Kevin Charles Isom v. State of Indiana

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Bates Gregory F. Zoeller
Office of the Public Defender Attorney General of Indiana
Crown Point, Indiana
Kelly A. Miklos
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court May 20 2015, 9:35 am
_________________________________
No. 45S00-0803-DP-125
KEVIN CHARLES ISOM,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Lake Superior Court, No. 45G04-0708-MR-00008
The Honorable Thomas P. Stefaniak, Jr., Judge
_________________________________
On Direct Appeal
_________________________________
May 20, 2015
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 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
2
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.
1
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
2
Specifically, the statute provides: “The defendant has committed another murder, at any time, regardless
of whether the defendant has been convicted of that other murder.” I.C. § 35-50-2-9(b)(8). This
aggravator is applicable only in “cases involving double or multiple murders for which the defendant is
being tried in one proceeding.” Hough v. State, 560 N.E.2d 511, 519 (Ind. 1990).
3
The trial court also sentenced Isom to an aggregate term of three years for the criminal recklessness
convictions. Giving Isom credit for time served in pre-trial confinement, the trial court noted this was in
excess of the sentences imposed and thus considered the sentences for criminal recklessness already
served. In this appeal Isom does not challenge his convictions or sentences for these offenses.
3
Discussion
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 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 (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 (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 (1948)).
4
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
(1992)), adhered to on reh’g, 908 N.E.2d 595, 597 (Ind. 2009). However, “a constitutionally
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 (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.
Credibility determinations lie within the province of the trial court. Cf. Oswalt, 19 N.E.3d at 245
5
(“Selecting impartial juries depends upon the parties’ discernment and the trial court’s discretion
to select a panel of objective and unbiased jurors ‘who will conscientiously apply the law and
find the facts.’” (quoting Witt, 469 U.S. at 423)). And we will not disturb that finding absent a
showing that the trial court’s determination was illogical or arbitrary. Whiting, 969 N.E.2d at 29.
We find no such showing in this instance.
B. Failure to consider all three penalty options
Isom next contends the trial court also improperly failed to dismiss Jurors No. 57, 100,
105, 114, 168, 246, 391, and 398 because, according to Isom, these jurors “fail[ed] to give
meaningful consideration to all three penalty options . . . .” Br. of Appellant at 17. In each
instance the trial court explained that should the jury return a verdict of guilty of murder, the jury
would be reconvened for the penalty phase of trial, and that the available options were death, life
imprisonment without parole, or a term of years. See Tr. at 2014-15 (Juror No. 57); Tr. at 2749-
51 (Juror No. 100); Tr. at 3527-28 (Juror No. 105); Tr. at 3801-02 (Juror No. 114); Tr. at 4102-
04 (Juror No. 168); Tr. at 4751-52 (Juror No. 246); Tr. at 6015-16 (Juror No. 391); Tr. at 6091-
92 (Juror No. 398).
It is true that each of the challenged prospective jurors initially expressed an inclination
towards one option over the other. However, the transcript of voir dire clearly reflects that each
of these individuals stated that he/she would follow the court’s instructions and consider all of
the testimony as well as the three penalty options. See, e.g., Tr. at 2063 (Juror No. 57
explaining, “[she] would be willing to change [her] opinion if [she] thought that maybe it was
not quite as [she] originally thought”); Tr. at 2750 (Juror No. 100 affirming, “yes,” when asked if
she would be “able to give full and fair consideration to all three of those as a potential penalty”);
Tr. at 3528 (Juror No. 105 answering, “[y]es, I could,” when asked if he was “able to consider all
three of those as a potential penalty”); Tr. at 3802 (Juror No. 114 affirming that he could “give
meaningful consideration to all of those”); Tr. at 4103-04 (Juror No. 168 confirming that he
“would [neither] automatically just dismiss” nor “just automatically impose” “any of those
penalties”); Tr. at 4785 (Juror No. 246 responding, “I think I can” to defense counsel’s
questioning as to whether he was “able to vote for any one of the three penalties”); Tr. at 6016
(Juror No. 391 testifying that he could “give fair, meaningful consideration to all three of those
6
potential penalties if called upon”); Tr. at 6092 (Juror No. 398 declaring that she “would [not]
automatically impose or disregard” “any one of those potential penalties”). To accept Isom’s
claim that the trial court erred in denying his for-cause challenges to these jurors on the basis the
jurors refused to consider the potential penalty options would preclude the trial court from
making a credibility determination as to whether the juror is sincere in “stat[ing] on oath that the
juror feels able, notwithstanding the juror’s opinion, to render an impartial verdict upon the law
and evidence.” I.C. § 35-37-1-5(b)(2). This is precisely what our statute proscribes and what the
trial court did here. See Id. We repeat for emphasis, “a constitutionally 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, 366 U.S. at 722-23). We find no error here.
C. Failure to understand legal concepts applicable to the case
Isom’s remaining challenges for cause involved the following prospective jurors: Juror
No. 44, contending the juror failed to understand the defendant’s presumption of innocence;
Juror No. 57, asserting the juror did not believe that the defendant had the right to remain silent;
and Juror No. 398, positing that the juror had predetermined that the defendant was guilty and
that the burden lied with the defense to prove his innocence. See Tr. at 2356, 2369-71, 2387-90,
(Juror No. 44); Tr. at 2028-29 (Juror No. 57); Tr. at 6101-03, 6112-17 (Juror No. 398).
As with Isom’s other challenges for cause, the trial court—along with counsel for the
State and the defense—engaged in an extensive colloquy with each prospective juror. And
although the record reflects an initial lack of understanding of the requisite legal standards
governing the presumption of innocence and a defendant’s right to remain silent, without more,
this is simply insufficient to hold that the jurors should have been dismissed for cause.
Particularly where, as here, the trial court explained each legal principle that Isom now
complains of and in each instance the prospective juror acknowledged that he/she understood
and would be able to apply that standard to the evidence as presented at trial. Tr. at 2028, 2029
(explaining to Juror No. 57 that “Defendant never has to speak on his own behalf and he is
presumed innocent throughout the entire trial” to which she declared, “if Mr. Isom does not
testify, [she would not] somehow hold it against him”); Tr. at 2356 (Juror No. 44 responding,
7
“[y]es,” to the trial court’s question, “are you able to presume that he is innocent, ma’am?”); Tr.
at 6102 (Juror No. 398 testifying that “if the State or the Prosecutor failed to provide [her] with
enough evidence to convince [her] beyond a reasonable doubt” that Isom had committed the
charged crimes she would vote “not guilty”). Again Isom’s argument to the contrary amounts to
a request that we reject the trial court’s credibility determination which, again, we decline to do.
