State v. Wilbur

Decision Date08 June 1971
Citation278 A.2d 139
PartiesSTATE of Maine v. Stillman E. WILBUR, Jr.
CourtMaine Supreme Court

Peter W. Culley, Chadbourn H. Smith, Asst. Attys. Gen., John W. Benoit, Jr., Deputy Atty. Gen., Augusta, for plaintiff.

Gerard Williams, Farmington, for defendant.

Before DUFRESNE, C. J., and WEBBER, POMEROY, WERNICK and ARCHIBALD, JJ.

WEBBER, Justice.

Defendant appeals from his conviction of the crime of murder. We will deal with the points of appeal in the order in which they are presented for our consideration.

'1. The Court erred in denying the Defendant-Appellant's motion for a new trial.'

On the basis of circumstantial evidence and the admissions and confession of the defendant, the jury could properly have concluded that on January 30, 1966 one Claude Hebert was beaten to death by the defendant in Hebert's motel room; that the defendant employed the use both of his fists and a blunt instrument to inflict bodily injuries of such severity that Hebert died within a few minutes. The theory of the defense was that the homicide occurred while the defendant was swayed by the heat of passion suddenly provoked by an indecent overture on the part of Hebert. The jury in declining to reduce the crime from murder to manslaughter may either have disbelieved the evidence tending to support the claim of sudden provocation or have concluded that the nature, extent and severity of the beating administered were inconsistent with any claim that all of the unlawful acts of the defendant occurred while he was still in the throes of such an ungovernable passion as might affect the conduct of a reasonable man. On this posture of the evidence there was no occasion for the trial court to grant the motion for new trial.

'2. That the record shows that the Defendant failed to waive his constitutional right to have the admissibility of certain evidence against him determined in the absence of the jury. The transcript at pages 391-395 shows that the Defendant failed to give an 'audible answer' to the court's rather detailed statement and question as to his waiving his constitutional rights. It further shows that when the court asked the Defendant 'You mean, you would like to have this testimony given without the court first ruling on it in the absence of the jury?' the record does not indicate that he either understood the question or made an affirmative answer. Counsel for the defendant states 'I believe he does.' (understand). And the Court Stenographer said 'I thought I heard him say, 'Yes'. Permitting the testimony to be presented without a record clearly showing that the defendant understood and waived his constitutional right, however unintentional, was obvious error.'

The record discloses that before either any inculpatory admissions or the written confession of the defendant were admitted in evidence, the Justice below in the absence of the jury engaged in an extensive colloquy with both the defendant and his counsel, the manifest purpose of which was to ascertain that the defendant was fully aware of his right to have the voluntariness of these admissions and confession preliminarily determined by the Court. It became apparent during the colloquy that defendant and his counsel had made a considered decision not to object to the State's evidence but in fact to urge its admission without challenge to voluntariness. As the case subsequently developed the relationship of this decision to defense strategy became evident. The defendant was thereby enabled to get before the jury his basic theory that the crime had been committed in the heat of passion upon sudden provocation without the necessity of his becoming a witness at trial in his own behalf and thereby submitting to cross-examination. In short, the instant case presents a situation in which a dimension is added which goes beyond the mere question as to whether or not there was an intelligent and understanding waiver by defendant of the right to independent determination of voluntariness by the trial court. Here the trial court was faced with an affirmative request made on behalf of the defendant that the evidence be admitted in order that he might have the advantage of certain exculpatory aspects thereof. We hold that the Justice below discharged his full duty by giving an accurate and comprehensive explanation of the right to a preliminary hearing on the issue of voluntariness in the absence of the jury. We further hold that the defendant cannot now be heard to complain because his request that the evidence be admitted was honored. In fact, the arbitrary exclusion of State's evidence which was material and relevant as bearing on the possible reduction of the crime from murder to manslaughter and which defendant desired to have in the case would have constituted reversible trial error. Conversely, there was no error and no constitutional deprivation in admitting the evidence under the circumstances of this case.

