State v. Brecht
| Decision Date | 07 June 1971 |
| Docket Number | No. 11787,11787 |
| Citation | 485 P.2d 47,157 Mont. 264 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. Robert BRECHT, Defendant and Appellant. |
| Court | Montana Supreme Court |
Howard Foreman (argued) Billings, for appellant.
Robert L. Woodahl, Atty. Gen., Helena, J. C. Weingartner, Asst. Atty. Gen., (argued) Helena, William Blenkner, County Atty., Columbus, for respondent.
On May 18, 1967, defendant Robert Brecht was charged by information in the district court of the thirteenth judicial district, county of Stillwater, with murder in the first degree. The charge arose from the shooting death of defendant's wife, Mary Ann Brecht on May 17, 1967. Trial was had and the jury returned a verdict of murder in the second degree on February 24, 1968. The presiding judge sentenced the defendant to 30 years confinement in the Montana state prison on Feburary 26, 1968.
Court appointed counsel at trial elected not to appeal and defendant, acting pro se, filed application for post conviction relief and present counsel was appointed by the district court to represent him. Hearing was had before the presiding judge on July 2, 1969. The matter was thereupon taken under advisement, but prior to decision the presiding judge died.
Upon proper application, this Court assumed jurisdiction and ordered transcripts furnished and briefs filed. 27 St.Rep. 379. Following preparation of the transcript of the trial and filing of briefs, the present cause was heard on oral arguments before this Court on February 10, 1971.
Defendant Robert Brecht, age 30, of Columbus, Montana and Mary Ann Brecht were married in November 1958. They had two children. At the time of trial the girl was 8 years old and the boy 7. Defendant had been a resident of Columbus since 1948 and graduated from high school there in 1955. He served in the military and earned his living in the construction trade.
At the time of the fatal shooting on May 17, 1967, the defendant and his wife had been separated for about six weeks. This had happened twice previously and reconciliation had followed both times. Mary Ann Brecht was employed as a bartender at the Ten Inn, located between Columbus and Park City, Montana. On the day of the shooting Mrs. Brecht was working the day shift and normally would have been off shift by 6 or 6:30 p. m. but that day she had stayed late at the request of the owner. Defendant was released from his job early that day and he went to the Ten Inn in the late afternoon to discuss with his wife the matter of both contributing toward a birthday present for their son. The record discloses that defendant was in debt and without ready funds. He testified that he discussed with his wife the possibility that she ask her employer, Bill Revell, to loan him $20 on his shotgun. This gun had been 'hocked' on a previous occasion to a Mr. Mulvehill and redeemed in late April 1967. Mulvehill had been upset because of the long time involved before the gun was redeemed and further because the gun had a faulty firing mechanism and malfunctioned, which prevented a sale. Another witness affirmed the malfunction of the gun.
Defendant testified that prior to the homicide he had prepared to hunt crows with the shotgun and had removed the 'plug' from the gun's magazine. The 'plug' was a device to reduce the shell capacity of the gun from 5 shells to 3 shells when hunting game birds, as required by law. Afterward by habit, defendant ejected only 3 shells and 2 remained in the gun without his remembrance.
Defendant returned to his home after the initial visit with his wife and before returning to the Ten Inn, at about 8 p. m., placed the shotgun in his car. Defendant testified that when he entered the bar Bill Revell, the bar owner; Mary Ann, defendant's wife; and a customer named John Strecker were there. Defendant's wife was behind the bar and the two men on stools in front of the bar. Defendant did not, at this time, bring the gun into the bar. He asked his wife if she had discussed the loan on the gun with Bill Revell and was informed that she had not. Defendant then told her he would get the gun and let Revell look it over. He went to his car, removed the gun, returned to the bar, and placed the shotgun on the top of the bar. Revell, upon seeing the gun, told him to 'get that thing out of here'. As defendant picked up the gun, the bar stool upon which he had his knee tipped forward and he let go of the gun with his left hand to catch hold of something and the gun fired. Defendant further testified that he pumped the gun because another shell was hung up on the ejector and in so trying to unload it, the gun went off again, firing out the door. At the time he noticed his wife, Mary Ann, was hurt. He tried to aid her but hse did not respond. All other persons had fled from the bar. Defendant then picked up the gun and left the bar to go home to Park City.
