticipated nor expected,” which the court reacted to with laughter.
He said he did his PhD thesis on marine safety training and its sources. He said he was astounded at the lack of such training, noting the Boy Scouts did the most, but the Coast Guard wasn't training its own people well.
“It's greatly improving,” he said, recalling a widespread “national ignorance” of safety procedures.
Following the lunch break at 1:30 p.m. the court held a 15-minute hearing on Haltom's request for Perdock's personnel file, based on an in-chambers discussion Thursday in which it was revealed that Perdock was the subject of an internal affairs investigation. For a full account of that hearing and the motions, see Defense attorney seeks sheriff's captain's personnel file.
Cross-examination lasts until late Friday
Once court reconvened for the afternoon at 1:45 p.m., Hopkins continued his cross-examination of Chilcott, which lasted two more hours.
They discussed disconnected wires which Chilcott found and which he believed were for the stern light. Chilcott didn't test the wires to make sure of where they were, insisting that their size and appearance was consistent with his conclusion.
Discussing a picture of the powerboat, Chilcott said its rub rail came into contact with the sailboat's mast. He said the rub rail had a mark where it had come into contact with the mast, and the mast had a crease which approximated the rub rail's shape.
He believed the mast could have snapped off at any time in the crash. “It had to be a significant shock load because it was strong enough to pull the halliard out of the track.”
The halliard is a line used for raising and lowering the sail. Chilcott surmised that the boat went between the mast and sail, pulling out the halliard.
Chilcott maintained the marks on the mast couldn't have come from the powerboat's propeller, which would have had to experience radical changes of speed in 1/50th of a second, which he said “is not physically possible.”
He said Hopkins kept saying the marks happened during the crash, but “I see nothing which tells me they had do.”
Hopkins questioned Chilcott's findings on the filaments. “Under the microscope I could see variations in the coil and a wave which are typical of hot filament response,” Chilcott said.
Looking at a picture of the damaged boat and its smashed fiberglass, Chilcott said that shows how it ended up, “It doesn't tell you all the dynamics of how it got there.”
Returning to photos of the filaments, Hopkins questioned Chilcott again about the spacings and shape in the filament. “It has the same characteristics that we've already explained a half a dozen times,” said Chilcott. He made similar remarks signaling his impatience with the repetitive questioning throughout the afternoon.
Referring to a transcript of Chilcott's testimony from May 22, 2008, during Dinius' preliminary hearing, Hopkins noted that, at that time, Chilcott hadn't noted that the coil's stretching could be partially due to the manufacturing process, which he stated Friday. Nor did he mention that in his January 2008 report.
Showing Chilcott another filament photo, Hopkins asked why there weren't melted blobs on the ends of the tungsten filaments. Chilcott said that doesn't happen in direct current although Baxter looked for it. What led Chilcott to believe Baxter expected to find it? “He said so,” said Chilcott.
Haltom interjected. “This is getting repetitive, and asked and answered,” he said.
“I would like to get this witness done today,” said Byrne.
Hopkins continued with his questioning, asking Chilcott if he agreed the filament breaks were due to cold shock, which mean they were not electrified at the time of the crash. Chilcott said yes, but cautioned that a cold break is a vague definition. Such lights, when they're turned off, don't get cold instantly, he said.
Hopkins asked if the tungsten alloy cools in a millisecond. “You're misstating it totally,” said Chilcott, explaining that cooling begins within a millisecond after the electricity is cut.
Weber: The lights were on
With just 15 minutes left before court was due to stop for the day at 4 p.m., Chilcott was excused and Mark Weber – who had waited in the court hallway all day while waiting to be called – made his way to the stand.
Weber said he and Dinius had known each other for close to 10 years, and always saw each other at the annual Konocti Cup.
During the cup race on April 29, 2006, Weber raced the Beats Workin' II, with Jim Ziebell and Bill Pickering as part of his team. Dinius was on another boat.
After the race, they went to Richmond Park Bar & Grill where he met up with Thornton, his significant other. They saw Dinius there later that evening.
There was wine tasting, dinner and socializing, with the crowd working its way down to the docks. Weber said the beer cans found on the sailboat were a result of people drinking nearby and throwing their empties into the boat.
Later that evening, Weber and Thornton were joined by Dinius, Ed Dominguez and Zina Dotti for a cruise across Konocti Bay. Thornton had met Dominguez and Dotti earlier that way while playing golf.
