Isom v. State

Citation31 N.E.3d 469
Decision Date20 May 2015
Docket NumberNo. 45S00–0803–DP–125.,45S00–0803–DP–125.
PartiesKevin Charles ISOM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtSupreme Court of Indiana

31 N.E.3d 469

Kevin Charles ISOM, Appellant (Defendant below)
STATE of Indiana, Appellee (Plaintiff below).

No. 45S00–0803–DP–125.

Supreme Court of Indiana.

May 20, 2015.
Rehearing Denied July 28, 2015.

31 N.E.3d 476

Mark A. Bates, Office of the Public Defender, Crown Point, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

RUCKER, Justice.

Case Summary

After a trial by jury Kevin Charles Isom was found guilty of three counts of murder for which the jury recommended and the trial court imposed a death sentence. In this direct appeal Isom raises the following rephrased issues: (1) did the trial court err by denying Isom's for-cause challenges to certain prospective jurors; (2) did the trial court err in denying Isom's motions for mistrial; (3) did the trial court abuse its discretion in instructing the jury; (4) did the trial court err by refusing to allow a witness to answer a question posed by a juror; (5) did the State commit prosecutorial misconduct during closing arguments in the penalty phase of trial; (6) is revision of Isom's death sentence warranted; and (7) did the trial court issue an illegal or void sentence. We affirm Isom's conviction and death sentence, but remand with instructions to issue a new sentencing order consistent with this opinion.

Facts and Procedural History

On the evening of August 6, 2007, police officers were dispatched to the Lakeshore Dunes Apartments in Gary, Indiana after reports of repeated gunfire rang out in the complex. Unable to identify immediately the source of the gunfire or enter the apartment building to investigate, the officers were held at bay while the assailant shot rounds of gunfire in their direction. After several hours, a SWAT team gained entry into the apartment. Once inside, the officers found Isom sitting on the floor in the back bedroom leaning against the wall, and reaching underneath a sheet and moving his hands about. Isom did not comply with police commands to show his hands, and after a brief struggle officers placed him in handcuffs. A .357 Magnum handgun fell from Isom's waistband. Nearby, officers discovered a .40 caliber Smith & Wesson handgun, a 12–gauge shotgun, and multiple rounds of ammunition. The officers also located the bodies of Isom's wife Cassandra Isom, Isom's thirteen-year-old stepdaughter Ci'Andria Cole, and Isom's sixteen-year-old stepson Michael Moore. Cassandra was killed by a close-range shotgun blast to the top of her head. She had also been shot with the Smith & Wesson handgun. Ci'Andria was shot with the Magnum, the Smith & Wesson, and the

31 N.E.3d 477

shotgun. Michael was killed by a shotgun blast to his chest and flank area, probably while sitting at a computer. And he was also shot with the Smith & Wesson handgun. Blood from all three victims was found on Isom's clothing. Isom was arrested and the next day, after being read his Miranda1 warnings, gave a statement to police which included an account of his activities during the course of the day and an explanation of where the victims were positioned when they were shot. At times Isom seemed not to remember the shootings, declaring at one point, “I can't believe I killed my family, this can't be real.” Tr. at 12616.

The State charged Isom with three counts of murder for the shooting deaths of Cassandra, Ci'Andria, and Michael, and sought the death penalty alleging as a statutory aggravating circumstance the multiple murders. See Ind.Code § 35–50–2–9(b)(8) (2007).2 The State also charged Isom with four counts of attempted murder in connection with his firing at police officers. Prior to trial the State dismissed one of the attempted murder counts. After several delays, Isom's jury trial began November 26, 2012 and the guilt phase concluded February 5, 2013. Isom was found guilty of murder as charged. The jury also found Isom guilty of three counts of criminal recklessness as lesser included offenses of attempted murder. The following day the jury reconvened for the penalty phase of trial, after which the jury found that Isom intentionally killed Cassandra, Ci'Andria, and Michael, and that the State proved the charged aggravator beyond a reasonable doubt. The jury also found that Isom's proffered mitigating circumstances were outweighed by the charged aggravator. The jury thus recommended a sentence of death for each of the three murder convictions. The court accepted the jury's recommendations and sentenced Isom to three death sentences to be served consecutively.3 Pursuant to Indiana Appellate Rule 4(A)(1)(a), this Court has mandatory and exclusive jurisdiction over this appeal. Additional facts are set forth below as necessary.


