Jennifer Nelson for www.theindianalawyer.com

A Gary man who shot and killed his wife and her two children at close range will remain on death row, the Indiana Supreme Court concluded Wednesday.

Kevin Charles Isom was convicted of three counts of murder for the 2007 shooting deaths of wife, Cassandra, and his 13-year-old stepdaughter, Ci’Andria Cole, and 16-year-old stepson, Michael Moore. All three victims were shot multiple times with various weapons. The SWAT team responded to the incident and eventually gained entry to Isom’s apartment, finding him in a bedroom with the guns and blood from all three victims on his clothing.

The jury recommended the death penalty and the trial court sentenced Isom to three death sentences to be served consecutively.

In Kevin Charles Isom v. State of Indiana, 45S00-0803-DP-125, Isom appealed, raising several claims, including that certain for-cause challenges of certain jurors should have been granted; his jury instruction on voluntary manslaughter should have been given and allegations of prosecutorial misconduct.

The justices rejected all of his claims, finding no error by the judge to not dismiss certain jurors and the lack of sudden heat to support an instruction on voluntary manslaughter. Comments by the prosecutor during the penalty phase – that Isom failed his wife as a partner and his children as a father – stepped over the line because it is misconduct for a prosecutor to request a jury to return a death penalty for anything other than the mitigating factors are outweighed by the aggravating factor or factors, Justice Robert Rucker wrote. But Isom did not object at trial to the state’s remarks and they do not amount to fundamental error. Any harm done by the remark was minimal and not substantial based on the other evidence, the justices held.

His death sentence is appropriate given the nature of the crimes, but the trial court erred in imposing consecutive life sentences. The death penalty is not a “term of imprisonment” that would allow for the imposition of consecutive sentences, so the trial court exceeded its statutory authority by ordering the death sentences served consecutively, Rucker wrote.

The case is remanded for the trial court to issue a new sentencing order.

Marilyn Odendahl for www.theindianalawyer.com

The city of Fort Wayne will not be able to present evidence at trial that an injured passenger in a traffic accident was not wearing a seatbelt. The Indiana Court of Appeals has ruled that a violation of the state’s Seatbelt Act may not be used to prove contributory negligence.

Katie Parrish was an unrestrained front-seat passenger when the vehicle she was riding in was hit by a Fort Wayne Police Department car. She was thrown from the vehicle and sustained physical injuries.

Two years after the accident, Parrish filed a negligence action against the city. In 2014, prior to trial, she filed a motion in limine seeking to exclude any evidence that she had not been wearing a seatbelt at the time of the accident.

The trial court granted Parrish’s motion and the city filed an interlocutory appeal.

Before the Court of Appeals, the city argued evidence that Parrish was not wearing a seatbelt was admissible to prove her contributory negligence to her injuries. In addition the city asserted Parrish was negligent per se because she violated the duty of care established by the Indiana Seatbelt Act.

Section 7(a) of the Seatbelt Act holds that failure to wear a seatbelt cannot be used to prove the negligence of parties that are subject to the Comparative Fault Act. However, the city argued that because it is not subject to the Comparative Fault Act, it may use the Seatbelt Act to prove Parrish had a statutory duty to wear her seatbelt and, thus, was negligent per se under common law.

The Court of Appeals did not agree in City of Fort Wayne v. Katie Parrish, 02A05-1408-CT-359.

“The Seatbelt Act established a clear mandate from the legislature for passengers in passenger motor vehicles to wear seatbelts, but it also stated that its mandate should not be used to demonstrate fault,” Judge Rudolph Pyle wrote for the court. “While this provision does not apply to the City as it is exempt from the Comparative Fault Act, the Seatbelt Act did not expressly establish that its provisions could be used to establish fault outside of the Comparative Fault Act.”

The appellate court found the Legislature did not alter common law because it has not given a clear mandate that violation of the Seatbelt Act may be used to prove fault. Therefore, Parrish’s failure to restrain herself in the vehicle cannot be used to prove her contributory negligence.