State v. Gardner, 618 S.W.2d 40 (Mo. 1981). · Go Syfert
State v. Gardner, 618 S.W.2d 40 (Mo. 1981). Cases Citing This Book View Copy Cite
45 citation events across 3 distinct courts.
Strongest positive: State v. Orso (moctapp, 1990-04-17)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
cited Cited as authority (rule) State v. Orso
Mo. Ct. App. · 1990 · confidence medium
State v. Gardner, 618 S.W.2d 40, 41 (Mo.1981).
discussed Cited as authority (rule) State v. McMillin (2×)
Mo. · 1990 · confidence medium
For example, see State v. Gardner, 618 S.W.2d 40, 41 (Mo.1981) (photo of victims’ decomposed body held relevant to show the body’s location); State v. Newberry, 605 S.W.2d 117, 122 (Mo.1980) (photo admissible to prove identity and condition of the corpse, nature and location of the wounds, the cause of death, or to corroborate or refute testimony).
discussed Cited as authority (rule) State v. Leisure
Mo. Ct. App. · 1989 · confidence medium
State v. Leisure, supra, at 379 (photo of a bombing victim of a different murder was admissible in penalty phase to prove the finding of the aggravating .circumstance of prior convictions); State v. Gardner, 618 S.W.2d 40, 41 (Mo.1981) (photo of the victim’s decomposed body was relevant to show the body’s location); State v. Newberry, 605 S.W.2d 117, 122 (Mo.1980) (photo is admissible to prove identity and condition of the corpse; nature and locations of the wounds; the cause of death; or to corroborate or refute testimony).
discussed Cited as authority (rule) State v. Clemmons (2×)
Mo. · 1988 · confidence medium
State v. Gardner, 618 S.W.2d 40, 41 (Mo. 1981).
discussed Cited as authority (rule) State v. Murray (2×)
Mo. · 1988 · confidence medium
State v. Gardner, 618 S.W.2d 40, 41 (Mo.1981).
discussed Cited as authority (rule) Rumble v. State
Mo. Ct. App. · 1987 · confidence medium
See State v. Daugherty, 631 S.W.2d 637, 645 (Mo.1982); State v. Fuhr, 626 S.W.2d 379 (Mo.1982); State v. Gardner, 618 S.W.2d 40, 41 (Mo.1981). 3 Therefore it was not error to give the felony-murder instruction at movant’s trial.
discussed Cited as authority (rule) Clifton Franklin v. Carl White
8th Cir. · 1986 · confidence medium
Supreme Court held that it was error for a trial court not to instruct on first degree felony murder under a charge of capital murder, State v. Gardner, 618 S.W.2d 40, 41 (Mo. 1981), and conversely that it was not error for a trial court to instruct on first degree felony murder under a charge of capital murder, State v. Daugherty, 631 S.W.2d 637, 645 (Mo.1982).
discussed Cited as authority (rule) Newman v. State
Mo. Ct. App. · 1984 · confidence medium
In § 565.006-1, L.1977 eff. 5-26-77, it was provided that at the conclusion of all jury trials where commission of capital murder was charged, “the jury shall ... by their verdict ascertain, whether the defendant is guilty of capital murder, murder in the first degree, murder in the second degree, manslaughter, or is not guilty of any offense.” State v. Gardner, 618 S.W.2d 40, 41 [3] (Mo.1981), involved a conviction of capital murder committed August 31, 1978.
cited Cited as authority (rule) State v. Donovan
Mo. · 1982 · confidence medium
“Upon retrial, the directives of MAI-CR2d 15.00 3. must be observed and the jury instructed on any degree of homicide ‘justified by the evidence.’ ” State v. Gardner, 618 S.W.2d 40, 41 (Mo.1981).
discussed Cited "see" State v. Goddard (2×)
Mo. · 1983 · signal: see · confidence high
See Daugherty, 631 S.W.2d at 645 (relying on State v. Gardner, 618 S.W.2d 40 (Mo. 1981)); State v. Fuhr, 626 S.W.2d 379, 379 (Mo.1982) (same).
discussed Cited "see, e.g." Walter J. Blair v. Bill Armontrout, Walter J. Blair v. Bill Armontrout (2×)
8th Cir. · 1990 · signal: see also · confidence medium
Id; see also State v. Gardner 618 S.W.2d 40, 41 (Mo.1981) (failure to give first-degree instruction held to be error for crime committed on August 31, 1978).
cited Cited "see, e.g." Michelle Rumble v. Don Smith, Warden
8th Cir. · 1990 · signal: see also · confidence medium
See also State v. Gardner, 618 S.W.2d 40, 41 (Mo.1981).
cited Cited "see, e.g." Sayles v. State
Mo. Ct. App. · 1988 · signal: see, e.g. · confidence low
See, e.g., State v. Gardner, 618 S.W.2d 40 (Mo.1981); see also Rumble v. State, 741 S.W.2d 283 (Mo.App.1987).
Retrieving the full opinion text from the archive…
STATE of Missouri, Respondent,
v.
Stephen GARDNER, Appellant
61972.
Supreme Court of Missouri.
Jun 11, 1981.
618 S.W.2d 40
Alfred O. Hardy, Kansas City, for appellant., Mark Comley, Asst. Atty. Gen., Jefferson City, for respondent.
Welborn, Donnelly, Morgan, Rendlen.
Cited by 35 opinions  |  Published
WELBORN, Commissioner.

