Isom v. State

2010 Ark. 495, 370 S.W.3d 491, 2010 WL 5144791, 2010 Ark. LEXIS 600
Supreme Court of Arkansas·Decided December 16, 2010·No. No. CR 08-1386·Published·Cited by 9 cases

Opinion

JIM HANNAH, Chief Justice.

|,Kenneth R. Isom appeals a decision of the Drew County Circuit Court denying his petition for postconviction relief under Ark. R.Crim. P. 37.5. The issues on appeal are limited to claims of ineffective assistance of counsel. He was sentenced to death for capital murder and received additional sentences of life in prison for aggravated robbery and rape, sixty years for attempted capital murder and forty years for residential burglary, with the sentences to run consecutively. See Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004) (where the facts are set out in detail). Isom alleges that he received ineffective assistance of counsel at trial. We affirm the decision of the circuit court denying his Rule 37.5 petition for postcon-viction relief. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2).

Isom alleges the circuit court committed multiple errors in denying his petition. The [ ¡.decision of a circuit court granting or denying postconviction relief will be reversed only when that decision is clearly erroneous. Williams v. State, 369 Ark. 104, 107, 251 S.W.3d 290, 292 (2007). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing all the evidence, is left with the definite and firm conviction that a mistake has been made. Id., 251 S.W.3d at 292 (quoting Howard v. State, 367 Ark. 18, 25-26, 238 S.W.3d 24, 31-32 (2006)).

In considering a claim of ineffective assistance of counsel, the court hearing the petition applies the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Williams, 369 Ark. at 107, 251 S.W.3d at 292. The court must consider whether “counsel’s conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052.

To prove a claim of ineffective assistance of counsel, the petitioner must show (1) that “counsel’s representation fell below an objective standard of reasonableness,” and (2) that counsel’s particular errors “actually had an effect on the defense.” Lee v. State, 2009 Ark. 255, at 3, 308 S.W.3d 596, 600 (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). There is a strong presumption that trial counsel’s representation fell within the wide range of reasonable professional assistance. Id. at 3, 308 S.W.3d at 600-01. The petitioner bears the burden of overcoming this presumption by identifying specific acts and

omissions that, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. at 3, 308 S.W.3d at 601. To prevail, a petitioner must also show |s“a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 4, 308 S.W.3d at 601 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

Isom first asserts that trial counsel was ineffective for failing to investigate, interview, and present Kevin Green as a witness at trial. According to Isom, Green told Bobby Cherry and Todd Bowles that Jerry Avery had confessed to committing the crimes at issue in this case. However, Green testified at the Rule 37 hearing that Avery “never told me that he committed a murder.” He also testified that he had not told Cherry that Avery had confessed to him, and he denied knowing Bowles. Therefore, had Green testified at trial, he would not have provided evidence that Avery had confessed. Isom does not show a reasonable probability that but for counsel’s failure to call Green as a witness at trial, the result would have been different.

Isom next alleges that trial counsel was ineffective for failing to call as trial witnesses, Kevin Green, Alvin Green (Kevin Green’s father), Herman Folk, Jr., and Harold Gossin, who testified at the Rule 37 hearing that they saw Avery with a bloodied and bandaged hand after the crimes were committed. Several of the witnesses testified that Avery reported he had cut his hand at work.

Only the victims’ blood was identified at the scene. Isom has not presented evidence to show that the perpetrator cut himself in the commission of the crimes. Further, these witnesses are all related to or know Isom. The relevance of the evidence is slight.- Isom fails |4to rebut the presumption that trial counsel’s representation fell within the wide range of reasonable professional assistance. He does not show a reasonable probability that but for counsel’s alleged unprofessional errors, the result of the proceedings would have been different.

Isom also argues that trial counsel was ineffective for failing to investigate, interview, and present Treva Lamb, Yvonne Bealer (Lambert), and Ricky Isom as alibi witnesses. Lamb testified at the Rule 37 hearing that she was speaking with Isom on the phone at the time the murder and the rapes took place; however, she also stated that when she spoke to Isom they discussed the Pamela Knight murder. The Knight murder had not been discovered at the time of the commission of the crimes at issue in this case. Yvonne testified that she was at her mother’s house the evening of the murder, that Isom arrived about 7:00 p.m., and that “I answered the phone” when Lamb called. According to Yvonne, Isom was on the phone with Lamb “for at least two hours.” Ricky Isom testified that Isom arrived at their mom’s house about 5:00 p.m. the night of the murder and did not leave until “shortly after 9:00, just before 10:00.” Ricky also testified that he answered the phone when Lamb called and that Isom was on the phone with her for “some hours.”

Lamb is the mother of Isom’s child. Yvonne and Ricky are Isom’s siblings. Both Yvonne and Ricky testified to answering the phone when Lamb called. These are family members who provided conflicting testimony. The decision not to present these witnesses may have been based on their lack of credibility and the effect that would have had on the Injury. Isom fails to bear his burden of rebutting the strong presumption that trial counsel’s representation fell within the wide range of reasonable professional assistance. He fails to show that the decision not to present these witnesses could not have been the result of reasonable professional judgment.

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Isom v. State, 2010 Ark. 495, 370 S.W.3d 491, 2010 WL 5144791, 2010 Ark. LEXIS 600 (Ark. 2010).

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