A Tacoma attorney charged with "assault by watercraft" wants prosecutors to release his impounded boat to him so his expert can put the vessel into the water to run tests on it.

Donald Winskill, the lawyer defending Robert Denomy, says the tests are key to his client's defense. Denomy, 55, contends he wasn't driving recklessly or at excessive speeds when his boat and another vessel collided on Commencement Bay almost two years ago.

"We need to know how this boat looks and operates on the water," Winskill told a judge during a hearing last week. "I think it's really crucial that we be able to do this."

Deputy prosecutor Drew Henke opposes turning the boat over to the defense.

Denomy's expert would have to alter the 21-foot Bayliner – including replacing its propeller – to conduct the tests Winskill suggests, Henke said. That would render any results questionable, she argued in court last week.

In addition, Henke told pro tem Judge Bruce Cohoe, vital evidence could be lost if the vessel is put back into the water, including marks on the boat that show where it hit the other.

"This is the evidence, and they are going to have to change it," Henke said.

In an interview last week, University of Washington Law School professor Robert Aronson called the dispute "a pretty unique situation."

There isn't much case law involving assault by watercraft or the handling of evidence in such cases, said Aronson, author of the book "The Law of Evidence in Washington," considered a leading treatise on the subject.

"They don't occur too often," he said.

Henke said this is the first case of assault by watercraft filed in Pierce County in at least three years. King County prosecutors have pursued such charges maybe a handful of times in the last decade, spokesman Dan Donohoe said.

Cohoe said last week that he's leaning toward granting Denomy's request, with conditions.

NOT GUILTY PLEA

The collision between Denomy's boat and a 25-foot Advantage motorboat occurred June 26, 2006, just off the Silver Cloud Inn on Ruston Way.

The man operating the Advantage told police he and four others had been out for dinner and drinks on the Tacoma waterfront and were headed toward Gig Harbor about 10:20 p.m., according to a sworn affidavit prosecutors filed in the case.

The man said he turned toward the Silver Cloud Inn dock to drop off two women when he saw a Bayliner bearing down on him at high speed.

Charging documents state that the Bayliner, which Denomy was operating, hit the Advantage on the starboard side and flew "directly over the heads of the passengers."

A 27-year-old woman riding in the back of the Advantage suffered deep gashes in both hands. Authorities believe she might have been hit by the Bayliner's propeller.

Police seized Denomy's boat three days later and impounded it.

Deputy prosecutors waited nearly a year before charging Denomy with one count of assault by watercraft and one count of leaving the scene of an injury boating accident without rendering aid, a crime officially known as violating "duty of an operator involved in a collision or accident."

In May 2007, Denomy pleaded not guilty to both charges and was released on his own recognizance. He has served on the board of the Master Builders Association of Pierce County and in 2003 was nominated to serve on Tacoma's Charter Review Committee.

Denomy maintains he wasn't driving recklessly, that he had the right of way under the rules of maritime navigation and that the Advantage was operating without its running lights activated.

The Advantage's operator said he had his lights on that night.

THE ARGUMENTS

In November 2007, Winskill filed a motion in Superior Court asking that the defense be given access to Denomy's Bayliner.

The defense attorney wrote that his expert, retired Coast Guard Capt. Kirk Greiner, needed to run the boat in the water to assess "whether or not the defendant's vessel was traveling at such speed as to amount to reckless operation."

"In order to do that," Winskill continued, "the vessel must be observed in the water to determine its attitude at different speeds, the visibility from the boat, its maximum speed, maneuverability and so forth."

Winskill also filed a sworn affidavit from Greiner.

"This testing can be done without any danger of damage to Mr. Denomy's boat or alterations to its condition," Greiner wrote. "The only thing that may need to be done to Mr. Denomy's vessel is to have a mechanic assist in the starting of the vessel if it does not start due to its sitting idle in the custody of the state for over a year."

Winskill also requested access to the Advantage, so Greiner could examine it in the water as well.

A few weeks later, Henke filed her formal opposition to Winskill's request.

"The evidence in this case has been damaged, and any testing of the evidence could further damage the evidence," she wrote. "Also, at best, it will provide the defendant with skewed results of the performance level of the boat after being involved in a significant collision."

Henke later filed opinions from two experts of her own to back up her argument.

Tacoma police officer Brian Garrison, assigned to the department's Marine Services Unit, wrote that Denomy's Bayliner probably sustained enough damage in the collision "to significantly alter the performance level of the boat."

Seattle police detective Timothy Wear also filed a sworn affidavit on behalf of prosecutors. Wear spent five years on the department's Harbor Patrol Unit.

Important forensic evidence on the bottom of Denomy's boat – rub marks, decal paint, fiberglass remnants from the Advantage – could be lost if the Bayliner is put back into the water, Wear wrote.

He suggested the defense team get a Bayliner of the same model year and size to conduct its tests.

Winskill countered in court last week that the only way to get a true picture of how Denomy's boat performed at the time of the collision is to test his boat specifically.

Police have photographed the marks on the bottom of Denomy's boat, preserving that evidence, Winskill added.

Henke, who for the last three years has prosecuted crimes involving automobile accidents, argued that she's never been required to allow defense attorneys to take a car out of impound to run it on the highway.

A THIRD OPTION

Both sides appear to be making reasonable arguments, said Aronson, the UW law professor.

"If the defense can make a good argument that the expert doesn't have the tools to adequately evaluate the situation without access to this boat, then the judge would be within his discretion to release it," he said.

"On the other hand, if testing is going to destroy the evidence, he would be within his discretion to deny the request."

Leslie Tolzin, a private criminal defense attorney who practices in Tacoma, said he thinks Winskill's request is reasonable.

In other types of cases, defense attorneys commonly get access to evidence so their experts can evaluate it and draw their own conclusions, said Tolzin, who's never handled an assault by watercraft case.

"I had a case once where a tree was involved, and I asked to have the tree tested," he said.

Donohoe, of the King County Prosecutor's Office, said he can't remember an instance where prosecutors were required to turn over an impounded boat to a defense team.

Aronson said there's a third option. Cohoe could release the boat to the defense to perform its tests but let the prosecutor's expert observe. That appears to be the way Cohoe is headed.

The judge told Winskill and Henke last week that he's "inclined to say yes" to the defense team's request.

But he told Henke that she could propose conditions on the testing she thought were appropriate to preserve important evidence, and that she could choose a representative to observe the testing.

Cohoe put off a final decision until Henke submits her proposal, which is expected in a couple of weeks. Denomy's trial is to begin in September.

Adam Lynn: 253-597-8644 blogs.thenewstribune.com/crime