The prosecution in Paul Bennett’s case wants the jury to hear about an incident in which he is accused of stealing a bar sign, but the judge on Wednesday pushed her decision off until trial.
Hall County Superior Court Judge Kathlene Gosselin will decide after opening arguments whether to permit the evidence in the Nov. 4 trial.
Bennett, 45, of Cumming is charged with eight counts of homicide by vessel in a June 18, 2012, Lake Lanier accident that killed Buford boys Jake Prince, 9, and Griffin Prince, 13.
Bennett is also charged with failing to render aid, reckless operation of a vessel and boating under the influence. The BUI charge was most pertinent to Wednesday’s court proceedings.
“How the alleged theft of a sign is relevant to a BUI is beyond me,” Bennett’s attorney Barry Zimmerman said. “They’re making it relevant, or trying to connect it, by saying he was drinking or driving on a boat that night. That’s absolutely incorrect.”
Evidence of a defendant’s previous charge or conduct is usually inadmissible.
Assistant District Attorney Amber Sowers argued there was enough evidence that Bennett was intoxicated and operating his vessel in the same waterways on the day in question — only five weeks prior to the fatal wreck.
“(The) state intends to present two investigating officers ... in addition to three eyewitnesses who testified to the defendant’s acts on May 3, 2012, thereby showing sufficient evidence,” Sowers said.
“(The) state intends to show on May 3, 2012, (the) defendant admitted a vessel to Big Creek Tavern, where he drank heavily. Ultimately he was observed alone, entering the bar and exiting alone with a neon sign. It was his admission that he drank heavily,” Sowers said, and later clarified that the witnesses mentioned were not eyewitnesses to Bennett operating a vessel.
“That evidence is all circumstantial,” she said.
Zimmerman gave a forceful response.
“Is the state going to have to bring in evidence? Because none of what the state just said is fact,” Zimmerman said.
The state did not bring its witnesses to court for the motion.
Citing criminal code and past case law, Zimmerman argued the evidence was irrelevant, prejudicial and therefore inadmissible.
Gosselin ultimately made no ruling, but said the topic could be discussed again after opening statements — with the witnesses present and the jury dismissed — if the state chooses to pursue admitting the evidence.
After the judge announced her decision, District Attorney Lee Darragh used time in court to tell the judge that a “good faith” offer of a plea deal was not necessarily off the table for Bennett, although the prosecution’s formal offer made on Feb. 14 technically expired on April 18.
The state offered a sentence of 30 years’ probation, with eight years to serve in prison. Each of the homicide by vessel counts carries a three-year minimum and 15-year maximum sentence. Bennett’s other charges are misdemeanors that each carry a maximum one-year sentence.
“(Bennett’s lawyers) have asked for straight probation, which I will not accept,” said Darragh, who is leading the prosecution on the case.
“Minimal” discussions of a plea have resumed since, he said.