Isom v. State.ecn

Cite as 2015 Ark. 225

SUPREME COURT OF ARKANSAS
No. CR-02-213

Opinion Delivered May 21, 2015

KENNETH ISOM PETITION TO REINVEST
APPELLANT JURISDICTION IN THE CIRCUIT
COURT TO CONSIDER A
PETITION FOR WRIT OF ERROR
V. CORAM NOBIS
[DREW COUNTY CIRCUIT
COURT, NO. 22CR-01-52]
STATE OF ARKANSAS
APPELLEE PETITION GRANTED.

JOSEPHINE LINKER HART, Associate Justice

A jury found Kenneth Isom guilty of capital murder, aggravated robbery, residential

burglary, attempted capital murder, and two counts of rape and sentenced him, respectively,

to sentences of death, life imprisonment, 40 years’ imprisonment, 60 years’ imprisonment, and

life on each count of rape, with the sentences to be served consecutively. This court affirmed

his convictions and sentences. Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004). Isom

further sought postconviction relief under Arkansas Rule of Criminal Procedure 37.5, and this

court affirmed the circuit court’s denial of his petition. Isom v. State, 2010 Ark. 495, 370

S.W.3d 491. Isom now petitions this court to reinvest jurisdiction in the trial court to consider

a petition for writ of error coram nobis. We grant his petition to reinvest jurisdiction.

The proper standard of review for granting permission to reinvest jurisdiction in the

circuit court to pursue a writ of error coram nobis is whether it appears that the proposed
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attack on the judgment is meritorious. Howard v. State, 2012 Ark. 177, at 4–5, 403 S.W.3d 38,

43. In making such a determination, we look to the reasonableness of the allegations of the

petition and to the existence of the probability of the truth thereof. Id., 403 S.W.3d at 43. A

writ of error coram nobis is available to address certain fundamental errors extrinsic to the

record, such as material evidence withheld by the prosecutor. Id. at 4, 403 S.W.3d at 42–43.

To establish a violation of Brady v. Maryland, 373 U.S. 83 (1963) by the State’s withholding

of evidence, the evidence at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; the evidence must have been suppressed by the State,

either willfully or inadvertently; prejudice must have ensued. Id. at 8, 403 S.W.3d at 44.

Isom was convicted of killing Bill Burton and attempting to kill Dorothy Lawson, and

of committing two counts of rape against Lawson, aggravated robbery, and residential burglary,

based on an incident at Burton’s trailer on April 2, 2001. Lawson, who was 72, was at Burton’s

home with Burton, who was 79. Burton had recently had hip surgery, and Lawson was there

to care for him. Lawson testified that she opened the door that evening to a man she had seen

next door earlier that day. Lawson identified Isom as the man who pushed passed her and

demanded money from Burton. Burton gave him some money, but Isom was not satisfied and

pulled a pair of broken scissors from his pocket. Lawson testified that Isom had her remove her

clothes, raped her vaginally and anally and forced her to perform oral sex on him. Lawson

testified that he forced her into a closet and that when she looked out she saw Isom standing

on Burton’s head. Lawson fought with Isom in an attempt to prevent him from hurting

Burton, and she cut her hand on the scissors in the process. Lawson was knocked unconscious,

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choked, and she eventually passed out. A neighbor found her the next morning, bleeding,

partially paralyzed, and crying for help.

At the hospital, the doctor performing the rape-kit examination found a hair in

Lawson’s vaginal opening. Analysis of that hair excluded Lawson or Burton as DNA

contributors. The analysis also determined that a DNA sample from Isom had bands that were

not inconsistent with those in the hair’s DNA. The original analysis determined the likelihood

of finding another person with the same consistent DNA bands was 1 in 57,000,000 in the

African-American population. The additional testing conducted postconviction established the

likelihood of finding another person with the same consistent DNA bands was 1 in 580,000

for a nonrelative. On April 5, 2001, an officer visited with Lawson in the hospital to see if she

could identify her assailant from a photographic lineup. After first focusing on photographs one

and three, she selected photo three, which was Mr. Isom.

