Kevin Charles ISOM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
No. 45S00-0803-DP-125
Supreme Court of Indiana
May 20, 2015
Rehearing Denied July 28, 2015
31 N.E.3d 469
RUCKER, Justice.
The parties cite no facts in aggravation. The Court, however, finds in aggravation that Respondent was an elected official who betrayed the public trust and violated both his oath of office and the oath of attorneys. The parties cite the following facts in mitigation: (1) Respondent‘s lack of prior discipline; (2) Respondent‘s cooperation with the Commission‘s investigation and prompt reporting of criminal charges against him; and (3) Respondent‘s repayment with interest of the monies in question prior to the filing of criminal charges against him.
Discussion and Discipline
Our analysis of appropriate discipline entails consideration of the nature of the misconduct, the duties violated by the respondent, any resulting or potential harm, the respondent‘s state of mind, our duty to preserve the integrity of the profession, the risk to the public should we allow the respondent to continue in practice, and matters in mitigation and aggravation. See Matter of Newman, 958 N.E.2d 792, 800 (Ind.2011).
In the current case, Respondent and the Commission propose that Respondent receive a suspension from the practice of law for a period of at least four years, without automatic reinstatement, effective on the date the conditional agreement is accepted. Concluding that this is appropriate discipline under the circumstances, the Court approves the proposed discipline.
Conclusion
The Court concludes that Respondent violated the Indiana Rules of Professional Conduct by committing crimes that reflect adversely on his honesty, trustworthiness, and fitness as a lawyer. For Respondent‘s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than four years, without automatic reinstatement, beginning on the date of this opinion. At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays all applicable fees and costs, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney‘s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).
The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.
All Justices concur except RUSH, C.J., and DICKSON, J., who dissent, believing Respondent should be disbarred.
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
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
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
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 re-
Challenging jurors for cause is the primary means by which a defendant may exclude any prospective juror whose “views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath[.]” Oswalt v. State, 19 N.E.3d 241, 246 (Ind.2014) (quoting Wainwright v. Witt, 469 U.S. 412, 433, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (internal quotation omitted)). These challenges “must be supported by specified causes or reasons that demonstrate that, as a matter of law, the venire member is not qualified to serve.” Whiting, 969 N.E.2d at 29 (quoting Gray v. Mississippi, 481 U.S. 648, 652 n. 3, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) (citation omitted)). We review a trial court‘s denial of a defendant‘s for-cause challenge for an abuse of discretion. Oswalt, 19 N.E.3d at 245. “[T]he trial court has ‘a broad discretion and duty to see that the jury as finally selected is subject to no solid basis of objection on the score of impartiality.‘” Whiting, 969 N.E.2d at 29 (omission in original) (quoting Frazier v. United States, 335 U.S. 497, 511, 69 S.Ct. 201, 93 L.Ed. 187 (1948)). We afford substantial deference to the trial court‘s ruling and will reverse only upon a showing that the decision is illogical or arbitrary. Id.
Isom‘s challenges to the twelve jurors fall within three broad categories: (1) the prospective juror would not consider mitigation evidence during the penalty phase of trial; (2) the prospective juror would not give serious consideration to all three penalty options---death, life without parole, or a term of years; and (3) the prospective juror failed to understand legal concepts relevant to the case. We address these challenges in turn.
A. Refusal to consider mitigation
Isom challenged Jurors No. 8, 31, 375, 391, and 398 contending that they would not consider mitigation evidence. The record shows that each of these jurors initially expressed skepticism either on the jury questionnaire or during voir dire itself. But their positions changed after further explanation and inquiry, especially by the trial court. In each instance the trial court explained the manner in which mitigation evidence would be introduced, the reason for the mitigation evidence, and the juror‘s obligation to consider that evidence. See Tr. at 1638-66 (Juror No. 8); Tr. at 1856-1910 (Juror No. 31); Tr. at 5643-5717 (Juror No. 375); Tr. at 6030-68 (Juror No. 391); Tr. at 6101-43 (Juror No. 398). It is certainly the case that “[a] juror who will automatically vote for [a particular] penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do.” Ward v. State, 903 N.E.2d 946, 955 (Ind.2009) (quoting Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)), adhered to on reh‘g, 908 N.E.2d 595, 597 (Ind.2009). However, “a constitu-
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 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
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, “[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
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
“[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, 270 Ind. 458, 386 N.E.2d 1185, 1192 (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
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.
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.”
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.”
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, 126 S.Ct. 2266. Simply put, statements generally elicited from individuals seeking help during an ongoing emergency are not classified as testimonial. See Id. at 828, 126 S.Ct. 2266.
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 ap-
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 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, 126 S.Ct. 2266 (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.
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
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.
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.
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 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.‘”
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).
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
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:
- 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
- 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).
We recently addressed this same argument in Inman v. State, 4 N.E.3d 190 (Ind.2014). In that case, Inman argued that
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, 270 Ind. 458, 386 N.E.2d 1185, 1192 (1979) (citing Carter v. State, 250 Ind. 13, 234 N.E.2d 650, 652 (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.
[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, 98 S.Ct. 2954, 57 L.Ed.2d 973 [(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, 98 S.Ct. 2954 (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. 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.
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.
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 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 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.
“[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 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 make-up, 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.
And for what he did, under the constraints 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.
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. Halliburton, 1 N.E.3d at 678. We 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 minimis 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.”
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
“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 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
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).
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
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.
Notes
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.
(1) 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.
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.