'3. The defendant-Appellant was not fully informed of his right to counsel as required by the Sixth amendment of the U. S. Constitution, nor did he waive his right, prior to questioning by Officers Vigue, Lander and Carrier, and it was obvious error to admit in evidence their testimony as to statements made by the Defendant.'

The issue sought to be raised goes to the voluntariness of the admissions and confession, the admission of which into evidence is discussed above. No further elaboration of this point is required. For reasons stated the defendant elected not to challenge the method by which the proffered evidence was procured.

'4. Testimony of conclusions as to both the presence of blood and violence, inflamatory in nature, and unnecessary to the presentation of the State's case was so great as to create a climate in which the jury could not render a fair and impartial verdict.' 1

The evidence discloses that the victim died as the result of a physical beating in the course of which prolonged and inordinate force was applied. In the absence of any eye-witness, the State was required to depend upon circumstantial evidence tending to prove the method by which the crime was committed and to negative the defendant's contention that his unlawful acts were performed in the heat of passion. The evidence given by the medical examiner, investigating police officers and others who made observations at the scene with respect to visible wounds on the body of the victim and the location and extent of blood stains and spatters in the room was properly received as bearing on the nature and extent of the fatal assault. We note that but one objection was made with respect to such testimony, which objection was sustained. There is no abuse of discretion and certainly no constitutional deprivation in permitting a jury, without objection, to hear from a number of witnesses a description of the telltale signs of a bloody and atrocious homicide, merely because such testimony may be to some extent cumulative. See State v. Turmel (1952) 148 Me. 1, 88 A.2d 367.

'5. The court erred in not declaring of its own motion a mistrial upon the highly prejudicial statement of Officer Jordan that the bottles which the State was trying to suggest were murder weapons had on them 'minute areas of what appeared to be blood.' Ordering the answer stricken and telling the jury to disregard it did not remove the highly prejudicial nature of the statement. Transcript at page 134.'

No motion for mistrial was made and there was clearly no occasion for the trial court to order a mistrial sua sponte. The defendant received more than he was entitled to when the answer was ordered stricken and the jury instructed to disregard it. There was no legal requirement which would prevent an experienced police officer with special training in fingerprint identification and other investigative techniques from testifying that he observed on an article found in proximity to the victim's body 'minute areas of what appeared to be blood.' Because of common familiarity with the appearance of stains caused by blood, even ordinary and less experienced witnesses are permitted in appropriate circumstances to testify that certain stains on clothing or other articles look like or resemble blood stains. See discussion in Underhill's Criminal Evidence, 5th Ed., Vol. 3, Sec. 656, Page 1588; 23 C.J.S. Criminal Law § 876 p. 452; Wimis v. State (1960) 216 Ga. 350, 116 S.E.2d 547; State v. Willis (1969) 4 N.C.App. 641, 167 S.E.2d 518.

'6. That the court erred in admitting State's Exhibit No. 37.'

This exhibit was a 'light blue shirt with blood stains on it' which was found by defendant's landlady about 3 1/2 months after the homicide concealed in a closet which had been used by defendant during his occupancy of his rented room. She identified the shirt as looking like one of the shirts she had seen the defendant wearing. She was able to state positively that the shirt did not belong to anyone in her family. The only tenant of the room who had occupancy after that of the defendant disclaimed ownership of the shirt and any knowledge with respect to it. A pathologist identified the blood stains as 'Group A human blood,' the same blood type as that of the stains found on the clothing of the deceased. When the exhibit was offered in evidence, objection was made on the ground that discovery of the evidence was remote in time and the exhibit was 'not connected up sufficiently to be relevant in evidence.' The foundation was properly laid to make the exhibit properly admissible as a piece of circumstantial evidence. Its weight was thereafter for the jury.

'7(a) That the court erred in charging 'I am fortunately able to tell you that if I do make an error as to law, a higher court on appeal can correct that error. " 2

No objection was taken to this instruction and no issue is properly presented on appeal. M.R.Crim.P., Rule 30(b). Lest it be asserted that the alleged error is highly prejudicial and well calculated to...

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