In addition to Lawson’s testimony at trial, Ken Ouellette testified that he drove by the

Burton residence at about 7:00 p.m. on April 2, 2001. He saw Lawson and a gentleman he

later identified as Isom talking in front of the house next door to Burton’s. Linda Kay Johnson,

who lived across the street, testified that she knew Isom, had seen him at the house next door

to Burton’s on previous occasions, and had seen him talking to Lawson some time before 7:00

p.m. on April 2, 2001.

In his petition and an attached proposed petition for filing in the trial court, Isom sets

out a number of proposed grounds for the writ based on various claims that the prosecution

withheld evidence. The grounds proposed are as follows: (1) the State suppressed evidence that

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Lawson did not identify Isom as her attacker in a photo array shown to her on April 4, 2001;

(2) the State suppressed evidence that Lawson failed to identify Isom in a photo array shown

to her on April 5, 2001; (3) the State suppressed Rick McKelvey’s investigative notes about

the interviews of Lawson while she was in the hospital; (4) the prosecution failed to correct

false testimony when Lawson testified that she was not on pain medication while in the

hospital and that she did not attempt to make an identification without her glasses; (5) the State

suppressed evidence that Ouellette was aware that Isom was the main suspect before

identifying him; (6) the State suppressed evidence that Ouellette had a motive to curry favor

with the police department; (7) the State suppressed evidence concerning the DNA evidence

by turning over illegible copies of documents and incomplete copies of the gel strips or DNA

ladders; (8) the State suppressed evidence of alternative suspects.

We focus on Isom’s last claim, which is that the State withheld evidence that might

have led counsel to utilize a defense based on an alternate suspect. Prior to trial, Isom’s

attorneys had notified the prosecution that they planned to call as witnesses a number of the

prosecutors involved in the case, and, as a result, there was a pretrial hearing on a motion to

quash the subpoenas. Deputy Prosecutor Frank Spain testified during that hearing concerning

potential evidence from Kevin Green. The defense was aware of some letters written by

inmates who claimed that, while he was incarcerated, Green had said that he smoked crack

with Jerry Avery and that Avery had told Green that he committed the Burton murder. Green,

according to the inmates’ letters, intended to use the information from Avery to strike a deal

with the prosecution so that he could be released on his own recognizance. Spain was

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questioned about whether he was involved with a search conducted by the detectives

investigating Burton’s murder as a result of information from Green.

Spain’s testimony at the pretrial hearing was that he was told by Green’s attorney and

some of the officers working the case that Green had information about the weapon in

Burton’s murder and that Green wanted to be released from jail. Spain agreed to the deal, and

he went to a house where the weapon was supposed to be. According to Spain’s testimony at

the hearing on the motion to quash, they looked for the weapon and “[n]o item was found.”

The motion to quash was granted, and no defense was developed at trial using Green or Avery

as an alternate suspect.

At Isom’s Rule 37.5 hearing, Spain was sworn, and he reaffirmed an unsworn account

under oath. In it, he stated that one of the police officers had come to him because Green had

approached them with information similar to what had been in the inmate letters. Green

wanted to be released on his own recognizance before he would give the information, and

Spain testified that he would not give Green what he wanted until they had the information

and it proved to be useful. Spain stated that they went to the place where Green said that the

evidence could be collected and that the officers searched the trailer home located there. Green

said he believed that a pair of scissors was recovered, that he looked at whatever it was that had

been recovered, and released Green. Spain also said that the scissors were sent to the crime lab

for testing, but did not produce anything to connect them to the crime.

