Isom v. State
| Decision Date | 30 June 2021 |
| Docket Number | Supreme Court Case No. 45S00-1508-PD-508 |
| Citation | 170 N.E.3d 623 |
| Parties | Kevin Charles ISOM, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
ATTORNEYS FOR APPELLANT: Amy E. Karozos, Public Defender of Indiana, Steven H. Schutte, Kathleen Cleary, Meggan Smith, Deputy Public Defenders, Indianapolis, Indiana
ATTORNEYS FOR APPELLEE: Theodore E. Rokita, Attorney General of Indiana, Andrew A. Kobe, Tyler G. Banks, Office of the Attorney General, Indianapolis, Indiana
Kevin Charles Isom faces the death penalty for the murders of his wife and her two children. We affirmed his convictions and death sentence on direct appeal. Isom then sought post-conviction relief, raising many challenges to the effectiveness of his trial and appellate counsel. Although he refused to verify his petition as our post-conviction rules require, we eventually allowed him to proceed. Then, after lengthy proceedings, the post-conviction court denied his petition. We affirm.
This case arises from a brutal crime. In August 2007, Isom's neighbors reported gunshots ringing out from his apartment. When police arrived, they quickly took shelter because of ongoing gunfire. Several hours later, a SWAT team entered Isom's apartment. They subdued and arrested him after a scuffle. During the arrest, a .357 Magnum handgun fell from Isom's waistband. Police also found a .40-caliber Smith & Wesson handgun and 12-gauge shotgun in the room.
Nearby, officers discovered a grisly scene: the bodies of Isom's wife, Cassandra, and his two stepchildren, thirteen-year-old Ci'Andria and sixteen-year-old Michael. Cassandra was killed by a shotgun blast to her head. Ci'Andria had been shot with the .357, the .40 caliber, and the shotgun. And Michael was killed by two shotgun wounds to his chest and flank areas.
The next day, Isom gave a statement to police. When asked who had killed his wife and stepchildren, he replied, "I can't believe I killed my family, this can't be real." Isom recounted what he did that day and where he was when he shot his victims. But he said he did not remember shooting at police. After reviewing his statement, Isom said, "I smell like gunpowder, like I've been at the range ... Why y'all just didn't kill me?"
Isom was charged with the murders of Cassandra, Ci'Andrea, and Michael, and the State sought the death penalty. The State also pursued three counts of attempted murder based on Isom firing at police. Attorney Nick Thiros led Isom's first trial team. But in October 2010, Thiros died. Isom, distrustful of his remaining attorneys, fired them and sought a public defender. The Lake County Public Defender's Office was appointed, and it assigned attorneys Herbert Shaps and Casey McCloskey to represent Isom. Because Isom claimed to lack any memory of the murders, he was evaluated for competency, and all four evaluators found him competent to stand trial.
The case first went to trial in February 2012 but ended in a mistrial when the pool of approximately 600 potential jurors was exhausted without seating a full jury. The next year, more than 1,100 potential jurors were called for Isom's second jury trial. This trial, which lasted more than five weeks, began in January 2013. The jury returned a guilty verdict on all three murder counts and on three counts of criminal recklessness. The jury, after weighing aggravators and mitigators, recommended the death penalty for each murder conviction. The trial court accepted the jury's recommendation and ordered the three death penalties to be served consecutively. On direct appeal, we affirmed Isom's convictions and death sentence but remanded for a new sentencing order after concluding the trial court erred in ordering the sentences served consecutively. Isom v. State , 31 N.E.3d 469, 476, 495 (Ind. 2015), cert. denied , 577 U.S. 1137, 136 S.Ct. 1161, 194 L.Ed.2d 175 (2016). We stayed his execution after he filed a notice of intent to seek post-conviction relief.
