State v. Wardwell

Decision Date21 August 1962
Citation158 Me. 307,183 A.2d 896
PartiesSTATE of Maine v. Gaylon L. WARDWELL.
CourtMaine Supreme Court

Ferris A. Freme, County Atty., Houlton, for plaintiff.

Melvin E. Anderson, Caribou, for defendant.


SIDDALL, Justice.

In the early morning hours of March 6, 1960, the respondent's home was destroyed by fire. The respondent and two of his children escaped the flames. The body of an adult female, burned beyond recognition, was found on a bed in the easterly section of the house. After an investigation the respondent was arrested and charged with murder. He was convicted of murder after trial by a jury, and, after verdict, seasonably filed a bill of exceptions containing twenty separate exceptions. After denial of a motion for a new trial by the presiding justice, respondent appealed.

Exception #1.

On April 22, 1960, the court appointed Melvin Anderson, Esq. and Albert Stevens, Esq. counsel for the respondent. A motion for continuance was filed by the respondent through his counsel. The affidavit accompanying the motion, dated April 26, 1960, alleged that counsel could not safely proceed to trial because they felt that they did not have sufficient time in which to adequately prepare for respondent's defense, because it appeared that the cause of death of the alleged victim was uncertain and involved medico-legal problems requiring defense counsel to obtain the advice and opinion of qualified physicians and particularly one specializing in pathology. It also alleged that counsel did not at that time have available copies of the medical examiner's initial report, the autopsy report, or the official report from the superintendent of the State Hospital at Augusta where the respondent had been sent for observation.

On April 27 a hearing was held on the motion for a continuance. At that time it appeared that the respondent's attorneys had in their possession all of the reports mentioned in the motion. It also appeared that the respondent's attorneys had listened to the tape recording made during the investigation, and that the State had made available to said attorneys all evidence then in the possession of the State. The motion was denied by the court.

'Continuances and mistrials are within the discretion of the presiding justice. Cunningham v. Long, 125 Me. 494, 497, 135 A. 198; Collins v. Dunbar, 131 Me. [158 Me. 310] 337, 162 A. 897; Casco Nat. Bank v. Shaw, 79 Me. 376, 10 A. 67; Graffam v. Cobb, 98 Me. 200, 56 A. 645; Rumsey v. Bragg, 35 Me. 116. In the absence of anything tending to show that this discretion was not properly exercised, the ruling is not subject to valid exceptions. Fitch v. Sidelinger, 96 Me. 70, 71, 51 A. 241. 'The chief test as to what is or is not a proper exercise of judicial discretion is whether in a given case it is in furtherance of justice. If it serves to delay or defeat justice it may well be deemed an abuse of discretion.' Charlesworth v. American Express Co., 117 Me. 219, 221, 103 A. 358, 359, see also State v. Bobb, 138 Me. 242, 25 A.2d 229; Bourisk v. Mohican Co., 133 Me. 207, 175 A. 345.' State v. Hume, 146 Me. 129, 134, 78 A.2d 496, 500.

The granting of a continuance in a criminal case based upon want of time to prepare a defense rests in the sound discretion of the presiding justice. Commonwealth v. Klangos, 326 Mass. 690, 96 N.E.2d 176. See also 14 Am.Jur. Criminal Law, § 131; 22A C.J.S. Criminal Law § 496, p. 146.

At the hearing on the motion for continuance no mention was made in respect to any inability of the respondent's counsel to proceed with the trial. Mr. Anderson had been appointed by the lower court to represent the respondent at the preliminary hearing held in March, 1960. Although his responsibility to the respondent ceased after the hearing, at the time of his appointment by the Justice of the Superior Court he necessarily had knowledge of the general facts in the case. The record satisfies us that the court was justified in believing that respondent's counsel, having received the various reports, were willing to proceed with the trial on the date set by the court. In fact, counsel appointed to represent the respondent in the post-trial proceedings conceded in oral argument that the court was justified in denying the motion for a continuance. However, he took the position that the court, on its own initiative, at some stage in the trial of the case, should have taken steps to protect the interest of the respondent, presumably by declaring a mistrial and continuing the case. The record shows that the respondent had a pathologist present in court whose testimony was confined to answering one hypothetical question. This exception is overruled.

