Isom v. State ( 2015 )

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SUPREME COURT OF ARKANSAS
No. CR-08-1386
KENNETH ROSHELL ISOM Opinion Delivered May 21, 2015
APPELLANT
PETITION TO RECALL THE
V. MANDATE
STATE OF ARKANSAS
APPELLEE
PETITION DENIED.
KAREN R. BAKER, Associate Justice
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, No.
14-7664, 2015 WL 1400885 (U.S. Mar. 30, 2015).
I. Facts and Procedure
This court extensively reviewed the facts surrounding Isom’s conviction and sentence
in Isom v. State, 365 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
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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. 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
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Bealer, 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 (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,
1
On July 11, 2005, the trial court entered an order setting aside the appointment of
Bruce Eddy as co-counsel. In that order, the trial court stated that Lambert had “represented
to the Court that he had discussed with Mr. Bruce V. Eddy . . . the matter of being appointed
. . . and that Mr. Eddy had agreed to such appointment,” but that Lambert “had in fact been
told . . . that the Federal Public Defender’s Office could not accept the appointment.”
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2005, 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 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
2
The trial court allocated $7500 for the identified expenses. Rosenzweig subsequently
filed a motion to lift the “artificial cap” on defense expenses. In that motion, Rosenzweig
stated, “Craig Lambert originally was appointed on this matter. He was later relieved and
undersigned counsel appointed. . . . The preparation of this matter is proceeding apace, and
it is likely that counsel will seek to amend the Rule 37 petition with matters which have been
discovered in the investigation.”
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rape 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. Specifically, Isom maintains
that his original postconviction counsel, Lambert, was impaired by substance abuse and
personal crisis; that his postconviction counsel, Rosenzweig, had a conflict of interest because
he hired Tyler Green as an investigator, despite the fact that Green worked in the same office
as one of Isom’s trial attorneys; that neither Lambert nor Rosenzweig sufficiently investigated
and presented issues surrounding Isom’s social history during the Rule 37.5 proceedings; that
Rosenzweig failed to amend the Rule 37.5 petition to include claims that critical portions of
Isom’s trial were performed by unprepared counsel; that trial counsel suffered a disqualifying
conflict of interest because he represented another inmate, Kevin Green, who secured a partial
release on his own recognizance by providing information regarding the location of the
murder weapon in Isom’s case; that Rosenzweig waived the claim that Isom’s trial counsel
was ineffective for failing to develop and raise a claim that Isom was not eligible for the death
penalty due to intellectual disability; and that during the Rule 37.5 proceedings, Rosenzweig
failed to present evidence that the photo lineup used in the police investigation was “woefully
deficient” and “biased in its composition.” Finally, Isom maintains that this court should
recall the mandate in his postconviction proceeding because Isom is categorically ineligible
3
The instant motion was filed under his postconviction appeal case number, CR-08-
1386. Therefore, the motion before the court is to recall this court’s mandate in Isom’s
postconviction appeal and his direct-appeal mandate is not implicated.
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for the death penalty due to a stroke he suffered while in custody. We deny Isom’s petition
to recall the mandate in his postconviction proceedings because he has not identified any error
on the part of this court that would constitute a breakdown in the appellate process. We do
not reach his claim that he is categorically ineligible for the death penalty because that claim
is not yet ripe as there is no date set for Isom’s execution.
II. Standard of Review
In Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006), appellant Ledell Lee moved this
court to recall our mandate and reopen his postconviction proceedings on the basis that his
Rule 37 counsel was impaired by alcohol use during those proceedings, a fact admitted to by
counsel. Id. at 87, 238 S.W.3d at 54. In that case, this court applied the same standard for
recalling the mandate in a postconviction case as it does in a direct-appeal case. This court
elaborated,
In Robbins, we recognized that “this court will recall a mandate and reopen a case in
extraordinary circumstances.” Id. at 564, 114 S.W.3d at 222. However, in deciding to
recall the mandate, we specifically explained that our decision was based on three
factors: 1) the presence of a defect in the appellate process; 2) a dismissal of proceedings
in federal court because of unexhausted state court claims; and 3) the appeal was a
death case that required heightened scrutiny. Thus, these three criteria must be satisfied
in order for this court to consider the relief requested by Lee.
