State v. Kiser

• Decision Date: 13 May 2009
• Docket Number: No. E2005-02406-SC-DDT-DD.,E2005-02406-SC-DDT-DD.
• Citation: 284 S.W.3d 227
• Parties: STATE of Tennessee v. Marlon Duane KISER.
• Court: Tennessee Supreme Court

284 S.W.3d 227

STATE of Tennessee v. Marlon Duane KISER.

No. E2005-02406-SC-DDT-DD.

Supreme Court of Tennessee, at Knoxville.

January 6, 2009 Session.

May 13, 2009.

[284 S.W.3d 233]

Brock Mehler (at trial and on appeal) and Peter D. Heil (on appeal), Nashville, Tennessee; and Ardena J. Garth, District Public Defender; Karla G. Gothard, Executive Assistant Public Defender; Mary Ann Green, Assistant Public Defender; and Hugh J. Moore, Jr., Howell G. Clements, and Cynthia A. LeCroy-Schemel (all at trial), Chattanooga, Tennessee, for the appellant, Marlon Duane Kiser.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor

[284 S.W.3d 234]

General; Mark E. Davidson, Senior Counsel; William H. Cox, District Attorney General; and Barry A. Steelman, Assistant District Attorney, for the appellee, State of Tennessee.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

A jury convicted Defendant, Marlon Duane Kiser, of first degree premeditated murder and two counts of first degree felony murder, all involving the same victim, Hamilton County Deputy Sheriff Donald Bond. The jury subsequently sentenced Defendant to death on each count after finding that the murder was committed against a law enforcement officer engaged in the performance of official duties and Defendant knew or reasonably should have known that the victim was a law enforcement officer engaged in the performance of official duties, Tenn.Code Ann. § 39-13-204(i)(9) (Supp.2001), and after finding that the evidence of this aggravating circumstance outweighed the evidence of mitigating circumstances beyond a reasonable doubt. The Court of Criminal Appeals affirmed the convictions and sentence but remanded the matter for the trial court to merge the convictions and enter a single judgment of conviction for first degree murder.

After the case was docketed in this Court on automatic direct appeal, we entered an order identifying several issues for oral argument.¹ We now hold as follows: (1) Defendant's constitutional rights were not violated by his waiver of his right to present mitigating evidence at sentencing; (2) the State did not exercise its peremptory challenges in an impermissibly discriminatory manner; (3) the trial court did not commit reversible error by refusing to instruct the jury on residual doubt; (4) the trial court did not err by limiting Defendant's proof; (5) the trial court did not err by excluding (a) a telephone call from an unidentified caller claiming that Defendant did not commit the murder or (b) a written note whose author was unidentified; (6) the evidence is sufficient to support the verdicts; (7) the death sentence is valid under this Court's mandatory review pursuant to Tennessee Code Annotated section 39-13-206(c)(1) (2006); and (8) Tennessee's lethal injection protocol is constitutional. We agree with the Court of Criminal Appeals' conclusions with respect to the remaining issues and incorporate the relevant portions of its opinion included in the attached appendix. We affirm the Defendant's convictions and sentence and remand this matter to the trial court for entry of a single judgment of conviction for first degree murder.²

Factual and Procedural History³

In the early morning hours of September 6, 2001, Deputy Sheriff Donald Kenneth Bond, Jr., of the Hamilton County Sheriff's Department was shot to death while on duty patrolling the East Brainerd area of Chattanooga. In October 2001, a Hamilton County grand jury indicted Defendant 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 ordered a special venire, see Tenn.Code Ann. § 20-4-201(2) (Supp. 2008), and a jury was selected in Davidson County, Tennessee. Trial was held in Hamilton County from November 10-20, 2003. At trial, the State sought to prove that Defendant hated the police and, when confronted by an officer while trying to commit another crime, murdered him. The defense sought to show that Defendant was framed in the murder by his friend and housemate, James Michael Chattin.

Guilt-Innocence Phase of Trial

The State's proof showed that, in November 2000, Uncle Charlie's Produce, a fruit stand owned by Charles Sims on Brainerd Road about a mile from Chattin's house, burned down under suspicious circumstances. Several weeks before Bond's murder, Defendant and his friends Mike Chattin and Carl Hankins stopped by Sims' rebuilt fruit stand. Defendant remained in Chattin's truck while Chattin and Hankins spoke with Sims, who told them he suspected that a competitor, the owner of Nunley's fruit stand across the street, had burned down his old stand. When Chattin and Hankins returned to the truck and informed Defendant of Sims' suspicions, Defendant remarked, "we ort [sic] to go up there and kick his [Nunley's] produce around a little bit and turn his tables over and maybe drag him up and down the road." Later that day, Defendant suggested burning Nunley's fruit stand because Defendant thought "an eye for an eye" should apply. According to the State's theory, this encounter caused Defendant to begin planning the arson of the fruit stand.

