Allen v. State

Melvin, J., delivered the opinion of the Court. On August 21,1976, a collision occurred between an 18 foot “Sleekcraft” pleasure boat powered by a 325 H. P. eight cylinder engine and operated by the appellant, Charles Elliott Allen, Jr., and another pleasure boat, a 13 foot “Boston Whaler” powered by a 40 H. P. outboard motor and operated by Charles Turner Bland. The collision occurred on the waters of South River in Anne Arundel County, just north of the Riva Bridge located near the headwaters of the river. At the time ⁶⁸⁹ of the collision, appellant’s friend, Mr. George Ball, was his only passenger.

The Boston Whaler was occupied by four persons including the operator. A fifth person, James Bland, III, was being towed by the Boston Whaler on a water ski attached to the Whaler by 75 feet of tow line. The force of the impact between the two boats resulted in the instant death of one of the Boston Whaler’s passengers. As a further result of the tragic accident appellant was convicted by a jury in the Circuit Court for Anne Arundel County (Evans, J., presiding) of the statutory misdemeanor of “manslaughter by motor boat”.

Md. Ann. Code, Art. 27, § 388 (1976 repl. vol.). 1 The statute reads in pertinent part as follows: “Every person causing the death of another as the result of the driving, operation or control of an automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle in a grossly negligent manner, shall be guilty of a misdemeanor to be known as ‘manslaughter by automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle,’....” (Emphasis added). Appellant contends on appeal that 1) the evidence was legally insufficient to justify his conviction; 2) the trial judge erred in sustaining objections to various hypothetical questions he posed to expert witnesses; 3) he was denied a fair trial by the trial judge’s failure to prohibit reference to his boat as a “jet boat” and by alleged inflammatory remarks of the prosecutor in closing argument; and 4) the jury instructions were erroneous in various respects. As we find no merit to any of these contentions, we must affirm the judgment of conviction. ⁶⁹⁰ Sufficiency of the Evidence At the close of all the evidence, appellant’^ motion for judgment of acquittal was denied by the trial judge. The issue of the legal sufficiency of the evidence is therefore properly before us.

Lotharp v. State, 231 Md. 239 , 189 A. 2d 652 (1963); Barnes v. State, 31 Md. App. 25 , 354 A. 2d 499 (1976). The scope of our review of the issue, however, is limited. We do not decide the guilt or innocence of the accused. In reviewing the sufficiency of the evidence in a jury trial, we do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt.

Rather it is our limited function to determine whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the offense charged. If there is such evidence, the trial judge correctly denied the motion for judgment of acquittal; if there is no such evidence, denial of the motion would be reversible error. Wilson v. State, 261 Md. 551 , 276 A. 2d 214 (1971); Hines v. State, 34 Md. App. 612 , 368 A. 2d 509 (1977); Vuitch v. State, 10 Md. App. 389 , 271 A. 2d 371 (1970). As it is with the crime of “manslaughter by automobile”, the gist of the crime of “manslaughter by motorboat” is causing the death of another by operating, driving, or controlling a motorboat in a “grossly negligent manner”.

Whether that statutory standard has been violated depends upon “whether the conduct of the defendant, considering all the factors of the case, was such that it amounted to ‘a wanton or reckless disregard for human life’ ”. See Blackwell v. State, 34 Md. App. 547, 556 , 369 A. 2d 153 (1977), cert. denied, and Boyd v. State, 22 Md. App. 539, 550 , 323 A. 2d 684 (1974), cert. denied, 272 Md. 738 (1974), and cases therein cited. In the instant case, although the evidence is in some conflict as to the details of how and why the accident occurred and susceptible to opposing inferences, we think it was legally sufficient to support a finding that beyond a reasonable doubt the appellant operated his boat “in a grossly negligent manner” thereby “causing the death of another”. ⁶⁹¹ The driver of the Boston Whaler testified that shortly prior to the accident he was towing a skier on a 75 foot long tow line, proceeding southeasterly approximately 150 feet from and parallel to the southern shore of the river. He estimated his speed at between 20 and 25 M.P.H. Another boat (not involved in the accident), also towing a skier, was following behind him at a distance of approximately 200 feet.

This boat, referred to in the evidence as the “blue boat”, was travelling at the approximate speed of the Boston Whaler. When the Boston Whaler reached a point approximately 150 feet from the Riva Bridge spanning the river, it made a 90° turn to the left and proceeded on a course parallel to the bridge. There is evidence that when the Boston Whaler made its left turn, the Sleekcraft, driven by the appellant, was also travelling southeasterly in the approximate center of the river. At that point the river is approximately 1,600 feet wide.

The driver of the Boston Whaler testified that as he “got ready to make the turn”, he saw the Sleekcraft “some distance to the center and behind” him. After completing the turn the Boston Whaler proceeded on its course parallel to the bridge for a period of approximately ten seconds. The driver described the happening of the accident as follows: “Q. AÍ1 right, what happened next after you continued for that period of time? A. We were coming parallel to the bridge____I saw the other boat which was — now it had changed its course.

