Friday, Jul 25, 2014
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Carlson guilty of two misdemeanors


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VERO BEACH - After a five-day trial, a six-woman Indian River County jury found Sebring accountant Jeff Carlson guilty on Friday, but they chose two lesser included offenses instead of two felonies.

Prosecution and defense attorneys summarized until after 4 p.m. The jury was instructed by Circuit Court Judge Robert Pegg, and returned at 8:15 p.m.

Carlson, a former Sebring city councilor and Highlands County commissioner, had been accused of manslaughter and boating under the influence after his 22-foot boat crashed into a channel marker near Capt. Hiram's Restaurant in Sebastian on the night of July 24, 2010. His wife, Julie, 38, was fatally injured.

Orlando defense attorney Michael Snure called Carlson, now 43, to the witness stand Friday morning. Carlson testified he had two beers that morning three years ago, then two rum and cokes that evening with his appetizer and dinner.

Then, Asst. State Attorney David Dodd alleged, Carlson got into his boat, impaired, in the dark, with a spotlight not working, and raked the boat into a piling the size of a telephone pole.

Julie's brother Scott and his wife Annie Noethlich were sitting in the bow. All three saw the pole and called out, but it was too late. Carlson's wife fell into a gunwale, fatally injured.

The rest of the evening was a nightmare: Carlson, held by law enforcement, frantic, not knowing whether his wife was dead or alive.

Friends for decades, Carlson, Julie and the Noethlichs had taken the boat to Fort Pierce for five years. In July 2010, they arrived on a Thursday at their Avalon State Park camp. Carlson was familiar with the waters. Carlson and Noethlich used the spotlight to navigate on Friday and it worked well.

The memories stirred up 70 minutes of tearful testimony. Carlson constantly choked, cleared his throat and dabbed his eyes with Kleenex. Lunch on Saturday, the day Julie died, was at a waterside grill. Carlson had soup. grouper, rice and a rum and coke.

On both Friday and Saturday mornings, Carlson admitted frankly, he probably drank a couple of beers. They had two coolers, and their empties remained on the boat so they could be recycled back in Highlands County. He may have drunk another beer that afternoon while they stopped at Sebastian to fish.

They arrived at Captain Hiram's marina around 7:30 p.m. It was still daylight and with the channel markers and signs clearly visible, his boat cruised in at 10 mph. He showed the jurors on a posterboard map where he docked the boat.

"When you arrived, were you under the influence in any way?" Snure asked.

"No sir."

The party ordered appetizers and the women received a large Bombay Smash drink with umbrellas. Carlson chose a bacon cheeseburger and a second rum and coke.

After 45 minutes in the dance area, when the band took its 10 p.m. break, the Carlsons and Noethlichs decided to leave. That's when they realized the spotlight didn't work. Carlson operated the boat, even though Noethlich had testified Tuesday he would have preferred to drive because he hadn't drunk as much.

There was a full moon that night, Carlson recalled. "I could see reflected material in the distance." He pointed to a posterboard exhibit to show the jury two tall pilings in the water with signs at the top and reflective tape below.

"They looked like two channel markers," Carlson recalled from three years ago. Another pole was in the middle, much closer in the photo.

"Of course, this is a daytime picture," Snure said. Then he put up another photo taken in the dark. The signs and reflective tape showed, but the telephone pole piling was as black as the rest of the photo. Carlson could see it from a few feet away in the witness box, and perhaps the jury could too, from 10-20 feet away, but it was all black from across the courtroom.

"Is that about how visible it was that night?" Snure asked.

"Until we got close to it," Carlson affirmed.

"How fast were you going?"

"I think we were going about 20, 22 mph."

Then Carlson had to describe the fatal moment, and he was sobbing so hard he took a moment before he went on. Scott and Annie Noethlich, seated on the bow, saw the unmarked piling in the water.

"Did they say anything?" Snure asked.

"Just before we hit the pole," Carlson said. "I don't remember the exact words. 'Watch out.' I saw it at the same time they were yelling."

If Carlson throttled back hard, Scott and Annie could have been thrown off. "You've got to process a lot of information in a few seconds," he said.

"Were you able to turn in time?" Snure asked.

"No, I mean, I hit the marker," Carlson continued. "Just before we hit the pole, my wife stood up and turned to walk toward me."

Then the boat raked the pole. "Julie spun and fell to the floor between the gunwales and the center console." Carlson said. He yelled for Noethlich to take the controls.

Back at the dock in a few minutes, Annie screamed to restaurant patrons for help. Two nurses began lifesaving efforts, Carlson testified.

Detained that night and separated from his wife and the Noethlichs, Carlson kept asking about his wife. "No one would talk to me."

"What was your emotional condition?" Snure asked.

"I wanted to be where she was. Where were they were taking her? What was happening? I kept begging them to tell me. They wouldn't bring me water or answer my questions."

Finally, he was taken to Sebastian River Medical Center and placed on an emergency room bed. His shirt had been cut off. Dressed in wet shorts and flip-flops, someone finally escorted him to lost and found for a shirt. Finally, a police officer appeared. Julie had been taken to a trauma center for surgery. Eventually, Carlson gave a blood sample and he was taken back to Capt. Hiram's.