Defendant had lived with Chattin at Chattin's house on Brainerd Road in Chattanooga until he moved to his girlfriend's house on Gann Road in Hamilton County about six weeks before Bond's murder. On the afternoon of September 5, 2001, after receiving a telephone call from Chattin, Defendant left his girlfriend's house with his MAK-90 semiautomatic assault rifle and a backpack. That evening Defendant, Hankins, and Murphy Cantrelle, another of Chattin's friends, were at Chattin's house. Cantrelle and Hankins left at about 10 to 11 p.m., near the time that Chattin and his girlfriend, Carol Bishop, arrived. Before Hankins departed, Defendant told him that it was time for him to leave, "that there was either things going on or things [Hankins] didn't need to be a part of, that it would be better off if [Hankins] just left." When Chattin and Bishop went to bed around 11:30 p.m., Defendant was still at Chattin's house.

Around 1:30 a.m. on September 6, 2001, Nola Rannigan, who lived in the house next to Nunley's produce stand, noticed a car in the parking lot with its lights on. She later heard "a big bam and then ... several bams after that and then a couple pops." Rannigan looked out the window and saw that the car was still there. About five or seven minutes later she saw a truck with its lights off pull out of the parking lot and slowly proceed west on Brainerd Road. Rannigan saw only one person, the driver, in the truck. When the driver straightened himself up, she could tell that he was "a fairly big man, at least six f[ee]t."

That same morning Deputy Bond was patrolling the East Brainerd Road area in his marked patrol car. When he did not respond to calls from the dispatcher, officers began looking for him. At about 2:30 a.m., Officer Kevin Floyd of the Hamilton County Sheriff's Department found Deputy Bond's body lying in the parking lot at Nunley's fruit stand. Deputy Bond had suffered multiple severe gunshot wounds, seven inflicted with a high-powered large caliber weapon. Two other wounds were consistent with a .40 caliber Glock pistol. The wounds were spread over the victim's body from his mouth and neck to his arms, abdomen, thigh, and knee. The gunshot wound in the victim's mouth occurred while the victim's mouth was partially open, rupturing the victim's lips, and exited the base of the victim's skull. Bond's shirt was open, and the front part of his bulletproof vest and his .40 caliber Glock service weapon were missing. There was no blood on the front of Deputy Bond's shirt in the area where his bulletproof vest would have been, but blood was present on the back panel of the vest. Bond's patrol car was still on the lot, running and with its lights on. Another vehicle, a black Ford truck, was also parked at Nunley's.⁴ Investigating officers noticed the odor of kerosene or gasoline around the produce stand and a greasy film on the Ford's windshield, its hood, the truck's passenger side, and the nearby ground. Analysis of a soil sample taken from underneath the passenger door of the truck revealed the presence of gasoline. Prints from a size 13 shoe were discovered behind the truck. Investigators also found shell casings, cartridge casings, and bullets on the ground at the fruit stand.

Around 4 a.m. Mike Chattin approached a Chattanooga police officer at a convenience store and told him, "My buddy just killed a policeman." Chattin was "extremely upset, shaking all over, [and] trembling." Based on Chattin's information about Defendant, a SWAT team was sent to Chattin's house around 5 o'clock that morning. SWAT team members took positions from which they could observe the back of the house. At least three team members saw Defendant walk out of the house onto the deck and drop several objects off of the deck. About ten or twenty minutes later Defendant came out of the basement and approached his car, where SWAT team members apprehended him. When the officers attempted to handcuff him, Defendant tried to grab an officer's gun, and a fight broke out between Defendant and SWAT team members. Defendant was eventually subdued and taken to the hospital for treatment of injuries suffered during his arrest.

A search of the area below the deck, where the SWAT team members had seen Defendant throw the objects, yielded the front half of Deputy Bond's bulletproof vest and his .40 caliber Glock pistol as well as black sweat pants, a black hooded sweatshirt with a camouflage cape attached by fishing line, a black T-shirt, and a size 13 boot. Inside the open doorway to the basement, officers found Defendant's MAK-90 rifle with two magazines. The gun was ready to fire. In the...