Sitting at the tiller, a person can't see the toggle switch panel, said Weber.
But he had no doubt the lights were on when the sailboat left for its cruise.
“I remember distinctively saying, 'We've got lights, let's go',” Weber said.
After they were under way, Weber said he turned on the cabin lights after he put up the sail. He was sitting near Dinius at the back of the boat with Thornton sitting slightly forward of Dinius.
Weber said he manned the sails as they went on a straight port tack three quarters of a mile before coming back on a starboard reach.
He said he couldn't remember how long it was before the crash took place.
“I remember Lynn asking me to go down and fix the radio,” he said, explaining it had a lot of static.
So he went down into the cabin. When he emerged a short time later, the crash had taken place, and people were on board, doing cardiopulmonary resuscitation on Thornton.
“Would there have been any reason for someone to turn off the lights?” Haltom asked.
“Absolutely not,” Weber replied.
Later when he was on shore, Weber said he saw Perdock. “I yelled at him,” Weber recalled, because someone had told him Perdock was stating their lights weren't on. He shouted an expletive at Perdock and said, “Our lights were on.”
Nearby, paramedics had Thornton on a picnic table and were working on her. Weber said he didn't remember where Dinius was.
After only 10 minutes of questioning Haltom said he had nothing further.
Byrne asked Hopkins if he wanted to get started in cross-examination. “Let's call it a day,” Hopkins said.
After the jury had left, Haltom said he wanted to call Dominguez and Dotti Tuesday morning after Weber.
“Hopefully the cross(-examination) of Chilcott is not indicative of things to come” when it comes to length of time to deal with witnesses, Haltom said.
Hopkins said he believed they could finish questioning Weber, Dominguez and Dotti on Tuesday morning.
Haltom said he plans to call Perdock and Byrne suggested scheduling Perdock to appear at 11 a.m.
Testimony resumes at 9 a.m. Tuesday.
Witnesses so far, in order
Day one (following opening statements): James Ziebell, sailor, helped skipper Beats Workin' II in Konocti Cup; Doug Jones, past commodore of local sailing club; Anthony Esposti*, fisherman; Colin Johnson*, fisherman.
Day two: Lake County Sheriff's Det. Jerry Pfann; Andrea Estep*, phlebotomist, St. Helena Hospital-Clearlake (formerly Redbud Community Hospital); former sheriff's Sgt. James Beland; LaDonna Hartman, phlebotomist, Sutter Lakeside Hospital; retired sheriff's Sgt. Mark Hoffman; California Department of Justice criminalist Gregory Priebe, Santa Rosa lab; California Department of Justice criminalist Gary Davis, Sacramento toxicology lab.
Day three: Jennifer Patterson, witnessed crash from Holdener property on lakeshore; Gina Seago, witnessed crash from Holdener property on lakeshore; Jordin Walker, passenger on Russell Perdock's powerboat; James Walker*, high school friend of Perdock's and passenger on his powerboat; sheriff's Deputy Mike Morshed*; sheriff's communications operator Kimberly Erickson; sheriff's Boat Patrol Deputy Lloyd Wells*.
Day four: Craig Woodworth, the District Attorney's Office's acting chief investigator; John Yount, criminalist with the California Department of Justice's Santa Rosa lab; sheriff's Det. Jerry Pfann; Boat Patrol Supervisor Sgt. Dennis Ostini; Lt. Charles Slabaugh of the Sacramento County Sheriff's Office.
Day five: Richard Snyder, retired Mercury Marine engineer; Lt. Charles Slabaugh of the Sacramento County Sheriff's Office.
Day six: Lt. Charles Slabaugh of the Sacramento County Sheriff's Office; California Department of Justice criminalist Toby Baxter; retired Sgt. Wes Frey, Lake County Sheriff's Office; Jeff Holdener, who responded to the crash scene via boat; Stephanie Green, friend of Weber and Thornton, who saw them leave in the sailboat a few hours before the crash; Craig Scovel, friend of Perdock's who assisted in taking his boat and trailer to the sheriff's Boat Patrol building.*
Day seven: Craig Woodworth, the District Attorney's Office's acting chief investigator. The prosecution rested.
Day eight (Defense begins presenting case): Dr. William Chilcott, forensics engineer; Mark Weber, owner of the Beats Workin' II and Lynn Thornton's longtime boyfriend.
* = Indicates a witness subject to recall at the request of the defense.
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