Isom v. State

• Citation: 2010 Ark. 496,372 S.W.3d 809
• Decision Date: 20 January 2011
• Docket Number: No. CR 09–548.,CR 09–548.
• Parties: Kenneth R. ISOM, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2010 Ark. 496
372 S.W.3d 809

Kenneth R. ISOM, Appellant,
v.
STATE of Arkansas, Appellee.

No. CR 09–548.

Supreme Court of Arkansas.

Dec. 16, 2010.
Rehearing Denied Jan. 20, 2011.

[372 S.W.3d 811]

Jeff Rosenzweig, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., and David R. Raupp, Sr. Ass't Att'y Gen., for appellee.

ROBERT L. BROWN, Justice.

[2010 Ark. 1]Appellant Kenneth Isom was convicted of capital murder, aggravated robbery, residential burglary, attempted capital murder, and two counts of rape after a jury trial in the Drew County Circuit Court on December 20, 2001. 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. His convictions and sentences were affirmed on direct appeal to this court. Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004).

The facts surrounding the crimes were detailed in his direct appeal. Id. Dorothy Lawson, who was seventy-two at the time of the crime, testified that he she had been assisting Bill Burton, her deceased husband's brother-in-law, following hip surgery. She was at his trailer on the night of April 2, 2001, when she heard someone knock on the door. She opened the door and a man pushed past her. She testified that she recognized the man as the [2010 Ark. 2]same man she had been talking to at the neighbor's residence approximately forty-five minutes earlier. The man walked over to Mr. Burton and demanded money. He brandished a broken pair of scissors after Mr. Burton stated he had no money. Mr. Burton then gave the man $240, which did not satisfy him.

Isom next told Ms. Lawson to remove her pants and underwear. He raped her vaginally and anally and forced her to perform oral sex on him. Afterwards, he forced her into a closet. Ms. Lawson then testified that she saw the man standing on Mr. Burton's head. She tried to attack the man, and he took her into the bedroom and knocked her unconscious. At some point she awoke, and the man was choking her. She testified that she could plainly see his face before she passed out again.

Later she awoke alone, bleeding and partially paralyzed. She and Mr. Burton were found after a neighbor entered the side door of the trailer and heard Ms. Lawson crying for help. Mr. Burton was already dead when police officers arrived. Ms. Lawson was transported to the hospital where a rape kit was performed. The doctor found a black hair in Ms. Lawson's vaginal opening. Ms. Lawson gave a statement later that day describing her attacker as a dark-complected black male, who was five feet and seven inches tall to six feet tall with a stocky, muscular build. She further relayed the information that she had seen him several times at a neighbor's home. In a subsequent photographic lineup, Ms. Lawson identified Isom. She told the police lieutenant who conducted the lineup that she was “adamant” about the identification and made the identification “with no uncertainty.”

The [2010 Ark. 3]black hair was analyzed by the Arkansas State Crime Lab. Evidence was then presented at trial that Isom had DNA bands not inconsistent with the hair recovered from the victim and the likelihood of finding another person with the same consistent DNA bands was one in fifty-seven

[372 S.W.3d 812]

million in the African American population. Isom was convicted and sentenced as already set out in this opinion, and this court affirmed.

After his convictions were affirmed, Isom filed a Rule 37 petition for postconviction relief. His relief was denied by the circuit court on September 18, 2008. He then appealed to this court. Before this court heard his Rule 37 petition, Isom filed a petition for writ of habeas corpus and a motion for DNA testing pursuant to Arkansas Code Annotated sections 16–112–201 to –208. He requested that this court hold briefing on his Rule 37 petition in abeyance until issues relating to his DNA testing petition were resolved, which this court declined to do. Isom's Rule 37 appeal and his appeal from the denial of his petition for additional DNA testing are now both on appeal to this court. ¹

Subsequent to his trial, Isom moved to re-test the black hair pursuant to Arkansas Code Annotated section 16–112–202, and the State consented to additional testing using a method called “Mini–STR.” The Mini–STR test did not exclude Isom as the contributor of the [2010 Ark. 4]DNA profile developed from the black hair but established that the likelihood of finding another person with the same consistent DNA bands was 1 in 580,000 for a non-relative.²

Isom then moved for additional DNA testing and requested specifically that the circuit court order the black hair taken from the crime scene compared to DNA from two men, Kevin Green and Jerry Avery. Isom states in his motion that he is related to both Green and Avery and that both men are suspects in this case. He further asserts that the DNA of each man is already in the Arkansas DNA database because of previous convictions.

To support his motion for additional testing, Isom provided an affidavit from his mother, Linda Isom, that Avery was his third cousin. In his Rule 37 proceeding, he also offered testimony from various people who averred that they spoke to Isom on the phone during the time the crime took place, that Avery was seen with a bandaged and bloodied hand the night of the crime, and that Isom was calm and unbloodied on the night of the crime. Isom claims that because the death penalty is imposed in his case, he has a constitutional right to have the DNA from the black hair compared to Avery's DNA in the Arkansas DNA database. He ultimately asserts that the circuit court misinterpreted Arkansas Code Annotated sections 16–112–201 to –208 and clearly erred and abused its discretion in denying his motion for additional testing.

[2010 Ark. 5]I. Standard of Review

The parties offer different standards of review for this court to use in this case on appeal. Isom urges this court to use a de novo standard of review in its statutory interpretation and contends that the circuit court misinterpreted the Arkansas DNA testing statutes. The State argues, on the other hand, that the standard should be the same as that applied to the denial of postconviction relief, which is clear error.

The operable statute subject to our examination provides, “(b) [i]f the deoxyribonucleic acid (DNA) test results obtained under this subchapter are inconclusive, the court may order additional testing or deny

[372 S.W.3d 813]

further relief to the person who requested the testing.” Ark.Code Ann. § 16–112–208(b) (Repl.2006).

Ordinarily, the clear error standard is the correct standard to apply in a postconviction case. In Misskelley v. State, 2010...