Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF LAWRENCE COUNTY Honorable Jack A.L.
Kevin Holman ("Defendant") appeals his conviction
after a jury trial of first-degree murder and armed criminal
action. 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.
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.
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."
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.
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.
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.
1 - Outburst by Victim's Daughter
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
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
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
[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