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Man charged in Boy Scout death was visibly intoxicated, police testify

Thomas Murphy arrives at Suffolk County Court in

Thomas Murphy arrives at Suffolk County Court in Riverhead on Tuesday, Nov. 26 2019.  Credit: James Carbone

Three Suffolk County police officers testified that a Holbrook man, charged with driving into a group of hiking Boy Scouts last year in Manorville and killing a 12-year-old, smelled of liquor, had bloodshot eyes and was unsteady on his feet shortly after the crash.

Suffolk Police Sgt. Thomas Kennedy and police officers Andrew Spina and Daniel Brecht all testified Tuesday in a Riverhead court that Thomas Murphy, 60, appeared to be visibly intoxicated when he was brought to the Seventh Precinct in Shirley after being arrested. 

Kennedy, a 17-year veteran of the department, wrote on a prisoner activity log that Murphy had difficulty maintaining his balance and that he required Brecht's assistance to continue walking down a precinct hallway.

"I noted that he smelled of alcoholic beverages, had glassy, bloodshot eyes, looked unsteady on his feet and had flushy, red skin," Kennedy testified. 

Steve Politi, Murphy's defense attorney, suggested other factors could explain Murphy's appearance and behavior, including his age, 350-pound frame, bad knees and the fact he was in golf shoes when walking around the precinct.

Kennedy said Murphy repeatedly asked about the condition of the Scouts, at one point stating: "Can I ask if that young man is OK? I have three daughters. I've driven that road a million times. I never expected anybody to be walking there."

Politi said by "there" Murphy had meant the middle of the road. The defense has argued that the Scouts were not walking on the road's shoulder when they were hit.  

Spina, a Suffolk Highway Patrol officer and certified drug recognition expert, said he was brought to the station house to evaluate Murphy and could immediately smell the odor of alcohol on his breath.

"His eyes were bloodshot, glassy and watery and his voice was slurring and bumbling," Spina said, adding that Murphy "stumbled" as he walked.

Brecht, the arresting officer, testified Monday and early Tuesday that Murphy was slurring his words and having trouble standing at the crash scene and at the station house.

Prosecutors contend that Murphy crashed his white Mercedes SUV into a group of Scouts from Troop 161 hiking along David Terry Road on Sept. 30, 2018 after spending the morning drinking vodka on a golf course with three friends. The crash killed Andrew McMorris of Wading River and injured three other Scouts.

Murphy has pleaded not guilty to a 16-count indictment charging him with aggravated vehicular homicide, assault and driving while intoxicated. If convicted, he faces 8 1/3 to 25 years in prison.

Brecht said that Murphy's eyes "widened" and that he "looked scared" when the officer asked him to take a Breathalyzer test to determine his blood-alcohol level. Murphy refused repeated requests to take the test and Brecht eventually obtained a warrant from a judge to collect the defendant's blood.

Prosecutors said Murphy's blood registered 0.13% blood alcohol content. Forensic toxicologists estimate it was 0.19% at the time of the crash — more than double the legal standard of 0.08%.

But Politi tried to show the jury of seven men and five women that there was other evidence showing Murphy may not have been legally intoxicated.

For example, Politi questioned Brecht about administering the "Horizontal Gaze Nystagmus" field sobriety test at the crash scene, in which he instructed Murphy to follow the tip of his pen as he moved it from left to right, watching for an involuntary jerking of his eyes that would indicate intoxication.

Brecht said Murphy exhibited only two of the six clues within the HGN test that would indicate if he was intoxicated. There is a high likelihood that a driver is intoxicated if four or more clues are indicated, according to instructions provided to Suffolk police officers. 

More than an hour later, Spina performed a second HGN test on Murphy at the precinct house and found only three of the six clues present.

"There are many decades of science behind the HGN test," Politi said, arguing that the evaluations were the most definitive proof to date that his client was not drunk at the time of the crash.

But Brecht said Murphy was also unable to complete a "walk-and-turn" test at the crash scene. Murphy twice began walking before he could complete his instructions, Brecht said, eventually losing his balance on both attempts. Murphy was not allowed to perform another procedure where he would have been asked him to stand on one leg because he "was in danger of falling and hurting himself," Brecht said.

Politi repeatedly assailed Kennedy for failing to document small details, such as the type of footwear Murphy was wearing during his arrest or how long other police officers interacted with the defendant, and attempted to paint Brecht, a fourth-year officer, as a poorly supervised novice who failed to follow department protocols. For example, he criticized Brecht for not offering Murphy water for more than five hours and not personally driving his blood sample to the Suffolk Crime Laboratory. 

Judge Fernando Camacho appeared exasperated during parts of the day's testimony, occasionally burying his face into his hands and repeatedly lecturing Politi about his comments and tone. 

"There's no need to raise your voice," Camacho told Politi at one point.

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