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Don't use a duffel bag as a flotation device.

Old 06-14-2005, 08:06 AM
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Boater charged with homicide in drowning
By John Ellement, Globe Staff | June 14, 2005

PLYMOUTH -- When Todd Carruthers tumbled out of a small rowboat and into Duxbury Harbor early Saturday evening, Scott C. Kirby knew immediately that his friend of some 30 years was in deep trouble.

Carruthers, Kirby knew, could not swim. But what Kirby allegedly did next is one reason Plymouth County prosecutors and state Environmental Police are charging Kirby with the boating equivalent of drunken driving homicide.

''He threw him a duffel bag of clothes to hold onto as a flotation device," according to a Duxbury police report filed in court yesterday. ''That [bag] became waterlogged, and Todd went under."

Officials say homicide prosecutions in alcohol-related boating fatalities are relatively rare -- roughly one a year statewide -- because the boat operators are killed in most cases.

Kirby, arraigned yesterday in Plymouth District Court, made several errors in his drunken state, authorities say.

He did not have the proper safety equipment on hand: A flotation device for each man that could have saved Carruthers. Kirby went back in the rowboat to the motorboat the two had been on, shouted incoherently for help to people on the shore 25 yards away, called for help over the radio but did not use the emergency channel monitored by the Coast Guard, and then motored up and down the harbor in the motorboat searching for his friend.

When police boarded the motorboat later that night, they found four empty bottles of Twisted Tea (a malt beverage), an empty can of Twisted Tea, an empty bottle of Goldschlager's liqueur, and an empty can of Budweiser beer, according to court records.

Kirby, police said, reeked of alcohol, was unsteady on his feet, could not spell his last name, and admitted he had been drinking, although he could not say what he had consumed. ''Two beers and a shot of . . . a shot of . . ." is how police quoted him as answering when asked. He refused to take a breath alcohol test.

Police also found marijuana on the motorboat in a backpack that they say Kirby identified as his, and he was charged with possession of marijuana.

Kirby, 42, faces eight charges in all, including causing a death while operating the rowboat under the influence of alcohol. He faces up to 15 years imprisonment if convicted. Kirby, who was ordered held under $10,000 cash bail, is due back in court July 12. He works for a Kingston contractor, who was in the courtroom yesterday, as was Kirby's girlfriend of about nine years.

Kirby stood in handcuffs with his head bowed, appeared to be near tears at times, but did not say anything.

Outside the courthouse, Kirby's lawyer, Kenneth DiFazio, disputed that his client was drunk, saying it was not clear that the bottles of alcohol belonged to Kirby since it was a borrowed boat. DiFazio also said that Kirby did his best to rescue Carruthers, 41, who he said once worked with his client as a commercial fisherman.

''He is grieving sorrowfully for the loss of his longtime friend," DiFazio told Plymouth District Judge Thomas F. Brownell.

Carruthers's body was recovered by authorities around 7:30 p.m. Saturday, and the family has declined comment since, as they did again yesterday. ''Let us grieve in peace," one relative said.

Both men grew up in Kingston, where both were living at the time of the drowning. Authorities said Kirby was using a borrowed boat and that he first went out on the water at 6 a.m. Saturday. He returned around noon and picked up Carruthers. They moored the motorboat and were returning to shore around 5 p.m. in the smaller dinghy.

Plymouth District Attorney Timothy J. Cruz said yesterday that his office has not prosecuted a similar case in four years.

''There are laws for when you do operate a boat upon the water of the Commonwealth," he said. ''You cannot just go out there and drink and do whatever you want and think there is no penalty if someone gets hurt."

Environmental Police Captain George C. Agganis said in a telephone interview yesterday that his agency, which has jurisdiction in state waters, launched similar prosecutions last year in a Boston case and two years ago in a Springfield area case in which a drunk boater decapitated the victim on the Connecticut River.

Other fatal drunken driving crashes on waterways sometimes do not lead to criminal charges because often the drunk boater is the only one killed, he said.

''Our boating laws pretty much mirror the motor vehicle laws," Agganis said. ''We have at least one fatality annually that is the result of alcohol. . . . We really do have a lot of problems with the drinking."

John Ellement can be reached at [email protected].

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