Id. at 88, 238 S.W.3d at 54–55. More recently, this court determined that while the three
Robbins factors are relevant factors for this court to consider when presented with a motion
to recall a direct-appeal mandate in a death-penalty case, strict satisfaction of all three factors
is not required because this court has the inherent authority to recall its mandate in
extraordinary circumstances. Nooner, 2014 Ark. 296, at 9, 438 S.W.3d at 239. While the
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standard for recalling the mandate in a postconviction case is the same as the in a direct-appeal
case, we emphasize that the recall of the mandate is an extremely narrow remedy, and we will
not enlarge it to allow typical claims of ineffective assistance of counsel. Ward v. State, 2015
Ark. 62, at 9–10, reh’g denied (Apr. 9, 2015).
IV. Points on Appeal
A. Allegation that Lambert was Impaired by Substance Abuse and Personal Crisis
Isom’s first argument for recalling the mandate in his postconviction appeal is that
Lambert was impaired during his representation of Isom and, as a result, failed to conduct an
investigation or plead “many available meritorious claims” for relief. In support, Isom points
this court to the fact that Lambert was impaired during his representation of Ledell Lee. In
addition, Isom contends that although Lambert indicated he was constrained by the ten-page
limit imposed by Rule 37, and the court permitted him to exceed that limit, Lambert never
amended Isom’s petition to raise additional claims. In support, Isom points to an affidavit
executed by Rosenzweig stating that Lambert was in a “distressed condition” during his
representation of Isom and required psychological treatment for substance abuse.
In Lee, this court held that, as a result of his substance-abuse problems, Lambert was
not functioning at the level of qualified or competent counsel required by Rule 37.5 during
his representation of Ledell Lee. Lee, 367 Ark. at 91, 238 S.W.3d at 56–57. In doing so, this
court recounted the following examples of Lambert’s “troubling behavior”:
• belligerent attitude towards the prosecuting attorney;
• being unable to locate the witness room;
•repeatedly being unable to understand questions posed by the trial court or objections
raised by the prosecution;
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•not being familiar with his own witnesses;
•not properly serving witnesses or telling them not to attend the hearings, only to call
them during the hearing;
•routinely forgetting basic rules of procedure regarding the admission of evidence;
•failing to prepare for the hearing by organizing evidentiary items or meeting with witnesses;
•rambling incoherently, repeatedly interjecting “blah, blah, blah” into his statements.
Id. at 91, 238 S.W.3d at 57. In fact, Lambert’s behavior became so erratic that during Lee’s
Rule 37 hearing, counsel for the State requested that Lambert submit to a drug test.4 Id.
In the present case, Rosenzweig, who took over Isom’s representation after Lambert
withdrew, stated in an affidavit:
Roughly around the time I took over that case from Mr. Lambert, another
lawyer and I took [Lambert] to Bridgeway, a psychiatric clinic in North Little Rock
that offers substance abuse treatment. Another lawyer and I had been called to his
office and when I arrived I found him in a distressed condition. At the time he was
living in his office, with his mattress in the attic rafters.
....
Mr. Lambert wrote the Rule 37 petition in Isom’s case. Although I was not
privy to everything he had done, it appeared to me that he did not do much in the
case other than talk with Isom and maybe a run-through on some family members.
Rosenzweig’s affidavit does not point to any specific failures on the part of Lambert during
Isom’s Rule 37.5 proceedings. As stated, Lambert filed a lengthy petition on Isom’s behalf,
raising several potential claims for postconviction relief. The petition included factual and
legal assertions in support of each claim. Isom does not point to any behavior by Lambert that
was erratic. In fact, Lambert withdrew from his representation of Isom, citing his mother’s
4
This request appeared in Lee’s postconviction record and occurred during a hearing
held on March 30, 1999. Lee v. Norris, 354 F.3d 846, 848 (8th Cir. 2004). Lambert was
appointed to represent Isom over four years later on November 1, 2004, and filed Isom’s first
Rule 37.5 petition on January 31, 2005.
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illness, prior to the hearing on Isom’s Rule 37.5 petition. The fact that Lambert may have
been sleeping in his office and may have required treatment of some form at “roughly the
same time,” absent some external impact on Isom’s case, is not sufficient to show that his
representation fell below the level of qualified or competent counsel required by Rule 37.5.
