State v. Holcomb

• Decision Date: 09 September 1997
• Docket Number: Nos. WD,s. WD
• Citation: 956 S.W.2d 286
• Parties: STATE of Missouri, Respondent, v. Barry J. HOLCOMB, Appellant. 51077, WD 53028.
• Court: Missouri Court of Appeals

Page 286

956 S.W.2d 286

64 A.L.R.5th 901

STATE of Missouri, Respondent, v. Barry J. HOLCOMB, Appellant.

Nos. WD 51077, WD 53028.

Missouri Court of Appeals Western District.

Submitted June 23, 1997.

Decided Sept. 9, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 28, 1997.

Application to Transfer Denied

Dec. 23, 1997.

Robert G. Duncan, William E. Shull, Liberty, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before BERREY, P.J., and SMART and EDWIN H. SMITH, JJ.

SMART, Judge.

After a jury trial, Barry J. Holcomb was found guilty of murdering Laura Vaughn and her unborn infant son. He was sentenced to two consecutive life sentences without the possibility of probation or parole. Holcomb is appealing his convictions of first degree murder. He also appeals the denial of his Rule 29.15 motion for post-conviction relief. Holcomb contends: (1) the trial court erred in overruling and denying his motion to dismiss Count II, the murder of the unborn infant, because, he says, an unborn child is not a person; (2) the trial court erred in refusing and failing to submit instruction on murder in the second degree; (3) trial counsel was ineffective for failing to submit lesser included offense instructions; (4) counsel was ineffective in allowing Holcomb to testify; and (5) the trial court should have declared a mistrial following a comment it made to defense counsel because such remark was an improper comment on the evidence. The judgment of the trial court is affirmed. The judgment of the motion court is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

During the months of January and February, 1994, Laura Vaughn called the police to her home several times to report that Barry Holcomb, her boyfriend, had physically assaulted her. She told the police that Holcomb had threatened to kill her and her unborn child. One of Ms. Vaughn's friends, Penny Morgan, observed bruises on Ms. Vaughn's neck, face and arms. Ms. Vaughn told Ms. Morgan that Holcomb had thrown her in the fireplace.

On the evening of June 26, 1994, Ms. Vaughn took her daughter to the home of Margaret Chrisman, Ms. Vaughn's sister-in-law. Holcomb accompanied her. Ms. Vaughn told Ms. Chrisman that she and Holcomb were going to go fishing and that she would pick her daughter up the following day at about 2:00 p.m. Around 2:45 a.m., the next morning, a neighbor of Ms. Vaughn's heard a car door slam twice, the second time louder than the first. The car raced down the street with a loud-sounding motor. Ms. Vaughn's car had a loud muffler and a driver's side door that was difficult to shut. It had to be slammed shut in order for it to close.

Later that afternoon, at approximately 1:30, Holcomb and another man approached a neighbor, David Cothan, and asked him to call 911. Holcomb, who appeared calm, accompanied Mr. Cothan to Ms. Vaughn's apartment, where Mr. Cothan saw Ms. Vaughn's body on the bed. The first officer to arrive at the scene noticed signs of rigor mortis. Ms. Vaughn's body was cold to the touch. An autopsy revealed that Ms. Vaughn had suffered massive skull fractures, specifically in the area of her right eye. The actual cause of death, however, was determined to be strangulation by a rope or a cord. Her unborn child perished with her. The State's evidence established that the baby's gestational age was from twenty-six to twenty-eight weeks.

Holcomb was interviewed at police headquarters. He claimed that he had spoken to Ms. Vaughn for the last time between 10:30 p.m. and midnight on June 26, 1994. He said that he went to a lake to fish, fell into the lake, and then went to his mother's house to get dry clothes. Shortly thereafter, on July 1 and July 2, 1994, Holcomb discussed the murders with Anthony Talley, an acquaintance. Holcomb was unaware that Talley, a convicted felon, was an informant for the F.B.I., and was wearing a wire during these conversations. Holcomb graphically described the savage beating he inflicted upon Ms. Vaughn, telling Mr. Talley that he had been planning to kill Ms. Vaughn for about eight months. He said that he felt no remorse. Holcomb described Ms. Vaughn in unflattering terms. Laughing, he told Mr. Talley that he punched her in the eye about five times and that he buried the cord he used to strangle her. Mr. Holcomb said that Ms. Vaughn "knew what was up." He asked her "How does it feel to know you're ready to die, bitch?" He said he told her: "Say your prayers. You've got five seconds to say a prayer." Holcomb also told Mr. Talley that his mother was going to provide him with an alibi and that "I knew what I was doing the whole time I was doing it. I was thinking about it." Holcomb opined that even if he were picked up and charged, he would beat the charge.