See I.C. § 35-37-1-5; Oswalt, 19 N.E.3d at 245. There was no error here.
II. Motions for Mistrial
Whether to grant or deny a motion for a mistrial lies within the sound discretion of the
trial court. Treadway v. State, 924 N.E.2d 621, 628 (Ind. 2010). We afford great deference to
the trial court’s decision and review the decision solely for abuse of that discretion. Id. Isom
claims such abuse for two motions, which the trial court denied.
A. Testimony of Eddie Green
For his first challenge to the denial of his motion for mistrial, these are the facts. During
its case-in-chief, the State presented Eddie Green, a man who lived in the apartment beneath that
of the Isom family. Green was at home at the time of the shootings and called 911 reporting
gunfire. During his direct examination, Green testified that he heard a girl say, “daddy,” and that
he heard Isom’s “daughter talking” inside the apartment just before the shooting began. Tr. at
7577, 7578. The trial court sustained defense counsel’s hearsay objection to this testimony and
struck the references to “daddy” at counsel’s request. The trial court gave the following
admonishment: “All right. Ladies and gentlemen, any comment about the words, ‘that was the
daughter’ or ‘the daughter’, are ordered stricken from the record and you are to disregard that.”
Tr. at 7583. Isom then moved for a mistrial, which the trial court denied. Later during trial Isom
submitted a curative instruction which the trial court read to the jury. The instruction provided:
“Any testimony from any witness which has been struck by the Court is not evidence and . . .
you may not consider it for any purpose in this case.” Tr. at 7602-03, 7607. Ultimately Green
was allowed to testify that he heard a “soft, calm” “female voice” and then heard “gunshots.” Tr.
at 7609. Isom now claims error in the denial of his motion for mistrial.
8
“[A] mistrial is an extreme remedy that is only justified when other remedial measures
are insufficient to rectify the situation.” Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001).
Here Isom does not explain why the trial court’s admonishments—one of which was given at
Isom’s request—were not sufficient. Indeed he acknowledges “[a] properly submitted
admonition to the jury is presumed to cure any error in admission of the evidence,” Br. of
Appellant at 27 (citation omitted), but nonetheless argues that the admonishment in this case
“would not cause the jury to disregard Green’s testimony” as instructed. Id. We reject Isom’s
argument. “On appeal, we must presume that the jury obeyed the court’s instructions in reaching
its verdict.” Tyson v. State, 386 N.E.2d 1185, 1192 (Ind. 1979). As we have noted a “clear
instruction, together with strong presumptions that juries follow courts’ instructions and that an
admonition cures any error, severely undercuts the defendant’s position.” Lucio v. State, 907
N.E.2d 1008, 1010-11 (Ind. 2009) (rejecting defense argument of trial court error in denying
motion for mistrial where trial court admonished the jury to disregard witness’s improper
statement). The same is true here. We are not persuaded the trial court abused its discretion in
denying Isom’s motion for mistrial.
B. Testimony of Officer Thomas Pawlak
For Isom’s second motion for mistrial the facts are as follows. Thomas Pawlak was one
of the police officers dispatched to the scene that evening. After he arrived and exited his
vehicle he heard multiple gunshots but was unable to identify the precise location from where the
shots were coming. At about the same time, a car pulled up and two unidentified black males got
out of the vehicle and ran to the middle of the street in front of the apartment building. “They
were waving their hands, jumping up and down, yelling and screaming towards the building.”
Tr. at 8084. Officer Pawlak heard the men shouting, “Kevin, what are you doing? Stop this
sh**.” Tr. at 8085. When attempts to order the men to get out of the street failed, Officer
Pawlak pulled the men aside to safety behind a parked car at which point he inquired who was
doing the shooting. The men stated that the shooter was their cousin, Kevin Isom, and he was
inside the apartment with his wife and two children. Two other officers—Sargent Mark Davis
and Officer Peter Baum—who had been dispatched to the scene joined Officer Pawlak behind
the parked car. Shortly thereafter the two unidentified black males left the scene, purportedly to
retrieve Isom’s mother who lived a short distance away. Officer Baum attempted to follow
9
them, which prompted another round of gunfire, forcing him to seek cover behind another parked
car. Officer Pawlak and Sargent Davis also remained trapped. The officers remained there for
approximately 3 hours until the SWAT team arrived to provide assistance. The two men never
returned to the scene, none of the officers obtained their names, and neither of the men appeared
at trial. Instead, their statements were recounted through the testimony of Officer Pawlak. Isom
objected on grounds of hearsay and a violation of his right of confrontation. The trial court
overruled the objection. As to Isom’s hearsay objection, the trial court cited exceptions under
Evidence Rule 803(1) (present sense impression) and Rule 803(2) (excited utterance). 4 With
respect to Isom’s right of confrontation claim, the court concluded that under the circumstances
there was no such right. Isom moved for a mistrial, which the court denied.
As a preliminary matter, the State contends that Isom has waived this issue for review.
The State argues that because Isom failed to request an admonishment regarding Officer
Pawlak’s testimony, the issue has been waived.
When faced with a circumstance that a defendant believes might warrant a mistrial,
generally the correct procedure is to request an admonishment. Etienne v. State, 716 N.E.2d
457, 461 (Ind. 1999). If counsel is unsatisfied with the admonishment or it is obvious that the
admonishment will not be sufficient to cure the error, then counsel may move for mistrial. Id. A
“failure to request an admonishment or move for a mistrial results in waiver of the issue.” Id.(emphasis added). First, it is not apparent what admonishment Isom might have requested.
After extended argument outside the presence of the jury, the trial court overruled Isom’s
objection to Officer Pawlak’s testimony. See Tr. at 8016-83. Essentially no admonishment
4
At the time of trial, Indiana Evidence Rule 803 provided in relevant part:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness.
(1) Present Sense Impression. A statement describing or explaining a
material event, condition or transaction, made while the declarant was
perceiving the event, condition or transaction, or immediately thereafter.
(2) Excited Utterance. A statement relating to a startling event or
condition made while the declarant was under the stress of excitement
caused by the event or condition.