Moreover, this court recalls its mandate in order to cure a defect or breakdown in the
appellate process. Lambert withdrew from his representation of Isom prior to the trial court’s
order denying Isom’s Rule 37.5 petition. He did not represent Isom on appeal and did not
represent Isom at the Rule 37.5 hearing. Rosenzweig’s affidavit asserting that Lambert was
in a “distressed condition” was executed in 2013, three years after Isom’s 2010 postconviction
appeal to this court. Therefore, unlike the situation in Lee where Lambert’s erratic behavior,
and the State’s request for drug testing, appeared in the record that was before this court
during the postconviction appeal, Isom fails to point to any erratic or incompetent behavior
by Lambert that was shown by the record before this court in 2010. There must be an error
in the record that was before this court during Isom’s Rule 37.5 appeal in order to say that
this court made an error that resulted in a breakdown of the appellate process. See, e.g.,
Nooner, 2014 Ark. 296, 438 S.W.3d 233 (defining a “breakdown of the appellate process” as
an error alleged to have been made by this court during the course of its appellate review).
B. Conflict of Interest
Isom’s next claim for recalling the mandate is that the “legal team” that replaced
Lambert had a “disabling conflict of interest,” because the investigator, Tyler Green, worked
in the same office as one of Isom’s trial attorneys, Tim Bunch, and was employed by the same
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agency that employed Isom’s other trial attorneys, Colvin and Potts. As his primary support,
Isom cites this court’s opinion in Hill v. State, 263 Ark. 478, 566 S.W.2d 127 (1978) (per
curiam), in which we held that appointment of one public defender to represent an indigent
criminal defendant who alleges ineffective assistance of counsel by another public defender
creates a conflict of interest. In addition, Isom contends that Rule 37.5 prohibits the
appointment of an attorney who represented the defendant during his capital-murder trial in
order to prevent conflicts of interest. According to Isom, this court “should have been aware”
that Green and Bunch served in the same office of the Public Defender Commission in Pine
Bluff. Isom contends that this court’s failure to note and correct this conflict on its review is
a breakdown in the appellate process that warrants recall of the mandate.
Hill dealt only with the attorney appointed to represent a defendant during
postconviction proceedings. Because Isom does not point to any actual conflict that arose
during Green’s investigation or to any specific failing in Green’s investigation that would have
changed the result of Isom’s postconviction proceedings, we decline Isom’s invitation to
extend Hill to include all employees of the public defender’s office. See, e.g., Townsend v.
State, 350 Ark. 129, 85 S.W.3d 526 (2002) (holding that to show ineffective assistance of
counsel based on a conflict of interest the defendant must show an actual conflict that
adversely affected the adequacy of his representation or, in the absence of an actual conflict,
the defendant must show a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different).
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C. Failure to Investigate
For his next point, Isom contends that Rosenzweig failed to perform a social-history
investigation required by prevailing professional norms and this court’s precedent. Instead of
pointing to any error by this court, Isom contends that “[c]ounsel’s failure to gather and
present readily available evidence deprived Mr. Isom of his ‘day in court’ and was a
‘breakdown in the criminal-justice process.’” To reiterate, recalling the mandate is warranted
only when the breakdown in the appellate process consists of an error made by this court. See
Nooner, 2014 Ark. 296, 438 S.W.3d 233. Allegations that postconviction counsel was
ineffective are not errors by this court. We do not entertain a claim for recalling the mandate
based solely on allegations of ineffective assistance of postconviction counsel. As we have
held, recalling the mandate is an extremely narrow remedy reserved for unique situations; to
enlarge it to allow typical claims of ineffective assistance of counsel would alter the nature of
the relief entirely. Ward, 2015 Ark. 62, at 9–10.
D. Failure to Amend the Rule 37 Petition
Isom’s next contention is similar to his previous contention in that it focuses on the
potential ineffective assistance of Rosenzweig rather than any error made by this court. Isom
contends that Rosenzweig failed to amend his Rule 37 petition to reflect two meritorious
claims for ineffective assistance that were proved during Isom’s Rule 37 hearing. In short,
these allegations do not relate to an error made by this court and, consequently, are not
sufficient to warrant recalling the mandate in this case. Nooner, 2014 Ark. 296, 438 S.W.3d
233; Ward, 2015 Ark. 62.
