State v. Gotthardt, 59441

• Decision Date: 13 September 1976
• Docket Number: No. 59441,59441
• Citation: 540 S.W.2d 62
• Parties: STATE of Missouri, Respondent, v. Martin Karl GOTTHARDT, Appellant.
• Court: Missouri Supreme Court

Page 62

540 S.W.2d 62

STATE of Missouri, Respondent, v. Martin Karl GOTTHARDT, Appellant.

No. 59441.

Supreme Court of Missouri, En Banc.

Sept. 13, 1976.

Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, for respondent.

Roger M. Hibbits, Florissant, for appellant.

FINCH, Judge.

Appellant, charged with murder, first degree, was found guilty by a jury of murder, second degree, with punishment assessed at thirty years in the custody of the Department of Corrections. He appeals, asserting lack of sufficient evidence to make a submissible case, and errors in the admission of evidence and in instructing the jury. We reverse and remand because of error in Instruction No. 6 submitting murder, second degree.

On the night of July 28, 1973, appellant and three other men, James Doeller, Roscoe Lewis and Bruce Freeman Basemore, drove around in Basemore's car drinking beer. At some point appellant requested Basemore to drive to the Norfolk & Western railroad yards to enable him to pick up his work clothes. When they arrived, appellant asked Lewis to accompany him into the yards. When appellant and Lewis returned, they were carrying several heavy brass fittings which belonged to the railroad. At first, Basemore refused to allow the fittings to be put in his car, saying he did not want to get into trouble hauling the stuff. When appellant agreed to give Basemore a split of what he received for them, the fittings were placed in the back seat of the car and the men then proceeded to Doeller's house, driving up into the back yard. The men went into the house and appellant made some calls to try to dispose of the fittings. Basemore told appellant that he wanted at least $50 for his share when the brass was sold, but appellant replied that he wasn't going to get $50. At Doeller's request, they went outside to avoid disturbing Doeller's wife. There the argument continued, Basemore stating to appellant that if he didn't get $50 out of the proceeds, he would take it out of appellant's hide. Appellant jumped from the porch and Basemore then 'took off' down the driveway.

Doeller testified that he then got in his car to try to catch Basemore to tell him that there was no sense in fighting and that he should get in his car and go home. Doeller did not find Basemore and when he returned in two minutes or so, he did not see appellant or Lewis.

Basemore came back up the driveway as Doeller was going into his house. Basemore was mad and said he was going to 'get' Doeller and the others for this. Doeller replied that he had nothing to do with it and that the dispute was between Basemore and Gotthardt. Basemore, according to Doeller, then began to calm down and got into his car and started the engine. While they were talking, appellant came running back (his back yard was immediately behind Doeller's back yard) carrying a rifle. Doeller thought appellant was going to shoot and tried to grab him, but appellant pushed Doeller down and told him to shut up. Doeller testified that appellant then fired twice into the side window of the Basemore automobile. The car went out of control and ran into a tree, after which appellant shot three or four times through the rear window of the car. Finally, appellant stuck the rifle into the window on the driver's side and fired two more shots.

Lewis testified that when Basemore returned to the Doeller yard, appellant sent him to tell appellant's wife that the wanted his rifle, but that appellant followed him and grabbed the gun. He then ran back to the Doeller yard and started shooting at Basemore's car. Lewis described the shots in about the same manner as had Doeller. In addition, Doeller's wife testified that after hearing some shots and a car crashing into the tree, she came out of the house and saw appellant stick his rifle in the driver's window and fire the last two shots. Doeller then went into his house and called the police.

The witnesses testified that after the shooting, appellant, with Lewis' help, pushed the car back from the tree and guided it down the driveway into the street where they left it. Meanwhile, appellant has his wife take the rifle to the garage of a relative, where it was later recovered by the police.

In addition to introducing the testimony of the three eye witnesses, the State offered evidence that empty shell casings found in the Doeller back yard had been fired in and ejected from the Gotthardt 22 caliber rifle and that two spect 22 slugs, recovered from the body of Basemore, could have been fired from that rifle but were too mutilated for positive identification. Gunshot residue samples, taken from the hands of appellant a few hours after the shooting, tested by neutron activation analysis, indicated that appellant had shot a firearm within a short time before the samples were taken.

