State v. Brandt

• Decision Date: 10 May 1971
• Docket Number: No. 54585,No. 1,54585,1
• Citation: 467 S.W.2d 948
• Parties: STATE of Missouri, Respondent, v. David Lee BRANDT, Appellant
• Court: Missouri Supreme Court

Page 948

467 S.W.2d 948

STATE of Missouri, Respondent, v. David Lee BRANDT, Appellant.

No. 54585.

Supreme Court of Missouri, Division No. 1.

May 10, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

June 14, 1971.

John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.

Alan G. Kimbrell, Clayton, for appellant.

KELSO JOURNEY, Special Judge.

Defendant-appellant, David Lee Brandt, appeals from the judgment of the Circuit Court of St. Louis County, wherein, upon the jury's verdict, he was sentenced unto the custody of the Department of Corrections for his natural life for the first degree murder of Salvatore Levantino on January 28, 1968.

The facts leading to the event revolved around appellant's wife of five months, Eva Brandt. Eva was the mother and custodian of two daughters born of an earlier marriage. For eighteen months from December, 1965, to May, 1967, Eva lived with the deceased, Salvatore Levantino, without the benefit of marriage. This relationship ended in May of 1967 with a violent fight, following which, Eva, believing she was injured, went to a nearby doughnut shop where appellant worked. She had then been acquainted with appellant for about one month, and he took her to a hospital for treatment. Three months later, Eva and appellant were married. Four months later they separated, and following Eva's initiating telephone calls to him, the deceased came to Eav's home for a meeting that ended with the deceased threatening violence to her and demanding that she meet him that night at a place called LaCachette. Thereupon Eva took her two daughters to their father's home and returned to her home where she remained. Later the same night deceased returned and when Eva refused him entry he kicked in her screen door. The following morning the deceased telephone Eva at her employment in a tavern called 'Jimbo's Lounge' and told her that he should have bombed her house. When she asked him to think of her children being in the home, he threatened to bomb the tavern where she worked. The next day deceased telephoned Eva an apology for his conduct, and Eva agreed to meet him at her home that night. During the day Eva changed her mind and put a note on her door for deceased to find that explained her absence and her reasons why. On the following morning deceased telephoned Eva again and threatened to 'have her face carved up so no one else would want her.'

Then on Friday, January 26, 1967, a day or two later, in response to Eva's call, appellant went to Jimbo's Lounge where Eva related to him in detail the events about the deceased kicking in her screen door and his threatening to bomb and to injure her.

Appellant, appearing as a witness in his own behalf in the trial, testified that he took deceased's threats seriously because he knew the deceased had slapped his wife around; was a known police character; he had been told deceased had been convicted of armed robbery; that deceased had a reputation for violence and turbulence; and that he had no doubt the deceased would carry out the threats on his wife. He testified that he felt deceased had no right or reason to threaten his wife or her children; that he called the police and was told they could do nothing concerning the threats; that he loved his wife and he decided that the only way he could prevent injury to her was to kill the deceased.

On cross-examination appellant admitted buying a double-barrel 12-gauge shotgun and some shells from a gun shop and a hacksaw from a hardware store on Friday, January 26, 1967. He took the shotgun to a rented motel room where he cut off most of the barrel and stock 'so that it could be carried without detection.'

The mother and stepfather of the deceased, Lillian and John Rimmell, testified that on Sunday evening, January 28, 1967, at about 8:20 o'clock P.M., appellant, wearing a hat, coat and sunglasses appeared at their home in Florissant, Missouri, where the deceased also resided, and Mrs. Rimmell answered the doorbell. Appellant asked for the deceased and Mrs. Rimmell replied that her son was not at home and inquired if appellant wanted to leave his name, to which appellant replied 'Just say Kelly called,' and he left.

Two hours later the same night appellant parked his automobile down the street, turned the lights off and left the motor running on the automobile, and walked to decedent's residence. Mrs. Rimmell saw the appellant through a window coming up the walk and upon her telling her son 'that Kelly fellow is here again,' the deceased went to the door where appellant inquired 'Are you Sam Levantino?', to which deceased replied 'That's right.' Thereupon, at close range appellant fired one barrel of the sawed-off shotgun at deceased striking him in the stomach and side. The deceased turned and said 'Oh, my God, Mother, I've been shot,' and fell, whereupon appellant ran to his automobile and drove away without lights, and threw the empty cartridge out along the road.

