State v. Woodbury

• Decision Date: 29 June 1979
• Citation: 403 A.2d 1166
• Parties: STATE of Maine v. Earl WOODBURY.
• Court: Maine Supreme Court

Page 1166

403 A.2d 1166

STATE of Maine v. Earl WOODBURY.

Supreme Judicial Court of Maine.

June 29, 1979.

John R. Atwood, Charles K. Leadbetter, Linda Sibery Crawford, (orally), Asst. Attys. Gen., Augusta, for plaintiff.

Skelton, Taintor & Abbott by Robert Checkoway, Lewiston, for defendant.

Before McKUSICK, C. J., and WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

McKUSICK, Chief Justice.

Following a Superior Court jury trial in Knox County, defendant Earl Woodbury was convicted of murder, 17-A M.R.S.A. § 201 (Supp.1978). ¹ On appeal defendant raises five claims of error. He contends that the trial justice erred in admitting an inaccurate sketch of the murder scene, a prejudicial photograph of the murder victim, and certain expert opinion testimony. In addition, defendant asserts that the trial justice erroneously instructed the jury on the definition of "depraved indifference" murder and that the evidence was insufficient to support the conviction. Since we find no merit in any of defendant's claims of error, we deny the appeal.

1. Facts of the Case

The jury would have been warranted in finding the following facts. Some four or five days prior to February 25, 1978, three inmates at Thomaston State Prison planned an attack on a fourth inmate, Basil Ward. Defendant Earl Woodbury promised inmates Larry Coon and James Cole that he would pay them, in money and marijuana, if they would help him assault Ward. The three agreed that Coon would punch Ward in the face, Cole would make sure that Ward was knocked out by Coon's blow, and defendant Woodbury would then break Ward's fingers.

On the morning of February 25, defendant met with Coon and Cole to carry out their plan during the breakfast period. They conspired to lure Ward into the prison novelty room where the attack would take place. Because Woodbury was unable to get the guards to allow Ward into the novelty room, they were forced to postpone the attack until the noon meal. Coon, Cole, and Woodbury smoked some marijuana in the novelty room and agreed to meet again at 11:45 a. m. to carry out the planned assault.

The three met again at the appointed hour. Coon and Cole went into the novelty room to wait for Woodbury to return with Ward. Ward entered the room first, followed by Woodbury. Coon suddenly stepped into Ward's path and punched Ward in the face, knocking him to his knees. Coon then grabbed Ward by the hair and hit him again in the mouth. Ward fell to the floor and Coon fled from the room. Ward pushed himself across the floor and raised himself into a sitting position with his back against a wall of metal lockers. Cole then kicked Ward in the face once and attempted to kick him a second time, but Ward grabbed Cole's legs and prevented Cole from delivering the second kick. Shaking free from Ward's grasp, Cole fled from the room.

Ward was still conscious when Cole left. While Ward attempted to raise himself up onto his hands and knees, defendant picked up a wooden two-by-four and struck Ward twice on the back of the head. Ward remained conscious after those two blows with the two-by-four. Woodbury then delivered a third blow, also to the back of the head, which broke the two-by-four into two pieces and knocked Ward unconscious. Woodbury then left the room.

Unbeknownst to Coon, Cole, and Woodbury, inmate David Stevens had witnessed the entire assault from the door of the novelty room toilet. On defendant's departure, Stevens examined Ward, noting that blood was streaming from his head wounds. Fearing that he would be blamed for the assault, Stevens left the novelty room. Ward was discovered shortly thereafter. He died within hours of the assault, of lacerations, skull fracture, and edema of the brain. ²

2. Admission of the Sketch

Detective Barry Hathaway testified for the prosecution. He stated that he conducted a personal investigation of the prison novelty room shortly after Ward was discovered. Hathaway personally drew a diagram of the novelty room which was received in evidence at trial as State's Exhibit No. 1. The sketch portrayed the room as rectangular when in fact the room was nearly perfectly square. This distortion made it appear that Stevens, who stood at the bathroom door while observing the assault would have had an unobstructed view of the assault, when in fact a table located in the middle of the room partially obstructed his view of the incident.

