Isom v. State
| Decision Date | 19 February 2004 |
| Docket Number | No. CR 02-213.,CR 02-213. |
| Citation | 356 Ark. 156,148 S.W.3d 257 |
| Parties | Kenneth R. ISOM v. STATE of Arkansas. |
| Court | Arkansas Supreme Court |
Dorcy K. Corbin, Arkansas Public Defender Commission, Little Rock, for appellant.
Mike Beebe, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., Little Rock, for appellee.
Appellant Kenneth R. Isom appeals from a judgment of conviction for capital murder, residential burglary, attempted capital murder, rape, and aggravated robbery.1 He was sentenced to death 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. He raises multiple points on appeal. We hold that there is no merit to the points raised, and we affirm.
The facts are taken from testimony at trial. On April 2, 2001, Ken Oulette drove by Bill Burton's residence in Monticello around 7:00 p.m. and saw Dorothy Lawson, age 72, standing in the yard in front of Mr. Burton's trailer home, talking with a gentleman who was sitting on the front stairs of the house next door to Mr. Burton's residence. Mr. Oulette later identified Mr. Isom from a photographic lineup and then in court without objection. Linda Kay Johnson, who lived across the street from Mr. Burton, also saw Mr. Isom and Mrs. Lawson talking outside Mr. Burton's residence before 7:00 p.m. She had known Mr. Isom for a long time and had seen him at Alfred Collins' house, which was next door to Mr. Burton's trailer home, on previous occasions. She said that Mr. Isom was wearing a white tee-shirt and dark pants. Ms. Johnson later identified Mr. Isom in the courtroom at his trial without objection.
Dorothy Lawson testified that she had been assisting Bill Burton, age 79, her deceased husband's brother-in-law, in his rehabilitation following hip surgery. Mrs. Lawson was at Mr. Burton's trailer home the night of April 2, 2001, and was watching television with Mr. Burton when she heard someone knock on the door. It was about 7:45 p.m. but still light outside. She opened the front door, and a man pushed passed her. She recognized the man as the person she had seen next door. She later identified that person as Mr. Isom. He walked over to Mr. Burton and, standing near him, said, "I want some money." Mr. Burton replied that he currently had no money but that his social security check was coming tomorrow.
Mr. Isom pulled a pair of broken scissors from his pants' back pocket and threatened Mr. Burton. Mr. Burton gave him two $100 bills and another forty dollars. Mr. Isom became angry and said he wanted more. He made Mr. Burton stand up and walk towards the bedroom. He then made Mr. Burton lie down on the floor in the hallway. Mr. Isom next grabbed Mrs. Lawson and told her to remove her pants and underwear and lie down in the hallway near Mr. Burton. Mr. Isom raped her vaginally, forced her to have oral sex with him, and raped her anally. During the rapes, Mrs. Lawson testified that she could clearly see his face. When she complained about the pain, Mr. Isom said: "It's going to be worse than this before the night's over." There was a knock at the back door, and Mr. Isom said: Whoever was at the back door apparently left.
Mr. Isom forced Mrs. Lawson into a closet. When she later looked out and told Mr. Isom to stop standing on Mr. Burton's head because he was old, Mr. Isom forced her back into the closet and said: She next saw Mr. Isom lying on top of Mr. Burton. She attacked Mr. Isom and in the process cut her hand on his scissors. She bled on Mr. Isom, which enraged him, and he said: "You're going to get it now." He demanded the diamond rings worn by Mr. Burton. Mrs. Lawson gave Mr. Isom her ring instead. Mr. Isom took her into the bedroom and knocked her unconscious. When she awoke, Mr. Isom was choking her. Mrs. Lawson testified that she could plainly see his face. She passed out again, and when she awoke some time later, she was alone. There was warm blood on the back of her head and rattling in her chest due to internal bleeding. She discovered that she was paralyzed on one side.
On April 3, 2001, Erma Shook, a neighbor and relative of Bill Burton's, entered the side door of his trailer home after 8:00 a.m. and heard Mrs. Lawson crying for help. Ms. Shook dialed 9-1-1 from Mr. Burton's trailer home. Donald King, a patrol sergeant with the Monticello Police Department, was the first to arrive at the scene. He testified that he found Mr. Burton dead, lying on the floor in the hallway, and Mrs. Lawson lying on the floor in the master bedroom. The cause of death of Mr. Burton was later determined by associate medical examiner, Dr. Charles Kokes, to be multiple sharp and blunt force injuries. Mrs. Lawson told Sergeant King that a black male who lived next door was the assailant.
