Colburn v. State
| Docket Number: | 2005-KA-01882-COA Linked Case(s): 2005-KA-01882-COA ; 2005-CT-01882-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-29-2008 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Murder - Ineffective assistance of counsel - Expert testimony - M.R.E. 702 - M.R.E. 704 - Capital murder statute - Jury instructions - Closing argument - Sufficiency of evidence - Form of jury’s verdict Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-05-2005 Appealed from: Chickasaw County Circuit Court Judge: Andrew K. Howorth Disposition: CONVICTION OF MURDER AND SENTENCE OF LIFE IN PRISON IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Benjamin F. Creekmore Case Number: 2003-041 |
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| Party Name: | Attorney Name: | |||
| Appellant: | EARLENE COLBURN |
ROY KENIONNE SMITH |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF ATTORNEY GENERAL BY: CHARLES W. MARIS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Murder - Ineffective assistance of counsel - Expert testimony - M.R.E. 702 - M.R.E. 704 - Capital murder statute - Jury instructions - Closing argument - Sufficiency of evidence - Form of jury’s verdict |
| Summary of the Facts: | Earlene Colburn was convicted of murder. She appeals. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Colburn argues that her Sixth Amendment right to effective counsel was violated because her trial counsel failed to investigate the case properly and summon key witnesses. The appellate court will reach the merits on an ineffective assistance of counsel issue on direct appeal only if the record affirmatively shows ineffectiveness of constitutional dimensions, or the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. Neither factor is present in this case. Issue 2: Expert testimony Colburn argues that a deputy state fire marshal, who testified for the State, testified outside of his area of expertise. The admissibility of expert testimony is governed by M.R.E. 702. Under M.R.E. 704, an expert opinion will not be rendered inadmissible if it embraces an ultimate issue to be decided by the trier of fact, but it is still the discretion of the trial court to determine if the opinion helps the trier of fact. In qualifying as an expert witness, the fire marshal testified he had been doing this type of work for twenty-four years. His training was updated annually. Without any objections by the defense, he was accepted by the trial court as an expert witness in arson investigation and crime scene diagrams, in accordance with the rules of evidence. He properly utilized the methods of his training and expertise in arson to formulate an opinion based on the facts he encountered. Thus, the trial judge did not abuse his discretion in allowing the fire marshal to testify about the origin and cause of the fire. Issue 3: Capital murder statute Colburn argues that the State knew evidence of the underlying felony of arson was not present in this case to warrant a conviction of capital murder, but utilized the felony-murder statute nonetheless in order to secure an indictment. Thus, she argues, the capital murder statute was improperly and unconstitutionally utilized by the State. The trial judge gave a jury instruction on the elements of arson, indicating the trial court found adequate evidence of arson to create an issue for the jury. In addition, Colburn fails to provide any legal authority for her contentions. Issue 4: Jury instructions Colburn argues that she had a right to have the jury instructed in accordance with her theory of the case. Colburn offered an instruction regarding reasonable doubt which the court refused. It is a long-standing rule that defining “reasonable doubt” for the jury is improper. Colburn offered another instruction related to the State’s burden of proof, which the trial judge refused. The trial judge properly found that the law on the burden of proof was more accurately articulated in prior instructions. Colburn offered an instruction which stated that she was charged with the crime of murder, and then repeated this fact throughout the instruction. However, Colburn was charged with capital murder. Even if it had been an accurate statement of the law and facts, the trial judge had already allowed instructions on capital murder, murder, manslaughter, and the elements of arson, thereby rendering this instruction repetitious. Colburn takes issue with the jury instruction on murder, offered by the State. The instruction for the lesser-included offense of murder was supported by the evidence presented at trial; therefore, it was proper. Issue 5: Closing argument Colburn argues that the district attorney’s commented on her failure to call a witness to the stand who cared about the victim. Colburn has taken the statement out of context and misconstrued its meaning. The district attorney was commenting on Colburn’s failure to call by telephone a single person who cared for the victim in the early morning hours after the fire. In addition, no unjust prejudice resulted from the district attorney’s comment. Issue 6: Sufficiency of evidence Colburn argues that the State’s case was based on circumstantial evidence, thus raising the burden of proof for a conviction to a higher standard which the State failed to meet. However, this is not a circumstantial evidence case. Where the accused has made an admission on an element of the offense, it is no longer a circumstantial evidence case. While the majority of evidence presented at trial was circumstantial, Colburn made three admissible, voluntary confessions that she killed Childs, which were documented and admitted into evidence during her trial, and not contested on appeal. The evidence in this case, viewed in the light most favorable to the State, establishes a rational jury could have found Colburn affected the death of the victim with deliberate design beyond a reasonable doubt. Issue 7: Jury’s verdict Colburn argues that because the jury returned a verdict of “not guilty” of capital murder and “guilty” of murder together on the same sheet of paper, the jury did not follow its instructions; thus, the trial court should have rejected the verdicts. There is no reversible error with the verdicts being written on one sheet of paper instead of two, especially since the trial judge specifically instructed the jurors to submit the verdict in this manner. In addition, any error would be harmless. |
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