Forensic autopsies in Missouri: Navigating the road from the morgue to the courtroom
Vol. 76, No. 1 / January - February 2020
Todd T. Smith, J.D., LL.M.
Todd T. Smith is a former prosecutor now in private practice in Jefferson City. He earned his J.D. from Drake University Law School in 2008 and his LL.M. in law and government from American University’s Washington College of Law in 2009. He has handled civil and criminal cases involving forensic autopsy evidence and has observed the procedure first-hand.
From homicide prosecutions to insurance lawsuits, lawyers in Missouri occasionally require an expert opinion as to the manner and cause of a person’s death. As with any such evidence, the overriding concern is to secure an opinion that is both admissible and persuasive.
When pursuing those goals with regard to forensic autopsy evidence, Missouri lawyers must be prepared to deal with both state and county government officials, the scarcity of genuine forensic experts, and the temptation to forgo an expensive examination when the circumstances surrounding the death are painfully obvious. The difficulty involved in surmounting those challenges is greatly lessened with an appreciation of six core concepts: manner versus cause of death, the mechanics of death certificates, the functions of a Missouri coroner and medical examiner, the qualifications of a forensic pathologist, the legal hurdles to obtaining an autopsy, and the evidentiary rules related to death certificates and autopsy reports. To that end, this article will introduce those concepts and hopefully provide the reader with a useful foundation to discuss a forensic autopsy with an expert and explain that procedure in court.
Manner vs. Cause of Death
The entire point of a forensic (meaning pertaining to the legal system) autopsy (a post-mortem examination of the corpse) is to help a fact-finder answer the inevitable question: How did this person die? The answer has two parts: a determination as to the manner, or type of death; and another determination as to the cause, or underlying reason(s), the person died.
There are five official manners of death: natural, accident, suicide, homicide, and unknown.2 Put another way, a person’s life ends because of a health condition, an injury that inadvertently occurred, an injury that was self-inflicted, an injury that was inflicted by another person, or for no known reason. While normally straightforward, there are a few scenarios where the determination of manner is complicated.
For example, there are situations where a considerable span of time separates a fatal injury and the actual death. For example, the death of President Ronald Reagan’s press secretary, James Brady, was ruled a homicide even though it took approximately 33 years for Brady to die after being shot by John Hinckley.3 The issue was, “but for” the gunshot wound, Brady would not have perished when he did. On the other hand, when a sober driver dies from a collision entirely caused by a drunk driver, while arguably a homicide, by convention such deaths are typically ruled to be accidents.4 Another frequently debated scenario is death by recreational drug overdose.5 Was it inadvertent (accident), deliberate (suicide), the product of years of substance abuse (natural), or a case of deliberately tainted drugs (homicide)? These questions are hopefully answered by determining the other ultimate question, the cause of death.
The cause of death is the medical reason the decedent’s heart permanently stopped beating. Ideally, the cause of death denotes both a technical mechanism of death, the fatal “physiologic, metabolic, or anatomic alteration” which ended the person’s life, as well as the underlying disease or injury, which is often denoted as a proximate cause.6 So, for instance, stroke due to coronary artery disease is a common cause of death. Unfortunately, these conclusions are open to considerable subjectivity with regard to the use of technical language and as to how many links in the chain of causation warrant mention. For example, one doctor might opine that the cause of death was a stab wound to the chest; in the same case, a different doctor may list the cause as hypoxia from exsanguination secondary to sharp force trauma to the thorax.
When dealing with a death of an elderly person in poor health, pinpointing the precise culprit amongst several contending diseases can be very challenging, if not impossible. Indeed, in such cases it is not uncommon for the treating physician to simply list cardiac arrest, which strictly is the clinical definition of death, and not a cause. It is not uncommon in a nursing home setting for a doctor to list “multiple organ failure.” While these vague determinations seem woefully inadequate after the fact, in the moment one can see the efficient allure of using that determination when addressing the passing of patients who were suffering from several serious illnesses. Regardless of the circumstance, every death must have an official manner and cause of death determination, as reflected in a certificate of death.