Appeal from judgment of conviction, on jury verdict finding Stephen Gardner guilty of capital murder, § 565.001, RSMo 1978, with sentence to life imprisonment without eligibility for parole until a minimum of fifty years of the sentence has been served.

This case arises from the incident detailed in State v. Mercer, 618 S.W.2d 1 (Mo. banc No. 61797, decided May 11, 1981).

[*41] According to the state’s evidence, the appellant Gardner provided the victim, Karen Keeton, as a “birthday present” for Mercer. After the victim, having been threatened by Mercer with a sawed-off shotgun, had engaged in sexual intercourse with Mercer and appellant and engaged in oral sodomy with a third person, appellant, upon leaving the scene of the encounter, told Mercer: “Kill the bitch,” a directive with which Mercer complied.

Mercer and a fourth participant, John Campbell, took the victim’s body to a rural area of Kansas and dumped it over a fence into a field.

Some three or four weeks later, Campbell and his attorney found the body, badly decomposed. Law enforcement officers were notified and Campbell detailed the occurrence and testified for the state at appellant’s trial.

In this Court, appellant’s first assignment of error is based upon the admission into evidence of a photograph of the decomposed body of the victim, taken at the scene of its discovery by law enforcement officials. Appellant contends that the photograph, showing the body in a somewhat mummified state, from which neither identification of the victim nor cause of death could be ascertained, was “so gruesome and inflammatory, vulgar and repulsive that it was prejudicial to the defendant and since it had no real purpose or probatory value its admission was prejudicially erroneous.” Appellant’s primary reliance is upon State v. Floyd, 360 S.W.2d 630 (Mo.1962).

In Floyd, the court found error in the admission of a photograph of the decomposed body of the homicide victim, holding that the photograph was neither offered nor needed for any of the conventional purposes of photographic depiction of a homicide victim’s body, including identification of the victim, showing the nature and location of wounds, proving the character of the weapon, assisting in determining the degree of the crime or showing the cause of death. 360 S.W.2d 633.

However, a photograph of the body of a homicide victim, although gruesome, may be introduced into evidence for not only such purposes. Such evidence is admissible if “ * * * ⅛ tends to show some fact or circumstance material to the case” or “ * * * enables the jury to better understand the fact and the testimony of witnesses [citation omitted] or tends to corroborate, explain or clarify the testimony of witnesses, [citation omitted].” State v. Stevens, 467 S.W.2d 10, 24 (Mo.1971).

In admitting the photograph here questioned, the trial court noted that it showed “ * * * the location of the body as it was discovered.” As such, and as the trial court further noted at the hearing on the motion for new trial, it was corroborative of the testimony of Campbell, the state’s principal witness, whose credibility was the subject of strong attack. Therefore, the trial court’s admission of the photograph into evidence was not error. Stevens.

Appellant’s second assignment of error is based upon the trial court’s failure to instruct upon first degree murder in the commission of rape. § 565.003, RSMo 1978.

The court instructed on capital murder, conventional murder in the second degree and manslaughter. Relying upon State v. Handley, 585 S.W.2d 458 (Mo. banc 1979), the court refused to instruct on first degree murder.

The trial court’s reliance upon Handley was misplaced. State v. Wilkerson, 616 S.W.2d 829 (Mo. banc No. 62497, decided May 11, 1981). The failure to instruct on first degree murder in the commission of rape (the claim of error preserved in appellant’s motion for new trial) requires reversal of the judgment of conviction. MAI— CR 2d 15.00 3.

Appellant has complained in this Court of the refusal of other “felony murder” instructions. These claims were not presented in the trial court and will not be considered here. Upon retrial, the directives of MAI-CR 2d 15.00 3. must be observed and the jury instructed on any degree of homicide “justified by the evidence.”

Reversed and remanded.

[*42] PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

DONNELLY and MORGAN, JJ., concur. RENDLEN, P. J., concurs in result.