10
could cure the error about which Isom complained. See Holsinger v. State, 750 N.E.2d 354, 366
(Ind. 2001) (Dickson, J., concurring in part and dissenting in part) (“When an admonishment
would be futile, the failure to request one does not preclude appellate review of a denial of an
otherwise timely motion for mistrial.”). In any event waiver occurs where there was neither a
request for admonishment nor a motion for mistrial. Because Isom sought a mistrial, appellate
review of his claim has not been waived. We thus proceed to the merits.
A trial court has broad discretion in ruling on the admissibility of evidence and we will
disturb the court’s rulings only where the petitioner has shown an abuse of that discretion.
Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011) (quotation omitted). “But where, as here, a
constitutional violation is alleged, the proper standard of appellate review is de novo.” Speers v.
State, 999 N.E.2d 850, 852 (Ind. 2013), cert. denied 134 S.Ct. 2299 (2014).
Isom does not challenge the trial court’s ruling with respect to his hearsay objection.
Rather, Isom contends the trial court violated his federal constitutional right of confrontation.
The Confrontation Clause of the Sixth Amendment to the United States Constitution, which is
made applicable to the States by the Fourteenth Amendment, provides in relevant part: “In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. The United States Supreme Court has determined that a
statement violates the Confrontation Clause if, among other things, it is “testimonial” in nature.
Crawford v. Washington, 541 U.S. 36, 68-69 (2004). To determine whether a statement is
testimonial, we must decide whether it has “a primary purpose of creating an out-of-court
substitute for trial testimony.” Michigan v. Bryant, 562 U.S. 344, ___, 131 S.Ct. 1143, 1155
(2011). “Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822
(2006). Conversely, a declarant’s statements “are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later criminal
prosecution.” Id. (emphasis added) (footnote omitted).
11
In order to determine whether a statement is testimonial versus nontestimonial, we must
consider: (1) whether the declarant is describing present or past events; (2) whether there is an
ongoing emergency at the time that the statements are made; (3) whether the nature of the
questions asked and the responses given were made in an effort to resolve a present emergency;
and (4) the degree of formality during the course of the police questioning. Id. at 827. Simply
put, statements generally elicited from individuals seeking help during an ongoing emergency
are not classified as testimonial. See Id. at 828.
Isom’s claim requires us to consider two separate statements made to the police. The first
is “Kevin, what are you doing? Stop this sh**.” Tr. at 8085. This statement was made almost
immediately after the two unidentified men arrived and not made in response to any police
questioning. Indeed, it was blurted out by two men who appeared in the middle of the street
while someone was firing a weapon pinning down police officers, and their comments were
directed towards the individual they believed to be shooting inside the apartment building rather
than in response to police questioning. Officer Pawlak simply happened to be within earshot
when the statement was made because he too was on the scene at the time the crisis was ongoing.
As the trial court explained: “The words are an effort by the concerned parties to stop the event
which is still in progress, not an interrogation by the police.” Tr. at 8072. Consequently, the
trial court concluded that this statement was not testimonial and thus did not implicate the
Confrontation Clause. We agree and discern no error on this point.
The second statement about which Officer Pawlak was allowed to testify was offered in
response to the officer’s question, “who’s shooting,” to which the men responded, “their cousin
Kevin Isom.” Tr. at 8166. Because this statement was apparently “made in the course of police
interrogation” at the scene of the crime, the question to be resolved is whether the
“circumstances objectively indicat[e] that the primary purpose of the interrogation [wa]s to
enable police assistance to meet an ongoing emergency.” Davis, 547 U.S. at 822.
According to Isom, “[t]he testimony that Kevin was doing the shooting was elicited in
violation of the appellant’s confrontation rights because he was not allowed to cross examine the
declarant and it was extremely prejudicial to his defense.” Br. of Appellant at 29. As best we
12
can discern Isom seems to contend that because the information that Officer Pawlak received
from the declarants identified a particular individual as the shooter, it “was not elicited to help
with the ongoing emergency but was elicited by the police in their investigative role.” Id. at 28.
We cannot agree.
When Officer Pawlak arrived at the scene he was greeted with the sound of gunfire and
soon thereafter forced to run for cover. Before the police were able to identify the source of
gunfire, two men arrived and began shouting towards the apartment from where the shots
originated. After Officer Pawlak secured the men behind a vehicle—sheltered from the gunfire’s
range—he began to inquire what the men knew of the shooting. At this time, he was informed
that they believed the defendant to be the shooter and that he resided in the apartment with his
wife and two children. This information was regarding “events as they were actually
happening,” and was necessary to aid the officers who were “facing an ongoing emergency.”
Davis, 547 U.S. at 827 (emphasis omitted). Because the shooting was ongoing at the time the
information was sought, it was certainly “necessary to be able to resolve the present emergency”
rather than simply investigating past events. Id. (emphasis omitted). “Officers called to
investigate [ongoing] disputes need to know whom they are dealing with in order to assess the
situation, the threat to their own safety, and possible danger to the potential victim.” Hiibel v.
Sixth Judicial Dist. Court of Nevada, Humboldt Cnty., 542 U.S. 177, 186 (2004). Based on the
facts presented here, we conclude the declarants’ identification of Isom as the shooter was a
nontestimonial statement and the trial court did not violate Isom’s constitutional rights by
allowing it at trial. See Davis, 547 U.S. at 828 (concluding that declarant’s identification of the
defendant to an emergency response agent during her 911 call was not testimonial and thus
admissible at trial because “the circumstances of [the victim’s] interrogation objectively indicate
its primary purpose was to enable police assistance to meet an ongoing emergency”); but see 547
U.S. at 832 (concluding that declarant’s identification in Hammon v. Indiana of the defendant as
her abuser after the alleged attack occurred was testimonial because the declarant’s “statements
were neither a cry for help nor the provision of information enabling officers immediately to end
a threatening situation”).
13
III. Jury Instructions
“The purpose of a jury instruction ‘is to inform the jury of the law applicable to the facts
without misleading the jury and to enable it to comprehend the case clearly and arrive at a just,
fair, and correct verdict.’” Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (quoting Chandler v.
State, 581 N.E.2d 1233, 1236 (Ind. 1991)). We review a trial court’s instructions to the jury for
an abuse of discretion. Treadway, 924 N.E.2d at 636. An abuse of discretion arises when the
instruction is erroneous and the instructions taken as a whole misstate the law or otherwise
mislead the jury. Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). “When evaluating the jury
instructions on appeal this Court looks to whether the tendered instructions correctly state the
law, whether there is evidence in the record to support giving the instruction, and whether the
substance of the proffered instruction is covered by other instructions.” Treadway, 924 N.E.2d at
636.