"Were you drunk?" Snure asked.

"No.""Were you impaired?"

"No.""Had you been drinking?"

"Yes."

"If you had it all to do over again, would you do something different?"

"I would do anything to go back and get my wife," Carlson sobbed. "I made a mistake. If I hadn't gone that fast, maybe we wouldn't have..."

"Did you think you were heading into the channel?"

"Yes."

Jurors shouldn't take into account their own bias, prejudice or sympathy for Carlson, Dodd said during a half-hour cross examination. "This is what your job is as jurors."

How was Carlson's boat equipped, Dodd asked?

A 200-horsepower engine, Carlson answered.

"So you could get up 'on plane' very quickly?"

"Almost immediately."

Did Carlson realize those pilings were there?

Yes, he had passed them earlier, but he had been paying attention to boat traffic then.

"Would you agree that they were present?"

"If I didn't see them, I'm not sure how I could testify they were present," Carlson said. "I knew there were obstacles out there."

But it was his decision to leave the restaurant twice as fast as he had entered, Dodd asked?

"It was, yes," Carlson began sobbing again.

Instead of returning the same way he came in, Carlson cut corners and chose a new path out of the marina, Dodd accused. "You could have idled out using that same path... You're experienced, you know a boat doesn't have brakes. No seat belts."

"They were all seated and holding on," Carlson reasoned. "I could have done a lot of things."

"You drove it into that piling."

"The boat hit a piling," Carlson agreed.

"After drinking all day, you made that decision to put the boat up on plane in unfamiliar waters."

"I made the decision," Carlson agreed.

"Did you try to kill your wife?" Snure recrossed.

Carlson began sobbing again. "No."

When they came back from lunch, Dodd and Snure began 2.5 hours of summations.

"It was a tragedy, but not a tragic accident," the prosecutor told jurors. Carlson's decisions and judgment were affected by alcohol, which made him reckless. "That's what causes us to be here today."

Dodd picked up a plastic evidence bag which he said contained 17 cans and bottles of beer. "And this doesn't include what he was drinking for lunch and dinner."

Carlson's alcohol-impaired judgment had set him up for failure, Dodd said. Carlson had immediately goosed the engine to more than 20 mph.

Dodd told the story differently from Carlson, that it was dark that night. "No backlighting; no way to see those obstacles." Earlier witnesses had testified that Carlson's boat "disappeared into the darkness," Dodd reminded the jury. When standing at the end of Captain Hiram's dock and looking east - the way Carlson left that night - "It's just black, it's a void. You can't see anything."

"I'm not going to get up here and tell you Mr. Carlson was drunk," Dodd explained. "That's not what 'under the influence' means."

It was up to them, Dodd instructed the jury, to decide whether Carlson was boating while impaired. It was also up to jurors to decide whether Carlson was reckless, and that depended on the conditions Carlson had found himself in, which were different that open water with no obstacles.

However, Dodd stated, "The operation of that vessel was absolutely reckless. Never travel faster than you can see. That's common sense. If you don't what's out there, go slow. Slow down or stop or until you can figure it out." The rules are the same for driving a car, Dodd reasoned, and stated that Carlson violated numerous navigation rules.

"An interesting trend has developed late in the game," Snure closed. "For the better part of this week, the state has been trying to prove a crime has been committed, and they've failed... This is not a morality issue. This is about whether someone committed a crime, and whether the government has proven an allegation.

"It's impossible to know what he drank out of that bag," Snure said, holding up the garbage-sized clear plastic container of bottles and cans. Carlson stands over six feet tall, and for a man his size, the alcohol drank before lunch would disappear by suppertime.

The state, Snure said, "is not interested in the real facts. Drinking all day? Is that the testimony? No."

By holding up that bag of bottle and cans, the state wants to taint the evidence, Snure asserted, recalling the testimonies of Annie and Scott Noethlich and Carlson. All three testified that Carlson was not impaired. The Noethlichs have had three years to reflect on the accident, and they don't blame him for Julie's death, Snure said.

"No one has a greater motive to want to see Jeff punished than Scott Noethlich," Snure said.

He repeatedly made an issue of the Carlson's blood sample being lost after the FDLE lab tested it. "The whole thing smells. I know this, that happened in April 2012. And since then, Mr. Carlson hasn't had the ability to test that blood."

"He knows he made a mistake," Snure said. "It's up to you to decide whether consequences of that are a crime. Just as importantly, just because the state says it is so, doesn't make it so. I hope you have found a doubt, and that you will find Mr. Carlson not guilty."

Although Snure produced an expert to claim Carlson's blood alcohol test was unreliable, Dodd rebutted that the state proved it was "tested in a reliable manner well before it was lost. Why does the fact that it was lost matter?"

Carlson was going fast enough that when he hit a pylon, he killed a passenger, Dodd said, suggesting that the boat's speed may have been as high as 28 mph. Carlson's drinking set up him for failure.

Judge Pegg set the sentencing date for 1:30 p.m. on Oct. 21.

gpinnell@highlandstoday.com

863-386-5828

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