Exceptions #2 and 3 are waived by respondent.

Exceptions #4 and 5.

These exceptions relate to the admissibility of photographs of the dead body, one with a cloth wrapped about the neck of the deceased, and the other with the cloth removed. The recent decision of State v. Duguay, reported in 158 Me. 61, 178 A.2d 129 contains an exhaustive review of the law relating to the admissibility of photographs of dead bodies. Reference is made to this opinion and to the cases and authorities cited therein. The substance of the opinion affecting this issue is that the admissibility of such photographs rests upon the exercise of sound judicial discretion; that such photographs when properly taken are admissible when they are relevant to the issues before the court and their probative value is not outweighed by the danger of prejudice to the defendant.

These photographs were properly taken, and we believe they were relevant to the issues of the case, particularly as an aid to the oral testimony of the physicians in relation to the area of the body beneath the cloth about the neck. They were no more gruesome than the evidence of the physicians and others relating to the condition of the body. We find no abuse of judicial discretion in admitting the photographs in evidence. These exceptions are overruled.

Exception #6.

During the course of the trial Dr. Philpot, pathologist for the Cary Memorial Hospital of Caribou, was asked to give his opinion on the cause of death based upon a hypothetical question. The court allowed the doctor to give such an opinion, and his answer was as follows: 'My opinion as to the cause of death on this body is death due to strangulation.' The only claim by the respondent in his bill of exceptions is that the opinion was not based upon a proper foundation. It appeared in evidence that Dr. Philpot assisted by Dr. Reynolds performed an autopsy on the body of the deceased. The various organs of the body were found to be essentially normal, and the most important abnormalities were found in the examination of the larynx. The autopsy disclosed a fracture in the thyroid cartilage and three fractures of the cricoid cartilage. Dr. Philpot testified that in his opinion the fractures were caused by trauma of considerable force. Muscle tissue was removed from the area surrounding these fractures. This tissue was examined microscopically by Dr. Philpot and the examination revealed hemorrhages therein, indicating, according to his testimony, that the deceased was alive at the time of the hemorrhages. There was also evidence that the autopsy disclosed no evidence of soot or smoke in the inner throat, indicating according to Dr. Philpot's testimony that death had occurred before the fire. At the time of the autopsy, Dr. Philpot withdrew blood from the body for the purposes of chemical analysis. In order to determine whether death was due to carbon monoxide poisoning, a portion of this blood was analyzed by Dr. Chapman for the detection of carbon monoxide. The test used by him was a color test to detect gross differences. After the application of certain chemicals, he compared the color of the blood sample with the color of a blood sample taken from his own body. He found no difference in color, indicating to him that the percentage of carbon monoxide was not higher than normal. He testified that the result of the test was that he could find no evidence of any high or any concentration of carbon monoxide hemoglobin. The test did not purport to show the exact percentage of carbon monoxide, and a blood sample was sent to the Federal Bureau of Investigation for an exact determination percentagewise. Mr. Strickland, a chemist for the Federal Bureau of Investigation, testified that the blood sample contained approximately 10% carbon monoxide saturation. Dr. Philpot also gave testimony indicating that a much higher percentage than 10% of carbon monoxide was necessary to cause death. The qualification of Dr. Philpot as as pathologist was not challenged, nor was any challenge made of the qualifications of Dr. Chapman and Mr. Strickland to conduct and interpret the tests made by them. The hypothetical question was based upon the complete autopsy performed by the witness himself, including microscopic examination of the organs of the body and of the muscle tissue and upon the results of the blood tests testified to by Dr. Chapman and Mr. Strickland. A sufficient foundation had been laid, and the court was not in error in allowing the question to be answered.

Although this question was not raised by the bill of exceptions, the respondent in argument contends that the doctor by his answer, in effect, testified that someone strangled the deceased. No claim to this effect was made at the time of the answer. The answer carried no inference that the strangulation was caused by a human agency. The doctor was testifying as a medical expert, and his answer is to be interpreted in that light. This was apparently recognized by counsel for the respondent as appears from the following testimony of the doctor in answer to inquiries by respondent's counsel.

'Q Now you have stated your opinion, rather, on the cause of death here as being...

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