A. Voluntary manslaughter
Isom makes two claims concerning jury instructions. He first contends the trial court was
wrong in failing to give his tendered instruction on voluntary manslaughter. The essential facts
are these. During a jury-instruction conference before final summation in the guilt phase of trial
Isom tendered an instruction on voluntary manslaughter as a lesser included offense of the
murder charges. Isom contended that a knife discovered at the crime scene supported an
instruction for voluntary manslaughter. According to Isom the presence of the knife “could
certainly lead the jury to infer that in fact there was an argument. That there was, in fact, sudden
heat . . . .” Tr. at 13082. Isom insisted “the knife could lead the jury to infer . . . there was an
argument. That there was anger, there was rage, there was resentment, there was jealousy, that
there was terror and that as a result of an excited mind, the perpetrator of the crime did what he
did.” Tr. at 13085. The trial court denied the motion explaining in part:
[T]here is no evidence in the record that there was an argument
that preceded any actions. And therefore, this Court concludes that
there is no serious evidentiary dispute that exists as to the evidence
on sudden heat. There is no appreciable evidence of sudden heat
that justifies an instruction on Voluntary Manslaughter.
14
Tr. at 13091. Following the State’s closing argument, Isom again moved the trial court for an
instruction on voluntary manslaughter declaring:
[I]n the closing argument by the State, they talk about anger. They
talk about rage . . . . You add that to the knife situation . . . the
State is making its conclusion of anger and rage. And that in the
defense’s point of view, again establishes sudden heat, which
would be a lesser included of murder in this case.
Tr. at 13155-56. The trial court again denied the motion. Isom claims error.
A trial court must engage in a three-step analysis when determining whether to instruct a
jury on a lesser included offense of the crime charged. Wright v. State, 658 N.E.2d 563, 566-67
(Ind. 1995). First, the trial court must consider whether the alleged lesser included offense is an
inherently included offense to the principal charge. Id. If it is not, then the trial court must
decide whether the alleged lesser included offense is a factually included offense to the principal
charge. Id. at 567. Finally, if the alleged lesser included offense is either an inherently or
factually included offense to the principal charge, then the trial court must determine if there is a
serious evidentiary dispute regarding the element that distinguishes the lesser offense from the
principal charge. Id. If such a dispute is present and a jury could conclude that the lesser offense
was committed but not the principal charge, then it is reversible error for the trial court to refuse
to give the jury instructions on the lesser included offense. Id.Our jurisprudence teaches that voluntary manslaughter is an inherently lesser included
offense of murder. See Watts v. State, 885 N.E.2d 1228, 1232 (Ind. 2008). This is not a typical
example of a lesser included offense in that what distinguishes voluntary manslaughter from
murder is the existence of sudden heat, which is not an element of murder, but rather “a
mitigating factor in conduct that would otherwise be murder.” Wilson v. State, 697 N.E.2d 466,
474 (Ind. 1998) (quoting Estes v. State, 451 N.E.2d 313, 314 (Ind. 1983)). “Sudden heat occurs
when a defendant is provoked by anger, rage, resentment, or terror, to a degree sufficient to
obscure the reason of an ordinary person, prevent deliberation and premeditation, and render the
defendant incapable of cool reflection.” Conner v. State, 829 N.E.2d 21, 24 (Ind. 2005). Thus,
an instruction on voluntary manslaughter as a lesser included offense to a murder charge is
15
warranted only if the evidence reflects a serious evidentiary dispute regarding the presence of
sudden heat. Watts, 885 N.E.2d at 1232.
Isom contends “the testimony of the witnesses showed that Isom’s anger continued as he
was shooting recklessly” such that the evidence of his “anger and rage about the end of his
marriage” as introduced by the State is sufficient to establish a serious evidentiary dispute. Br.
of Appellant at 40, 39. We make the following observations. First, it is true that one of the
State’s proffered motives for the killings was that “Isom was angry about the marriage falling
apart.” Id. at 40; see also Tr. at 13140 (arguing to the jury during closing remarks: “It was the
wedding anniversary in which there wasn’t much to celebrate. Kevin recently unemployed. And
Cassandra days before mentioned she may be leaving him.”). But “[a]nger standing alone is not
sufficient to support an instruction on sudden heat.” Wilson, 697 N.E.2d at 474. Further “[a]n
otherwise normally stressful encounter does not suddenly inflame sudden heat, mitigating
murder, simply because a person suffers from a [particular state of mind] which gives him a ‘hair
trigger.”’ Id. (rejecting defendant’s claim that post-traumatic stress disorder triggered flashbacks
in stressful situations—such as seeing his wife with her boyfriend—and was sufficient to give
rise to the presence of sudden heat because “the record indicate[d] he was angry about the
relationship his wife was having.” (emphasis added)).
Second, to the extent Isom contends that Cassandra must have said something to provoke
his rage, we note there is simply nothing in the record about a conversation between the two in
the moments before Cassandra and the children were shot. And we reject as pure speculation
Isom’s contention that “[w]hatever was said may have triggered the rage which erupted from
Isom, the very rage that the State described to the jury in its closing.” Br. of Appellant at 40
n.15.5 Third, and importantly, even assuming Cassandra or the children said something to Isom
that may have been provocative, “[w]ords alone are not sufficient provocation to reduce murder
to manslaughter.” Perigo v. State, 541 N.E.2d 936, 939 (Ind. 1989).
5
We note that in his statement to police, which was introduced into evidence over Isom’s objection (and
for which no claim of error has been raised on appeal), Isom answered, “No,” to the question, “Was there
an argument or fight before the [sic] this incident occurred.” Tr. at 12620. He also answered, “No,” to
the question, “Did your wife or kids make any threats against you yesterday.” Tr. at 12621.
16
In this case there was no evidentiary dispute—and certainly not a serious one—regarding
sudden heat, the mitigating circumstance that distinguishes voluntary manslaughter from murder.
As such the trial court did not abuse its discretion in declining to give a voluntary manslaughter
instruction to the jury.
B. Weighing of aggravating and mitigating factors
Isom next contends the trial court improperly instructed the jury during the penalty phase
of the proceedings. According to Isom the trial court erred in reading to the jury Instruction No.
