State v. Martin

• Decision Date: 07 September 2007
• Docket Number: No. 04-405.,04-405.
• Parties: STATE of Vermont v. George Dean MARTIN.
• Court: Vermont Supreme Court

944 A.2d 867

2007 VT 96

STATE of Vermont v. George Dean MARTIN.

No. 04-405.

Supreme Court of Vermont.

September 7, 2007.

Motion for Reargument Denied September 27, 2007.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, and John T. Quinn, Addison County State's Attorney, and Whitney K. Lunsford, Deputy State's Attorney, Middlebury, for Plaintiff-Appellee.

William A. Nelson, Middlebury, and Rubin Kidney Myer & DeWolfe, Barre, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON and BURGESS, JJ., and GIBSON, J. (Ret.), Specially Assigned.

¶ 1. BURGESS, J.

Defendant was charged, convicted, and sentenced on two counts of boating while intoxicated, 23 V.S.A. § 3323, death resulting (BWI/Fatal), id. § 3317(f), after the boat he was operating on July 4, 2002 capsized, resulting in the deaths of two children. On appeal from his conviction and sentence, defendant claims the trial court erred by: (1) finding jurisdiction in Vermont beyond a reasonable doubt; (2) denying defendant adequate voir dire during jury selection; (3) excluding defendant's evidence of the accident's reenactment; (4) excluding evidence that the boat's manufacturer modified the design to correct safety defects in the boat that capsized; (5) instructing the jury incorrectly on the element of causation; (6) calling attention to defendant's failure to testify; (7) ruling that defendant's seven-year-old felony conviction was admissible for impeachment purposes; and (8) allowing him to be convicted and sentenced for more than one offense arising from a single incident, in violation of 23 V.S.A. § 3323(e). We affirm defendant's conviction on a single count of BWI/Fatal, reverse defendant's second conviction, and remand for resentencing.

¶ 2. Following is a brief summary of the facts and evidence at trial. Additional facts are included in the relevant discussions of particular issues. On the night of the capsize, defendant took a group of friends and neighbors onto Lake Champlain in his brother-in-law's boat to watch a fireworks display at Basin Harbor. He drove the boat to a point on the lake near Diamond Island, where he met a friend operating another boat with a group of people aboard. They tied the two boats together to watch the fireworks. After the display, they untied the boats, and defendant turned and accelerated to head back. There was a dispute at trial as to how fast defendant accelerated the boat and how sharply he turned it, but it was undisputed that the boat immediately capsized. Three children were trapped under the hull. One was saved by rescue efforts, but two children drowned.

¶ 3. The boat at issue was on loan to defendant, and defendant used it six times prior to the accident. Known by its brand name as a MacGregor 26X, the boat was a hybrid sailboat and motorboat. Unlike most sailboats, it lacked a conventional weighted keel protruding from its bottom as ballast to keep it upright. On this model, the stability usually provided by a keel came instead from a ballast tank built into the hull, which could be filled with up to 1400 pounds of water when needed. The boat was designed so that the ballast tank should be filled when operated as a sailboat and normally emptied when operated as a powerboat, except when carrying more than four people aboard—in which case, the manufacturer warned in the manual, the ballast tank should always be filled. The manual also warned not to overload the boat, and recommended a limit of six adults so as not to compromise the boat's stability. The manual further warned that when operated without the ballast filled, passengers should stay off the cabin top and foredeck to avoid instability.

¶ 4. On the evening of the capsize, defendant was operating the MacGregor 26X as a powerboat with eleven people on board — eight adults and three children. One adult was seated on the foredeck and another was standing atop the cabin. The ballast tank was empty. Defendant had never seen the owner's manual. Although the manufacturer typically puts decals on the boat warning about the number of passengers, their location and when to fill the ballast tank, the warnings were missing on this particular boat. Both the State and defense experts agreed that had the ballast tank been filled, the capsize would not have happened.