Certificate of Death
By law, every state is required to document the deaths that occur within its borders on a death certificate, which is then used to compile mortality statistics by the National Center for Health Statistics, a federal agency within the Centers for Disease Control and Prevention.7 In Missouri, the task of tabulating these vital statistics is handled by the Department of Health and Senior Services. By way of example, that agency determined that, from 2007 to 2017, the leading cause of death in the state was heart disease, that more Missourians died from unintentional injuries than from diabetes, and that the 10th leading cause of death was suicide.8
The confusing issue is that the term “death certificate” is used for two similar, but different, documents: the so-called “long form” certificate and the “short form.” The document typically used as evidence of death at trial is the “short form,” a document labeled “Certification of Death” that is issued by the Bureau of Vital Records. This ornate, green certificate lists the date of death, the Missouri county in which the death occurred, the decedent’s marital status, the name of a surviving spouse, and the cause and manner of death. This document can be obtained from a county health department by the next-of-kin or those with a “direct and tangible interest when information is needed for determination or protection of personal or property rights,” such as in a real estate contract when one party has died.9
It is essential for lawyers to understand that while certification of death, as a certified official record, constitutes “prima facie evidence of the facts stated therein,” those facts are not above dispute.10 The genuine purpose of these vital records is to certify that a particular person is in fact deceased and to compile public health statistics — not to serve as the ultimate, conclusive legal determination as to how that person died.11 Thus, a prosecutor may proceed with a murder case even when the victim’s certification of death shows a natural manner of death.12 Similarly, an official finding of accident is not required to bring a wrongful death claim.13
The record labeled “Death Certificate” is an electronic form that is considerably more detailed than the certification of death; the Missouri version has 53 blanks. Naturally, this document is referred to as the “long form.” There are spaces for, among other things, the time of death, the disposition of the body, the decedent’s education, and, in the case of a female, whether or not she was pregnant. Notably, under a manner heading, there are six check boxes (natural, accident, suicide, homicide, pending investigating, could not be determined), and under the cause heading is a space for the “immediate cause” followed by three additional blanks for “due to (or as a consequence of)” conditions. There are also blanks for listing any relevant injuries and a check box to indicate whether an autopsy was performed. In the event of a natural death that was the result of multiple significantly contributing causes, each cause should ideally be listed. All this information is submitted electronically by registered users via the online Missouri Electronic Vital Record (MoEVR) system.14
The long form process is initiated by the funeral home handling the body and ends with submission of the form to the state. The funeral director or mortician will enter the decedent’s basic biographic information and then notify the attending physician to fill out the tabs related to the doctor’s medical opinion regarding the death. This process is appropriate when the manner of death is natural, the underlying cause is an illness, and the passing was, to one degree or another, expected. If the individual is not being treated by a doctor or the manner of death is one other than natural, then the death certificate’s opinion section will likely be executed by the local death investigation authority. In Missouri, that authority is held by a county official, either a coroner or a medical examiner.
Coroner v. Medical Examiner
When a situation warrants a forensic autopsy, invariably the local death authority (either a county coroner or a medical examiner) will be involved. These are statutorily created, county-level government positions that are tasked with the documentation and investigation of deaths in their jurisdictions.15 Among other tools, they have subpoena power to bring witnesses to an inquest before a “coroner’s jury.”16 The population of the jurisdiction determines which kind of officer serves, with coroners being popularly elected to office in smaller communities and M.E.’s appointed to serve more populous areas.17 To date, 14 counties and the City of St. Louis have medical examiner offices.
The legally significant difference between the two types of officials is that medical examiners must be physicians, while coroners need not be, which may determine whether that official qualifies as an expert witness. While coroners often have law enforcement or mortuary backgrounds, they are rarely medical doctors. Naturally, an autopsy can only be legally performed by a doctor who practices pathology, the study of disease and death.18 However, the medical examiner statute strictly requires only that the officer hold a medical license, without regard to specialty.19 In other words, a Missouri medical examiner need not be a forensic pathologist, who is a doctor that specializes in death investigations and performing autopsies. That said, all of Missouri’s metropolitan areas have board-certified forensic pathologists serving as their medical examiners, assisted by equally credentialed deputies or assistants. Several Missouri counties have chosen to contract out this kind of work to other counties or to private firms in view of the relative scarcity of properly trained forensic experts.