8 because it did not instruct the jury that it must find that the aggravating circumstance
outweighed the mitigating circumstances beyond a reasonable doubt in order to recommend a
sentence of death. Essentially, this argument amounts to a claim that the trial court’s instruction
was not a correct statement of the law. Instruction No. 8 reads as follows:
You may recommend the sentence of death or life imprisonment
without parole only if you unanimously find:
1. That the State of Indiana has proven beyond a reasonable
doubt that the charged aggravating circumstance exists as
to each count in Counts VIII, IX and X
And
2. That any mitigating circumstance or circumstances that
exist are outweighed by the charged and proven
aggravating circumstance.
App. at 849 (emphasis added).
During the instruction conference preceding the penalty phase of trial, defense counsel
objected to the emphasized portion of this tendered instruction. Isom claims that this instruction
is not a correct statement of the law because the latter sentence should read, “[t]he aggravating
circumstance must outweigh the mitigating circumstance or circumstances beyond a reasonable
doubt.” Br. of Appellant at 19 (emphasis added) (footnote omitted) (alteration in original).
17
We recently addressed this same argument in Inman v. State, 4 N.E.3d 190 (Ind. 2014).
In that case, Inman argued that Indiana Code section 35-50-2-9(l),6 also the governing statute
here, was unconstitutional because it does not require the weighing of aggravating and mitigating
circumstances be determined beyond a reasonable doubt. We were not persuaded by this
argument and affirmed the defendant’s conviction and life without parole sentence. In so doing,
we rejected his challenge to our decision in Ritchie v. State where a majority of this Court
concluded “the Indiana Death Penalty Statute does not violate the Sixth Amendment as
interpreted by Apprendi7 and Ring8 [because] [o]nce a statutory aggravator is found by a jury
beyond a reasonable doubt, the Sixth Amendment as interpreted in Ring and Apprendi is
satisfied.” 809 N.E.2d 258, 268 (Ind. 2004). Our conclusion in Inman is controlling here. As
we explained in that case: “Because we concluded in Ritchie that neither federal constitutional
doctrine under Apprendi and Ring nor Indiana state jurisprudence leads to the requirement that
weighing be done under a reasonable doubt standard, the trial court was not required to [instruct
the jury to] weigh the aggravating circumstances and mitigating circumstances beyond a
reasonable doubt.” Inman, 4 N.E.3d at 196 (internal quotation omitted). We laid whatever
6
The statute provides:
(l) Before a sentence may be imposed under this section, the jury, in a
proceeding under subsection (e), or the court, in a proceeding under
subsection (g), must find that:
(1) the state has proved beyond a reasonable doubt that at least one
(1) of the aggravating circumstances listed in subsection (b)
exists; and
(2) any mitigating circumstances that exist are outweighed by the
aggravating circumstance or circumstances.
I.C. § 35-50-2-9(l).
7
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding: “Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”).
8
Ring v. Arizona, 536 U.S. 584, 609 (2002) (holding that the Sixth Amendment right to a jury trial
precludes “a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for
imposition of the death penalty” where the “enumerated aggravating factors operate as ‘the functional
equivalent of an element of a greater offense’” (internal citation omitted) (quoting Apprendi, 530 U.S. at494 n.19)).
18
uncertainty there may have been regarding this issue to rest in Inman and we decline to revisit
the issue here.9
IV. Juror’s Question
Isom next challenges the trial court’s refusal to allow a witness to answer a juror’s
question during the penalty phase of trial. This claim is based on the following facts. In his
case-in-chief Isom called as witnesses two of his cousins, one of whom testified that she had
spoken to Cassandra’s parents who “told [her] that they forgive. They forgive him.” Tr. at
13442. The other testified that Cassandra’s parents “don’t want the death penalty.” Tr. at 13533.
In rebuttal the State called as witnesses Cassandra’s father and sister. Both denied having any
conversations with the family about their forgiveness or the State’s request for the death penalty.
Before Cassandra’s sister was excused, the trial court invited questions from the jury. One juror
inquired, “does the family forgive Kevin?” Tr. at 13828. The trial court did not permit the
witness to answer the question. Isom claims reversible error.
“This Court has previously held that it is proper to permit jurors to propound questions
during the progress of a trial, subject to proper regulation by the trial court.” Tyson v. State, 386
N.E.2d 1185, 1192 (1979) (citing Carter v. State, 234 N.E.2d 650, 652 (Ind. 1968)). Isom
argues, “[f]orgiveness is potentially a significant piece of evidence that should have been
considered by the jury before it made its recommendation to the court.” Br. of Appellant at 60-
61. Thus, according to Isom, the failure to permit the witness to answer the juror’s question as to
whether “the family forgive[s] Kevin” impinged upon his right to present mitigation evidence
and was thus improper.
Indiana Code section 35-50-2-9(c) sets forth a number of mitigating circumstances that
the jury (or the judge in the case of a bench trial) may consider when determining whether a
9
In Ritchie the author of this opinion dissented in part believing the plain language of the statute makes
death eligibility contingent upon certain findings that must be weighed by the jury on proof beyond a
reasonable doubt. But the author acknowledges Ritchie as stare decisis on this issue.
19
sentence of death should be imposed.10 There is a statutory “catch-all” mitigator—“[a]ny other
circumstances appropriate for consideration.” I.C. § 35-50-2-9(c)(8). We have observed:
[T]he Legislature’s choice to allow death penalty defendants to
present every conceivable mitigator is in compliance with Lockett
v. Ohio, 438 U.S. 586 [(1978)], which requires that “the sentencer .
. . not be precluded from considering as a mitigating factor, any
aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis
for a sentence less than death.”
Minnick v. State, 698 N.E.2d 745, 761 (Ind. 1998) (omission in original) (quoting Lockett, 438
U.S. at 604 (emphasis omitted) (footnote omitted)). It is this proposition upon which Isom relies
in contending the trial court committed reversible error in not allowing the witness to answer the
juror’s question.
It is true that expressions of forgiveness by a victim of a crime may be considered a
mitigating circumstance. See e.g. Deane v. State, 759 N.E.2d 201, 204 (Ind. 2001) (involving a
defendant convicted of murder and attempted murder in the shooting death of his brother and the
serious wounding of his mother. Surviving mother expressed forgiveness and sought leniency.