It wasn’t coming — going towards the south bend it was coming directly at me. I immediately cut back the throttle and the front end of our boat dropped down____ A. Okay, what actually happened was his boat — the front end is higher in the water, you know, and especially since I — after I had cut back on the throttle the Boston Whaler the front end drops when you cut back on the throttle; our front end dropped and his boat, the front end ⁶⁹² came over the top of ours until the about mid-point in his boat hit our left front bow. Q. All right, the mid-point of his right or starboard side hit your left front or port side? A. Right.” He further testified that after seeing the Sleekcraft when he made his 90° turn to the left he did not see it again until it was 30 to 50 feet from him “coming directly at me”.

He could not estimate the speed of the Sleekcraft in miles per hour, but said it was “fast”. Other witnesses estimated its speed, variously, at 30 M.P.H. to 60 M.P.H. The force of the impact propelled all of the Boston Whaler’s occupants into the water, and, as already mentioned, caused the instantaneous death of one of them, who prior to the impact had been sitting in the left front of the boat. The appellant elected not to testify in his own behalf. His passenger, Mr. George Ball, did testify.

His testimony, however, is of little help to the appellant on the issue of appellant’s gross negligence. He testified that he (Ball) saw the blue boat and its skier (that was proceeding behind the Boston Whaler) but that he at no time saw the Boston Whaler until immediately prior to the collision. He only had time to say “look out” and hear the appellant say “ ‘Oh, my God’ and then the collision occurred”. The evidence mentioned so far, viewed in the light most favorable to the State, was legally sufficient to warrant a finding by the jury that a proximate cause of the accident and the victim’s resulting death was the appellant’s failure to keep a proper lookout and his further failure to keep out of the way of the Boston Whaler which was approaching him on his starboard (right) side in a crossing situation.

These failures violated two important Inland Rules of the Road that govern the navigation of all vessels upon the harbors, rivers, and other navigable inland waters of the United States, not including the Great Lakes and certain Western rivers. The Inland Rules of the Road have been established by various acts of the U. S. Congress, the first enactment being in 1897 (c. 4, § 1, 30 stat. 96). In addition to these statutory Rules ⁶⁹³ of the Road, there are the “Pilot Rules”, consisting of the regulations promulgated by the U. S. Coast Guard amplifying and interpreting the rules applicable to the local waters of the United States. Both the Inland Rules and Pilot Rules are contained in a pamphlet published by the U. S. Coast Guard, designated and numbered: “Rules of the Road, International-Inland” (CG-169).

They apply to all vessels on navigable inland waters and anyone who undertakes to operate a vessel (regardless of size and speed) upon these waters is charged with knowledge of their existence and the mandatory duty to obey them. 2 3 The Inland Rules of the Road are therefore highly relevant to a determination of negligence or gross negligence in any case involving a collision between two vessels operating on the navigable inland waters of this country. A violation of the Rules is evidence of negligence and if there is evidence that the violation is a proximate cause of a collision resulting in death and that the conduct of the defendant, considering all the factors of the case, amounted to a wanton or reckless disregard for human life, it will not be said that the evidence is insufficient to sustain a judgment of conviction of the statutory crime of “manslaughter by motorboat”. The two Rules of the Road we think the jury could have found to have been violated by appellant provide as follows: “Art. 19. When two steam vessels M are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other”.

( 33 U.S.C.A. § 204 ). ⁶⁹⁴ “Art. 29. Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect... to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case". ( 33 U.S.C.A. § 221 ) (Emphasis added.) Corollary to the duty imposed by Art. 19 are the duties imposed by two other applicable rules: “Art. 22. Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other.” ( 33 U.S.C.A. § 207 ). “Art. 23.

Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary slacken her speed or stop or reverse.” ( 33 U.S.C.A. § 208 ). Corollary to the duty imposed by Art. 29 (duty to keep a proper lookout) is the so-called “General Prudential Rule” set forth in Art. 27 of the Inland Rules as follows: “In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger”. ( 33 U.S.C.A. § 212 ). In the case at bar, there is evidence that the collision occurred at about 7:30 P. M. on a Saturday during daylight hours; that the weather was clear; that the water was calm and that there was nothing to prevent the appellant from seeing the Boston Whaler either before or after it made its 90° turn to the left.

There is also evidence that the Sleekcraft is a highly maneuverable craft and has a “very good braking” capability. This is because its propulsion is achieved by a jet ⁶⁹⁵ water pump rather than by a conventional propeller. An expert witness, offered by the appellant, explained: “Q. And you indicated it had very good braking. Would you describe what you mean to the jury?

A. I certainly will. In a propeller driven craft, it is necessary to bring the engine down to idle before putting it in reverse and the engine accelerated. In a jet boat this is not the case inasmuch as the only difference in the operation of forward and reverse is the direction of the water. When in forward position, the water is going to the back of the boat, that produces equal and opposite reaction to propel the boat forward.

In reverse motion the water is generally pushed forward which tends to put braking thrust on the boat if it’s stopped, pushed the boat backwards. Q. Can the boat be reversed almost instantly? A. It can be put into reverse instantly. Certainly the stopping action doesn’t occur instantly.