¶ 5. The manner in which defendant operated the boat just before the capsize was a central dispute at trial. The State's witnesses generally described a more dramatic acceleration and turn than was recalled by defense witnesses. One State's witness, a passenger on the boat to which defendant's boat had been tied during the fireworks display, testified that defendant "gunned" the motor, that she could tell from the white water coming out of the back of the boat that defendant "had almost put it on full throttle," and that defendant turned sharply to the left. She stated that she had "never seen a boat turn so sharply at the same time as accelerating so quickly." The witness's boyfriend also recalled a hard left turn. Another witness testified that the boat throttled up to eight to ten miles per hour and made a very sharp turn to the left when it capsized. On the other hand, two defense witnesses testified that the boat was moving at a slow walking pace and a five- to six-mile-per-hour walking speed, respectively, as one described a slow left turn and the other felt no change in direction.

¶ 6. Also disputed was whether the boat's instability should have been apparent to defendant. One defense witness described the boat as "tippy," while others, including a State's witness, recalled no problem with the boat's handling. At trial, the State's expert opined that defendant failed to recognize a tippy boat, perhaps as a result of alcohol-impaired judgment, although this expert also agreed that he would not ordinarily expect his own twenty-one-foot ski boat with eleven people aboard to capsize in calm water. Defendant's expert opined that the boat would have appeared normal and that, absent any warning to the contrary, there was no reason to suspect the MacGregor 26X had any potentially unsafe characteristics. At the same time, defendant's expert acknowledged that this boat, without ballast, did not have a lot of stability and would be "very tender" with more than four people aboard, and that its inherent instability could have been obvious to an experienced operator.

I. Jurisdiction

¶ 7. We begin with defendant's contention that the trial court erred in ruling that the capsize occurred within the jurisdiction of Vermont. The State and defendant stipulated that the State would have the burden to prove beyond a reasonable doubt that the boat was in Vermont waters at the time of the capsize. The parties also jointly requested the court to hear the evidence and decide the jurisdictional issue in a proceeding separate from the jury trial, and defendant waived his right to a jury trial on that issue. After a two-day bench trial, the court concluded that the State had established beyond a reasonable doubt that the boat capsized within Vermont's boundaries. On appeal, defendant contends that the evidence was insufficient to sustain the State's burden of proof. Additionally, defendant argues that the trial court's findings demonstrate that it unconstitutionally shifted the burden of proof to him on the question of jurisdiction.

¶ 8. Our standard of review on the sufficiency of evidence is well established. We must determine if the evidence, viewed in the light most favorable to the State and excluding modifying evidence, fairly and reasonably supports a finding beyond a reasonable doubt that the boat was in Vermont waters at the time of the capsize. State v. Robar, 157 Vt. 387, 391, 601 A.2d 1376, 1378 (1991). The evidence supporting the trial court's conclusions "must be examined both for its quality and strength." State v. Gibney, 2003 VT 26, ¶ 2, 175 Vt. 180, 825 A.2d 32 (quotation omitted). While evidence that leaves the determination of a disputed fact wholly dependent on conjecture or mere suspicion is insufficient, circumstantial evidence may serve as proof of a fact beyond a reasonable doubt. Id. ¶¶ 2, 13. "In assessing circumstantial evidence, the fact-finder may draw rational inferences to determine whether disputed ultimate facts occurred." State v. Durenleau, 163 Vt. 8, 12, 652 A.2d 981, 983 (1994).

¶ 9. We briefly summarize the State's evidence. Five members of a rescue group arrived on the scene to assist within roughly thirty minutes of the capsize. All had extensive boating experience and familiarity with the Diamond Island area of Lake Champlain where the capsize occurred. Each rescuer was able to recollect his route to the boat, and each identified the location of the capsized boat as somewhere just north of Diamond Island. Three of the rescuers accompanied the State's witness, Dean George, on the lake sometime after the capsize incident, and each physically located a spot on the water where they recalled the boat was positioned when they arrived on the scene.¹ Mr. George is an auxiliary member of the Marine Division of the Vermont State Police and a retired state police diver. He has extensive boating experience, training on search and recovery operations, experience with the Diamond Island area of the lake, and experience with the use of marine charts, navigational radar and the satellite-based global positioning system (GPS). Mr. George took GPS coordinates of the locations the others identified and mapped them, showing each location close to Diamond Island. The court found these three rescuers to be credible, unbiased and confident in their recollections.

¶ 10. The boundary line between Vermont and New York runs along the middle of the deepest channel of the lake. The court accepted this boundary definition on the basis of testimony from one of the rescuers and Mr. George, and determined this fact to be undisputed. Using...