10
The statute provides:
The mitigating circumstances that may be considered under this section are as
follows:
(1) The defendant has no significant history of prior criminal conduct.
(2) The defendant was under the influence of extreme mental or emotional
disturbance when the murder was committed.
(3) The victim was a participant in or consented to the defendant’s conduct.
(4) The defendant was an accomplice in a murder committed by another person,
and the defendant’s participation was relatively minor.
(5) The defendant acted under the substantial domination of another person.
(6) The defendant’s capacity to appreciate the criminality of the defendant’s
conduct or to conform that conduct to the requirements of law was
substantially impaired as a result of mental disease or defect or of
intoxication.
(7) The defendant was less than eighteen (18) years of age at the time the murder
was committed.
(8) Any other circumstances appropriate for consideration.
I.C. § 35-50-2-9(c).
20
The trial court considered as mitigating factors the hardship on the defendant’s son, and the
mother’s “expression of forgiveness and request for leniency.”); Rowe v. State, 539 N.E.2d 474,
478 (Ind. 1989) (involving a defendant convicted of murder and two counts of attempted murder
in the shooting death of his mother and the wounding of his father and sister. The surviving
father and sister expressed forgiveness recommending the defendant receive drug rehabilitation
rather than prison. On appeal, rejecting defendant’s Appellate Rule 7(B) challenge to his 100-
year sentence we declared “the trial court was well within its discretion in finding the
aggravating factors to outweigh the mitigating factors of appellant’s age and his family’s
forgiveness.”). However, unlike in Deane and Rowe, here there were no surviving victims to
express forgiveness. To be sure family members as well as close friends and perhaps even the
community at large may be considered “victims” of these horrendous crimes in a general sense.
But for purposes of mitigation evidence the issue is whether Cassandra, Ci’Andria, or Michael
forgave Isom for his crimes. This is unknowable. In short Isom does not explain how the
family’s forgiveness is a mitigating factor. That is to say, he does not explain how or why the
family’s thoughts on the killings have a bearing on Isom’s character or any circumstances of the
offenses. See Minnick, 698 N.E.2d at 761. The trial court committed no error in disallowing the
witness’ testimony.11
V. Allegations of Prosecutorial Misconduct
During the penalty phase of trial the deputy prosecutor made several comments that Isom
contends amount to prosecutorial misconduct because, according to Isom, they focused not on
the charged aggravator and how that aggravator outweighed any mitigating factors, but rather
“direct[ed] the jury to focus on the horrible nature of the killings and on Kevin Isom’s failure as
a provider, protector and as [a] man who could not even hold onto a job.” Br. of Appellant at 63.
11
Even assuming for the sake of argument that the family’s forgiveness qualifies as a mitigating factor
Isom’s argument still fails. His implicit presumption is that the family did in fact forgive him and thus an
affirmative answer to the question was forthcoming. But this is pure speculation. Further, it ignores
events occurring only moments before. The witness—Cassandra’s sister—had just testified in rebuttal
and denied having any conversation with the family about forgiveness. Isom does not explain why he
believes her answer to the juror’s question would have reflected a different reality.
21
Before addressing the merits of this contention, we pause to observe that Isom did not
object at trial to the purported misconduct. A party’s failure to present a timely objection to the
alleged misconduct at trial results in waiver of appellate review. Stevens v. State, 691 N.E.2d
412, 420 (Ind. 1997). If a defendant properly raises and preserves the issue of prosecutorial
misconduct, then the reviewing court determines: “(1) whether the prosecutor engaged in
misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the
defendant in a position of grave peril to which he or she would not have been subjected.” Baer
v. State, 866 N.E.2d 752, 756 (Ind. 2007) (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind.
2006)).
“Where a claim of prosecutorial misconduct has not been properly preserved, our
standard for review is different from that of a properly preserved claim. More specifically, the
defendant must establish not only the grounds for the misconduct but also the additional grounds
for fundamental error.” Cooper, 854 N.E.2d at 835. “The ‘fundamental error’ exception is
extremely narrow, and applies only when the error constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process.” Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013)
(alteration omitted) (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). “The error
claimed must either make a fair trial impossible or constitute clearly blatant violations of basic
and elementary principles of due process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)
(internal quotations omitted).
With the foregoing standard in mind we now address the merits of Isom’s claim. Under
the death penalty statute, following the completion of the guilt-determination phase of the trial
and the rendering of the jury’s verdict, the trial court reconvenes the jury for the penalty phase.
I.C. § 35-50-2-9(d); Brown v. State, 783 N.E.2d 1121, 1127 (Ind. 2003). “The jury may
recommend . . . the death penalty” only if it finds: “(1) the state has proved beyond a reasonable
doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists; and (2)
any mitigating circumstances that exist are outweighed by the aggravating circumstance or
circumstances.” I.C. §§ 35-50-2-9(e), (l).
22
As noted earlier in this opinion, the State sought the death penalty based on the (b)(8)
aggravator—that Isom committed multiple murders. Proceeding to the penalty phase of trial the
State moved to “incorporate, by reference, all parts, components of the guilt phase, specifically
but not limited to the verdicts returned on Counts I, II, III, IV, V and VI.” Tr. at 13297. The
trial court granted the motion declaring: “Ladies and gentlemen, you may properly consider all
of the evidence that has been submitted in this case so far.” Id. After then introducing into
evidence the certified death certificates of Cassandra, Michael, and Ci’Andria, the State rested.
The defense presented its case over the next two days calling eighteen witnesses that
included four psychologists, a special education elementary school teacher who taught school in
the neighborhood where Isom lived as a child, two Lake County correctional officers, Isom’s
mother, and several of Isom’s other relatives. In summary their collective testimony established
the following. Isom, who was forty-one years of age at the time of the killings, was an only child
with an absent father. He and his mother moved frequently. During high school, he and his
mother lived in a housing project in Chicago where gangs controlled the turf. Isom was
assaulted at least once and began to withdraw into himself and disassociate from everyone except
his family, but he nonetheless graduated from high school. He has a degenerative back disorder
that constantly plagued him and prevented him from entering military service. Essentially he
was a loner who eventually got a job as a security guard, but he had lost that job just a few
months before the killings and had started drinking. He felt pressured because his wife was the
sole support of the family and wanted him to get another job. She told him she was going to
divorce him. Isom served nearly six years in the Lake County jail awaiting trial without any
disciplinary incidents. Isom suffered extreme emotional distress that set him off that night and
explained why he experienced dissociative amnesia after the killings. See Tr. at 13300-728. The
defense then rested.