As mentioned above, pathology is the study of disease, and physicians who specialize in the field function similarly to diagnosticians. Indeed, most pathologists work in hospital-based practices where they review biological material and supervise laboratory tests to assist treating doctors in identifying patients’ precise diagnoses. Their most well-known service is the microscopic examination of biopsy tissue to determine if it is cancerous. Within this field is the formally recognized and regulated sub-specialty of forensic pathology. The purpose of this discipline is to develop medical opinions regarding a person’s death specifically for use in legal proceedings. As a practical matter, forensic pathologists are experts in performing autopsies to determine the cause of an unexpected, traumatic death, which are the kinds of deaths that are most likely to trigger prosecutions or lawsuits.
In order to become a forensic physician, doctors must first become qualified as “general” pathologists.20 This entails graduating medical school and then completing a three-to-four-year anatomic pathology residency. Lawyers should note that many pathology residencies are combined anatomic and clinical programs, meaning the training focuses both on the examination of specimens taken from bodies (anatomic) and the laboratory analysis of bodily fluids (clinical). Regardless of whether it is a dual program or not, upon completion of an anatomic residency the physician then needs to train for another year in one of approximately three dozen forensic pathology fellowship programs around the county. While forensics is generally addressed during the basic residency, these fellowship programs provide doctors with the scope and volume of autopsy cases necessary to qualify them as legitimate death experts.21 Indeed, for an institution to qualify for a fellowship, the doctors working there must perform “at least 500 medicolegal autopsies annually.”22 Especially attractive to those litigating cases is the requirement that fellowship programs educate their students in “court standards on the admissibility of forensic techniques and expert opinion,” “chain-of-custody,” and “the statutory basis for medicolegal death investigation systems….”23 In short, these programs train doctors not only to conduct forensic autopsies, but to go to court as well. While a regular pathologist certainly knows how to do an autopsy, a graduate of a forensic fellowship has performed hundreds, seen countless more, and is prepared to take the stand to discuss their work. These are the experts you need if you’re in a legal battle over a death. There are two such fellowships in Missouri: one at St. Louis University School of Medicine and the other operated by the Jackson County Medical Examiner’s Office. Both institutions are resources for information about forensic pathology.
At this point, after approximately nine years of graduate education and training, a physician is certainly competent to perform a forensic autopsy, having performed a great many during the lengthy training period. However, as with other medical providers, the gold-standard for an expert is board certification upon completion of a rigorous examination. As with other sub-specialties, one must have passed the underlying “general” board certification as a prerequisite to sit for the certification examination. Thus, one who is board-certified in forensic pathology is, by definition, also board-certified in anatomic pathology.24 When considering the board certification of a forensic pathologist, inquire about recertification, which is periodically required depending on how recently the physician completed his or her training.
As an example of the virtue of using a board-certified forensic pathologist to conduct an autopsy and testify about the relevant findings, consider the situation presented in State v. Mallett.25 It was a capital murder case arising out of the shooting of a Missouri State Highway Patrol trooper. The trooper had been shot with his own .357-caliber Magnum service revolver by a suspect he had detained in the front seat of the patrol car. When affirming the trial court’s ruling to admit the forensic pathologist’s expert opinion on the nature of the trooper’s injuries over the defendant’s objection, the Supreme Court of Missouri explained that:
Dr. [Michael] Zaricor’s qualifications to testify on this topic were quite sufficient. He was a pathologist who had conducted forty or fifty autopsies involving gunshot wounds and observed two hundred others, including five where the weapon used was a .357 magnum. He had talked to people who had been shot while wearing bulletproof vests. Dr. Zaricor had also seen abrasions like that inflicted on Trooper Froemsdorf by the shot into his bulletproof vest.26
It is exceedingly unlikely that a physician other than a board-certified forensic pathologist (which Zaricor was) would have such unique and applicable experience. It is because of such cases that forensic fellowships provide instruction on firearms and ballistics.27 This level of education and experience will likely satisfy a Daubert expert witness challenge.
Lawyers must be wary of purported forensic experts who lack legitimate credentials and licensure. For example, the national media raised questions about the qualifications of a self-proclaimed autopsy expert involved in the investigation of Michael Brown’s shooting in Ferguson who had never attended medical school.28 When in doubt with an expert unknown to you, ask when they were licensed by the Missouri Board of Registration for the Healing Arts (or comparable state agency) to practice medicine and when they were certified in forensic pathology by either the American Board of Pathology or the American Osteopathic Board of Pathology.
