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State v. Holman

Court of Appeals of Missouri, Southern District, First Division

March 5, 2019

STATE OF MISSOURI, Plaintiff-Respondent,
v.
DAVID KEVIN HOLMAN, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY Honorable Jack A.L. Goodman

          DON E. BURRELL, P.J.

         David Kevin Holman ("Defendant") appeals his conviction after a jury trial of first-degree murder and armed criminal action.[1] In three points, Defendant claims the trial court erred in: (1) failing to grant a mistrial after "an emotional outburst in the courtroom by the victim's daughter"; (2) admitting out-of-court statements Defendant's wife ("Victim") made to her sister regarding previous abuse Defendant had inflicted upon Victim; and (3) failing to sua sponte grant a mistrial based on what Defendant alleges was improper rebuttal argument by the State. Finding no merit in any of these claims, we affirm.

         The Evidence[2]

         Defendant and Victim had been married for about three years when Defendant shot and killed her on December 10, 2013. Defendant, who had a bullet wound to his upper arm, did not deny shooting Victim, but he claimed that he had done so in self-defense. The State's theory of the case was that Defendant was an abusive husband who had killed Victim by shooting her in the back and then shooting himself in the arm in an attempt to support a self-defense claim.

         Defendant dialed 9-1-1 shortly after midnight and reported a shooting at his residence. When sheriff's deputies responded to the home, Defendant hand-motioned the deputies to join him in the bedroom. When they did so, Defendant was standing over Victim, who was lying face-up on the bed. Defendant appeared to be "frantic" and "upset," and he seemed to be "looking for a pulse." The deputies could smell alcohol on Defendant's breath. Defendant told the deputies that Victim had "shot [him] with a 40 caliber so [he] shot her with a 357." Defendant added "that he should have ran but he didn't."

         The deputies found a "40 caliber pistol under [Victim's] left elbow." Two bags were on the bed. One contained .40-caliber ammunition and other miscellaneous items. The other bag contained socks, undergarments, slippers, a purse with medicine and herbs, and "another single full metal jacket bullet." Outside the home, a white SUV believed to belong to Victim was packed with bags of clothes, sleeping bags, and blankets.

         Victim's sister ("Sister") testified that Victim had been trapped in an abusive relationship with Defendant and had tried to leave him several times. Sister said that Defendant had threatened and terrorized Victim with a gun, and Sister also read aloud to the jury a letter Victim had written to Defendant during one of their periods of separation. The letter recounted occasions on which Defendant had threatened to shoot Victim, to "blow [her] head off[, ]" and pointed a gun in her face. Sister also testified -- this time over Defendant's objection -- about specific instances of physical abuse Victim had recounted to Sister, including times when Defendant had held a gun to Victim's face and threatened to blow her head off, drained gas from her tank to keep her from leaving, and repeatedly kicked her in the back after she had tried to leave him.

         Defense counsel argued that Victim wanted to kill Defendant to inherit his farm. He challenged much of the State's evidence at trial regarding blood spatter and ballistics, along with the State's theory of who had been positioned where when the shots were fired. In his closing argument, defense counsel emphasized that law enforcement had significantly mishandled the investigation and that no one was taking responsibility for those errors. He urged the jury to "hold our law enforcement responsible for how they present cases like this[.]" After deliberation, the jury found Defendant guilty of both counts.

         Analysis

         Point 1 - Outburst by Victim's Daughter

         Point 1 claims the trial court abused its discretion in overruling Defendant's request for a mistrial after Victim's daughter lunged toward Defendant's counsel table and said either "[L]et me at him" or "I'm going to get him[.]"

         Whether an outburst by a spectator requires a mistrial is within the broad discretion of the trial court. State v. Martin, 525 S.W.2d 804, 810 (Mo. App. K.C.D. 1975); State v. Wilson, 826 S.W.2d 79, 82 (Mo. App. E.D. 1992). "We review the failure to grant a mistrial for abuse of discretion; we will reverse only if the ruling was so illogical, arbitrary, and unreasonable 'as to shock the sense of justice and indicate a lack of careful consideration.'" State v. Blevins, 385 S.W.3d 526, 528 (Mo. App. S.D. 2013) (quoting State v. Norman, 243 S.W.3d 466, 470-71 (Mo. App. S.D. 2007)).

Where outbursts occur, the trial court may exercise broad discretion in minimizing or eliminating the prejudicial impact of an hysterical witness or gallery member. [State v. Johnson, 672 S.W.2d 160, 163 (Mo. App. E.D. 1984)]. In determining whether to declare a mistrial, the trial court may consider the spontaneity of the outburst, whether the prosecution was at fault, whether something similar, or even worse, could occur on retrial, and the further conduct of the trial. See State v. Hamilton, 791 S.W.2d 789, 795 (Mo.App.1990); State v. Johnson, 672 S.W.2d at 163.

State v. Brooks, 960 S.W.2d 479, 491 (Mo. banc 1997).

         During its case-in-chief, the State presented testimony from Deputy Sheriff Michael Thorn ("Deputy Thorn") who had responded to the 9-1-1 call indicating that someone had been shot. During Deputy Thorn's testimony, the State moved to admit exhibit number 44, a photograph of Victim still lying on the bed at the crime scene. The State was enlarging the photo on the overhead projector for the jury to see when Victim's daughter lunged at defense counsel's table and cried, "[L]et me at him" or "I'm going to get him[.]" Immediately after that outburst, the following occurred:

[The State]: May we approach.
[The court]: Yes.
. . . .
[Defense counsel]: We might want to clear the jury.
[The court]: If you are asking that we excuse the jury, I ...

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