Shortly thereafter, Scott Woodward, who was a criminal investigator for the Arkansas State Police, Lieutenant John Dement, Chief of Police Sam Norris, and Monticello Police Officer Eddie Deaton arrived on the scene. Officer Woodward and Lieutenant Dement conducted an investigation of the scene. No fingerprints were found at the scene.
Officer Woodward failed to find any blood from Mr. Burton on the trailer walls and only saw what looked like blood that ran from Mr. Burton's body and pooled on the carpet. Mr. Burton's left pants pocket was slightly open, and his wallet without any cash inside was laying next to him. Officer Woodward did find a disfigured lamp near where Mrs. Lawson was lying. The lamp was wrapped with a cloth, and the top of the lamp was detached. The lamp and the cloth both had blood spatters or staining on them as did the wall and other areas near Mrs. Lawson. There also was a jewelry box that appeared to have been tampered with, because some of the drawers were askew. Mrs. Lawson told Officer Woodward that the man who lived next door knew her assailant.
Mrs. Lawson was transported to Drew Memorial Hospital later that morning where Dr. William W. Williams performed a rape-kit examination on her and where police officers asked her questions. Dr. Williams found a thick, black hair in Mrs. Lawson's vaginal opening.
Lieutenant Michael Hall of the Arkansas State Police and Special Agent Dennis Duran, a criminal investigator supervisor with the Arkansas State Police, arrived at the hospital around 1:00 p.m. that same day to take a statement from Mrs. Lawson. Mrs. Lawson He added that she had "all her faculties about her." Mrs. Lawson described her assailant as a black male, five feet and seven inches tall to six feet tall and of stocky, muscular build, who appeared dark-complected. She had seen him several times at a neighbor's house before the attack and murder. She did not mention scars or tattoos on the face of her assailant.
Lisa Channell, the chief criminalist with the Arkansas State Crime Lab, testified at trial that on April 4, 2001, she compared the black hair found by Dr. Williams on Mrs. Lawson with a known sample of Mr. Isom's hair. She stated that she found the black hair to be Negroid and not from Mr. Burton or Mrs. Lawson but microscopically similar to the known pubic hair sample from Mr. Isom. Melissa Myhand of the Arkansas State Crime Lab also analyzed the hair from the rape-kit for DNA. Her testing revealed that Mrs. Lawson and Mr. Burton were excluded as potential contributors to the hair sample. She stated that Mr. Isom had DNA bands not inconsistent with the known sample and that the likelihood of finding another person with the same consistent DNA bands was one in fifty-seven million in the African-American population.
On April 5, 2001, Lieutenant Dement visited with Mrs. Lawson in the hospital to see if she could identify her assailant from a photographic lineup. In creating the photographic lineup, Lieutenant Dement testified that he considered race, dress, and facial hair of the participants. He testified that before the identification, Mrs. Lawson was "coherent." He stated that she was in her hospital bed, she wiped her eyes with a washcloth, and she wore her eyeglasses. She examined each picture, holding them closely to her face, without saying anything. After first focusing on photographs one and three, she selected photo three, which was Mr. Isom. Lieutenant Dement added that she expressed no uncertainty and was very adamant about her identification.
A criminal information was filed, accusing Mr. Isom of capital murder, aggravated robbery, theft, burglary, attempted capital murder, and rape. A motion to suppress the photographic lineup was filed by Mr. Isom and later denied by the circuit judge. On December 17, 2001, the prosecutor filed an amended criminal information against Mr. Isom, accusing him of capital murder, aggravated robbery, residential burglary, attempted capital murder, and rape.
The jury trial began on December 17, 2001, and lasted four days. Mr. Isom did not testify. Following the trial, the jury returned a verdict, convicting Mr. Isom of the crimes previously mentioned and sentencing him accordingly.
Mr. Isom contends that the State presented insufficient evidence to convict him of capital murder. Due to double jeopardy considerations, we review this issue prior to other issues raised on appeal. See, e.g., Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002).
The basis for Mr. Isom's contention is that the State presented no evidence to show that Mr. Isom committed murder "in the course of and in the furtherance of the felony," as required in the capital murder and first-degree murder statutes. See Ark.Code Ann. §§ 5-10-101(a)(1) and -102(a)(1) (Repl.1997). In addition, he points out that law...
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