Securing an Autopsy
In the world of Missouri law enforcement and criminal law practice, every time an apparent homicide occurs, an autopsy performed by a qualified forensic pathologist will almost certainly occur, sometimes as quickly as the day after the body’s discovery. There may be some logistical details to address with respect to transportation of the corpse, but the entire process is essentially automatic with regard to intentionally inflicted, violent deaths once the investigators have taken charge of the scene. Things are more complicated in the civil arena.
Excluding situations involving the police and the local death authority, per statute, an autopsy can only be performed if a) the decedent had personally authorized that procedure in writing prior to death, as in a will, b) an autopsy is sought by a person holding a durable power of attorney for the decedent where the empowering document specifically addresses consenting to autopsies, c) family members (spouse, then children) provide consent, and d) in the absence of all other authority, consent is given by “person, friend or friends who assume such responsibility.”29 Once consent is obtained, you can proceed to find a pathologist to perform the private autopsy. Your search should include medical examiners’ offices, medical schools, and the handful of companies in the Midwest that specialize in such autopsies. Regardless of their setting, be sure to inquire about qualifications, cost, and transportation arrangements.30 If you find yourself having to make arrangements for transport of the body, it is prudent to impress upon the ambulance or hearse crew that they should handle the body as if it were a homicide victim for whom great care should be taken not to disturb the bodily evidence.31
Lawyers should note that most autopsies performed in a clinical setting (a rare occurrence in modern healthcare and referred to as a “hospital autopsy”), are usually limited to confirming the apparent cause of death and focus typically only on suspect parts of the body.32 The forensic autopsy procedure, on the other hand, involves the whole body, even those parts that have no apparent connection to the presumed cause of death. This is the crux of the procedure and indeed the need for specialist physicians: to identify unusual or concealed causes of death that can only be identified by a thorough and comprehensive inspection of the entire corpse. This meticulous procedure typically takes two to three hours to perform, although unusual cases can take longer.
From a practical legal standpoint, the important issue with an autopsy is that there is more physical evidence involved than just the body. The decedent’s personal property will be removed, inspected, catalogued, and bagged. Notably, in gunshot cases, the clothing can contain chemical residues that can help determine the range of the shooter. Similarly, any bullets located inside the body will be individually packaged. While the entire body and all major organs will be dissected when needed and practical, the body will be rendered appropriate for open-casket viewing.
At the end of the dissection process, the doctor and autopsy assistants will likely have a strong impression of what caused the death, but the conclusion will not be made until after the toxicology tests can be reviewed. Frustratingly, those results usually are not available for several weeks. Thus, attorneys will need to wait at least a month before having a formal, written report detailing all the various medical findings and the ultimate conclusion.
A common problem is realizing that an autopsy would be highly beneficial to a court case only after the decedent has been buried. For prosecutors, it is a straightforward matter of securing a court order to exhume the victim’s corpse for forensic autopsy in the normal manner.33 In a non-criminal matter, the family of the decedent must approve the “disinterment” and pay the associated costs to exhume their relative.34
An example of how personal injury attorneys might proceed in a post-burial situation is found in Turner v. Fuqua Homes, Inc.35 In that case, while the decedent died unexpectedly and alone, upon learning of his history of alcoholism and heart disease the local coroner ruled the manner of death to be natural causes and allowed the body to be buried without an autopsy.36 When civil litigation arose alleging that the death may have been caused by furnace gases trapped inside his mobile home, the body was exhumed.37 An autopsy was then jointly conducted by a pair of pathologists, one for each party, who used separate laboratories to perform independent toxicological analysis of the various bodily specimens.38
Admission of Autopsy Evidence
At trial, there are three main pieces of documentary forensic evidence one might wish to admit into evidence: the death certificate, the autopsy report, and the autopsy photographs. “Death certificates [and certifications of death] are generally admissible to prove death and generally to offer some evidence as to the immediate cause of death … [and are] generally not subject to a hearsay objection.”39 That said, a “certificate executed by one having no personal knowledge of the facts whatsoever is inadmissible.”40
In a civil case, an autopsy report is admitted into evidence like any other medical record. However, a criminal case poses a special problem owing to the Sixth Amendment to the U.S. Constitution’s Confrontation Clause and the issue of “testimonial evidence” described in Crawford v. Washington.41 To date, neither the United States or Missouri Supreme Courts have developed an authoritative, controlling opinion as to whether or not autopsy reports prepared by a medical examiner (arguably a law enforcement official whose regular course of business is to prepare such reports for police use) are created in anticipation of prosecuting the suspect.42 That said, as described in State v. Sauerbry, there are two approaches to introducing an autopsy report in a Missouri criminal case.43 The first is to simply have the doctor who performed the autopsy and wrote the report take the stand. This is the much preferable method, and it explains why Missouri’s forensic pathologists have so many court appearances to their credit.
