LAKEPORT – Following nearly an hour of legal instructions Wednesday morning, the judge in a fatal sailboat crash case handed it over to the jury, which will decide if a Carmichael man was responsible for the injuries suffered by a woman in a nighttime collision more than three years ago.
The prosecution and defense made their closing arguments in the trial of 41-year-old Bismarck Dinius on Tuesday. The trial has included 13 days of testimony and 51 witnesses, four of which were recalled to give additional or rebuttal testimony.
Now the case is in the hands of the jury, whose members are considering a felony count of boating under the influence causing great bodily injury to 51-year-old Lynn Thornton of Willows.
If they reject the felony, they would then consider two misdemeanor charges of boating with a blood alcohol level over 0.08 and boating while under the influence.
District Attorney Jon Hopkins alleges that Dinius – who was at the tiller of a sailboat owned by Thornton's boyfriend, Mark Weber, on the night of April 29, 2006 – was negligent in operating the boat without its navigation lights on Clear Lake. Dinius also is alleged to have had a blood alcohol level of 0.12.
The sailboat was hit from behind by a powerboat driven by Russell Perdock, an off-duty chief deputy with the Lake County Sheriff's Office. While an initial investigation report from a Sacramento County Sheriff's official found that Perdock broke safe speed rules – testimony has alleged he was going between 35 and 50 miles per hour – he was not charged.
But Perdock's speed and questions of proximate cause and responsibility have been key parts of the case, with defense attorney Victor Haltom arguing that Perdock's speed led to the crash.
Just after 9 a.m. Wednesday Judge J. Michael Byrne began reading the instructions to the jury. Byrne, Hopkins and Haltom had crafted the instructions, which laid out the laws which the jurors needed to consider in making their decision. A copy of the jury instructions were given to jurors to take with them into deliberations.
“You're going to get a lot of instructions at one time,” said Byrne, explaining that the law required him to read them the instructions in open court.
He began by telling the jury, “You must decide what the facts are. It is up to you, and you alone, to decide what happened.”
Jurors must follow the law even if they disagree with it, and must abide by the instructions over the statements made by the attorneys.
The attorneys' remarks and questions are not evidence, but testimony is, said Byrne. Testimony stricken during the trial must be disregarded. Stipulations – agreements to which both attorneys agree – may be accepted by true.
In weighing testimony, Byrne said jurors should consider how well witnesses could see or perceive things about which they testified and how well they could remember.
Witnesses' behavior also is important; were they influenced by bias or prejudice? Did they make previous statements that were, or were not, consistent with their testimony on the stand? If a witness deliberately lied on the stand, the jury should consider not believing anything that witness had to say, explained Byrne.
Jurors may compare witness qualifications and disregard all or any part of an opinion that they find unbelievable, unreasonable or unsupported by evidence, the judge said.
He went over the charges against Dinius, which stemmed from the allegation that he failed to show ordinary care and didn't fulfill his duty to exhibit side lights. Byrne said the jury can convict Dinius if the resulting injury – Thornton's – was a direct result of Dinius allegedly failing to show ordinary care and fulfill the duty.
If the jurors believes that the sailboat's lights were on at the time of the collision, they can't find Dinius guilty on the felony boating under the influence count, said Byrne.
“There may be more than one cause of injury,” said Byrne, and the failure to perform a legal duty causes an injury only if it's a substantial factor.
To find Dinius guilty, the jury must not only find him to have committed an act or failed to do the required act, but that he did do so with wrongful intent, said Bryne.
Byrne read through the navigational rules, which included a statement about the master of the vessel, who “holds his appointment at the pleasure of the owner.”
Any vessel overtaking another shall stay out of the way of the vessel it's overtaking, Byrne noted. “A power driven vessel shall keep out of the way of a sailing vessel.”
He said the law requires all vessels on inland waters to proceed at a safe speed at all times, and boats must take action to avoid collisions.
As he finished the instructions, Byrne told the jury to appoint a foreperson, keep open minds and freely exchange ideas as they tried to reach a verdict.