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1. Critical Portions of the Trial were Conducted by Unprepared Counsel
According to Isom, during his Rule 37.5 hearing. Rosezweig elicited testimony
proving that critical portions of Isom’s direct-appeal case were performed by unprepared
counsel. Specifically, Isom contends that the testimony showed that, despite a “total lack of
preparation,” Bunch was asked to conduct the jury voir dire and was asked to cross-examine
the rape victim. The State counters that Bunch had tried five to six capital cases where the
death penalty was sought prior to performing the voir dire in Isom’s case. The State points
out that Bunch cross-examined the victim regarding her basis of knowledge for identifying
Isom, her vison problems, and her use of pain medication. In addition, the State contends
that there could be a strategic reason for allowing Bunch to bear the brunt of any potential
animus the cross-examination might engender from the jury. Finally, the State maintains that
Bunch admitted to visiting Isom in jail and reading portions of the trial to Isom and that those
were not merely “social calls,” implying that Bunch had substantial familiarity with and
preparation for Isom’s trial.
The record reveals that Bunch testified that he had previously represented Isom and
would talk to Isom at the jail. While he denied ever going to visit Isom specifically, he
testified that he would visit with him when visiting other clients and did read portions of the
file to Isom. Bunch further testified that he was “completely caught off guard” by Colvin’s
request that he sit at the counsel table and perform trial duties. He stated that he was
“absolutely unprepared” to do anything in Isom’s trial, but that he did perform jury voir dire
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after discussions with Colvin. Concerning his cross-examination of the victim, Bunch
testified that after the direct examination was finished Colvin asked him to conduct cross-
examination. He acknowledged that he may have read statements or documents involving
the victim to Isom at the jail but that would have been the extent of his preparation and that
he never had any discussions with Colvin regarding trial strategy.
Isom’s claims simply do reveal any error made by this court and, therefore, are not a
proper basis for recalling this court’s mandate. This court is not required to develop
arguments for a postconviction petitioner merely because some evidence was presented below.
While Isom contends that Rosenzweig should have amended his Rule 37 petition to reflect
the issues raised at trial, the trial court was not obligated to permit such an amendment. See,
e.g., Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999) (holding the trial court did not abuse
its discretion in denying defendant a last-minute effort to insert a due-process claim into his
postconviction petition during his Rule 37 hearing because the State was unprepared and
unable to respond to the new theory without obtaining a continuance); see also Ark. R. Crim.
P. 37.2(e) (“Before the court acts upon a petition filed under this rule, the petition may be
amended with leave of the court.”), and Ark. R. Crim. P. 37.5(a) (“Except as otherwise
provided in this rule, the provisions of Rules 37.1, 37.2, 37.3 and 37.4 shall apply to a petition
for post-conviction relief filed by a person under sentence of death.”).
2. Trial Counsel Had a Disqualifying Conflict of Interest
Isom’s next contention is that one member of his legal team, Gary Potts, had a
disqualifying conflict of interest because he represented another inmate, Kevin Green, and that
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Rosenzweig was ineffective for failing to amend his Rule 37 petition to include this claim.
Isom contends that Potts “negotiated Mr. Green’s pretrial release on his own recognizance
on the basis that [Green] had information regarding the location of the scissors used to kill
William Burton.” Isom further contends that “[b]ecause Mr. Green had information
regarding the Burton murder, he was a plausible alternative suspect for the crime.”
Green testified during Isom’s Rule 37 hearing and denied that he knew Potts or that
anyone ever came to talk to him about Isom’s case, although he eventually conceded that he
was represented by the same public defender’s office that represented Isom. He denied
speaking with any other inmates about Isom’s case. Although he admitted that he knew a
man named Jerry Avery, he denied knowing a Jerry Don Avery and denied ever telling
anyone that a man named Jerry Don Avery confessed to the crimes. Green denied providing
any information regarding Burton’s murder in order to be released.
After Green’s testimony, Frank Spain, the prosecutor, alerted the court to what he
believed to be false or inaccurate statements made by Green. Spain contended that Green was
released on his own recognizance after providing information regarding the location of a pair
of scissors that may have been used in the Burton murder. Spain stated that testing showed
the scissors had no DNA on them and showed “no relationship” to the Burton murder.
