State v. Branch, 52614

• Decision Date: 29 March 1988
• Docket Number: No. 52614,52614
• Citation: 757 S.W.2d 595
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Lynda R. BRANCH, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 595

757 S.W.2d 595

STATE of Missouri, Plaintiff-Respondent, v. Lynda R. BRANCH, Defendant-Appellant.

No. 52614.

Missouri Court of Appeals,

Eastern District.

March 29, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 27, 1988.

Case Retransferred to Supreme Court June 14, 1988.

Case Transferred to Court of Appeals Oct. 18, 1988.

Original Opinion Reinstated Oct. 19, 1988.

Cyril M. Hendricks, Jefferson City, for defendant-appellant.

William L. Webster, Atty. Gen., Deborah L. Ground, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SMITH, Judge.

Defendant appeals from her conviction of first degree murder and the resultant sentence of life imprisonment without possibility of parole for fifty years. We reverse and remand.

The victim of the killing was defendant's husband. On May 17, 1986, a call was received on the 911 line to dispatch an ambulance to the Branch residence in Jefferson City. The call was received at 12:30 a.m. Within five minutes police and an ambulance arrived at the address. Defendant told those responding to the call that her husband "has been shot--help him." The husband was found lying in the foyer of the residence covered with a blanket and sheet. The ambulance crew testified that based upon their experience and their examination the victim had been dead at least twenty minutes when they arrived. The assistant medical examiner, a physician, arrived at the scene within fifteen minutes of the initial call and determined death to have occurred prior to 12 midnight.

Defendant advised police at the scene that her husband was alive when she placed the 911 call. She further stated that he had gone to answer the front door while she was dozing; that he returned upstairs saying "help me, it hurts" and then fell down the stairs. She then tried to assist him in various ways and while he was still alive placed the call. All questioning of the defendant at the scene occurred while she was still viewed as a victim and not as a suspect. After the police arrived, defendant was very upset even "hysterical." She was not arrested, but was taken to the police station with her consent while police processed the crime scene. This was done after request to her for permission to do so and upon her statement "go ahead and do whatever you need to do in the apartment."

While defendant was at the police station considerable evidence was collected at the scene. That evidence indicated that the victim was shot in the bedroom in the upstairs of the apartment. His body was then dragged down the stairs. A .22 caliber semi-automatic pistol was found on the lawn near the front porch. This was established to be the murder weapon. The victim was shot twice, one bullet piercing the myocardial sac and lung resulting in death. That bullet exited the body and was fired at close range. Medical evidence established that death would not have occurred for several minutes, the time required for the lung to fill with blood. There was relatively little external bleeding. The decedent's blood alcohol content was .16%. The only person present in the house at the time of the shooting besides defendant and the victim was defendant's 14 year old daughter, Tammy, who was asleep in her room.

There was considerable evidence which would warrant the conclusion that defendant dragged the victim down the stairs, attempted to clean her bloody clothes, put new sheets on the bed, and attempted to conceal a sheet which had been wrapped around the gun and through which the bullets were fired. At 3 a.m. the officer in charge of the investigation returned to the police station and administered Miranda warnings to defendant. She agreed to answer further questions. At 5 a.m. she was placed under arrest and upon her request for an attorney questioning ceased.

At trial defendant admitted that her original story was fabricated. She testified that she had argued with her husband throughout the day and evening and that he was drinking beer throughout that period. Their argument concerned, among other things, his persistent heavy drinking and included her advice to him that she was leaving him. Defendant testified that she went to sleep on the living room couch but was awakened by her husband who ordered her into the bedroom "where she belonged." She went into the bedroom and was dozing in the bed when she awakened to see her husband pointing a gun wrapped in a sheet at her. Husband stated that he "was going to do to her what he should have done to Pam"--his ex-wife. He also stated in reference to Tammy: "I'll take care of her too." Defendant interpreted that as a threat against Tammy over whom the couple had also quarreled that day. A struggle ensued over the gun and it discharged inflicting the fatal wound. The gun discharged a second time when defendant attempted to remove the sheet covering it. Defendant stated that she was stunned at what had happened. Her testimony reflected that her husband left the bedroom after being shot and then collapsed and slid down the stairs. She gave a variety of explanations for her subsequent conduct, the thrust of which was she was trying to help him and to cover up what happened to protect him and herself. She testified that when she called 911 she believed her husband was still alive.

