Judge throws out evidence in Northwood Lake negligent homicide caseBy JAMES A. KIMBLE
Union Leader Correspondent
October 22. 2013 8:15PM
BRENTWOOD — Prosecutors will not be allowed tell jurors about a Hooksett man’s blood-alcohol tests, or certain statements he made to investigators prior to being charged with a fatal boating incident that killed one of his passengers.
Judge Marguerite Wageling threw out key pieces of evidence that the state planned to use in the upcoming trial of Eric Cable, 34, who faces two counts of negligent homicide for causing the death of Brendan Yerry, 28, of Hudson last July 14.
Cable is accused of being intoxicated while piloting the boat and letting Yerry straddle the boat’s bow before he fell into Northwood Lake and suffered fatal injuries.
Judge Marguerite Wageling said in three orders made public Tuesday that Cable could not have “freely, knowingly and voluntarily” given consent to have his blood taken for testing.
“At no time was the defendant informed he did not have to consent to the blood draw,” Wageling said in a court order.
She reached her decisions after considering testimony from the Marine patrol officers and Cable himself at a hearing last month where the defense challenged how the evidence was collected.
Results of a breath-test administered on Cable, which suggested he had a blood-alcohol level of .13 and .14, had to be thrown out largely because officers never took a second sample as required under the state’s due process rights, according to Wageling.
A second sample should be preserved in case a person wants to have a breath test independently tested, the judge noted.
Statements by Cable, which included him saying “I just killed my friend” after he had been placed in the back of a police cruiser, were also thrown out.
Wageling concluded that Marine Patrol Officer Officer Seth Alie did not purposely try to solicit incriminating statements when he asked Cable how he was doing, but should have known they were “likely to elicit an incriminating response.”
Wageling also disagreed that Marine Patrol officers were legally justified in drawing Cable’s blood two hours prior to getting a judge to sign off a search warrant authorizing them to do so.
Police can only collect such evidence under “exigent circumstances” where there is a threat to public safety or likelihood that evidence will be destroyed, Wageling said.
Cable was taken into custody at 9:38 p.m. July 14. The first-blood draw was taken at 11:45 p.m. but a search warrant to draw Cable’s blood was not signed until 1:18 a.m., according to court testimony.
“In part, the delay was caused by the fact that it was a nighttime arrest and it was difficult to find a judge, cell phone coverage was spotty and many of the officers were involved in the search and rescue (of Yerry),” Wageling said in the order.
Had the officers made efforts to write the search warrant sooner, “they may have been more successful” in having it signed by a judge prior the first blood-draw at 11:45 p.m.
Cable testified at a hearing last month that he felt he was forced to provide a blood sample at the prompting of investigators, and did not know he could refuse to provide one.
Wageling said she did not find any evidence to the contrary.
The judge said that by the time Cable gave consent for the blood draw, “he had been alone in police custody for at least two hours, driven from Northwood Lake to Concord Hospital where he was told he had no right to refuse to the police the requested blood draw.”
Cable is scheduled to go on trial in December.