I. Challenges for Cause

Isom contends the trial court erred in failing to grant his for-cause challenges of certain prospective jurors. The essential facts follow. On motion of the defense team, the trial court awarded both sides thirty peremptory challenges (more than the twenty contemplated by Indiana Jury Rule 18). See App. at 407–09, 479. In advance of jury selection each prospective juror was provided a detailed forty-five page jury questionnaire. During a fifteen-day voir dire proceeding each prospective juror was questioned extensively by the State, the defense, and the trial court. Isom moved to strike numerous jurors for cause. The trial court granted some of the motions but denied the motions with respect

31 N.E.3d 478

to twelve jurors, specifically Jurors No. 8, 31, 44, 57, 100, 105, 114, 168, 246, 375, 391, and 398. By the time eleven jurors had been seated, Isom had exhausted all of his peremptory challenges, so he had none left when the trial court denied his for-cause challenge to Juror No. 398. That person was seated as the twelfth juror. Isom claims error with the seating of this juror as well as the denial of his eleven other for-cause challenges which compelled him to remove those jurors by use of peremptory challenges. See Whiting v. State, 969 N.E.2d 24, 29–30 (Ind.2012) (declaring appellate review of alleged trial court error in the denial of a challenge for cause is available where a defendant has exhausted all of his peremptory challenges).

Challenging jurors for cause is the primary means by which a defendant may exclude any prospective juror whose “views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath[.]” Oswalt v. State, 19 N.E.3d 241, 246 (Ind.2014) (quoting Wainwright v. Witt, 469 U.S. 412, 433, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (internal quotation omitted)). These challenges “must be supported by specified causes or reasons that demonstrate that, as a matter of law, the venire member is not qualified to serve.” Whiting, 969 N.E.2d at 29 (quoting Gray v. Mississippi, 481 U.S. 648, 652 n. 3, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) (citation omitted)). We review a trial court's denial of a defendant's for-cause challenge for an abuse of discretion. Oswalt, 19 N.E.3d at 245. “[T]he trial court has ‘a broad discretion and duty ... to see that the jury as finally selected is subject to no solid basis of objection on the score of impartiality.’ ” Whiting, 969 N.E.2d at 29 (omission in original) (quoting Frazier v. United States, 335 U.S. 497, 511, 69 S.Ct. 201, 93 L.Ed. 187 (1948) ). We afford substantial deference to the trial court's ruling and will reverse only upon a showing that the decision is illogical or arbitrary. Id.

Isom's challenges to the twelve jurors fall within three broad categories: (1) the prospective juror would not consider mitigation evidence during the penalty phase of trial; (2) the prospective juror would not give serious consideration to all three penalty options—death, life without parole, or a term of years; and (3) the prospective juror failed to understand legal concepts relevant to the case. We address these challenges in turn.

A. Refusal to consider mitigation

Isom challenged Jurors No. 8, 31, 375, 391, and 398 contending that they would not consider mitigation evidence. The record shows that each of these jurors initially expressed skepticism either on the jury questionnaire or during voir dire itself. But their positions changed after further explanation and inquiry, especially by the trial court. In each instance the trial court explained the manner in which mitigation evidence would be introduced, the reason for the mitigation evidence, and the juror's obligation to consider that evidence. See Tr. at 1638–66 (Juror No. 8); Tr. at 1856–1910 (Juror No. 31); Tr. at 5643–5717 (Juror No. 375); Tr. at 6030–68 (Juror No. 391); Tr. at 6101–43 (Juror No. 398). It is certainly the case that “[a] juror who will automatically vote for [a particular] penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do.” Ward v. State, 903 N.E.2d 946, 955 (Ind.2009) (quoting Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) ), adhered to on reh'g, 908 N.E.2d 595, 597 (Ind.2009). However, “a constitutionally

31 N.E.3d 479

impartial juror is one who is able and willing to lay aside his or her prior knowledge and opinions, follow the law as instructed by the trial judge, and render a verdict based solely on the evidence presented in court.” Whiting, 969 N.E.2d at 28 (citing Irvin v. Dowd, 366 U.S. 717, 722–23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) ). In this case, it was only after assuring itself that the potential juror fully understood his/her duty as explained by the court and genuinely believed that he/she could fulfill such a duty that the trial court denied Isom's challenges for cause predicated on the jurors' alleged refusal to consider mitigation evidence. Isom's claim of error essentially amounts to a request for this Court to reweigh the credibility of the jurors' declarations. We decline...

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