The State then proceeded with the opening phase of its closing remarks. Following are
the remarks that Isom contends represent prosecutorial misconduct:
[T]he State of Indiana endorses the penalty of death in this case. . .
. It’s the appropriate penalty when you look at aggravating
circumstance in this case. The aggravation relative to the multiple
23
killing circumstance. That, in fact, three individuals were
murdered by Mr. Isom. Those individuals were a mother, and her
two children. That, in fact, those three individuals are family.
Multiple killing dictates, tells us Mr. Isom eliminated a family
from this earth.
That mother had two children, a 16-year-old son and a 13-year-old
daughter. Neither provided, allowed the opportunity to grow and
develop into adults. Their lives were terminated on August 6,
2007.
In regard to the aggravation in terms of the facts and
circumstances, you will recall from the evidence brought forward
Cassandra received that devastating shotgun blast that was put to
her head as she was on the floor and evacuated her brain from her
skull. That followed, were involved additionally, five entrance
wounds from a small firearm, from the handguns, where the
wounds were inflicted additionally to her chest, her abdomen, and
her back.
Michael Moore also having received the shotgun blast, two
additional handgun wounds to the back and flank area along with
grace [sic] wounds to his arms.
And finally 13-year-old Ci’Andria. Ci’Andria’s reward for being
home that afternoon, that early evening was that she was shot with
a 12-gauge pump action pistol grip Mossberg shotgun. That she
received eight separate unrelated entry wounds from the handgun.
One of those wounds to her head. Additional to her arms and her
back.
. . . [T]he State has proven to you the aggravating circumstance in
this case. . . . And . . . the appropriate penalty upon concluding
your thoughts, your balancing is that a sentence of death deserves
to be returned.
Tr. at 13835-37. By these remarks, according to Isom, “[t]he deputy prosecutor then amped up
the aggravating factor from simply proving multiple murders to include the nature and
circumstance of the crime.” Br. of Appellant at 63.
“[T]he circumstances of a crime often provide ‘an appropriate context for consideration
of the alleged aggravating and mitigating circumstances.’” Corcoran v. State, 739 N.E.2d 649,
657 (Ind. 2000) (quoting Prowell v. State, 687 N.E.2d 563, 567 (Ind. 1997)). Here, the defense
24
team had just concluded two days of trial presenting testimony exploring, among other things,
Isom’s troubled childhood and stress-filled adult life. The State merely highlighted, albeit in
graphic and dramatic fashion, the circumstances surrounding its multiple murder aggravator, and
by implication why the strength of this aggravator outweighed any of the defense team’s
proposed mitigating factors. In essence the deputy prosecutor recounted the evidence introduced
during the guilt phase of trial, arguing that the State proved beyond a reasonable doubt that Isom
intentionally killed three people—an aggravating circumstance. We discern no misconduct with
these remarks.
During his closing remarks defense counsel talked about Isom’s troubled childhood and
growing up in a neighborhood that one of the defense witnesses characterized as a “war zone.”
Tr. at 13842. Counsel specifically focused on Isom’s “extreme emotional disturbance” that
triggered the events of August 6, 2007. Tr. at 13850. Counsel continued: “We are all talking
about anger, we are all talking about leaving marriage, losing a job. Those are all, to someone of
Kevin’s makeup, is devastating. This is the man that locked himself in a room over the death of
a family member.” Tr. at 13851. Counsel implored the jury: “I am asking you on behalf of
Kevin to sentence him to a term of years.” Tr. at 13853-54.
Among other things, during the rebuttal phase of its closing remarks, the State appeared
to encourage the jury to consider Isom’s character in reaching its decision:
[T]he State proposes to you that, in fact, those acts of murder, of
killing, of slaughtering his family were the a [sic] culmination of
Kevin Isom slowly and consciously and deliberating making those
decisions. . . .
And those facts demand death.
Because ultimately, ladies and gentlemen, Kevin Isom failed
Cassandra as a wife [sic] and as a life partner. He failed the
children as a father. He failed himself as a man. He failed his
mother as a son. And he failed the community as a productive and
constructive member of that community.
25
And for what he did, under the constrain[t]s that you’re given of
balancing aggravating and mitigating facts, ladies and gentlemen,
death is appropriate.
Tr. at 13862-63 (emphasis added). As we have repeatedly held “when the death sentence is
sought, courts must . . . limit the aggravating circumstances eligible for consideration to those
specified in the death penalty statute.” Cooper, 854 N.E.2d at 840 (quoting Pope v. State, 737
N.E.2d 374, 383 (Ind. 2000) (quoting Bivins v. State, 642 N.E.2d 928, 955 (Ind. 1994)));
Corcoran, 739 N.E.2d at 655. Here, in essence, the State invited the jury to recommend the
death sentence, because “Kevin Isom failed Cassandra . . . as a life partner. He failed the
children as a father. He failed himself as a man. He failed his mother as a son. And he failed
the community as a productive and constructive member of that community.” Tr. at 13863.
Regarding these comments we make the following observations. First, Isom’s character
has no place in the penalty phase of the proceedings. “None of the statutory factors include the
character of the defendant.” Castillo v. State, 974 N.E.2d 458, 469 (Ind. 2012) (citing I.C. § 35-
50-2-3(b)). Second, the defendant’s relationships with the victims have no bearing on
establishing the alleged aggravator of multiple killings, nor do they rebut the proffered mitigators
by the defense, nor explain why the sole aggravator outweighs the dozens of mitigating
circumstances. While perhaps relevant in determining his commission of the charged crimes
during the guilt phase, such an invitation to consider any facts of the case other than the
proscribed statutory aggravators—even in part—during the penalty phase where the State seeks
death is inappropriate. See Cooper, 854 N.E.2d at 839, 840-41 (finding prosecutorial misconduct
during the penalty phase where “the State encouraged the jury on several occasions to consider
Cooper’s character in reaching its decision”).
It is misconduct for a prosecutor to request a jury to return a death penalty for anything
other than that the mitigating factors are outweighed by the aggravating factor or factors. Id. at
841. In this case the State stepped over the line. However, we emphasize that Isom did not
object at trial to the State’s remarks. So the question now before us is whether the remarks were
so prejudicial to Isom’s right of fundamental due process as to make a fair trial impossible. That
is, was the resulting harm or potential for harm substantial? Halliburton, 1 N.E.3d at 678. We
26
think not. These remarks were relatively isolated and came near the end of a fairly lengthy
summation. The jury had listened to several weeks of testimony, including two days of
testimony and evidence in mitigation. We are of the opinion that any harm done by the
prosecutor’s remark was de minimus and not substantial. Thus, the error did not result in
denying Isom fundamental due process thereby making a fair trial impossible.
