Judge: Kingston lawyer charged in fatal boating accident wasn't in custody so statements will be allowedBy JAMES A. KIMBLE
Union Leader Correspondent
June 15. 2014 12:27PM
BRENTWOOD – A judge decided that prosecutors can use statements that a local lawyer made about what led him to allegedly cause a fatal boat crash that claimed the life of a 54-year-old Merrimack man.
Lawrence Buswell, 53, of Kingston, has until Monday to decide whether to go to trial or broker a plea agreement on charges of negligent homicide and three counts of second-degree assault, according to a court order.
Each charge is punishable by up to 3 ½ to 7 years in state prison.
The May 26, 2012, crash claimed the life of 54-year-old Eric Eskeland, who was piloting a boat on Country Pond in Kingston. The crash also injured three of Eskeland's passengers, prosecutors said.
Judge N. William Delker decided in an 8-page order that Buswell was not in police custody on the night of the crash. The statements were made during separate encounters Buswell had with investigators at his parent's waterfront home in Kingston, which is part of a campground the family owns.
“There certainly are cases in which the long arm of the state is brought to bear in such a way as to subject a person to the yoke of functional arrest,” Delker said in the order. “This is not such a case.”
Lawyers for Buswell argued that their client's statements should also be thrown out because he invoked his right not to speak any further after first being questioned by State Police Trooper Anthony Cattabriga shortly after 12:25 a.m.
Buswell allegedly told Cattabriga that he was leaving his family's property and returning to his home on the other side of the lake when he was “blindsided” by the other boat, according to court papers.
Cattabriga then asked Buswell whether he would be willing to take field-sobriety tests, Delker noted.
“Apparently, immediately after the trooper asked the question, (Buswell) received a phone call,” Delker said in the order. “A male voice – possibly a lawyer – was overheard saying, ‘If they read you Miranda, don't answer any questions. The trooper was quick to reassure the defendant: ‘I'm not going to read you Miranda' and ‘you're not in custody.'”
Buswell then declined to take the field sobriety tests and said he no longer wanted to speak to police. Investigators said Buswell showed no signs of intoxication and later had a blood sample taken from him at Exeter Hospital.
Marine Patrol Sgt. David Ouelette, who arrived on the scene about forty minutes later, questioned Buswell about the crash.
“He introduced himself as an attorney and told the sergeant that he was delivering newspapers and heading back home when he struck a darkened boat,” Delker said.
Buswell, who remains free on bail, is expected to go on trial in late July in a separate case on charges of felonious sexual assault for allegedly raping a 15-year-old boy on his boat sometime in July 2011. Buswell took the boy swimming on Country Pound and provided him alcohol before sexually assaulting him, the prosecution alleges.