Q. Assuming the jet boat was travelling at thirty-five miles per hour, approximately what distance would it take after it was placed into reverse to come to a stop in the water? A. That would depend completely on the operator which was operating the boat. However, a boat such as this kind possibly could be brought to a stop as quick as I would say a hundred and twenty feet.” This evidence concerning the Sleekcraft’s maneuverability and “braking” capability is relevant to the issue of whether or not the appellant kept a proper lookout (Art. 29) and also whether or not he took the necessary steps to avoid the Boston Whaler approaching him from his starboard (right) side (Arts. 22 and 23). The evidence is clear that prior to the collision the appellant did not slacken speed at all.

There is some evidence, however, from which the jury could infer that a split second before the collision the appellant did attempt to avoid the Boston Whaler by turning left to cross ahead of ⁶⁹⁶ it. Under the circumstances, the jury could easily have found either 1) that appellant, although keeping a proper lookout, deliberately chose to rely on his craft’s maneuverability and speed in an attempt to avoid the Boston Whaler “at the last minute” by crossing ahead of him — a violation of both Art. 22 (avoid crossing ahead of a privileged vessel) and Art. 23 (duty to slacken speed, stop or reverse to avoid a privileged vessel), both of which violations could easily have been avoided because of the Sleekcraft’s maneuverability; or 2) that appellant simply was not looking where he was going, a clear violation of Art. 29. The duty to keep a proper lookout imposed by Art. 29 applies, of course, whether or not the vessel is the privileged or burdened vessel and is perhaps the most important of all the rules of navigation. It has been described as “an inexorable requirement of prudent navigation” the failure to perform which is “so grave a default as to give rise to a strong inference that it contributed to the accident....” See Judge Soper’s opinion in Anthony v. International Paper Company, 289 F. 2d 574 , 580-581 (4th Cir. 1961).

The jury could also have found that, although there was no speed limit at the site of the accident, appellant’s speed (up to 60 M.P.H.) was unreasonable under the circumstances and, at the least, should have induced him to be particularly watchful of other craft in the area. There was also evidence, introduced without objection, that after the collision the appellant immediately drove his boat, still at high speed, from the scene without stopping to offer assistance to those who had been thrown into the water by the impact. Additionally, the State introduced evidence, again without objection, that would support a conclusion that the appellant was operating his boat under the influence of an intoxicating beverage. All of this evidence constituted relevant factors to be considered by the jury on the issue of guilt or innocence of the crime of manslaughter by motor boat.

See Boyd v. State, supra. While there was opposing evidence introduced by the defense, it was the jury’s function and not the trial judge’s, nor is it our function, to determine its weight or credibility. In sum, having carefully reviewed the record before us, we conclude that the trial judge was correct in allowing the jury ⁶⁹⁷ to make the ultimate decision in this case. It follows that the motion for a directed verdict was properly denied.

Expert Testimony (a) The trial judge sustained the objection to two hypothetical questions posed to a waterskiing expert called as a witness for the appellant. The questions sought to elicit testimony as to what would be “the correct method of operating the Boston Whaler” under the circumstances propounded in the hypotheticals. Appellant proffered 4 that the purpose of these questions was to show that “good seamanship under the circumstances” required the Boston Whaler “to turn right in a situation approaching the bridge, come to a stop, to slow down considerably ... and that it was a burdened vessel”. We first note that “[i]t is generally recognized that the whole problem [of the propriety of hypothetical questions and the qualifications of witnesses to answer them] is one which should be left to the sound discretion of the trial court.” Williams v. Dawidowicz, 209 Md. 77, 86 , 120 A. 2d 399 (1956); see also Nolan v. Dillon, 261 Md. 516, 532 , 276 A. 2d 36 (1971) and Greenstein v. Meister, 279 Md. 275 , 368 A. 2d 451 (1977).

In the instant case, it is not at all clear from the record that the witness to whom the hypothetical questions were posed was ever qualified as an expert on “seamanship” or the applicable rules of the road. Assuming that he was so qualified, we find no abuse of discretion by the trial judge in sustaining the objections. Whether the Boston Whaler was operated “correct[ly]” was, we think, a factor to be considered in determining whether the appellant’s conduct vis-á-vis the Boston Whaler amounted to gross negligence, 5 but that issue (the ⁶⁹⁸ “correctness” of the Boston Whaler's operation) was one peculiarly within the province of the jury to determine under appropriate instructions from the court. While it may be true, as argued by the appellant, that in certain situations “persons of nautical skill and experience may be used to indicate usual procedure where there is a disputed question of navigation”, where, as in the case before us, the navigation of vessels involved in a collision is governed by statutory rules and regulations, there is no need for expert testimony.

One of the cases cited by the appellant supports this view. In The “City of Washington,” 92 U. S. 31 (1875), the Supreme Court said: “----Parties litigant, however, are allowed in such controversies to call and examine persons of nautical skill and experience as expert witnesses; and they may, if