AP Legal Affairs Writer
---- — BOSTON — The details of the boating crash were haunting: A power boat slammed into a man and his 10-year-old son fishing from a kayak, shearing off the boy’s left arm and puncturing his lung as his distraught father tried in vain to save him.
Prosecutors said the boat driver, Steven Morse, was impaired by alcohol and marijuana when he hit Gus Adamopoulos and his father. Morse contended that he was temporarily blinded by sun glare off the lake while pulling a friend on water skis.
Next month, the state’s highest court will be asked to consider whether Morse’s convictions for misdemeanor homicide by vessel and misleading a police officer should be overturned.
Morse’s lawyer argues that prosecutors didn’t prove he was impaired. He passed several field sobriety tests and two breath tests that night.
Prosecutors presented testimony that Morse drank five beers and smoked marijuana three times in the hours before the crash. They also called a drug recognition expert who testified that the combined effects of alcohol and marijuana can cause impaired perception of time and distance, judgment and critical thinking.
Morse, of Westfield, insists he wasn’t impaired when he took the boat out on Norwich Lake in Huntington on Aug. 17, 2010.
His appellate lawyer said the state’s expert testified only generally about how alcohol and marijuana might affect someone.
“(The expert’s) testimony told the jury nothing about what the actual effects of Mr. Morse’s consumption of beer and marijuana actually or even likely were, and instead only told them what they could have been,” Merritt Schnipper wrote in a legal brief.
Prosecutors offered two theories under the charge of homicide by vessel: Morse was negligent because he didn’t slow down or take any other evasive action when he became blinded by the sun, or he operated the boat under the influence of an intoxicating substance. The judge told the jury that if they found Morse guilty, they had to specify which theory they believed.
Morse’s lawyer argues that his conviction must be overturned because prosecutors didn’t prove he was impaired and the jury never specified the theory.
He is also challenging the state law on misleading a police officer, saying it is overly vague and violates the constitutional right against self-incrimination.
But prosecutors say they amply proved that Morse drove the boat while under the influence. After turning into the sun, Morse continued to operate the boat for four seconds before hitting the kayak, and a man on shore said the boat kept moving even after that.
“Considering these factors, the jury readily could have concluded that the defendant’s consumption of alcohol or marijuana diminished his ability to safely operate the ski boat by impairing his temporal and spatial perception, slowing his reaction time, and exacerbating his eyes’ vulnerability to light,” Assistant District Attorney Thomas Townsend argued in a legal brief.
Prosecutors said Morse misled police and intentionally hindered their investigation by withholding that he had smoked marijuana. State troopers never asked specifically about marijuana but did ask whether he had consumed anything other than alcohol that might have impaired his ability to know what was going on around him. He answered no.
Morse’s lawyer contends that his response to the trooper’s “ambiguous question” cannot be considered a false statement. He said Morse’s rights against self-incrimination were violated because he was convicted based on his refusal to tell police he had smoked marijuana that day, which would have helped police gather evidence against him.
But James Adamopoulos said Morse’s answer virtually shut down any further testing by police. Since his son’s death, he has pushed for a change in the law that would require mandatory testing for both drug and alcohol use after fatal vehicular crashes.
“He knew full well that if police did not know about his consumption of marijuana — and not seeing evidence there in the boat — they would not investigate further. Therefore, no further questions about the specifics of the marijuana use, no efforts to confiscate the marijuana nor test its potency, nor to seek a warrant to test Steven Morse for the presence of the drug in his system. And that is just what happened,” Adamopoulos said.
A man who had smoked marijuana with Morse that day later told police about it, so prosecutors were allowed to use his testimony.
Morse was acquitted of six other charges, including manslaughter, and sentenced to five years in a county jail. He was freed on bail after a little over a year while he appeals his conviction.
“He’s always been remorseful about it. He’s never taken this cavalierly. He has a young son himself,” said Michael Jennings, Morse’s trial attorney.
The Supreme Judicial Court will hear arguments Feb. 3.