Thus, Spain’s testimony during the pretrial hearing was at odds with his testimony in

the Rule 37.5 hearing. Given that Spain, under oath, has testified to two different versions of

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the facts, we are compelled to have the circuit court conduct an evidentiary hearing, as we are

not in the position to exalt one version over the other. If Isom is correct, and Spain’s testimony

at the Rule 37 hearing was the accurate one, then there was clearly a fundamental error of fact

extrinsic to the record that prevented Isom from presenting Spain as a witness and developing

his alternative theory that Avery, not Isom, committed the murder. In addition, if Spain’s new

version of the facts is correct, then there is a fundamental error of fact because there was an

additional pair of scissors discovered on which DNA testing may or may not have been

performed. We cannot ignore that there may be exculpable or impeaching evidence favorable

to the accused that may have been willfully or inadvertently suppressed by the State, resulting

in the circuit court quashing a subpoena to consider evidence related to other possible

suspects.1 Based on the foregoing, we grant Isom’s petition to reinvest jurisdiction in the circuit

court to seek a writ of error coram nobis on his claim of Brady violations. While Isom raises

additional Brady claims that we could consider in this opinion, see Howard, 2012 Ark. 177, at

27–28, 403 S.W.3d at 54–55 (granting petition in part), we reinvest jurisdiction in the circuit

court to consider these claims as well, see Newman v. State, 2009 Ark. 539, 354 S.W.3d 61

(reinvesting jurisdiction in the circuit court to consider several Brady claims raised by the

petitioner). Further, when an error coram nobis claim has apparent merit, this court often

leaves it to the circuit court to determine the factual issue of diligence. Howard, 2012 Ark 177,

at 14, 403 S.W.3d at 47. Thus, we also leave to the circuit court consideration of whether

Isom’s petition was timely.

1
We also note that Isom has asserted that he is related to Avery and has sought to test
Avery’s DNA. Isom v. State, 2010 Ark. 496, 372 S.W.3d 809.
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Petition granted.

HANNAH, C.J., and DANIELSON and GOODSON, JJ., dissent.

PAUL E. DANIELSON, JUSTICE, DISSENTING. Because it does not appear to me that

Isom’s proposed attack on his judgment is meritorious, I would deny his petition to reinvest

jurisdiction; therefore, I respectfully dissent.

While not apparent from the majority’s decision today to grant Isom’s petition to

reinvest, our law is more than well settled that the writ of error coram nobis is an

extraordinarily rare remedy, more known for its denial than its approval. See Roberts v. State,

2013 Ark. 56, 425 S.W.3d 771. Coram nobis proceedings are attended by a strong

presumption that the judgment of conviction is valid. See id. The function of the writ is to

secure relief from a judgment rendered while there existed some fact that would have

prevented its rendition if it had been known to the circuit court and which, through no

negligence or fault of the defendant, was not brought forward before rendition of judgment.

See Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.

The writ is allowed only under compelling circumstances to achieve justice and to

address errors of the most fundamental nature. See Newman v. State, 2009 Ark. 539, 354

S.W.3d 61. We have held that a writ of error coram nobis is available to address only certain

errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced

guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession

to the crime during the time between conviction and appeal. See id. Although there is no

specific time limit for seeking a writ of error coram nobis, due diligence is required in making

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an application for relief. See id. In the absence of a valid excuse for delay, the petition will be

denied. See id. Due diligence requires that (1) the defendant be unaware of the fact at the

time of trial; (2) the defendant could not have, in the exercise of due diligence, presented the

fact at trial; and (3) the defendant, after discovering the fact, did not delay in bringing the

petition. See id.

Where the writ is sought after the judgment has been affirmed on appeal, the circuit

court may entertain the petition only after this court grants permission. See Echols v. State, 354

Ark. 414, 125 S.W.3d 153 (2003). This court will grant permission only when it appears the

proposed attack on the judgment is meritorious. See id. In making such a determination, we

look to the reasonableness of the allegations of the petition and to the existence of the

probability of the truth thereof. See id.

