concurring.
I concur. I write separately, and in addition to the principal opinion, for the purpose of commenting further on the admission into evidence of photographs that displayed the surgically exposed thoracic cavity and organs of the victim. The attempt of a prosecuting attorney to offer such evidence is, in my opinion, reprehensible. The admission of that evidence was erroneous. Nevertheless, under the unique circumstances of this case, since punishment was assessed by the court and not the jury and the evidence of the defendant’s guilt was strong, I agree with the principal opinion that the error was not prejudicial.
The very strength of this case is compelling reason why a prosecuting attorney should not attempt to present evidence of this type. This court said in State v. Hernandez, 815 S.W.2d 67, 71 (Mo.App.1991):
It is unfortunate when prosecuting officials with otherwise strong evidence in support of a conviction choose to go beyond the legitimate evidence that is available to them and pursue other inflammatory and irrelevant triviality in quest of conviction.
Although, in Hernandez, we added, “When this occurs, the result of appellate review is assured,” Id., this case is a rare exception. Nevertheless, prosecuting officials need to recognize that they have a greater responsibility than to assure the conviction of a defendant. It is their responsibility to assist the trial court in assuring that both the state and the defendant get a fair trial. In addition to these “due process” responsibilities, a prosecuting official should be mindful of the financial burdens of the governments they serve. The cost of conducting a felony trial is substantial. It would be unfortunate for such costs to be duplicated simply because overzealous prosecution resulted in a conviction that would have to be reversed on appeal when there was otherwise strong evidence that would likely have supported that conviction. Fortunately, in this case, the State of Missouri will be spared the cost of another trial. Hopefully, those officials charged with representing the State of Missouri in criminal cases will avoid this type of conduct in the future.