Green was released on his own recognizance on April 30, 2001. The State contends
that Spain was “mistaken” that Green provided information in exchange for being released
because “scissors located at various locations (and found to have no evidentiary value) were
all submitted to the crime lab on April 16, 2001, two weeks before Green appeared in court.”
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Moreover, in this court’s previous opinions we have stated that there has “been no showing
of Green’s involvement past pure conjecture.” Isom III, 2010 Ark. 496, at 8, 372 S.W.3d at
814. Recalling the mandate is warranted only when the breakdown in the appellate process
consists of an error made by this court. See Nooner, 2014 Ark. 296, 438 S.W.3d 233. Here,
Isom has failed to show that there was anything in the record before this court that would
warrant recalling the mandate in his postconviction proceedings because there was nothing
in the record during Isom’s postconviction proceedings to show that Green provided any
information relevant to Isom’s case. Allegations that postconviction counsel was ineffective
are not sufficient for recalling the mandate. Ward, 2015 Ark. 62.
E. Waiver of Exemption to the Death Penalty
Isom’s next contention is that Rosenzweig was ineffective for waiving the claim that
trial counsel was ineffective for failing to pursue a defense based on intellectual disability or
mental retardation. Again, Isom fails to point to any error by this court that would support
a recall of the mandate. Id.
The record reflects that a forensic psychologist interviewed Isom at Rosenzweig’s
request. Prior to trial, Isom underwent a mental evaluation at the state hospital and was
interviewed by a forensic psychologist. That evaluation placed Isom’s IQ at 77 and concluded
that Isom was competent to stand trial. Moreover, Isom points to nothing in the record
before this court to indicate that Isom was mentally retarded at the time of trial. In addition,
there was nothing in the record that would have required the trial court, or this court, to sua
sponte order additional investigation. See, e.g., Ward, 2015 Ark. 62 (refusing to recall this
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court’s mandate when the defendant had received the constitutionally mandated evaluation
at the state hospital and there was no evidence that the state-hospital evaluation was
inadequate and no evidence presented that an independent evaluation would have rendered
a different result).
F. Photo Lineup
For his penultimate point, Isom maintains that Rosenzweig was “woefully deficient
for failing to prove that the photo lineup used in the police investigation was unduly
suggestive.” The State points out that this court considered and rejected arguments regarding
the photo lineup during Isom’s postconviction appeal. Therefore, the State maintains that
Isom has failed to show a defect or breakdown of the appellate process. We agree.
In Isom I, this court reviewed the circumstances surrounding the photo lineup:
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.
Isom I, 356 Ark. at 167, 148 S.W.3d at 264. We further recounted:
Mr. Isom argues that the circuit judge erred in denying his motion to suppress the
photographic lineup, because the other men in the photographs did not properly
resemble him. Thus, the lineup was not reliable. According to Mr. Isom, the other
men in the photographic display had facial hair and either had long hair or very short
hair. Mr. Isom contends that he did not have facial hair and had medium-length hair.
He also urges that the photographic lineup should have been suppressed, because Mrs.
Lawson had just experienced a very traumatic act and had given a very general
description of her assailant (black male, from five feet and seven inches tall to six feet
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tall) and had failed to include Mr. Isom’s gold teeth and facial scar. Plus, Mrs. Lawson
did not recognize her eye doctor, whom she regularly visited, when she was in the
hospital. He adds that Mrs. Lawson was initially uncertain of her choice, because she
first focused on pictures one and three.
Although we question Mr. Isom’s premise that the lineup was unduly suggestive, we
decide this issue on a procedural point. As the State points out, Mr. Isom failed to
object to Mrs. Lawson’s in-court identification of Mr. Isom and, thus, failed to
preserve this point for appeal. We said in Kimble that this failure to object to an in-
court identification has the effect of waiving any issue relating to an allegedly defective
photographic lineup. Mr. Isom’s argument has no merit.
Id. at 180–81, 148 S.W.3d at 273–74.