Isom’s petition to reinvest consists of several claims, each of which asserts that the

prosecutor withheld material evidence under Brady v. Maryland, 373 U.S. 83 (1963). When

examining allegations involving the withholding of material evidence in the context of a

petition to reinvest jurisdiction to seek a writ of error coram nobis, this court has done so

under Brady, which requires the State to disclose all favorable evidence material to the guilt or

punishment of an individual. See Newman, 2009 Ark. 539, 354 S.W.3d 61; see also Howard,

2012 Ark. 177, 403 S.W.3d 38; Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002) (per

curiam). With respect to Brady claims in this context, we have explained as follows:

For a true Brady violation, “[t]he evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and prejudice must have
ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Evidence is material “if

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there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” Cook v. State, 361 Ark. 91,
105, 204 S.W.3d 532, 540 (2005) (quoting Strickler, 527 U.S. at 280). The “reasonable
probability” standard is applied “collectively, not item by item,” such that the
“cumulative effect” of the suppressed evidence, and not necessarily each piece
separately, must be material. Kyles v. Whitley, 514 U.S. 419, 436–37 (1995). The rule
set out in Brady also “encompasses evidence ‘known only to police investigators and not
to the prosecutor.’” Strickler, 527 U.S. at 280–81 (quoting Kyles, 514 U.S. at 438). “In
order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of
any favorable evidence known to the others acting on the government’s behalf in this
case, including the police.’” Strickler, 527 U.S. at 281 (quoting Kyles, 514 U.S. at 437).

Newman, 2009 Ark. 539, at 13–14, 354 S.W.3d at 69.

Although the majority finds apparent merit in Isom’s final claim that the State

suppressed information that pointed to the guilt of others, I cannot agree. Isom claims that

Kevin Green, an inmate at the Drew County jail, told prosecutors and law enforcement that

he knew the whereabouts of scissors that were used to kill Mr. Burton, told other inmates that

Isom was innocent of the murder, and told an inmate that another man, Jerry Avery, had

confessed to the crimes. Isom asserts that Green was eventually taken from the jail to search

a trailer in which a pair of scissors was found and was later released from jail upon

recommendation of the prosecutor.

As further evidence of the State’s suppression, Isom points to the statements of Frank

Spain, a prosecutor. Isom avers that, prior to trial, he subpoenaed Spain to testify about the

aforementioned search; but, the circuit court quashed the subpoena after Spain “testified falsely

that no scissors had been recovered from the search led by Kevin Green.” Isom then points

to Spain’s statements to the circuit court during Isom’s postconviction hearing, in which Green

denied receiving any consideration for information relating to the crimes. Isom maintains that

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after Green testified, Spain went on the record to state that Green’s testimony was false, in that

Green had been released on his own recognizance after Spain and officers, acting on

information from Green, searched a trailer home and recovered a pair of scissors, which were

submitted to the crime lab for testing. Isom submits that the State has never disclosed any

reports relating to Green’s statements about the murder weapon or requests for interviews

made by inmates in whom Green had confided.

Isom avers that, had Spain testified truthfully prior to Isom’s trial, his subpoena would

not have been quashed, and his trial counsel could have called Spain to testify regarding

Green’s knowledge of the crimes. He further opines that his counsel could have then pursued

an investigation into the credibility of the inmates’ statements and presented evidence to the

jury of other suspects, such as Avery or even Green.

While Spain’s actions in this matter are certainly disconcerting,1 Isom’s contentions

1
Indeed, Spain’s statements appear to be in conflict. At the hearing on the motion to
quash, Spain testified that
a person by the name of Kevin Green who was represented by Gary Potts stated that
he had some information regarding the, where he thought the murder weapon was.
He asked for certain things in order to provide that information. He wanted to be
released from jail, either pending his sentencing date, or pending bed space. I can’t
recall which of the two it was.
The officers working the case . . . came to me with this. I believe Mr. Potts,
also, indicated to me that this person had this information.
I agreed to his wants. He had already stated that he would take a five year plea.
So we went out to the house. We entered the house. And I believe I was the last
person in the house. They looked for the item. No item was found and we left.
....
[The search] didn’t [reveal anything.]
He later testified at Isom’s Rule 37 hearing, stating as follows:
The Court will recall when I asked a question [of Green during this hearing],
the last question I believe I asked was about whether or not he had told anybody these
statements or given any kind of statements about the Isom case to the police. I asked
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falter in light of the fact that his trial counsel was clearly made aware of the other inmates’