VI. Appropriateness of Death Sentence
Isom seeks our review of his death sentence for appropriateness. The Indiana Legislature
has determined that in capital jury trials, the question of whether to sentence a defendant to the
death penalty is determined by the jury, after which the trial court “shall sentence the defendant
accordingly.” I.C. § 35-50-2-9(e). And here, correctly following the statutory mandate, the trial
court sentenced Isom to death. Thus “[t]he factual predicates of a sentence—the eligibility for
death or life without parole—are reserved to the jury by the Sixth Amendment” as well as by
statute. Pruitt v. State, 834 N.E.2d 90, 121 (Ind. 2005) (citing Ring, 536 U.S. at 589). But death
sentences are subject to our “automatic review” under Indiana Code section 35-50-2-9(j) and
importantly, Article 7, Section 4 of the Indiana Constitution grants this Court, in all criminal
appeals, the authority “to review and revise the sentence imposed.” Ind. Const. art. 7, § 4. “We
have implemented this discretionary authority in all criminal cases through our adoption of
Indiana Appellate Rule 7[(B)].” Baer, 866 N.E.2d at 764. The Rule provides: “The Court may
revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Ind. App. R. 7(B). Accordingly, the appropriateness of a death
sentence, unlike the eligibility for a death sentence, is a matter left to the discretion of this Court.
See Pruitt, 834 N.E.2d at 121-22. Nonetheless, a defendant must persuade the court “that his or
her sentence has met this inappropriateness standard of review.” Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006).
In considering the nature of the offense, a term of years is the starting point the
legislature selected as appropriate for the crime of murder. See I.C. § 35-50-2-3. However,
alternative penalties of life without parole or death are available upon proof of certain proscribed
27
aggravating factors. See I.C. § 35-50-9-2. Here, the jury recommended death sentences upon a
finding that the sole aggravating circumstance of multiple killings outweighed the proffered
mitigating circumstances. The record shows Isom murdered his wife and his two, teenage step-
children, who spent most of their lives with Isom as a father-figure. All three victims were shot
to death apparently unexpectedly and without provocation inside their home. The autopsy of
Cassandra’s body revealed multiple gunshot wounds to her chest, abdominal region, and back.
The cause of her death was a shotgun blast to the top of her head evacuating her brain from her
skull. Michael also sustained multiple gunshot wounds and was killed by a shotgun blast to his
chest. Ci’Andria received eight separate entrance wounds to her body caused by three different
weapons. Each victim was shot multiple times at close range.
“We have usually regarded multiple murder as constituting weighty aggravation.”
McManus v. State, 814 N.E.2d 253, 266 (Ind. 2004); see also Corcoran v. State, 774 N.E.2d 495,
502 (Ind. 2002) (concluding that a quadruple killing was weightier than Defendant’s proffered
evidence in mitigation). Further, this Court has determined that a defendant is deserving of an
enhanced sentence under facts where “the nature of the killings are brutal.” Brown v. State, 10
N.E.3d 1, 5 (Ind. 2014) (quoting Taylor v. State, 840 N.E.2d 324, 341 (Ind. 2006)). The record
makes clear that the nature of the offense is a brutal triple murder Isom committed against his
own family.
The character of the offender, rather than the nature of the offense, presents Isom’s
strongest support for revision. In many ways, his background was pretty solid and
unremarkable. Dr. Parker’s testimony for example revealed in part that Isom graduated from
high school, had good family support, went to work after graduating from high school, and
apparently was reasonably successful. Isom had good educational accomplishment, minimal
legal history, no prior psychiatric history, and he had not suffered from serious mental illness.
Further, Isom had a successful marriage for twelve years, provided for his family, and had no
history of domestic violence. According to Isom theses factors coupled with his lack of criminal
history and incident-free term of incarceration weighs in favor of revising his sentence. We
disagree. It appears to this Court that the nature of the offenses Isom committed far outweigh his
otherwise favorable character. Under the facts presented here we cannot say that Isom has met
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his burden to show that the jury’s unanimous recommendation, which the trial court properly
imposed, was inappropriate.
VII. Imposition of Consecutive Sentences
As previously indicated the jury recommended the death penalty for each of the three
murder convictions. The court accepted the jury’s recommendation and over Isom’s objection
ordered the three death penalties to be served consecutively. The trial court reasoned, “from a
legal perspective and a practical perspective, each victim is entitled to their own sentence.” Tr.
at 13903. Isom claims error.12
A trial court cannot impose consecutive sentences in the absence of express statutory
authority. Mask v. State, 829 N.E.2d 932, 935 (Ind. 2005). Indiana Code § 35-50-1-2(c), which
governs the court’s authority to impose such sentences, provides in relevant part “[e]xcept [for
factors not pertinent here] the court shall determine whether terms of imprisonment shall be
served concurrently or consecutively.” (emphasis added). As we have explained:
A “term of imprisonment” is a penalty under which the convict is sent to
incarceration for some period (such as two years or five to ten years) and then
released after the period has passed. Execution is a penalty of a radically different
sort. It features incarceration only while appellate processes persist and does not
contemplate a future release into society.
State v. Price, 715 N.E.2d 331, 332 (Ind. 1999). Accordingly, “the death penalty is not ‘a term
of imprisonment’” within the meaning of I.C. § 35-50-1-2. Id. In consequence the trial court
here exceeded its statutory authority by ordering Isom’s death sentences to be served
consecutively.
12
Neither Isom nor the State provides much in the way of analysis on this issue. Without citation to
authority Isom’s one page argument essentially boils down to “Kevin Isom cannot be put to death three
times . . . .” Br. of Appellant at 68. In its one page response, also without citation to authority, the State
asserts, “Defendant is not prejudiced or harmed by having three death sentences instead of one.” Br. of
Appellee at 64.
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Conclusion
We affirm Isom’s convictions and remand this cause to the trial court with instructions to
issue a new sentencing order consistent with this opinion.
Rush, C.J., and Dickson, David and Massa, JJ., concur.
30