Wayne County man acquitted of firing into neighbor's home

SALEM, Mo. -- A Dent County jury took less than an hour Tuesday to acquit a Greenville, Mo., man of shooting into a Shook-area man's home.

The jurors deliberated about 40 minutes before finding Donald Ray Holbert not guilty of the Class B felony of unlawful use of a weapon. He was accused of shooting from the roadway into the home of a neighbor, David Kellick, on whose property he allegedly trespassed and hunted.

"We put on all our evidence and the jury decided they didn't want to convict him," explained Wayne County Prosecuting Attorney Robert Ramshur.

There were no eyewitnesses to the shooting, which occurred after dark in November, Ramshur said. The shot went through Kellick's house, but when he looked out his window, no one was there, he said.

Kellick, who owns property on County Road 526 and about one-half mile away from Holbert's residence, suspected Holbert was responsible because the two earlier had had what Ramshur described as words.

When Wayne County authorities went to Holbert's residence a couple hours later, deputies swabbed the 62-year-old's hands for possible gunshot residue, Ramshur said. A spent 12-gauge cartridge also was found in the county road and a 12-gauge shotgun, with slugs in it, was found on a picnic table near where Holbert was in the yard, he said.

Authorities could not find the fired round as it "went all the way through" the home and out a back window, Ramshur said.

The swabs, as well as spent shell and shotgun, were sent to the Missouri State Highway Patrol Crime Laboratory at Springfield for examination, Ramshur said.

The state's witnesses, he said, included Kellick, the deputy who seized the items from the county road and Holbert's home and the deputy who took the items to and from the crime lab, as well as crime lab personnel.

Ramshur said residue was found on Holbert's hands, but the crime lab expert testified on cross-examination that it could have come from a different source than firing a gun.

The testimony, Ramshur said, indicated residue can be picked up from shells or a weapon, which previously had been fired.

Holbert, who testified on his own behalf, denied having anything to do with the shooting, Ramshur said. "Mr. Holbert said he had nothing to do with it; he was not there and he had no reason to be there," he said.

Holbert, according to Ramshur, testified he got the residue from reloading spent shells that morning and was getting the shotgun ready for a relative to use during deer season.

"It was the opinion of the firearms expert from the lab that this shotgun fired both the (spent shell) found in the road and the one test fired," Ramshur said.

In preparing for Holbert's trial, his attorney, Brendon Fox of Rolla, Mo., said he spent a lot of time researching and preparing to cross examine the state's firearm and tool mark expert.

"In the last couple of years, the federal courts have been giving less and less credibility to experts in that field," Fox said. " ... I believe I was able to show that the matchings that the experts do are not absolute and there are certainly plenty of doubts to be cast."

In regard to the gunshot residue, Fox said, even the state's expert testified there were other ways "you can get it on your hands than from firing a gun."

Those ways, Fox said, include handling a fired gun and being in proximity when one is fired. "Gunshot residence is not indicative of firing a gun," he said.

On the date of the alleged offense, Fox said, Holbert testified he reloaded .30-30 shells that previously had been fired, which would have left residue on his hands.

Further, Fox said, Holbert handled his own shotgun and plugs getting the weapon ready for deer season. Both, he said, would have had residue on them.

"Throughout the entire process, Mr. Holbert has maintained his innocence to me," said Fox, who wasn't surprised by the jury's verdict.

However, with a jury "you never know," Fox said. "The jury system in the United States is the best in the world; juries almost always get it right, other than the O.J. Simpson trial.

"I think they saw the state's case was heavily based upon the firearm and tool mark experts' testimony and showing that the matchings are nowhere near absolute, I think the jury was skeptical."

Fox, according to Ramshur, did a good job of pointing out the ways residue can get on someone's hands other than firing a gun.

"He was persuasive with the jury," Ramshur said. " ... We got in all the evidence we had, but it was not enough to convince a jury beyond a reasonable doubt."

Although Holbert was acquitted, he still went to jail.

Holbert, Ramshur said, is serving a one-year sentence in the Wayne County Jail after being found in violation of his probation on an unrelated wildlife charge.

In May 2009, Holbert was placed on probation after having pleaded guilty to the Class A misdemeanor of taking/killed/possessed wildlife illegally. He pleaded guilty to being in possession of two turkeys out of season.

Holbert entered his plea as potential jurors were waiting to be chosen to hear his trial on 19 misdemeanor wildlife violations and a felony charge of unlawful use of a weapon.

After accepting his plea, the judge suspended the imposition of Holbert's sentence and placed him on two years' supervised probation.

Ramshur said Holbert's sentence will end in May 2011.