alleged knowledge of Green’s statements, as evidenced by the record. During his

postconviction hearing, Isom’s trial counsel recalled and acknowledged receiving, prior to

Isom’s trial, certain letters that “tended to implicate Mr. Green . . . purportedly knowing that

a Jerry Don Avery . . . had confessed to [killing Mr. Burton and assaulting Ms. Lawson].”

Trial counsel further stated that he attempted to speak with Green, but was unable to locate

that to clarify answers he’d given, and his answer was no.
Now, I feel compelled under my ethical duty to inform the Court that I believe
that testimony was false. Now, whether or not he remembers incorrectly or gave a
false statement, I can’t say to the Court. But the events that are somewhat depicted
in one of those letters were some truth in that Mr. Green was in court on the day he
was OR’d. He apparently made contact with someone in the state police, either Scott
Woodward or to John Dement. They approached me that day, stated that he had
some information that he wanted to give, but wanted to be OR’d before he would
give that information.
And my response to that was, well, I’m not going to OR anybody until I know
what the information is going to be. So I think what we agreed to do was, is that he
would tell them the information. We would check that information out. If it proved
to be anything that could be useful, then we would agree to OR him.
It is my recollection that either at a lunch break or some other time that
afternoon that day in court he gave some information about where some evidence
might be collected. They got him in the car. Had him go in a car. It is true that I
went with them to this location. . . . I don’t know if we went in one car or two cars.
We went to a trailer house, Your Honor, or my recollection was a trailer
house. The officers went in and searched the trailer house, and I believe recovered a
pair of scissors from that house. We returned back. After they recovered whatever
it was, I went and looked at whatever it was they recovered. Came back, and I believe
he was OR’d.
....
[Green] alleged [the information he had] to be related to this case, that these
scissors could have been the scissors used in the commission of the offense. . . . When
we go back and look at the file, the one documentation that I know that covers these
files, these scissors were sent to the crime lab for testing. . . . And at that time the
testing results showed no evidence of any sort, any relationship to that. I mean, there
was no DNA, no nothing on them to that.
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him. He testified, however, that he neither attempted to find Avery, nor did he talk to the

four inmates who had written the letters. It is clear that trial counsel was well aware of the

existence of Kevin Green and the potential information that he might have possessed, and

counsel could have made use of this information in defending Isom. Further, this court has

already held that Isom did not “show a reasonable probability that but for counsel’s failure to

call Green as a witness at trial, the result would have been different.” Isom v. State, 2010 Ark.

495, at 3, 370 S.W.3d 491, 494.

To the extent that information regarding any alleged scissors might have been

suppressed by the State, the fact that Isom has alleged a Brady violation alone is not sufficient

to provide a basis for error-coram-nobis relief. See Camp v. State, 2012 Ark. 226 (per curiam).

Assuming that the alleged withheld evidence meets the requirements of a Brady violation and

is both material and prejudicial in order to justify issuance of the writ, the withheld material

evidence must also be such as to have prevented rendition of the judgment had it been known

at the time of trial. See id. To merit relief, a petitioner must demonstrate that there is a

reasonable probability that the judgment of conviction would not have been rendered, or

would have been prevented, had the information been disclosed at trial. See id.

