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October 3, 1968

Robert E. BOEHME, No. 126109, Petitioner,
Roger MAXWELL, Superintendent of the Washington State Reformatory at Monroe, Washington, Respondent

The opinion of the court was delivered by: GOODWIN


Counsel for Robert Boehme filed a petition for a writ of habeas corpus. Immediately thereafter, he requested that this Court enter an order directing the taking of the deposition of one Orindorff. He claimed that Orindorff's deposition was essential to establish a contention that a grievous error had been committed by the trial court which entitled his client Boehme to a new trial. He presented his request for the order as an emergency matter, claiming that he had located Orindorff in the City of Baltimore, Maryland, and that Orindorff's whereabouts had been previously unknown. This Court refused to enter the order without first ascertaining whether or not an evidentiary hearing should be held to determine the validity of the contentions of Boehme set forth in his petition.

 The nature of the contentions required a review of the entire record, and the Court undertook to read and reread the transcript of all the proceedings that occurred before, during, and after the trial of the case.

 The petitioner Boehme was convicted of an attempt to poison his wife. Robert Boehme and Mary Boehme had been married approximately two and one-half years at trial time. He was a medical doctor practicing his profession in Port Orchard, Washington. Mary had been a registered nurse and had been previously married to Robert's brother. Robert had been previously married but the record does not disclose how many times.

 Robert and Mary were working in a boathouse and Mary suffered an injury as a result of a board or beam striking her either on the neck or on the head. The record does not disclose just how or why this injury occurred. It appeared during the course of the testimony at the trial that Robert injected her in the hip immediately after the injury. He claimed it was morphine and that he intended to ease the pain and prevent her suffering. Thereafter, she was admitted to a hospital in Bremerton, Washington and a Dr. Strehlow came to minister to her. He diagnosed a severe head injury and recommended that a neurologist and neurosurgeon be called. He telephoned Dr. Stanley Durkin of Tacoma who agreed to see her at St. Joseph's Hospital in Tacoma. Dr. Durkin met Mary when the entourage arrived from Bremerton and was in charge of her case from the time of her arrival at St. Joseph's Hospital until her discharge.

 While she was confined at St. Joseph's Hospital, Robert visited her and 'surrepticiously' again injected her in the hip. He claimed that the substance was Ritalin. In the early period of Mary's hospitalization, she was fed intravenously. The history of Mary's hospitalization, her symptoms, and the diagnosis did not square with the head injury. Dr. Durkin, a neurosurgeon and neurologist, Dr. Pratt, the attending anesthesiologist, and two or more other medical doctors and/or toxicologists expressed the opinion that she had been poisoned. Samples of Mary's blood and urine were taken during the early period of her hospitalization and were preserved by a pathologist named Dr. Charles P. Larson. These samples were forwarded to a Dr. Richard Petty, the Assistant Medical Examiner for the State of Maryland, who practices his profession in Baltimore. Petty was the employer of Orindorff.

 It was claimed that Robert Boehme had not one but two motives. He was involved in a meretricious relationship with one Wanda Ostby, a former patient, and he had insured his wife of two and one-half years so that he stood to gain in the neighborhood of $ 170,000 if she died by accidental means. $ 150,000 of the insurance was a term policy.

 Mrs. Ostby testified that she and Dr. Robert Boehme had associated intimately for a period of time, including meetings in the State of California that were not doctor and patient oriented. Boehme, in his defense, admitted the existence of the insurance but on his direct examination denied that he was more than a friend of Mrs. Ostby. Ostby testified to two material matters, the meretricious relationship and the statement by Boehme that 'he would take care of Mary.' This he also denied.

 It would appear that his denial of his relationship with Ostby was untenable but he did not know that Ostby had not followed his directions to destroy all written communications. He did not follow the adage, 'Do right and fear no man -- don't write and fear no woman.' Certain writings had reached the hands of the prosecuting authorities that caused the petitioner to reverse the contention he made on his direct examination and to flatly admit that he had not been truthful.

 To bolster the opinions of th several physicians who testified that Mary had been poisoned, the state called a Dr. Freimuth (PhD), who is a toxicologist in the office of the Chief Medical Examiner for the State of Maryland. He had performed certain tests on the urine samples and from these tests concluded that the urine contained promazine. It also developed that the bottle from which Mary Boehme received her intravenous feeding contained promazine. It was the state's contention that the promazine was combined with a poison which had a deleterious effect on the nervous system. In an effort to establish the nature of the toxic material that was in the body of Mary Boehme, Dr. Charles Petty performed certain tests on blood samples which were prepared and forwarded to him by doctors who attended Mary Boehme and by Dr. Larson, the pathologist. Dr. Petty maintained a laboratory at 700 Fleet Street in Baltimore, Maryland. He also had a contract with the United States Army Chemical Center to do certain testing procedures and used a laboratory located in the community of Edgewood in the Baltimore area. This laboratory contained what is known as a titration machine. It is a machine used to measure cholinesterase. Orindorff, a technician in Dr. Petty's laboratory who had a bachelor's degree in chemistry, had completed certain subjects for his master's degree, and was then working on a doctorate, was delegated certain duties in connection with the testing procedures employed by Dr. Petty in his efforts to determine what, if any, poison could be demonstrated by his procedures to be present in the blood of Mary Boehme. Dr. Petty prepared certain samples or had them prepared in his laboratory at 700 Fleet Street. He directed Orindorff to take these samples, which included 'control samples' (samples prepared from the blood of an individual who showed no symptoms of poisoning), and go to the Edgewood laboratory and to run the samples through the titration machine, obtain the readings and return with them to his laboratory on Fleet Street. The record discloses that the titration machine, although owned by the United States Army, had been previously used for cholinesterase tests by Dr. Petty and his staff. It is an automatic machine. Orindorff did as directed and returned with the readings where he and Petty discussed the tests. From these readings and other factors, Dr. Petty concluded that Mary Boehme had been poisoned with a toxic substance of the 'carbamate class.'

 In paragraph 9(a), petitioner contends that his constitutional rights were violated because he was unable to confront Orindorff face to face, and that Petty was permitted to give hearsay testimony that was prejudicial and in violation of his constitutional rights, and that this trial-court error entitled him to a new trial. In light of the entire record, disclosing that Orindorff, who was under Petty's supervision, was a technician whose competence was not questioned and whose trip to Edgewood involved the use of an automatic machine to test samples prepared under Petty's direction and supervision, it was not error for the trial court to permit Petty to testify and to give his opinion which was in part based on the readings obtained by Orindorff.

 There is nothing in the record to show that more was required to reach the proper results in the titration procedure than merely putting the samples into the machine and reading the results off the machine. There can be little doubt that Orindorff was capable of correctly completing the required processes in the present test.

 In Fitts v. United States, 328 F.2d 844 (10th Cir. 1964), cert. den., 379 U.S. 851, 85 S. Ct. 96, 13 L. Ed. 2d 55, the court was concerned with the testimony of a doctor, the Chief Psychiatrist at the Springfield Medical Center. He had testified that the defendant Fitts was sane and able to stand trial. His opinion was based in large part on his conferences with the staff of the Medical Center and the results of tests performed on Fitts by that staff. Fitts contended that such testimony was 'hearsay or irrelevant.' The court stated:

 7'As Dr. Oppegard explained to the trial court it was his function as Chief Psychiatrist * * * to correlate the findings of the doctors and other personnel at the Medical Center which were a result of their examinations and observations of the appellant. Dr. Oppegard's testimony based on these reports and upon his conferences with the doctors and with the appellant cannot be said to be within the ...

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