The second method is necessitated when the autopsy doctor is not available. This can occur because a “cold case” is reopened or because a prosecution needs to be repeated owning to a defendant’s successful appeal or post-conviction relief action long after trial. In those circumstances, while the ultimate conclusion of the autopsy report is not admissible, a qualified pathologist can offer their own opinion based upon that report.44 Consequently, in Sauerbry, the medical examiner was able to offer her expert opinion of the death of the victim based upon an autopsy performed nine years earlier by a different doctor who had subsequently left Missouri. This situation is also permissible in a civil case, where an appropriately qualified pathologist may offer his or her expert opinion despite having not personally performed the autopsy.45
During the doctor’s testimony, after his or her credentials are established, the process of the autopsy and the findings thereof can be explained. Having been trained to testify, the direct examination will likely go smoothly.46 However, as with any expert witness, one must guard against a profusion of technical jargon. A good example is when the physician, presumably out of habit, uses anatomical terms of location such as “posterior,” “distal,” etc., with which most jurors are unfamiliar. Relatedly is the forensic practice of referring to bullets as “projectiles,” or worse, “missiles.” While technically accurate, these terms can potentially confuse a fact finder.
Finally, as for gruesome (and therefore arguably inflammatory and unduly prejudicial) autopsy photographs, they “may be admitted [in a criminal case] where they depict the nature and location of wounds, where they aid the jury in understanding testimony, where they aid in establishing any element of the State’s case, or where they portray the condition or location of the victim’s body.”47 In the author’s experience, the photographs selected for most homicide trials tend to be limited to images of the pre-dissection face and extreme close-up pictures of the wounds that are not markedly different from what is seen during an episode of CSI. That said, should especially gory photographs legitimately need to be produced and displayed, the matter should be discussed at the pre-trial conference and during voir dire.
1 Todd T. Smith is a former prosecutor now in private practice in Jefferson City. He earned his J.D. from Drake University Law School in 2008 and his LL.M. in law and government from American University’s Washington College of Law in 2009. He has handled civil and criminal cases involving forensic autopsy evidence and has observed the procedure first-hand.
2 Joseph Prahlow, Forensic Pathology for Police, Death Investigators, Attorneys, and Forensic Scientists 71 (Humana Press 2010).
3 Washington Post 8/8/2014 article on the determination of Brady’s death, available at https://www.washingtonpost.com/local/crime/james-bradys-death-ruled-homicide-by-dc-medical-examiner/2014/08/08/686de224-1f41-11e4-82f9-2cd6fa8da5c4_story.html.
4 Prahlow at 76.
5 See McKim v. Cassady, 457 S.W.3d 831, 837-47 (Mo. App. W.D. 2015) (habeas corpus case in which the court reviewed opinions from seven pathologists regarding a death that the petitioner alleged was caused by a drug overdose.)
6 Prahlow at 68.
7 See Jeffrey R. Boles, Documenting Death: Public Access to Government Death Records and Attendant Privacy Concerns, 22 Cornell J.L. and Pub. Pol’y 237, 254-55 (2012) (overview of death certificate laws).
8 Missouri Department of Health and Senior Services statistics available at:
https://healthapps.dhss.mo.gov/MoPhims/ProfileBuilder?pc=10 (last visited January 7, 2020).
9 19 C.S.R. § 10 – 10.090 (1)(A) (rules for Department of Health, access to vital records).
10 Section 193.255.2, RSMo Supp. 2019.
11 Prahlow at 78.
12 See State v. Williams, 66 S.W.3d 143 (Mo. App. S.D. 2001) (affirming murder conviction where the original death determination was “natural” and the second determination, made after the victim’s corpse had been exhumed and autopsied, was “unknown”); see also Dickerson v. State, 269 S.W.3d 889, 894 (Mo. banc 2008) (defense counsel was not ineffective for failing to object to a medical examiner’s testimony that the manner of death was a “homicide.”)