The deceased was taken to the St. Louis County Hospital where at 11:25 P.M. the same night Detective Robert Binggeli interrogated him about what had happened. Deceased answered that a white male came to the door and shot him with a shotgun; that he did not know who shot him, but described him as being 25 to 26 years old, about five foot six to five seven and weighed about 140 to 145 pounds, and was wearing a black hat, dark sunglasses, and had on a black or a dark blue full-length coat; that he, the deceased, was sitting in the kitchen and the doorbell rang and his mother answered it and called him; that he got up and just as he approached the door the subject stated 'Are you Sam Levantino?' and he said 'Yes, I am,' and with this the subject outside shot him with a shotgun; and that he had no knowledge of why anybody would want to shoot him.

A surgical operation for gunshot wound was performed on the decedent during the same night by a Dr. Harms who removed three pellets and a fiber disc from decedent's wound. A second surgical operation was performed on deceased on January 30, 1967, by Dr. Lawrence G. Oder, who testified that 'this operation involved a re-exploration of the abdominal cavity which entailed some debridement of some necrotic muscle of the abdominal wall, both front and back. Subsequent to the surgery he never regained consciousness, never had spontaneous respirations and expired * * * around 11 o'clock in the morning.'

The state introduced in evidence several confessions of appellant including a videotape interview in which appellant detailed his killing of the deceased. His confessions confirmed the testimony of other state witnesses. On the witness stand appellant testified that he decided to kill the deceased on Friday, two days before the fateful Sunday, and that he deliberately planned the killing during the following two days. In effect, appellant's testimony showed that he committed the murder in the manner the State's evidence revealed.

Appellant insists that the court erred in overruling his motion for judgment of acquittal because the state did not present any expert testimony from a doctor as to the cause of death of the deceased. While proof thereof may be made by the expert opinion of a doctor, opinion evidence is not the only mode a establishing the cause of death. For many years the courts of this state have held that circumstantial evidence of a proper degree of strength is sufficient to prove the death of the person in unlawful homicide cases. State v. Lamb, 28 Mo. 218, 230 (1859); State v. Patterson, 73 Mo. 695, 712 (1881); State v. Henderson, 186 Mo. 473, 85 S.W. 576, 578 (1905); and State v. Poor, 286 Mo. 644, 228 S.W. 810, 815 (1921). The case of North Carolina v. Minton, 234 N.C. 716, 68 S.E.2d 844, 31 A.L.R.2d 682 (1952), expresses our views when it says:

'The law is realistic when it fashions rules of evidence for use in the search for truth. The cause of death may be established in a prosecution for unlawful homicide without the use of expert medical testimony where the facts in evidence are such that every person of average intelligence would know from his own experience or knowledge that the wound was mortal in character. (Citing cases.) There is no proper foundation, however, for a finding by the jury as to the cause of death without expert medical testimony where the cause of death is obscure and an average layman could have no well grounded opinion as to the cause.'

In applying these tests to the facts in the instant case, we hold that the evidence, including the gunshot fired by the appellant, the location and nature of the gunshot wound, and the circumstances surrounding the death including appellant's confessions, afford such causal relation between the shooting and the death as to withstand appellant's motion for a judgment of acquittal. There is no merit to appellant's contention that deceased's death may have resulted from the two surgical operations for gunshot wound he underwent for the reason appellant is legally accountable if the direct or immediate cause of death resulted naturally or proximately from his own unlawful act. State v. Cheatham, 340 S.W.2d 16, 20 (Mo.1960); and 40 C.J.S. Homicide § 11b.

Appellant complains the trial court erred in admitting over his objection certain exhibits consisting of photographs (one with a traced silhouette showing the position of the body), clothing of deceased, rugs and a storm window--all showing bloodstains from the deceased, when appellant had offered to stipulated that decedent was shot in the front door of his house near the abdominal area and that he bled when he was shot.

It is well settled that demonstrative evidence of this character is admissible if it tends to connect the accused with the crime, or to prove the identity of the deceased, show the nature of the wound, or throw any relevant light upon a material matter at issue. State v. Moore, 303 S.W.2d 60, 65 (Mo....