State v. Gardner, WD30926.

• Decision Date: 12 November 1980
• Docket Number: No. WD30926.,WD30926.
• Citation: 606 S.W.2d 236
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Velma M. GARDNER, Defendant-Appellant.
• Court: Missouri Court of Appeals

606 S.W.2d 236

STATE of Missouri, Plaintiff-Respondent, v. Velma M. GARDNER, Defendant-Appellant.

No. WD30926.

Missouri Court of Appeals, Western District.

September 2, 1980.

Motion for Rehearing and/or Transfer Denied October 1, 1980.

Application to Transfer Denied November 12, 1980.

Holliday & Holliday, David A. Koester, Harold L. Holliday, Jr., Kansas City, for defendant-appellant.

John Ashcroft, Atty. Gen., Jefferson City, Darrell Panethiere, Asst. Atty. Gen., Kansas City, for plaintiff-respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 1, 1980.

DIXON, Judge.

Defendant was indicted for second degree murder of her husband and was convicted by a jury of manslaughter. The jury imposed a sentence of one year in the Jackson County Department of Corrections.

The defendant wife appeals asserting error in the State's cross-examination of defendant and argument thereon which the defendant claims inferred a duty to retreat. The admission of two color photographs of the deceased husband is also challenged.

Defendant and her deceased husband had been married for 29 years at the time of the shooting on October 2, 1977, and had lived at the scene of the shooting, 5262 Lawn in Kansas City, for the last 14 years of the marriage.

Defendant wife testified that her husband was a "wife-beater," that he was "non-social," that he drank "all the time," and that he had a quick temper. Others confirmed that he beat his wife and that he was a "heavy drinker" who was "quick tempered."

The husband had been admitted to the hospital in late 1976 for alcohol abuse and was diagnosed as a chronic alcoholic. After treatment, he was released, but continued to drink heavily. Drinking eventually cost him his job of 32 years in late August or early September of 1977.

During 1976 and 1977, the wife was employed as a maintenance worker at Midwest Research Institute, working about 20 hours a week. While working at Midwest, she met Charles Lowe, who was also a maintenance worker and rode to work with him. The wife confided in Lowe about her domestic problems, to the extent that Lowe became practically her sole confidant in these matters. This acquaintanceship continued during 1977 after Lowe was not a co-worker. The wife and Lowe had lunch, conversed on the phone, and made trips to Omaha and Sedalia. These trips were not overnight trips, and others were involved in the group. The wife and Lowe denied intimacy before the killing.

The husband was at home after he lost his job, and the abuse of the wife increased. The wife filed for divorce in August, 1977. Beginning in September, the wife and Lowe were together more frequently. On an occasion when they were together, they encountered Doris Hogan who shouted at the wife to "leave Lowe alone."

Hogan was thoroughly discredited as a witness which the State conceded, the defense even offering a witness who testified Hogan attempted to tamper with the witness during trial. As it appears hereafter, Hogan's testimony relates only to the possible relationship between the wife and Lowe and does not affect the basic issues of this appeal.

Hogan apparently out of jealousy, went to the husband and detailed her suspicions of the behavior of Lowe and the wife. This precipitated a brawl between Hogan, the husband, and the wife. As a result the wife left, after police were called, and stayed with her daughter.

The wife then learned from her husband that he was armed and she remained at her daughter's until her husband agreed to surrender a rifle if she returned. The rifle was at that point in her car. All these events then culminated in the two days of Friday and Saturday that led to the killing.

On Friday, the husband attacked the wife in bed at home, hitting and trying to choke her. This attack apparently stemmed from conversations the husband had with Hogan.

The next morning, October 1, 1977, the wife called Lowe and related the attack of the night before, and Lowe came to defendant's house. Lowe brought a .25 caliber Beretta semi-automatic pistol, stating, "You better learn how to protect yourself, because somebody's going to get killed." Lowe took her to a wooded area that afternoon and taught her how to operate the pistol.

On their return, wife and Lowe met the husband driving the wife's car. The wife took her car and the husband went with Lowe. The husband and Lowe drank beer at Lowe's that afternoon, and Lowe called the wife to tell her to look for the rifle in the trunk of her car, where she found it. The wife then took the rifle to Lowe's mother's house.

Later that afternoon, Lowe and the husband picked the rifle up at Lowe's mother's and went to husband's and wife's house where they all ate together. After supper, Lowe returned the rifle to the husband after unloading it in the presence of the wife. The husband promised to return it to the owner, Huey Dunn. However, the rifle did not belong to Dunn, rather the husband had taken it without permission from his son-in-law.

After the husband left to return the rifle, the wife called Huey Dunn to find out if the rifle had been returned and found that it had not. It was at this time, when the wife and Lowe were both in the house, and Lowe's car was in the garage with the door shut, that husband kept driving by the house.

The husband came to the front door and tried to get in. The wife denied him entry into the home. The husband tried to enter the backdoor, was unsuccessful, and finally broke in a garage window and entered the house.

Lowe and the husband scuffled, Lowe subdued him and ordered him out of the house. He left, but returned shortly to ram the garage door with his car. The wife called the police, but the husband was gone upon their arrival at 12:03 a. m. The police instructed Lowe to leave, and he did leave after they did, but not before giving the wife the pistol she had learned to use earlier in the day. The police also told the wife to lock her door and call them if her husband returned; they would arrest him.

What occurred thereafter is known only through the testimony of the wife.

Within a few minutes after Lowe left, the husband returned and again rammed the garage door with his car, causing extensive damage to defendant's car and the washer and dryer in the garage.

The wife then left the house, carrying the pistol, went down the first flight of steps to the driveway, and stopped. The wife stated that the husband attempted to run her down with the car, although the physical evidence (lack of tracks) did not support this claim. The husband again rammed the garage door, and the wife stepped off the steps and went around behind the car to the driver's side.

The wife had the gun in her right hand, out of sight, and she begged her husband to leave. The husband said, "I'm going to kill your mother fucking ass," while at the same time "reaching down" and opening the car door. At this point, the wife shot her husband.

The wheels immediately started turning on the car and spun hard and long enough to completely destroy the right rear tire and leave the rim resting on the pavement; it also caused a lot of smoke. The wife went into the house and called Lowe and then the police, she then returned to the car and unsuccessfully attempted to pull her husband out.

The fire department responded, but not before the wife called Lowe again to tell him the car was burning.

The physical evidence revealed that at least five shots were fired from the pistol; four of the bullets were found in the car, and one was found in the husband's clothing at the morgue.

An autopsy revealed that the husband was struck by three bullets, one entering the left...