Colburn v. State

• Decision Date: 29 January 2008
• Docket Number: No. 2005-KA-01882-COA.,2005-KA-01882-COA.
• Citation: 990 So.2d 206
• Parties: Earlene COLBURN, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

990 So.2d 206

Earlene COLBURN, Appellant v. STATE of Mississippi, Appellee.

No. 2005-KA-01882-COA.

Court of Appeals of Mississippi.

January 29, 2008.

Rehearing Denied June 3, 2008.

Certiorari Denied September 11, 2008.

Roy Kenionne Smith, Jackson, attorney for appellant.

Office of Attorney General by Charles W. Maris, attorney for appellee.

Before KING, C.J., BARNES and ISHEE, JJ.

BARNES, J., for the court.

¶ 1. Earlene Colburn appeals her conviction and sentence ordered by the Chickasaw County Circuit Court after a jury found her guilty of murder. Colburn raises ten issues on appeal, including: the admission of certain expert testimony; the ineffective assistance of counsel; the denial of a directed verdict, judgment notwithstanding the verdict or, alternatively, a new trial; and the granting and refusal of certain jury instructions, among other issues. Finding no reversible error, we affirm Colburn's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately 12:55 a.m. on April 29, 2003, in Houston, Mississippi, firemen arrived on the scene of an extensive trailer-home fire. At this time, the fire involved sixty to seventy-five percent of the home. The home belonged to Petty Childs, an eighty-eight-year-old man who lived with his hired, live-in caretaker, Colburn, who had worked for Childs for approximately fourteen months. At approximately 4:30 a.m., once the fire was extinguished, firefighters recovered Childs's barely recognizable, charred bodily remains. Childs's body was located in what was formerly the den of the home, outside of his bedroom. Later that morning, law enforcement officials questioned Colburn at the home of her daughter, Annie Strevall. Initially, Colburn was not a suspect, and she denied any involvement. However, during several interviews with law enforcement authorities conducted in the days immediately following the fire, it was revealed that Colburn's relationship with Childs was strained. Additionally, Colburn's statements were inconsistent with other witnesses' statements. Moreover, her interviews with law enforcement officials invariably ended with Colburn breaking down into what the interviewers labeled as "temper fits," ranting and raving. Then, in an interview with law enforcement on May 1, 2003, Colburn made the first of several confessions.

¶ 3. In August 2003, a grand jury in Chickasaw County indicted Colburn for the capital offense of murder in the commission of arson, in violation of section 97-3-19(2)(e) of the Mississippi Code Annotated (Rev.2000). Colburn pleaded not guilty. On May 3, 2005, in the Circuit Court of Chickasaw County, Colburn's three-day jury trial began. The trial judge informed the jury that the State was not seeking the death penalty.

¶ 4. The State called nine witnesses in its case-in-chief. First to testify was Brad Smith, who was one of the first fireman on the scene. He testified that upon his arrival, the fire was concentrated in the front portion of the house and was "venting" through the roof above the front door.¹ The firefighters concentrated on extinguishing the fire in the back of the house first, where Childs's bedroom was located. Smith was momentarily able to break into Childs's bedroom, but he did not find Childs. Childs's bed did not appear to have been slept in. Smith then headed outside the house because the fire became too intense to perform any further interior searches. It took over an hour to initially extinguish the fire. Smith testified the fire rekindled the next day, and it took two or three days before the fire was completely extinguished.

¶ 5. Mike Ivy, a deputy state fire marshal with the Mississippi Department of Insurance, testified next. The defense accepted him as an expert witness in arson investigation and crime scene diagrams. Ivy testified he went to Houston the day after the fire to investigate. It was his opinion that the fire originated in the front living room and adjoining den area, and the fire did not originate from any appliances or heaters in the house. He determined that the cause of the fire was from flammable liquid poured in the area the fire originated and was ignited with an "open flame device." Thus, all accidental causes of the fire were excluded. Ivy formulated his conclusion from the irregular burn patterns on the floor that extended in a linear pattern. There was a line of demarcation in this linear pattern, referred to as a "trailer," or "pour pattern," which was not seen in the other areas. This pour pattern, Ivy explained, was indicative of flammable liquid being poured in the area from the front entrance of the home through the living room and back to the adjoining den, where Childs's body was found, and his bedroom. A plat of Childs's home, drawn by Ivy and including the pour pattern, was introduced into evidence, over the defense's objections. On cross-examination, Ivy did admit that the State Crime Laboratory was unable to identify ignitable liquids in the three debris samples taken from the pour pattern area. However, Ivy explained that water used to put out the fire would have diluted the flammable liquid residue. He postulated that this test result merely meant that there was not enough ignitable liquid in the sample to identify what the flammable liquid was, not that there could be absolutely no flammable liquid in the sample.