In order to carry his burden to show that the writ is warranted, Isom would have to

demonstrate that, had the information been available that scissors containing no DNA were

discovered following a tip by Green, the evidence would have been sufficient to have

prevented rendition of the judgment.2 See, e.g., Echols, 354 Ark. 414, 125 S.W.3d 153. This

2
The majority states that it is not in a position to exalt one version of Spain’s testimony
over the other; but, there is no need to even do so. Neither version renders Isom’s proposed
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he cannot do. As we outlined in Isom’s direct appeal, there was an abundance of evidence to

support his conviction for causing the death of Mr. Burton in the course of committing several

felonies under circumstances manifesting extreme indifference to the value of human life:3

Mrs. Lawson identified him as her attacker in the attempted murder and rapes and as
the person who was physically abusing Mr. Burton. She further testified that Mr. Isom
demanded and received money and her ring, using the threat of the broken scissors.
Her testimony also is sufficient to support a burglary conviction in that she stated that
he pushed his way into Mr. Burton’s trailer home and proceeded to commit rape and
aggravated robbery. And, finally, her in-court identification of Mr. Isom, as well as the
body hair found in her vagina connecting him to the rape, placed him at the scene
where Mr. Burton was murdered. While Mrs. Lawson did not specifically see
Mr. Isom stab Mr. Burton with scissors or beat Mr. Burton with a lamp, she saw Mr.
Isom with the scissors standing on Mr. Burton’s head and then physically lying on top
of him. She also heard his threats. She was then beaten, knocked unconscious, and
choked by Mr. Isom. Mr. Burton’s body was discovered the next morning, and his
death was caused by multiple sharp and blunt force injuries. We conclude that there
was more than sufficient evidence, direct and circumstantial, that Mr. Isom caused the
death of Mr. Burton in the course of committing several felonies under circumstances
manifesting extreme indifference to the value of human life.

Isom, 356 Ark. at 170–71, 148 S.W.3d at 267. In light thereof, it simply does not stand to

reason that the existence of alleged scissors containing no DNA would have been sufficient to

prevent rendition of the judgment. Without any showing of prejudice, Isom has failed to

present a Brady claim having apparent merit.

This court is not required to accept the allegations in a petition for writ of error coram

nobis at face value. See Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Moreover, it is

attack meritorious. Regardless of whether the “evidence withheld” consists of no scissors
having been found or scissors with no DNA having been found, that information, even if
disclosed, simply cannot be said to have prevented the rendition of the judgment against Isom.
3
Isom did not challenge on appeal the sufficiency of his convictions for aggravated
robbery, residential burglary, rape, or attempted capital felony murder. See Isom v. State, 356
Ark. 156, 148 S.W.3d 257 (2004).
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a petitioner’s burden to show that the writ is warranted. See Echols, 354 Ark. 414, 125 S.W.3d

153. This court will not undertake to reinvest jurisdiction in the circuit court just for the

purpose of allowing a petitioner to conduct some sort of fishing expedition. See id. Here,

Isom has simply failed to show that, were we to reinvest, he could meet his burden to

demonstrate that the writ is warranted; consequently, he has not shown that his proposed

attack on the judgment appears meritorious.4 Accordingly, I would deny Isom’s petition to

reinvest jurisdiction in the circuit court to consider a petition for writ of error coram nobis.

HANNAH, C.J., and GOODSON, J., join.

Jenniffer Horan, Federal Defender, by: Julie Vandiver and Scott W. Braden, Ass’t Federal

Defenders, for appellant.

Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.

4
Nor do any of Isom’s other claims for error-coram-nobis relief appear to have merit,
which for the sake of brevity, I will not discuss here in detail. Suffice it to say that each of his
claims fails because either (1) the record demonstrates that the information was known by
Isom’s trial counsel at the time of trial, or (2) the claim lacks factual substantiation. See, e.g.,
Burks v. State, 2013 Ark. 188 (per curiam) (holding that a petitioner must factually substantiate
a claim that information was actually withheld from trial counsel); Howard, 2012 Ark. 177,
403 S.W.3d 38 (holding that issues known at the time of trial and could have been addressed
cannot serve as a basis for error-coram-nobis relief).
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