Tuesday, 21 May 2024

Dinius takes stand in sailboat crash trial; defense rests

LAKEPORT – A man on trial for felony boating under the influence took the stand to recall the hours before a fatal sailboat crash more than three years ago.

Bismarck Dinius, 41, was the last of three witnesses to take the stand Thursday morning before the defense rested in his trial. He spent just under an hour answering questions about the events that led to the fatal collision.

By the end of the morning the judge estimated that the case could be handed over to the jury next Tuesday or Wednesday.

The Carmichael resident was at the tiller of Willows resident Mark Weber's sailboat on the night of April 29, 2006, when it was hit by a powerboat driven by Russell Perdock, an off-duty sheriff's deputy.

Weber's girlfriend, 51-year-old Lynn Thornton, was mortally injured and died three days later.

While Perdock is alleged to have been going anywhere from 35 to 55 miles per hour on the dark night, Dinius is being prosecuted for boating under the influence causing great bodily injury because the prosecution contends he was the boat's operator and had failed to turn on the navigation lights. It's also alleged that he had a blood alcohol level of 0.12.

Just after 9:30 a.m., Dinius himself took the stand after the testimony of two other witnesses. After he was seated defense attorney Haltom called him “Bismarck,” and Hopkins objected, saying they needed to be more formal in court.

As the jury watched him attentively – most of them taking notes – Dinius recalled that Weber had invited him on the nighttime cruise, and that it was Weber who was directing the boat, with Dinius following his directions.

The boat's lights were on, said Dinius. “The cabin lights were definitely illuminated.”

He said the cabin lights made it possible for him to see a wind indicator on the top of the mast. “I was using the cabin lights to see the wind indicator so I could gauge the wind,” he said, noting the sails also were completely illuminated.

Dinius said he was at the tiller after Weber asked him to help man the boat while he got the sails ready. He said he'd had alcohol to drink that night at Richmond Park Bar & Grill, where the boat had been docked following the Konocti Cup earlier in the day.

He sustained injuries to his back, suffered two broken ribs and bruising to the entire right side of his rib cage, a broken and badly cut hand, and a severe concussion that left him with a “tennis ball” on his head for three months. As a result he suffered memory loss.

“What kind of memory loss did you suffer?” Hopkins asked.

“Part of that day, I don't recall the accident,” said Dinius, noting he also had short-term memory loss.

Hopkins questioned his recollection of the wind indicator being illuminated. How many such indicators were on the boat? He asked. Dinius didn't know. Was there one lower on the boom? Hopkins asked. Dinius didn't remember.

Why did he look at the wind indicator? Hopkins asked. Dinius said it helps with handling the boat.

Dinius didn't recall pulling out of the dock, whether he was at the tiller or if they used a motor to go out. “We were well under way” when he remembered being at tiller.

That cruise was the only time he had ever been on Weber's boat. “I was at the tiller as he hoisted his sails and manned the rigging on his boat.”

Hopkins asked when he noticed he sails illuminated. Dinius wasn't sure. He did remember it was about dusk and getting dark when they left. “It was definitely leaning towards the dark side of the evening.”

Dinius didn't remember his conversation with Boat Patrol Supervisor Sgt. Dennis Ostini at the hospital early on the morning of April 30, 2006. Ostini testified that Dinius told him he was at the tiller.

When Weber asked him to go on the cruise, Dinius had been ready to leave Richmond Park for the evening, but Weber said it was going to be really quick.

“It was a nice night, good way to end the sailing day,” Dinius said.

He explained he had only sailed on Clear Lake while participating in the Konocti Cup race, which he had taken part in with Don Hare on Hare's sailboat earlier that day. “I didn't come up here for recreation at all.”

There was a wine tasting event in conjunction with the regatta, and Dinius said he had two to three sample glasses, about 2 ounces each. He also drank Corona beers and a Coors Light. “I couldn't tell you the number.”

He said he didn't recall the wine being very good. “Careful what you say about Lake County wine,” Hopkins joked. “I didn't say it was Lake County wine,” Dinius replied.