In spite of this evidence, including testimony by three eye witnesses, appellant, citing Lohmann v. Wabash Ry., 364 Mo. 910, 269 S.W.2d 885 (1954), argues that we should hold a submissible case was not made on the basis that the eye witness testimony of Doeller, Mrs. Doeller and Lewis was completely contradicted by physical evidence offered by the State. The physical evidence relied on is itemized thus: (1) the spent slugs taken from the body of Basemore were not identified with the Gotthardt rifle; (2) the shell casings, found in the Doeller yard, were not found where they should have been, based on the eye witness accounts of where appellant was when he fired the shots; and (3) the absence of powder fouling on deceased indicated that he was not shot at close range.

We find no merit in this contention. The situations are not analogous. In Lohmann, plaintiff's decedent collided with a mail train at a public grade crossing. Plaintiff contended that although the train sounded a bell and a whistle as it approached the intersection, the warning was inadequate because a grease shack, located on defendant's right-of-way, obstructed the decedent's vision and made the intersection unusually hazardous. Plaintiff presented three witnesses who testified that the grease shack obstructed vision so that it would not have been possible for the decedent to see the approaching train until he was on the tracks. Physical evidence such as photographs, actual measurements, and tests clearly showed that the decedent's vision could not have been obstructed by a grease shack. The court wholly disregarded the testimony which was clearly contrary to the physical evidence and stated, 269 S.W.2d at 891, that,

'(i)t has long been the rule in this jurisdiction that where testimony is, beyond any reasonable doubt, contrary to established physical facts or laws and facts of common knowledge, it cannot be accepted as substantial evidence.'

By way of elaboration, the court explained that,

'(w)hat may be seen from a certain place under admitted or undisputed conditions and circumstances, and the view or line of sight under such circumstances is a physical fact, clearly and unequivocally demonstrable by photographic evidence.' (Emphasis supplied.)

In this case there was no physical evidence which clearly and unequivocally, beyond any reasonable doubt, established that Gotthardt could not have shot and killed Basemore or that the testimony of the eye witnesses could not be accepted as substantial evidence. It is incorrect to say, as appellant asserts, that the spent slugs had no identification with the Gotthardt rifle. Instead of so testifying, the expert who examined them testified that the dimensions of the rifling grooves on the test bullets fired from appellant's rifle and on the two spent slugs were identical and that these slugs could have been fired from appellant's rifle. He added that the comparison of the striations (the fine lines left on the surface) on the spent slugs with those of the test bullets was inconclusive because those on the spent slugs were too badly mutilated. Hence, he could not say positively that the spent slugs had been fired by that rifle, but that did not amount to evidence that the spent slugs had no identification with the Gotthardt rifle.

Nor did the locations in the Doeller yard where the police found the spent casings conclusively disprove the testimony of the eye witnesses that appellant shot and killed Basemore. It perhaps is arguable, as the appellant contends, that they should have been found elsewhere in the yard if the eye witness accounts of where appellant was when he fired are correct, but there was no evidence to clearly and unequivocally establish where the casings would have fallen. However, the evidence did establish that these casings had been fired in the Gotthardt rifle. Comparison under the comparison microscope of the markings thereon with those of test shells clearly so indicated. We conclude that the evidence as to where the casings were picked up was not the kind of undisputed physical evidence referred to in Lohmann.

Likewise, the absence of evidence of powder fouling on the deceased does not constitute conclusive physical evidence that Gotthardt could not have shot and killed Basemore as the eyewitnesses said he did. This argument necessarily is premised on the assumption that the bullet wounds resulted from shots fired at close range. This is not a valid assumption because the doctor who performed the autopsy found only two gunshot wounds, (one in the left side of his chest and one on top of his head) whereas the evidence disclosed that seven or eight shots were fired from different locations and distances. Which of those shots struck Basemore was not established. Hence, the absence of powder fouling does not demonstrate the impossibility of what the three eye witnesses said occurred.

We conclude that physical evidence did not make unbelievable the eye witness testimony and that the evidence, including their testimony, established a submissible case.

As noted at the outset, we have decided that this case must be reversed and remanded for...