13 See Wailand v. Anheuser Busch, Inc., 861 S.W.2d 710, 714 (Mo. App. E.D. 1993) (death certificate was properly admitted into evidence of civil trial despite the executing physician having left the manner of death section blank).
14 See § 193.145, RSMo Supp. 2019 (electronic system for death certificates).
15 See generally Chapter 58, Revised States of Missouri.
16 See H. Morley Swingle, Coroner’s Inquests in Missouri: Modern Usage of the Hue and Cry, 63 J. Mo. Bar 80 (2007) (discussion of historical and modern inquest procedures).
17 See § 58.010, RSMo Supp. 2019 (coroners); § 58.700, RSMo Supp. 2019 (medical examiners).
18 See § 58.725, RSMo Supp. 2019 (autopsy to be performed by “competent pathologist”); see § 194.115.6, RSMo Supp. 2019 (misdemeanor offense for a non-physician to perform an autopsy).
19 See § 58.705.1, RSMo Supp. 2019 (medical examiner qualifications).
20 Prahlow at 43-46.
22 Accreditation Council for Graduate Medical Education, Program Requirements for Graduate Medical Education in Forensic Pathology, pg. 6, available at https://www.acgme.org/Portals/0/PFAssets/ProgramRequirements/310_ForensicPathology_2019.pdf?ver=2019-06-18-152346-227.
23 Id. at 20.
24 Prahlow at 45.
25 732 S.W.2d 527 (Mo. banc 1987).
26 Mallet at 537-38.
27 See Vincent J.M. Di Maio, Gunshot Wounds, Practical Aspects of Firearms, Ballistics, and Forensic Techniques (CRC Press 1999).
28 Elizabeth Cohen and Matthew Stucker, Is ‘professor’ who helped with Michael Brown autopsy who he says he is?, CNN (Nov. 27, 2014, 12:02 PM), https://www.cnn.com/2014/11/26/health/ferguson-michael-brown-pathologist-credentials/index.html.
29 Section 194.115, RSMo Supp. 2019.
30 Strictly for the sake of example, the author’s informal research of private autopsy services in Missouri shows that the approximate cost of that procedure ranges from $3,000 to $5,000.
31 See § 194.010-110, RSMo Supp. 2019 (transportation of corpses).
32 Prahlow at 130-133.
33 See § 58.451(4), RSMo Supp. 2019 (coroner can request “that the prosecuting attorney apply for a court order requiring the body to be exhumed.”).
34 Section 214.208, RSMo Supp. 2019.
35 742 S.W.2d 603 (Mo. App. W.D. 1987).
36 Id. at 607.
37 Id. at 608.
38 Id. at 608-09.
39 State v. Fakes, 51 S.W.3d 24, 28-29 (Mo. App. W.D. 2001).
40 Callahan v. Conn. Gen. Life Ins. Co., 207 S.W.2d 279, 286 (Mo. 1947).
41 541 U.S. 36 (2004); see also Davis v. Washington, 547 U.S. 813 (2006) (recorded 911 calls are not testimonial and are therefore admissible because such statements are made to summon emergency aid, not assist in a future prosecution).
42 In October 2018, the U.S. Supreme Court denied a petition for certiorari in a California capital case that presented the question of whether an autopsy report was testimonial. See People v. Perez, 411 P.3d 490 (2018), cert denied, 139 S.Ct. 415 (October 29, 2018) (U.S. Supreme Court docket number 18-5399).
43 447 S.W.3d 780, 784-89 (Mo. App. W.D. 2014).
44 See State v. Tillman, 289 S.W.3d 282 (Mo. App. W.D. 2009) (autopsy report and opinion of a deceased pathologist were inadmissible, but a medical examiner’s independent opinion based on the prior findings and photographs was admissible).
45 See Wailand, 861 S.W.2d at 714-16.
46 While the author’s experience with veteran Missouri medical examiners has been very positive, the most recent appellate opinion on autopsies demonstrates otherwise. See State v. Usnick, 585 S.W.3d 298 (Mo. App. W.D. June 18, 2019) (medical examiner’s opinion successfully undermined on cross-examination, manslaughter conviction for infant’s death by birth without medical assistance reversed, transfer denied).
47 State v. Simmons, 955 S.W.2d 752, 762 (Mo. banc 1997).