Dinius said he thinks he and Hare took Hare's boat out at Boren Bega around 4:30 p.m., then Hare drove them to Richmond Park, where there were a lot of people socializing and having “sailor talk.”

He recalled drinking a lot of water before dinner and throughout the day, because he was dehydrated from being on the lake. Dinius said he had dinner between 6 p.m. and 7 p.m., drinking either water or ice tea, and started drinking beer after dinner. He remembered having a Coors Light in his hand when they boarded the boat, and he thought someone brought him a Corona while they were sailing.

Weber was giving the orders. “He raised the sails and he tended to the sails the entire time,” Dinius said.

At one point Weber was playing with the radio after Thornton said something to him about it. They were well under sail at that point, Dinius said.

Hopkins questioned him about his statements in an Aug. 8, 2007, deposition for a civil lawsuit relating to the crash. At that time he stated that he had three to four beers. Did that sound correct, asked Hopkins? Yes, Dinius replied.

Dinius gave a rough estimate that the sailboat had been cruising 30 to 45 minutes before the crash. He didn't recall any other people at the tiller during that time.

He said everyone was seated in close proximity, illuminated in the cabin lights.

When they were under way, they were in full sail, but Dinius said he didn't recall if they were on a starboard or port tack. He remembered Weber giving the order to come about as they turned near Fraser Point to head back to the restaurant.

Dinius said he couldn't remember the sails' orientation. If he wasn't looking at the sails, why was he looking at the wind indicator? Hopkins asked. Dinius said he didn't say he wasn't looking at the sails, he just couldn't remember them.

After the crash, he didn't remember the ride to the hospital, although he had a flash of another person in the ambulance with him. He thought it was Thornton, who had been sitting next to him on the sailboat. Other witnesses have testified it was Jordin Walker, who was on Perdock's powerboat along with her father, James.

Dinius thought Weber came into his room at the hospital to ask how he was doing. Within a few weeks to a month, Weber called Dinius.

Referring to a deposition Dinius gave in the civil lawsuit in August 2007, Hopkins asked, “He asked you if the lights were on, correct?”

“Yes,” Dinius relied.

“Did you decline to talk to him about accident?” Hopkins asked.

Dinius said he did, telling Weber the crash was under investigation and he didn't feel comfortable discussing it. He didn't recall giving Weber an answer about the lights.

Shortly after Dinius left the stand, Haltom told the court that the defense rested.

Attorneys enter stipulations, hear from other witnesses

When court began earlier that morning, and before testimony got under way, Haltom read into the record two stipulations to which he and Hopkins had agreed.

The first was that no report was prepared by the Lake County Sheriff's Office regarding a contact witness Jean Strak said she had with a sheriff's deputy in the days after the crash.

The second stipulation between the defense and prosecution agreed that on April 29, 2006, sunset at the Clearlake Highlands took place at 8:01 p.m. and in Lakeport at 8:03 p.m., with civil twilight ending in the Clearlake Highlands at 8:30 p.m. and at 8:31 p.m. in Lakeport. The waxing crescent moon, of which only 5 percent was visible, set at 10:51 p.m. in the Clearlake Highlands and 10:52 p.m. in Lakeport.

The day's first witness was Malcolm Davy, who owns Down Under Boat Works in Kelseyville. The New Zealand native said he has considerable boating experience, and has built and repaired boats since he was a teenager.

Perdock called him within a few weeks of the crash to ask for a repair estimate to submit to his insurance company for his 24-foot Baja Outlaw powerboat. Although Perdock's boat had been impounded, Davy said he was allowed to see it in the sheriff's Boat Patrol facility at Braito's Marina.

When he went into the building both the powerboat and sailboat were cordoned off with security tape. Davy spent about 20 minutes examining the Baja.

The deputy wasn't with him the entire time. “Something happened, he had to leave me there. He had to go back to the office to do something. So I was there on my own.”

After examining the boat, “I was really surprised at the extent of the damage to the powerboat,” Davy said.

He explained that Bajas are a well designed and well built boat for offshore use – specifically, for going high speeds in ocean conditions.