When defendant walked out the front of the building Bill Revell, the owner, was approaching and he spoke to him in regard to getting an ambulance. Defendant then drove down along the river, gained some control, and remembering the two extra shells, threw the gun into the river. He then returned past the Ten Inn on his way home. When he reached home he was taken into custody.
John Strecker, who was not acquainted with defendant, testified he was in the bar when Brecht entered. Strecker went to the men's room and when he returned defendant had a gun. He heard defendant say that this was a 12-gauge. The gun was pointed at Mary Ann Brecht. He testified that when he first observed defendant holding the gun, it was with both hands; that thereafter defendant removed one of his hands from the gun and was holding it with one hand; that while he was holding the gun with one hand the gun was tilted so that Strecker observed a shell in the magazine; and, that when the gun went off he, Strecker, bolted from the room.
Bill Revell testified that John Strecker called his attention to the gun, and that defendant was pointing the gun directly at Mary Ann while the gun lay diagonally on top of the bar with defendant's hands on the gun. Further, that defendant made the statement 'If I can't have you no one can' and the gun fired; that Brecht pulled another shell from his pocket and put it in the gun at which point Revell left the building through the front door. Revell decided to return and met defendant leaving. He does not recall defendant speaking to him.
Dr. Edwin Segard testified as to the autopsy findings. He described the wound sustained by Mary Ann Brecht as extending from the mid-portion of the left chest laterally to the side of the right chest. The pattern of the shotgun wound extended across her chest at the approximate level of the breasts. He stated that a lower gaping wound was probably made by wadding or possibly clothing.
J. W. Reineking, Sr., was qualified as a ballistic and gun expert and testified for the defendant. Reineking testified as to hie examination and observations at the scene of the homicide; and, that markings on the top of the bar at the Ten Inn were caused by a charge of shot striking the bar. He described the wound suffered by Mary Ann as not the usual shotgun pattern at the distance at which it had occurred. He described a series of tests that he conducted in which he duplicated the wound pattern by a ricocheted or deflected shot. Reineking testified to measurements and calculations made by him and that a deflected shot pattern would strike 49 to 50 inches in height from the floor and calculated on the victim's height would produce the wound. He further testified that in his opinion it would be impossible that the gun was pointed directly at Mary Ann Brecht.
The record demonstrates no significant disagreement as to the events prior to the discharge of the shotgun the first time. John Strecker's impression was contrary to defendant's testimony but neither was it in agreement with owner Bill Revell's, whose version was the most damaging to the defendant. Revell agrees the gun was on top of the bar with defendant's hands on it but disagrees as to the position of the gun and the statement attributed to the defendant just prior to the discharge of the shotgun. The witnesses had departed the bar when the second shot was fired but they disagree with defendant's story that he was trying to eject a shell as they departed.
Dr. Segard's testimony together with the reconstruction by gun expert Reineking, appears to support defendant to the extent that their testimony together is consistent with a deflected shot and confirms that the gun was not pointed at the deceased.
Sandra Brumfield, 18 year old sister of the deceased, was allowed to testify to a telephone conversation on April 29, 1967, between the defendant and his wife. She testified she overheard the conversation on an extension phone in the kitchen of her mother's home where both she and the deceased were residing at the time. She testified she answered the telephone, recognized defendant's voice as the caller and at his request called Mary Ann to the phone. She then picked up the telephone extension and listened to the conversation between the defendant and his wife, Mary Ann. Her testimony as to this conversation was:
* * *
Over objection by counsel, she testified as to the conversation she listened in on and testified as to a 'threat':
'Q. What did you hear at that time, Miss Brumfield? A. They were arguing.
'Q. Who was arguing? A. Mary Ann and Bob.
'Q. Do you recall specifically overhearing any particular words at that time? A. He made a threat.
'Q. And what was that threat? A. He said 'I got my shotgun out of hock, I am coming down and I will...
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