State v. Boehme

• Decision Date: 18 July 1967
• Docket Number: No. 38826,38826
• Citation: 430 P.2d 527,71 Wn.2d 621
• Parties: STATE of Washington, Respondent, v. Robert E. BOEHME, Appellant.
• Court: Washington Supreme Court

Page 621

71 Wn.2d 621

430 P.2d 527

STATE of Washington, Respondent, v.Robert E. BOEHME, Appellant.

No. 38826.

Supreme Court of Washington, En Banc.

July 18, 1967.

Rehearing Denied Dec. 8, 1967.

[430 P.2d 529] Frank A. Peters, Tacoma, for appellant.

Ronald G. Hendry, Pros.Atty., Edwin J. Wheeler, Deputy Pros.Atty., Tacoma, for respondent.

HAMILTON, Judge.

Defendant, Robert E. Boehme, a medical doctor, was charged, tried before a jury, and convicted of the crime of assault in the first degree.He appeals.We affirm the conviction.

The offense involved arose out of a purported attempt on the part of defendant to poison his wife, Mary Boehme.The circumstances giving rise to the charge, as revealed by the evidence, lend themselves to the following summary.

At about 9:30 p.m., on June 29, 1965, defendant, Mrs. Boehme, and two other members of the family went to the family boathouse to work on their boat.During the course of the evening, and while defendant and Mrs. Boehme were working at the bow of the boat, a board or heavy plank fell and struck Mrs. Boehme about the head.She was stunned or briefly rendered unconscious and fell to the floor.Upon regaining her senses, she complained of pain, and defendant administered to her by injecting a substance into her hip.Defendant then, with the aid of two members of the family, carried Mrs. Boehme to the family automobile and transported her to a local hospital, the Harrison Memorial Hospital in Bremerton, Washington, and summoned Dr. Benjamin T. Strehlow, a general practitioner, who had treated her previously.After arrival at the hospital, and before Dr. Strehlow appeared, defendant removed Mrs. Boehme's contact lenses from her eyes.Defendant testified that during this procedure he inadvertently and unintentionally utilized a type of eye drops (isopto atropine) which would cause the pupils of her eyes to dilate.

When Dr. Strehlow reached the hospital he was informed by defendant that Mrs. Boehme had suffered a severe blow on the head, although the only surface manifestation thereof was a slight abrasion in the area of the neck.The doctor was not advised of any medication Mrs. Boehme might have taken during the day, nor of the earlier injection, and of the application of any eye drops.His examination of Mrs. Boehme revealed that the pupils of her eyes were widely dilated and that she was drifting in and out of a coma.The doctor thereupon ordered skull X rays and performed a spinal tap.The X rays were negative as to bone damage; however, the spinal tap indicated a bloody discoloration of and pressure on the spinal fluid.Dr. Strehlow then concluded that Mrs. Boehme was in urgent need of the services of a neurologist and with defendant's participation arrangements were made to transport her by ambulance to St. Joseph's Hospital in Tacoma, for the attention of Dr. Stanley Durkin, a neurologist and neurosurgeon.

The ambulance with Mrs. Boehme, the driver, one attendant, and the defendant reached St. Joseph's Hospital at about 1:30 a.m., June 30, 1965.The ambulance was met by Dr. Durkin.The defendant delivered samples of the spinal fluid removed by Dr. Strehlow and informed Dr. Durkin that Mrs. Boehme had been struck on the head.Again, the defendant neglected or forgot to advise the doctor of any earlier medications.Finding no superficial evidence of a blow to the head, except the neck contusion, Dr. Durkin ordered immediate skull X rays.Again the X rays were essentially negative as to skull damage; however, the doctor's physical examination, conducted while Mrs. Boehme was on the X-ray table, revealed that she was then in a deep semicomatose condition, that the pupils of both eyes were widely dilated and fixed, that her abdomen was hard and rigid, that her body muscles were spontaneously twitching and jumping, that deep tendon reflexes were absent, and that respiration was irregular.Proceeding upon a working diagnosis of brain injury, Dr. Durkin placed her in a hospital room under constant observation.Shortly after Mrs. Boehme arrived at her hospital room, and between 2:30 a.m. and 3:15 a.m., extreme respiratory difficulty developed.Artificial respiration, oxygen, and a Byrd respirator, an automatic breathing machine, were applied, the latter by the use of a face mask.Although these steps alleviated the immediate respiratory failure, her condition despite intermediate adjustments of the respirator did not measurably improve and by 8 a.m. her condition was diagnosed as terminal.At this point the Byrd respirator was turned on the fully controlled breathing cycle and connected to a tracheal tube leading directly into her windpipe.A second spinal tap was also made and again revealed discoloration of and pressure on the spinal fluid.The defendant was advised that her condition was very critical.Having patients of his own to care for, the defendant returned to his office.

