State v. Kiser, No. E2005-02406-CCA-R3-DD (Tenn. Crim. App. 11/29/2007)
| Decision Date | 29 November 2007 |
| Docket Number | No. E2005-02406-CCA-R3-DD.,E2005-02406-CCA-R3-DD. |
| Parties | STATE OF TENNESSEE v. MARLON DUANE KISER. |
| Court | Tennessee Court of Criminal Appeals |
Brock Mehler (at trial and on appeal) and Peter D. Heil (on appeal), Nashville, Tennessee, and Karla G. Gothard (at trial), Mary Ann Green (at trial), Howell G. Clements (at trial), and Hugh J. Moore (at trial), Chattanooga, Tennessee, for the appellant, Marlon Duane Kiser.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; William H. Cox, District Attorney General; and Barry A. Steelman, Executive Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which Jerry L. Smith and D. Kelly Thomas, Jr., JJ., joined.
Following a change of venire, a Davidson County jury convicted the appellant, Marlon Duane Kiser, in the Hamilton County Criminal Court of first degree premeditated murder and two counts of first degree felony murder. After a sentencing hearing, the jury found that the State had proved the following aggravating circumstance: The murder was committed against a law enforcement officer engaged in the performance of official duties, and the appellant knew or reasonably should have known that such victim was a law enforcement officer engaged in the performance of official duties. See Tenn. Code Ann. § 39-13-204(i)(9). Upon further finding that the aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt, the jury sentenced the appellant to death for each conviction. On appeal, the appellant claims that (1) his right to an impartial jury was violated by the trial court's failure to excuse incompetent jurors for cause; (2) the trial court erred by refusing to excuse for cause jurors who would not consider mitigating evidence; (3) the prosecution used peremptory challenges to excuse jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986); (4) the trial court erred by failing to a hold a pretrial hearing on the admissibility of proposed expert scientific testimony; (5) the evidence is insufficient to support the convictions; (6) the trial court erred by permitting testimony regarding statements made by the appellant regarding his alleged hostility toward police and willingness to kill; (7) the trial court erred by limiting the appellant's proof; (8) the trial court erred by excluding evidence of another person's alleged confession to the victim's murder; (9) the jury instructions on "reasonable doubt" were unconstitutional; (10) the appellant's waiver of rights at the sentencing hearing was unconstitutional; (11) the trial court erroneously denied the appellant's requested instruction on residual doubt; (12) the jury was required to unanimously agree to a life sentence in violation of established case law; (13) Tennessee Rule of Criminal Procedure 12.3(b) violates principles of due process and the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and its progeny; (14) the prosecution is vested with unlimited discretion as to whether to seek the death penalty; (15) the death penalty was imposed in a discriminatory manner; (16) the cumulative effect of the errors at trial violated his due process rights; (17) the statutory capital sentencing scheme in this state fails to articulate or apply meaningful standards for proportionality review in violation of his due process rights; and (18) lethal injection constitutes cruel and unusual punishment and is unconstitutional in this state. Upon review of the record and the parties briefs, we conclude that the appellant is not entitled to relief and affirm the judgments of conviction but remand the case to the trial court in order for the court to enter only one judgment of conviction for first degree murder.
In the early morning hours of September 6, 2001, Officer Donald Kenneth Bond, Jr., of the Hamilton County Sheriff's Department was shot to death while patrolling the East Brainerd area of Chattanooga. In October 2001, a Hamilton County grand jury indicted the appellant for first degree premeditated murder, first degree felony murder in the perpetration of theft, and first degree felony murder in the perpetration of arson. The trial court granted a change of venire, and a jury was selected in Davidson County, Tennessee. Trial was held in Hamilton County from November 10-19, 2003. At trial, the defense sought to show that the appellant was framed in the murder by his friend and roommate, Mike Chattin.
