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Kiser v. State

Court of Criminal Appeals of Tennessee, Knoxville

December 21, 2017


          Session April 26, 2017

         Appeal from the Criminal Court for Hamilton County No. 274423 Don W. Poole, Judge

         The Petitioner, Marlon Duane Kiser, appeals the Hamilton County Criminal Court's denial of his petition for post-conviction relief challenging his 2003 first degree murder conviction and resulting death sentence. On appeal, the Petitioner alleges that the post-conviction court should have granted post-conviction relief based upon allegations of the ineffective assistance of counsel during the guilt-innocence phase of the trial, the original trial judge's failure to recuse himself for an inappropriate relationship with a victim-witness coordinator, the perjured testimony of a witness, and newly-discovered evidence raising doubt as to his guilt. Following our review, we affirm the judgment of the post-conviction court.

         Tenn. R. App. P. Appeal as of Right; Judgment of the Criminal Court Affirmed

          Paul Bruno, Nashville, Tennessee, and Luke A. Evans, Murfreesboro, Tennessee, for the appellant, Marlon Duane Kiser.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; and Neil Pinkston, District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.



         Procedural History

         In October 2001, a Hamilton County grand jury indicted the Petitioner for first degree premeditated murder, first degree felony murder committed in the perpetration of a theft, and first degree felony murder committed in the perpetration of an arson involving the September 6, 2001 shooting death of Hamilton County Sheriff's Office Deputy Donald Kenneth Bond, Jr. At the November 2003 trial, the jury convicted the Petitioner of all counts. The jury sentenced the Petitioner to death on each count, finding beyond a reasonable doubt the existence of one aggravating circumstance: that the murder was committed against a law enforcement officer while engaged in the performance of his official duties, Tenn. Code Ann. § 39-13-204(i)(9) (Supp. 2001), and that the aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt. This court affirmed the Petitioner's convictions and sentence on direct appeal but remanded the case to the trial court for the merger of the first degree murder convictions and entry of a single judgment of conviction for first degree murder. State v. Marlon Duane Kiser, No. E2005-02406-CCA-R3-DD, 2007 WL 420793 (Tenn. Crim. App., at Knoxville, Nov. 29, 2007). On May 13, 2009, the Tennessee Supreme Court affirmed the Petitioner's convictions and sentence on automatic direct review. State v. Kiser, 284 S.W.3d 227 (Tenn. 2009).

         On December 28, 2009, the Petitioner filed a timely pro se petition for post-conviction relief. Following the appointment of counsel, the Petitioner filed an amended petition on June 4, 2012.[1] Following the substitution of counsel, the Petitioner filed a second amended petition on June 30, 2014, [2] and a "fourth" amended petition on December 8, 2014.[3] In addition to raising various constitutional challenges to the imposition of the death penalty in this case and to Tennessee's death penalty statute in general, the collective petition includes allegations of ineffective assistance of counsel relating to trial counsel's investigation and presentation of evidence surrounding the Petitioner's claim that another individual, Mike Chattin, shot and killed Deputy Bond; trial counsel's presentation of evidence concerning the Petitioner's alibi; trial counsel's presentation of evidence concerning the handling and presentation of evidence gathered at the crime scene; trial counsel's failure to adequately prepare the Petitioner to testify at trial; trial counsel's failure to challenge prosecutorial misconduct; and trial counsel's failure to present evidence concerning an alleged improper relationship between the trial judge and a victim-witness coordinator employed by the Hamilton County District Attorney General's Office. After a series of evidentiary hearings, the post-conviction court denied relief. The Petitioner filed a timely notice of appeal.

         The Petitioner specifically directed post-conviction counsel not to raise any allegations concerning mitigating circumstances or the sentencing phase of the trial. To this end, the Petitioner refused to certify the first amended petition because the petition contained allegations concerning mitigating circumstances, and he specified in the second amended petition that he did not approve or desire that any mitigation issues be presented in the post-conviction litigation. A competency evaluation determined the Petitioner to be competent to waive the presentation of mitigation issues at the post-conviction proceedings. The post-conviction court also engaged the Petitioner in a colloquy concerning his desire to forgo any post-conviction challenges to the presentation of mitigation evidence or the sentencing phase of the trial.