Davy said here was a very large hole in the powerboat's bow – so large that the combing off the sailboat with all the winches still attached were stuffed into it. “It was very extensive damage.”

Haltom asked if that damage signified anything to him. Hopkins objected. Judge J. Michael Byrne allowed Davy to answer, and he said, “Yes.” When Davy said he had repaired boats before that have gone over other boats, Hopkins objected and Byrne sustained.

How did the damage compare to other boats he's seen? Haltom asked. Hopkins objected, saying it was irrelevant.

Haltom asked if he could compare this damage to that suffered by other boats. Davy said, normally, there's no damage to the boat going over, but Perdock's had a huge hole.

Dave said he was still collecting prices on replacement parts and gel coats when Perdock called and told him not to bother, that the case was going to be hung up for quite a while.

Richard Higinbotham, a former Lake County District Attorney's Office investigator, came to the stand next. A former California Highway Patrol officer of 22 years, his salary was covered by a driving under the influence grant that ran out on Dec. 31, 2008.

He said Deputy District Attorney John Langan, who he was assigned to assist, directed him to interview Perdock, which he did on Sept. 24, 2008.

During the interview they talked about the investigation, said Higinbotham. Nautical terms came up with which Higinbotham said he wasn't familiar.

Higinbotham said Perdock wanted “to express that certain things could be brought to light with the investigation.” Perdock gave Higinbotham a copy of a report done by GAB Investigations, a firm his insurance company had hired to investigate the incident.

During the interview, which wasn't taped, Higinbotham said they discussed wind speed, the speed of the boats, a possible re-interview of Jim Walker, Perdock's friend who was with him on the powerboat during the collision, the collision's mechanics and the lighting conditions.

Haltom asked the purpose of the interview. “I don't know,” said Higinbotham.

Higinbotham said it was his understanding that Perdock had concerns about the investigation that could be helpful. In his report he suggested that if any more interviews were conducted with Perdock that someone more experienced with nautical terms be present. Higinbotham said his experience involved accident reconstruction for vehicles, not boats.

He took a copy of the GAB report, which he attached to his report, and gave the original GAB document back to Perdock.

Hopkins asked Higinbotham if he felt that he was mandated to do things Perdock suggested. He said no. “The only thing I did do was document the interview,” he said.

Court sets out tentative schedule for rest of trial

After the defense rested for the day, Byrne told the jurors that Hopkins had the right to bring rebuttal evidence, which is scheduled for Friday, and that jurors would be excused for the rest of the day.

“We are still running ahead,” said Byrne.

He told the jurors that they may hear evidence from both sides on Friday, and he encouraged them to keep open minds until they've heard everything.

As he dismissed them, Byrne told jurors, “Pretty soon you're going to have to go back to the real world.”

With the jury gone, Haltom finished entering items into evidence, with Hopkins successfully objecting to the entry of a diagram drawn by Lt. Charles Slabaugh of the Sacramento County Sheriff's Office, who helped investigate the case.

Also excluded for lack of foundation was a local Masonic Lodge picture that featured District Attorney's Investigator John Flynn. Perdock, who is also a member, wasn't pictured. “It shows them wearing really goofy purses,” Haltom quipped.

On Friday, Hopkins' rebuttal witnesses will include Ostini, District Attorney's Investigator Craig Woodworth and Deputy John Gregore. Also to be called is Lake County Publishing reporter Denise Rockenstein. She gave the prosecution information about a defense witness, John Jansen, who testified on Wednesday to seeing Perdock in the outside bar at Konocti Harbor Resort & Spa and racing boats with him a few hours before the crash.

Byrne will work with Hopkins and Haltom on jury instructions on Monday, which Dinius has waived his right to attend. On Tuesday, Aug. 18, a hearing is planned regarding Perdock's personnel records. Haltom could recall Perdock to the stand based on the outcome of the records hearing.

The judge estimated closing arguments could begin Aug. 18, with the jury getting the case later that day or the next day, Wednesday, Aug. 19.

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

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