Malcolm Headley testified that he became acquainted with the appellant in 1999 while working as a security guard at Dole Fresh Fruits in Gulf Port, Mississippi. The appellant, a truck driver, was particularly interested in Headley's military background as a sniper in the Marine Corps. At one point, the appellant asked Headley to get the appellant a bulletproof vest. Headley refused but told the appellant where he could purchase one. The appellant also asked if Headley was interested in selling Headley's gun, but Headley declined. Later, Headley decided to buy himself another gun and decided to sell the appellant his old one. Headley identified his old gun, an MAK9-0 semiautomatic assault rifle, as the weapon he sold to the appellant in September 1999. Headley noted that since he had sold the rifle to the appellant, someone had painted it with camouflage colors and had installed a muzzle or "flash suppressor," a device that allowed the weapon to be fired faster and with more accuracy. When Headley sold the gun to the appellant, Headley also purchased one case of Wolf 7.62×39 hollow-point bullets for him.
Headley testified that sometime during 2000, the appellant asked Headley to meet him at a truck stop. Earlier, the appellant had told Headley of some trouble he was having with some law enforcement officers. When they met, Headley asked the appellant if he was headed to court. According to Headley, the appellant replied, "Well, yeah, and if I could kill somebody, I will, even if I have to sneak up on them and do it." Observing Headley's reaction, the appellant said he was "just joking." About a month later, Headley was in the hospital recovering from a broken leg, and the appellant visited him. That was the last time they saw each other.
On cross-examination, Headley testified that the appellant told him that the main reason he wanted to purchase a weapon was to keep it for protection at the home he shared with his mother in Hattiesburg, Mississippi. The appellant told Headley that he planned to teach his mother how to use the weapon because he was often away from home due to his trucking job.
Charles Lamar Sims testified that he owned Uncle Charlie's Produce, a small produce stand on East Brainerd Road in Chattanooga that was located across the street from another fruit stand named Nunley's. Sims' fruit stand was burned down in November 2000. Sims stated that although no charges were brought against anyone, he suspected the owners of Nunley's were responsible for the fire based on their past behavior and the competitiveness between the two fruit stands. Sims rebuilt his stand at the same location after the fire, but he later closed the business for health reasons. He described his fruit stand as clean and organized and said Nunley's looked like a "garbage dump" because bad produce was kept on old boards. Several weeks before the victim was killed, Sims told Mike Chattin that he suspected Nunley was responsible for the fire. Sims said that Nunley's fruit stand also burned down sometime after the victim's death but that Nunley attributed the fire to a kerosene lamp and did not suspect arson.
Carl Hankins testified that he had known the appellant for about three years and met him through their mutual friend, Mike Chattin. Hankins was aware that the appellant had been living at Chattin's house. One day, Hankins, the appellant, and Chattin rode together in Chattin's truck to Uncle Charlie's Produce. Hankins and Chattin got out and spoke with Charlie Sims, who told Chattin that he suspected Nunley had burned down his produce stand. Hankins said that when he and Chattin returned to Chattin's truck, Chattin was mad and related Sims' suspicions to the appellant. The appellant told them that "we ort to go up there and kick his produce around a little bit and turn his tables over and maybe drag him up and down the road." Later, after the group returned to Hankins' house, the appellant talked about retaliating against Nunley for the fire at Uncle Charlie's Produce and suggested burning Nunley's fruit stand under an "eye for an eye" theory of justice. Hankins said he believed the appellant was "just talking." Hankins said their conversation took place a couple of weeks before the victim's death. He said that in the five or six times that he was around the appellant, the appellant told him that he "very much disliked the police department." According to Hankins, the appellant also told him that "he would kill a man before he would ever take a beating like he took before." On the evening of September 5, 2001, Hankins; Chattin; Chattin's girlfriend, Carol Bishop; the appellant; and a man named Murphy were all at Chattin's house. Hankins said that everyone was having a good time and that no one was mad about anything. Hankins said that before he left the house that night, the appellant talked with Chattin over the telephone. The appellant told Hankins that it was time for him to leave and "that there was either things going on or things I didn't need to be a part of, that it would be better off if I just...
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