¶ 6. Next to testify was Childs's long-time neighbor, James Gunn. Gunn testified that when he arrived at home from work² on the night of April 28, at 11:30 p.m., he noticed Childs's porch and living room lights were on, which was unusual. Shortly thereafter, while he was taking his garbage out, he noticed Colburn, in a night gown and housecoat, on Childs's front porch, smoking a cigarette.

¶ 7. The prosecution next called deputy sheriff and county coroner, Andy Harmon. Officer Harmon testified that on the evening of the fire, he was on his way to investigate the Childs's fire at approximately 1:20 a.m. when he noticed what was later identified as Colburn's car stuck in a ditch near Strevall's house. Once at the scene, Officer Harmon stated that Childs's house was "thoroughly involved" in fire, and the fire department was trying to extinguish the fire. He notified the police about the vehicle stuck in the ditch, and Houston police officer Eric Chrestman left the scene to check on it.

¶ 8. Officer Harmon was also present at several investigative interviews with Colburn.³ He testified that the information obtained from Colburn's interviews was inconsistent. He first interviewed her, before she was a suspect, at approximately 6:00 a.m. on April 29 at Strevall's house. At this time, Colburn stated she left Childs's home at approximately 11:00 p.m. on April 28, after putting Childs to bed. She added that Childs told her "his heart was beating funny and that everything was paid up." Later that day, Officer Harmon received a call from the state pathologist, who said the case could be considered a possible homicide. Thus, at Colburn's next interview at the sheriff's office, at approximately 10:50 p.m. on April 29, Colburn was considered a suspect. Two other investigators were present at this interview. Colburn was advised of her Miranda rights and signed a waiver form. At the interview, Officer Harmon testified that authorities were trying to determine basic information, such as, the time Colburn was present at Childs's house and when the fire started. Before flying into a "temper fit" and ending the interview, Colburn stated she left Childs's house at 11:00 p.m., and she went to Strevall's house, among other places. At an investigative interview on May 1, Colburn again signed a form waiving her Miranda rights. Two other investigators were present, and they went back over the time frames with Colburn. Colburn consistently maintained that she left Childs's home at 11:00 p.m., but the places she stated she went before arriving at Strevall's house varied. When confronted about Gunn's statement that Colburn had been seen at the scene after 11:00 p.m., she denied it. At this interview, Officer Harmon stated Colburn confessed that she killed Childs, but then she stated "that is all you wanted to hear any way." In the same interview, Colburn also denied killing Childs several times. Finally, Officer Harmon testified that on February 27, 2004, Colburn, while incarcerated in the Houston jail and having had a temper fit, voluntarily confessed to him that "the old son-of-a-b* * * * should have been dead long before what I did." A signed statement by Officer Harmon, stating such, was entered into evidence, over the objection of the defense.

¶ 9. Joyce Myatt testified next for the State. She has known Childs for approximately twenty years and Colburn for approximately six to eight months. Myatt testified that she and Colburn had a phone conversation at about 9:30 p.m. on April 28 about a carpet shampooer Colburn had rented. Colburn told Myatt she was using it on Childs's vinyl kitchen floor while they spoke. Colburn offered to come clean some of Myatt's rugs that evening. While on the phone, Myatt overheard Colburn and Childs having an argument. Childs was cursing Colburn, and she heard Colburn make the statement that if Childs did not shut up she was going to kill him. However, Myatt was quick to add that "Earlene said things like that all the time," and she did not take the comment seriously. Myatt also testified that Childs was "on [Earlene] all the time." Childs did not like for Colburn to talk on the telephone or "have any pleasure"; he just wanted her to work all the time. Colburn never made it to Myatt's house that evening to clean her rugs. Instead, Myatt received another call from Colburn at approximately 2:30 a.m. April 29 stating, "Mr. Petty is dead." However, Colburn offered Myatt no further details. Colburn did mention that her car was stuck in a ditch. She requested that Myatt have her husband come pull her out, but Myatt declined.

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