During the course of the day, Mrs. Boehme rallied.Various of her symptoms diminished and her respiration improved to the point where she could breathe without the aid of the automatic respirator.She was placed upon an intravenous solution of glucose and water and, by early evening, her vital signs were such as to permit removal of the tracheal tube and coherent conversation.Dr. Durkin advised defendanthe felt she was on the road to recovery.

At about 9 p.m., after Dr. Durkin had visited Mrs. Boehme and found her condition continuing to improve, the special nurse left her in the temporary charge of a student nurse.Shortly thereafter, defendant visited his wife and asked the attending nurse to leave the room.The student nurse complied, but returned to the room in a few minutes at which time she observed defendant move his hand from the area of Mrs. Boehme's hip to his pocket.Again the defendant requested the nurse leave him alone with his wife, and again the nurse complied.On this occasion, however, the nurse reported the circumstances of her absence to the floor nurse who immediately entered Mrs. Boehme's room.At about this time, the defendant departed.The floor nurse, in company with the student nurse and the special nurse, then observed a fresh hypodermic injection site on Mrs. Boehme's hip.The nurses also noted that Mrs. Boehme was having difficulty in breathing.Dr. Howard Pratt, the anesthesiologist, who had previously removed the tracheal tube for the Byrd respirator, and an intern, a Dr. Kazi, were summoned and upon arrival found Mrs. Boehme in extreme straits.Her earlier symptoms had returned, her respiration was of the terminal type, and the doctors conceived that she was dying.Emergency measures were initiated, the trachea tube was reinstalled and the Byrd respirator reactivated.Dr. Durkin arrived and after consultation with Dr. Pratt and other doctors on the scene it was concluded that her condition was induced or caused by poisoning through the medium of some rare drug.This conclusion was reached upon the basis of the hypodermic injection sites on her hip and because some of her symptoms could not be reconciled with any but the gravest of brain injuries.Blood and urine samples were then taken, the intravenous bottle was detached, and all were sealed, marked for identification, and placed under refrigeration for subsequent analysis.

During the early morning hours of July 1, 1965, Mrs. Boehme again rallied dramatically.From that time forward she improved steadily and was ready for release from the hospital on July 15, 1965.

During the interval between July 1 and July 15, 1965, additional blood samples were taken, marked for identification, and refrigerated.These samples, together with the earlier blood samples were sequentially prepared for analysis ¹ and, with a similarly prepared sample of normal blood and the urine specimens, were forwarded to the office of the chief medical examiner of the state of Maryland for the attention of and analysis by Dr. Charles S. Petty, a pathologist and assistant medical examiner, and Dr. Henry C. Freimuth, a toxicologist in the chief medical examiner's office.

The intravenous (I.V.) bottle, detached and removed on the night of June 30, 1965, sealed with distinctively marked tape, remained in the refrigerator of the hospital medicine room until July 20, 1965.At that time it was removed by a nurse, who testified as to its markings and seal, and delivered to a police officer.The police officer in turn delivered it to Dr. Charles P. Larson, a Tacoma pathologist, who had been called to St. Joseph's Hospital for consultation on the night of June 30, 1965.Dr. Larson examined the markings and seal, locked the bottle in his evidence locker, and on January 19, 1966, delivered it for analysis to Dr. David A. Eagleson, a toxicologist and analytical chemist at the Tacoma General Hospital, who had also been present at the events occurring during the late night and early morning of June 30 and July 1, 1965, respectively, at St. Joseph's Hospital.

Dr. Eagleson testified that his analysis of the fluid in the intravenous bottle, a unit normally sealed with its contents by the manufacturer, although otherwise designed to receive injections of substances supplementary to its original contents, revealed approximately 1.39 milligrams of promazine per 50 cc's of fluid in the boottle.Promazine, otherwise known as sparine, was identified during the trial as a potent transquilizing drug.Dr. Eagleson testified such a drug was not produced by the manufacturer of the intravenous bottle and its contents.

Dr. Friemuth, the Maryland toxicologist, testified his analysis of the first urine specimen, covering the period from 9:45 p.m., June 30, 1965, to 2 a.m., July 1, 1965, revealed a concentration of free promazine in the quantity of 1 milligram per 100 cc's of fluid, in addition to breakdown products of promazine.He stated that his analysis of the second urine sample, covering the period from 12 o'clock noon to 2:30 p.m., July...