In January 2016, the Public Defender of Indiana tendered a petition for post-conviction relief on Isom's behalf. But the petition lacked Isom's oath and affirmation. The post-conviction court, observing this omission, issued an order giving Isom additional time to file the missing verification page. Yet Isom refused to verify the petition, apparently concluding that his attorneys "were not up to the task of representing him." The consequence, though, of his not signing the petition was that he would forfeit his post-conviction challenge. The trial court entered an order concluding that Isom had waived post-conviction review, and that his time to file the petition had expired.
In January 2017, after hearing oral argument, we ordered the trial court to deem Isom's petition filed as of the date of our January 13, 2017 order. On remand, the post-conviction court held a five-day hearing in March 2018. The court denied Isom's petition in June 2018 and denied his motion to correct errors shortly after. Under Indiana Appellate Rule 4(A)(1)(a), this capital post-conviction appeal comes directly to us.
In post-conviction proceedings, the petitioner bears the burden of establishing his claims by a preponderance of the evidence. Wilkes v. State , 984 N.E.2d 1236, 1240 (Ind. 2013). Where, as here, the petitioner is appealing from a negative judgment denying post-conviction relief, he "must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision." Id. (cleaned up).
We review ineffectiveness claims under the two-part test announced in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on these claims, Isom needed to prove that counsel's performance was deficient, and that their deficient performance prejudiced his defense. In analyzing whether counsel was deficient, we ask whether, "’considering all the circumstances,’ counsel's actions were ‘reasonable[ ] under prevailing professional norms.’ " Wilkes , 984 N.E.2d at 1240 (quoting Strickland , 466 U.S. at 688, 104 S.Ct. 2052 ). We afford counsel considerable discretion in choosing strategy and tactics, and our review of counsel's performance is highly deferential. Id. at 1240–41. We evaluate that performance based on counsel's knowledge and perspective at the time and do not subject their decisions to the "distorting effects" of 20/20 hindsight. Strickland , 466 U.S. at 689, 104 S.Ct. 2052. To prove prejudice, Wilkes , 984 N.E.2d at 1241 (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).
The post-conviction court denied Isom relief on all grounds. On appeal, we first consider Isom's claims that his trial counsel were ineffective. Then we consider whether his appellate counsel were ineffective. Finally, we address five allegedly erroneous rulings of the post-conviction court. Because Isom waives his claims, or fails to meet his burden, or both, we affirm.
Most of Isom's post-conviction claims are that his trial counsel were constitutionally ineffective "at all phases of Isom's trial", including during jury selection and at the guilt and penalty phases. Because we find that Isom fails to meet his burden on review, he is not entitled to relief on these grounds.
Isom's challenges to the jury-selection process are that counsel were deficient in screening and selecting jurors, thus forcing him to "accept jurors who should have been stricken [sic] for cause" and denying him the right to be tried by an impartial jury. Because Isom either waives his arguments, or fails to meet his burden, or both, we agree with the post-conviction court that he is not entitled to relief.
Before voir dire, potential jurors received a questionnaire that included some of the facts of the murders. During their orientation, prospective jurors were instructed not to discuss Isom's case, and the parties then began voir dire. The parties questioned prospective jurors individually, and panels of jurors waited in the jury room for their turn. The first panel included prospective jurors 8, 9, 19, and 25. Prospective juror 8 was questioned first and then struck. The next prospective juror (prospective juror 9) said other prospective jurors were discussing the case, contrary to the court's instruction. When asked if prospective juror 9 could presume Isom innocent, she said she had heard Isom killed his children and was trying to kill himself. Asked where she heard this, she answered, The trial court granted a for-cause challenge for prospective juror 9.
Isom argues that trial counsel were deficient in failing to request the return of the peremptory challenge used to strike prospective juror 8, and in failing to move to strike the entire jury panel. The post-conviction court rejected Isom's arguments, and we agree.
Isom argues that trial counsel were ineffective for failing to request the return of the peremptory strike used to strike prospective juror 8. Even before prospective juror 9 disclosed possible discussions in the jury room about Isom's case, prospective juror 8 had already been questioned at length during voir dire. When asked by counsel, she denied having prior knowledge of the case:
I don't know that much about the case. I have not really – all I had read was what was on the...
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