In Isom II, we rejected Isom’s contention that his trial counsel was ineffective for failing
to object to the photo lineup or the rape victim’s in-court identification:
Isom next argues that he was deprived of his right to counsel at the photo
lineup and that the failure of trial counsel to object to the in-court identification by
rape victim Dorothy Lawson deprived him of the opportunity to appeal the circuit
court’s finding that the earlier out-of-trial photo lineup was not unduly suggestive. On
direct appeal, this court refused to consider the allegation of an unduly suggestive
photo lineup because there was no objection to the in-court identification. Isom offers
no proof of error in the circuit court’s finding that the photo lineup was not unduly
suggestive. Therefore, even if counsel erred in failing to object, Isom fails to bear his
burden of showing that there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceedings would have been different.
Isom II, 2010 Ark. 495, at 6, 370 S.W.3d at 495. Likewise, in rejecting Isom’s petition for
additional DNA testing of a hair recovered from the rape victim, this court recounted that the
rape victim “told the police lieutenant who conducted the lineup that she was ‘adamant’
about the identification and made the identification ‘with no uncertainty.’” Isom III, 2010
Ark. 496, at 2, 372 S.W.3d at 811.
This court has repeatedly addressed Isom’s contentions that the photo lineup in this
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case was unduly suggestive. We have recognized that two witnesses, the rape victim and the
law enforcement officer who created the lineup, both testified concerning the identification.
We have recognized that the rape victim’s identification was “adamant” and was made “with
no uncertainty.” Finally, we have stated that Isom has failed to show that the circuit court
erroneously concluded that the photo lineup was not unduly suggestive.
Isom now contends that his Rule 37 counsel could have presented evidence that “Isom
appears to be the largest man in the lineup,” and that “every foil in the lineup had prominent
facial hair,” whereas Isom did not, and that “[i]f the witnesses did not believe that the
perpetrator had prominent facial hair . . . then only the suspect matched the descriptions in
this regard.” However, those are the types of arguments that this court rejected in Isom II,
in which we acknowledged that Isom contended that the rape victim failed to mention his
two gold teeth or his facial scar in her description. Rule 37 does not provide an opportunity
to reargue points settled on appeal. O’Rourke v. State, 298 Ark. 144, 155, 765 S.W.2d 916,
923 (1989). To the extent that Isom is arguing prosecutorial misconduct in relation to the
photo lineup, the issue of alleged prosecutorial misconduct is an issue that should have been
raised on direct appeal and is not a claim that may be raised for the first time in a Rule 37
petition. Howard v. State, 367 Ark. 18, 27, 238 S.W.3d 24, 32 (2006).
Finally, Isom acknowledged that his argument on this point amounts to a contention
that “[c]ounsel’s failure was a breakdown in the process.” Thus, he has not alleged an error
on the part of this court in our review of his postconviction proceedings. Ward, 2015 Ark.
62.
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Cite as 2015 Ark. 219
G. Allegation that Isom is Currently Not Eligible for the Death Penalty as a Result of
Stroke
Isom’s final contention is that he is not eligible for the death penalty because of a stroke
he suffered while incarcerated. As his primary support, Isom cites to Atkins v. Virginia, 536
U.S. 304 (2002), which categorically banned execution of the mentally retarded, and Ford v.
Wainwright, 477 U.S. 399 (1986), which prohibited execution of insane persons. As of the
filing date of Isom’s brief, no date has been set for his execution. Thus, his claim is not yet
ripe for review. See, e.g., Nooner, 2014 Ark. 296, at 27–28, 438 S.W.3d at 249 (refusing to
address petitioner’s claim of incompetency to be executed when no date had been set for his
execution). Although we acknowledge Isom’s contention that he has reached his maximum
recovery and that he will not regain any additional functioning, we decline to evaluate his
competency for execution in the absence of an execution date because Isom’s condition could
change, positively or negatively, before Isom’s execution date is set.
In sum, recalling the mandate is an extremely narrow remedy reserved for unique
situations. To enlarge it to allow typical claims of ineffective assistance of counsel, such as the
claims presented by Isom in the present motion, would alter the nature of the relief entirely.
Ward, 2015 Ark. 62, at 9–10. In addition, Isom’s claims that he is incompetent to be
executed are not yet ripe. Therefore, we deny his motion to recall the mandate from his
postconviction proceedings.
Petition denied.
Jenniffer Horan, Public Defender, by: Julie Vandiver and Scott W. Braden, for appellant.
Dustin McDaniel, Att’y Gen., by: Kent G. Holt and Brad Newman, Ass’t Att’ys Gen., for
appellee.
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