Isom v. State

2015 Ark. 219, 462 S.W.3d 638, 2015 Ark. LEXIS 359
CourtSupreme Court of Arkansas
DecidedMay 21, 2015
DocketCR-08-1386
StatusPublished
Cited by2 cases

This text of 2015 Ark. 219 (Isom v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Isom v. State, 2015 Ark. 219, 462 S.W.3d 638, 2015 Ark. LEXIS 359 (Ark. 2015).

Opinion

KAREN R. BAKER, Associate Justice

h Before this court is Petitioner Kenneth R. Isom’s petition to recall the mandate in his postconviction case of Isom v. State, 2010 Ark. 495, 370 S.W.3d 491 (Isom II). In a death penalty case, this court has the inherent authority to recall its mandate for extraordinary circumstances. Nooner v. State, 2014 Ark. 296, at 9, 438 S.W.3d 233, 239, cert. denied, — U.S. -, 135 S.Ct. 1701, 191 L.Ed.2d 679 (2015).

I. Facts and Procedure

This court extensively reviewed the facts surrounding Isom’s conviction and sentence in Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004) (Isom, I). In short, Isom was convicted in 2001 by the Drew County Circuit Court jury of capital murder, residential burglary, attempted capital murder, rape, and aggravated robbery in connection with the murder of William Burton and the rape of Burton’s sister-in-law, Dorothy Lawson. Id. During his trial, Isom was represented by G.B. “Bing” Colvin, a Drew County Public Defender. Colvin was assisted by two other public defenders, Tim Bunch and Gary Potts. Isom was sentenced to |2death for capital murder and received additional sentences of life in prison for aggravated robbery and for rape, sixty years for attempted capital murder, and forty years for residential burglary, with the sentences to run consecutively. Id. This court affirmed his convictions and sentences in 2004. Id.

After his convictions and sentences were affirmed, Craig Lambert was appointed on November 1, 2004, to represent Isom during postconviction proceedings. On January 31, 2005, Lambert filed a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.5. Lambert included eleven possible bases for relief: (1) Trial counsel failed to investigate and file appropriate motions to show that Isom was ineligible for the death penalty due to mental retardation; (2) Trial counsel failed to investigate and present exculpatory evidence, including the purported confession of another individual, Jerry Don Avery, and two alibi witnesses, Treva Lamb and Yvonne Bealer; (3) Trial counsel failed to properly investigate Isom’s social history and failed to explore and present mitigation evidence during the penalty phase; (4) Trial counsel failed to seek out independent DNA testing of a hair found during the rape-kit examination of Ms. Lawson; (5) Trial counsel failed to ensure that the jury was instructed on statutory mitigating factors; (6) Trial counsel failed to challenge the introduction of evidence of Isom’s prior nonviolent felony offenses during the penalty phase; (7) Trial counsel failed to object to the prosecuting attorney’s questioning prospective jury members regarding whether they could “commit to” signing a death-penalty verdict form and, therefore, the issue was not preserved for review during Isom’s direct appeal; (8) Trial counsel failed to object to the trial court’s refusal to strike two jurors, Billie Handley and Sanders |sBealer, for cause; (9) Trial counsel failed to object to Ms. Lawson’s in-court identification of Isom and, consequently, failed to preserve his earlier motion to suppress Ms. Lawson’s prior photo-lineup identification; (10) Trial counsel improperly opened the door to the prosecutor’s statements during closing argument that if Isom were not sentenced to death he could potentially escape and commit other murders; (11) Trial counsel failed to object to a “blatant” violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), that occurred when the prosecutor remarked that the victim in this case received “no appeal.”

Subsequent to the filing of Isom’s Rule 37.5 petition, Lambert filed a motion for continuance, motion for appointment of co-counsel, a motion for funds for expert assistance, a motion for leave to file an amended petition for postconviction relief, and an amended motion requesting appointment of co-counsel, in addition to responding to motions to dismiss filed by the State. By order filed on May 23, 2005, the trial court granted the motion for continuance, appointed Bruce Eddy as co-counsel, granted the motion to file an amended petition and “released” Isom from the “page requirements of Rule 37,” and denied the motion for funds for an expert witness as moot based on the appointment of a public defender as co-counsel. 1

On July 19, 2005, Lambert filed a second petition for postconviction relief under Rule 37.5. The second petition included the same eleven claims but was verified. On August 1, |42005, Lambert filed a motion- to withdraw. In his motion, Lambert stated that his mother was terminally ill and he could not “provide competent representation to Isom at the present time.” Lambert requested that the court appoint Jeff Rosenzweig as counsel. The trial court granted Lambert’s motion to withdraw and substitute Rosenzweig as counsel on October 6, 2005. Thereafter, on June 7, 2006, Rosenzweig filed a motion for authorization of funds to retain an investigator, mitigation specialist, and psychologist, and for funds to obtain DNA testing on the hair recovered from the rape victim. By order filed on July 13, 2006, the trial court granted the motion. 2

On January 14, 2008, Rosenzweig filed “Proposed Findings of Fact and 1 Conclusions of Law” detailing the facts and law supporting each of Isom’s eleven claims for relief. The record reveals that Rosenzweig did not amend the previously filed Rule 37.5 petition on Isom’s behalf. The State filed a brief opposing Isom’s Rule 37.5 petition on March 28, 2008. Then, on September 22, 2008, the trial court entered its order dismissing Isom’s petition. On the same date, Rosenzweig filed a notice of appeal. As stated, this court affirmed the trial court’s dismissal of Isom’s Rule 37.5 petition on December 16, 2010. Isom II, 2010 Ark. 495, 370 S.W.3d 491. On that same date, this court affirmed the trial court’s denial of Isom’s “DNA Habeas” petition requesting additional DNA testing on the hair recovered from the Rrape victim. Isom v. State, 2010 Ark. 496, 372 S.W.3d 809 (Isom III).

On May 1, 2013, Isom filed the instant motion seeking recall of this court’s mandate in his Rule 37 case. 3 Isom maintains that this court should recall its mandate in his Rule 37.5 case because he was denied effective, conflict-free representation.

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Bluebook (online)
2015 Ark. 219, 462 S.W.3d 638, 2015 Ark. LEXIS 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/isom-v-state-ark-2015.