At trial, Holcomb presented a defense based upon alibi. His mother and two other witnesses testified that he had come to his mother's house at about 2:30 a.m. on June 26, 1994 and stayed until 10:30 a.m. or 11:00 a.m. the following day. Holcomb testified in his own defense. He denied that he had ever struck Ms. Vaughn. He admitted that Ms. Vaughn was pregnant with his child. Holcomb accused Mr. Talley of committing the murders. Holcomb testified that he was afraid of Mr. Talley. Holcomb claims that he knew that Mr. Talley was working for the F.B.I. and knew that their conversations were being taped. He testified that Mr. Talley provided him with a script and instructed him to make the statements he made on the tape. During his direct examination, Holcomb informed the jury of his past convictions for possession of marijuana and exhibiting a deadly weapon. He recounted a life of crime in the company of Mr. Talley. At one point, after confessing to various robberies he committed with Mr. Talley, Holcomb confessed to participating in a robbery of a jewelry store in which a man was murdered. Then, after talking with counsel, Holcomb asserted a Fifth Amendment privilege with respect to the jewelry store robbery. The trial court ordered that Holcomb's testimony on the matter be stricken, and the court instructed the jury to disregard it.

The jury found Holcomb guilty on both counts of murder in the first degree in the deaths of Laura Vaughn and the baby. The trial court sentenced Holcomb as a prior and persistent offender to two consecutive terms of life imprisonment without the possibility of probation or parole. Holcomb appeals. Holcomb also appeals the denial of his Rule 29.15 motion for post-conviction relief. On December 4, 1995, Holcomb filed a pro se motion under Rule 29.15 seeking to vacate his convictions and sentences. An amended motion was timely filed. On July 9, 1996, the motion court entered an order overruling the motion without an evidentiary hearing.

In Point I, Holcomb contends that trial court erred in denying his motion to dismiss Count II, in which he was charged with the first degree murder of the baby boy. Holcomb argues that an unborn child is not a person for the purposes of the first degree murder statute. Holcomb claims that the information in Count II should have alleged viability, which he contends is an essential element.

AN UNBORN CHILD IS A PERSON FOR PURPOSES OF § 565.020

Section 565.020.1 states, "A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter." The question, then, is whether an unborn child is a person for the purposes of the first degree murder statute. The State argues that the answer to that question is yes. The State asserts that State v. Knapp, 843 S.W.2d 345 (Mo. banc 1992) and Connor v. Monkem Co., 898 S.W.2d 89 (Mo. banc 1995) dictate a ruling that an unborn child falls within the statutory definition of "person."

In 1986, the Missouri legislature enacted § 1.205, RSMo 1994 ¹ which states:

1. The general assembly of this state finds that:

(1) The life of each human being begins at conception;

(2) Unborn children have protectable interests in life, health, and well-being;

(3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.

2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state.

3. As used in this section, the term "unborn children" or "unborn child" shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.

4. Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.

The relationship between § 1.205 and the question of whether an unborn child could be considered a person was first raised in Knapp, an involuntary manslaughter prosecution. Knapp had been convicted of involuntary manslaughter for killing an unborn child. Knapp, 843 S.W.2d at 346. The appellant in that case also argued that an unborn child is not a person. The Missouri Supreme Court concluded that the definition of "person" in the involuntary manslaughter statute included an unborn child. The court read § 1.205 and § 565.024 in pari materia, since the General Assembly passed both statutes in the same legislative session. Id. at 347-48. The court held:

Reading all subsections of § 1.205 together and considering especially the express language of Subsection 2 that "... the laws of this state shall be interpreted and construed...