There was evidence offered by both the state and defendant that on the day of the killing defendant had paid the balance due on her husband's union initiation fee from his paycheck. At that time she inquired about whether his union medical insurance was in effect because of surgery she was contemplating. She was advised that neither his medical nor $11,000 life insurance policy would be in effect for another six weeks. ¹

Defendant testified to physical and verbal abuse she had sustained from husband when he was intoxicated. She testified to a continuing pattern of such abuse. The trial court imposed a limit on such evidence to that occurring subsequent to 1979.

In rebuttal the state offered three character witnesses who testified to defendant's bad reputation for truthfulness and veracity.

Defendant challenges the sufficiency of the evidence to establish the crime of first degree murder notably the sufficiency of the evidence to support a finding of deliberation. We review the evidence in the light most favorable to the prosecution. State v. Wood, 596 S.W.2d 394 (Mo. banc 1980) [7-10]. In determining the sufficiency we examine the evidence and circumstances surrounding the act and the reasonable inferences to be drawn therefrom. Id. The evidence and inferences here allow the conclusions that the weapon was taken from a closet, that the victim was shot twice at close range, that his body was dragged by defendant down the stairs, that she attempted to conceal her involvement in the crime, that she attempted to dispose of the weapon outside the house, that she washed her clothes and put new sheets on the bed to conceal blood on the mattress, that she deliberately delayed calling for assistance until after her husband was dead, that she fabricated the story she told police, that victim and defendant had quarreled throughout the day, and that their marital relationship had deteriorated to a point where defendant was intending to leave and had made a list of the personal property and how it was to be divided. This is sufficient to establish that defendant killed her husband after deliberation. See State v. Dickson, 691 S.W.2d 334 (Mo.App.1985) ; State v. Hurt, 668 S.W.2d 206 (Mo.App.1984) [22-23].

Defendant's major challenge is to the rulings of the trial court restricting evidence tendered by her concerning physical abuse to her prior to 1980. Companion evidence of a life-threatening assault against Pam Buford, the victim's ex-wife, was also excluded by the trial court. Defendant was allowed to testify concerning assaults upon her occurring after 1979. This testimony, otherwise undocumented, was that the victim, otherwise a loving husband, regularly became physically abusive when intoxicated. Defendant sought to introduce evidence through hospital records that dealt with her admission to the hospital in April 1978 for contusions and sprains sustained by defendant as a result of a beating by her husband. Specifically the report in pertinent part read:

"Chief complaint: Facial injuries from beating.

Present Illness: This is a 25 year old, white female who was admitted to the hospital after her husband had beaten her about the face and forehead during a fight immediately prior to the hospital admission. The patient states that the husband had been drinking and landed several blows to her face, one of which hit the left side of the forehead and left periorbital area. This injury caused a large ecchymotic and contused area, apparently from where the husband's hand struck the telephone and the telephone in turn smashed against the side of her head. The patient states that she was unconscious a couple of times on the way to the Emergency Room and she states that she was weak and had blurred vision prior to the admission to the Emergency Room. She, in the Emergency Room, was coherent, but had blurred vision and was unable to count fingers for a certain period of time.... The patient had a large ecchymotic area across the left forehead and because of the visual blurring and inability to count fingers, the patient is admitted to the hospital....

Past Medical History: The patient's past medical history is very complicated. She has been beaten several times before by this husband. He apparently has a drinking problem and was told 2 1/2 years ago by Dr. Giffen that if he didn't stop his drinking, that he would have severe diabetes. He has restarted this drinking habit recently and this has produced a hardship on the family....

Admitting Diagnosis: 1. Head contusion, right forearm and hand contusion, suspect right middle phalanx proximate interphalangeal joint sprain. 2. Anxiety, acute."

A follow-up...