“Your role is to be an impartial judge of the facts, not to act as an advocate for one side or another,” he said, adding that the case must only be discussed in jury room when all jurors are present.
Exhibits would be sent into the jury room with the jury when they begin deliberations, said Byrne. “The verdict on each count must be unanimous.”
He added, “You must reach your verdict without any consideration of punishment.”
The nine-man, three-woman jury was then sent to begin deliberations, with one female alternate and one male alternate dismissed but placed on call if they were needed. Bailiff Dave Jones was then sworn in; he'll remain outside of deliberations but available to the jury to relay messages to the judge.
Deliberations continue through rest of day
Over the course of five hours, the jury deliberated on the case in a small jury room next to the Department One courtroom, which remained open and was inhabited by the bailiff, a court clerk and several members of the news media, who reported that they could heard loud talking, exclamations and partial sentences coming from the jury room.
Shortly before 3 p.m. the jury rang a buzzer attached to a white light over the jury room door. When Jones when to see what they needed, he was handed a piece of paper with questions on it. Judge Byrne came in, looked over the document and told Jones to call the attorneys.
When Hopkins arrived a few minutes later, he stated that he understood members of the media had reported about the sounds from the jury room and announced it was a misdemeanor for people to hear the jury deliberations. That's despite the fact that the people in the courtroom were in a public setting.
Haltom and Dinius returned to court shortly before 3:30 p.m. and court reconvened out of the presence of the jury, which had continued deliberating.
Byrne read the jury's questions: “Can we get written rules regarding navigation rules?”
They also wanted clarification on the definitions of “master” and “crew.”
Haltom wanted to give them the navigation rules under judicial notice.
He also suggested telling them that the master is the owner and the crew is composed of others on the boat. “That's clearly the opposite of what the law says,” replied Hopkins.
Hopkins said the Harbors and Navigation Code talks about operators, masters, mates and seamen, and a whole host of other concerns. “They even talk about what happens if pirates take over the ship,” said Hopkins.
Byrne pointed out that the rules don't go specifically into pleasure boats on lakes.
“My view of this is like the jury asking us, 'How deep is the lake at that point?'” said Hopkins.
“Let's honor their request and give them the rules,” said Haltom.
Hopkins said those rules were not in evidence but had been given as instructions. “We gave a substantial number of rules.”
As the judge was preparing to have the jury brought in, Hopkins complained that the noise strip on the jury room door wasn't working, and he suggested closing the courtroom to the public. “We've got people in here who can listen.”
Byrne said he would close the courtroom, which Haltom objected to, saying it was a violation of the Constitution. Hopkins replied it was a misdemeanor to hear the jury's deliberations.
The jury came in shortly after 3:30 p.m., at which time Byrne told them that the court wasn't exactly clear on their questions.
Regarding the jury's request about navigation rules, Byrne told them that what they have in their instructions are the rules.
The jury also wanted clarification on the master and crew. “That was the one that we were wondering about,” said the female foreperson.
“We gave you that rule and there's nothing else in there,” said Byrne.
He suggested the jury could write out more specific questions.
“I don't want to get into a dialogue. I've made mistakes trying to do that,” said Byrne, before sending the jury back in to deliberations.
Once the jury was back in its room, the judge suggested the attorneys wait a few minutes to see if more questions were forthcoming, but none emerged.
In the meantime, Haltom argued to the judge that closing the courtroom to the public would be a violation of the Sixth Amendment of the US Constitution – the right to a speedy and public trial – and would violate the California Constitution as well.
Byrne said he would open the courtroom again when the court went on the record. He said it's a balancing act between the public and the defendant's rights and the jury's right to privacy.
He also stated he could hear the noise of the jury from the next room.
The courtroom was then closed and the observers waited in the fourth floor hallway until the jurors asked to go home at 4 p.m. and were dismissed for the day.
Jurors will return at 9 a.m. Thursday to continue their deliberations.
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