A sketch or diagram is generally admissible to illustrate the testimony of a witness so long as the sketch represents an accurate portrayal of the facts which the witness is attempting to relate. United States v. D'Antonio, 324 F.2d 667, 668 (3rd Cir. 1963), Cert. denied, 376 U.S. 909, 84 S.Ct. 662, 11 L.Ed.2d 607 (1964); Grayson v. Williams, 256 F.2d 61, 61 (10th Cir. 1958); McCormick, Evidence § 213 (1972). When a trial judge has exercised his discretion to admit a sketch, he will rarely be reversed for abuse of discretion if the record indicates that any potentially misleading inaccuracy has been pointed out by witnesses, or if the inaccuracy was, or could have been, adequately exposed on cross-examination. See, e. g., Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961); Arkansas State Highway Comm'n v. Rhodes, 240 Ark. 565, 401 S.W.2d 558 (1966); Mississippi Road Supply Co. v. Baker, 199 So.2d 820 (Miss.1967).

In the case at bar, although Detective Hathaway conceded on direct examination that his sketch was not drawn to scale, he also testified that the dimensions of the room (24 X 26 feet) were accurately stated on the sketch. He admitted that the sketch incorrectly showed the room as rectangular rather than nearly square. On cross-examination, Hathaway again conceded that the sketch erroneously represented the shape of the room and that the distortion materially affected the portrayal of what inmate Stevens would have been able to see from his position in the bathroom door. Over defense counsel's objection the trial justice admitted the sketch, noting that the inaccuracy in the sketch had been fully developed for the jury in both the direct and cross-examination of Detective Hathaway. Under these circumstances we conclude that the admission of the sketch was not erroneous.

3. Admission of Photograph

Defendant contends that the trial justice erred in admitting State's Exhibit No. 7, a photograph of the head wounds inflicted upon the victim Basil Ward. The long-standing rule in Maine is that it is within the sound discretion of the trial court to exclude photographs on the basis of unfair prejudice that outweighs the probative value of the exhibit. State v. Boucher, Me., 376 A.2d 478, 480 (1977); State v. Bazinet, Me., 372 A.2d 1036, 1038 (1977); State v. Berube, Me., 297 A.2d 884, 888 (1972).

Under some other circumstances, the admission of the photograph objected to by defendant might well be error. The gruesome nature of the wounds suffered by the victim Basil Ward cannot be denied, nor can the potential for the prejudicial inflammation of the emotions of the jurors be ignored. Nevertheless, the probative value of the photograph is also undeniable. The victim was assaulted by three inmates. The State correctly anticipated defendant's argument that the kick delivered by inmate Cole, rather than the blows administered by defendant, may have been the proximate cause of the death of Basil Ward. To prove the element of causation, the State had to rely on the photograph to illustrate the testimony of Dr. Henry Ryan, the State Medical Examiner. Dr. Ryan explained that Cole's kick could not have produced the wounds depicted in the photograph and therefore that Cole's kick did not cause the death of Basil Ward. Given the highly probative value of the photograph on the issue of the cause of death, we reject defendant's contention that the trial justice abused his discretion in admitting the photograph.

4. Expert Opinion Testimony

Three expert witnesses were called to testify by the State. Dr. Ryan gave his opinion that one of Ward's head wounds was inflicted by a blunt-edged instrument and that a second head wound was produced by a flat instrument. The prosecuting attorney asked Dr. Ryan whether the two wounds "could" have been inflicted by the same instrument, and Dr. Ryan replied that in his expert opinion "they very well could be." ³ He explained that in his opinion Ward died from lacerations of the scalp, fracture of the skull, and edema of the brain.

Fingerprint expert Paul Lessard testified that a fingerprint found on the wooden two-by-four recovered at the scene of the crime was, in his opinion, "identical" to an exemplar fingerprint taken from defendant. Lessard did not quantify his degree of confidence in his opinion, and defense counsel did not cross-examine him on this point.

Finally, state police serologist Marc Anton testified that Ward's blood was Type O and that in his opinion blood found on the recovered wooden two-by-four was also Type O. Again, defense counsel did not cross-examine Anton on the degree of certainty with which he voiced his opinion.

Defendant challenges the admission of these three expert opinions on the ground that none stated the degree of certainty with which he held his opinion. We have recently rejected the contention that an expert must testify with "certainty", preferring instead the rule that the degree of an expert's certainty affects the weight to be accorded to his testimony but does not affect the admissibility of his opinion. State v. Mitchell, Me., 390 A.2d 495, 501 (1978). Defendant concedes that our decision in Mitchell held it to be immaterial whether an opinion is phrased in terms of "high probability" or "reasonable medical certainty." Id. at 501. But defendant maintains that expert opinions may not be received where they are phrased without any stated degree of certainty, or where they are framed only in terms of a mere "possibility." We disagree.

As one court put it, in a case where the causation of an injury was...