         Factual Background

         The following is a summary of the evidence presented at the Petitioner's 2003 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 [Mike] 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 Office 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.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 basement the officers also recovered a backpack and other items, including a cellphone. In the backpack they found a spool of fishing line, another magazine of ammunition, and boxes of Wolf ammunition. A bullet hole was discovered on the passenger's side of Chattin's Dodge truck, which was parked at the house. A substance appearing to be blood was observed on the exterior passenger side, the windshield, and the hood of the vehicle.
Forensic testing revealed that nine of the shell casings found at Nunley's stand and bullet fragments recovered from the victim's body had been fired from Defendant's gun. Other casings found at Nunley's produce stand had come from the victim's gun. Gunshot residue was found on Defendant's hands in an amount sufficient to conclude that he had shot a gun. Particles on the sweat pants and sweatshirt found near the deck were consistent with gunshot primer residue. The partial shoe tracks near the Ford truck at the scene were consistent in size, shape and tread design with the sole of the left boot discovered under the deck. Microscopic examination of fibers obtained by vacuuming the victim's patrol car and fibers from the burlap sewn onto the sweatshirt showed that the two were consistent with one another. Fibers microscopically similar to fibers from the sweat pants and T-shirt were found on the interior driver's side of the victim's car. Hairs on the T-shirt, sweat pants and sweatshirt were microscopically similar to Defendant's hair; and Defendant's DNA was found in the waist band of the sweat pants. Gasoline was also present on the clothing. DNA testing established that the blood on Chattin's truck belonged to the victim, Donald Bond.
Mike Chattin testified that Defendant knocked on the door of the bedroom where Chattin and Carol Bishop were sleeping at about 2:30 a.m. and asked to speak with Chattin privately. Chattin followed Defendant to a second bedroom, where Defendant told him that he had borrowed Chattin's Dodge Ram truck and pointed to the bed where Deputy Bond's service weapon, the front of Bond's bulletproof vest, and Defendant's assault rifle were lying. Defendant then announced that he had killed a policeman. Defendant said that he regretted leaving shell casings and not getting an entire bulletproof vest but that the killing had provided him "stress relief." He told Chattin that he had killed fifteen to seventeen other people, two or three of whom were policemen. When the two men heard an ambulance pass by, Defendant chuckled and said, "[i]t ain't going to do them no good, they're too late." Defendant told Chattin he had gone to Nunley's to burn it. When he saw Deputy Bond pull into the parking lot, he crouched behind the truck. When Bond approached, he came out from behind the truck and shot Bond. Defendant told Chattin that he picked up Bond and tried to pull off the vest, which came apart and caused Bond's head to hit the ground. According to Chattin, Defendant had "liked it so much that [he] picked him up and did it again." Defendant offered to give Deputy Bond's gun to Chattin and expressed the need to "get rid of that stuff" but refused Chattin's offer to help him do so.
After going outside to talk with Chattin's neighbor, Pam Treadway, about the police cars rushing to Nunley's produce stand, Defendant asked Chattin to take him back to the crime scene. Chattin refused. Defendant related to Chattin that when Chattin's truck had not started after he shot Bond, he tried to drive away in Bond's patrol car but could not get it into gear. Finally, he started Chattin's truck and drove away. Defendant presented Chattin some tomatoes he had brought from Nunley's as a "present." Defendant said that he would need food and protection and that Charlie Sims should know about what had happened. Chattin explained that Defendant was not excited while telling him about the murder but "was very calm, [and] showed great pleasure."
After hearing Defendant's story, Chattin returned to his bedroom, woke up Bishop, and told her what Defendant had told him. Implementing a plan the two worked out to elude Defendant and escape the house, Chattin told Defendant that he was leaving in his own car to eat breakfast with Bishop who left first in her car around 3:30 a.m. and headed to her own home. Chattin stopped to get gasoline, unsuccessfully tried to contact a friend of his who was a policeman, and stopped again for gas. After checking to see that Bishop was safely at home and trying once again to reach his friend, Chattin called 911, then waited at the convenience store where he encountered the police officer at 4 a.m. Chattin testified that he did not kill Deputy Bond.
The parties stipulated that Defendant had filed a civil rights lawsuit in federal district court in Chattanooga in 1999 seeking monetary damages from three Chattanooga police officers and the City of Chattanooga. This case was set for trial in mid-September 2001. The State presented proof that Malcolm Headley, a friend of Defendant, sold Defendant the MAK-90 assault rifle used to kill the victim. Defendant also asked Headley to sell him a bulletproof vest. Headley refused but told Defendant where he could purchase one. Defendant told Headley that he had had "trouble with some law officers" and "had a lawyer working on it." Defendant said that he was "going to take care of this problem." When Headley asked if Defendant was going to court, Defendant replied, "Well, yeah, and if I could kill somebody, I will, even if I have to sneak up on them and do it." When Headley gave Defendant a "funny" look, Defendant said that he was joking. Carl Hankins testified that Defendant told him when they were talking about the police that Defendant "very much disliked the police department." Defendant also told Hankins that if a police officer tried to take him into custody, Defendant "would kill a man before he would ever take a beating like he took before."
The defense theory at trial was that Chattin was the real killer and had framed Defendant. The proof showed that Chattin owned several guns and that ammunition of the type used in the MAK-90 was found in his house. Chattin also was involved in buying drugs and using methamphetamine. After the murder he had warned persons to whom he had given or sold guns not to let the police know where the weapons had come from. Chattin's wife, Tina Hunt, left him in the spring of 2001 because of physical abuse and his drug use. Sheriff's officers thereafter served a restraining order on Chattin and left a warning at his house when he violated the order by stalking his wife at her work. The defense presented testimony that Chattin thought his wife was dating a policeman and that the police were harassing him. The wife of one of Chattin's drug dealer friends testified that the weekend before September 6, Chattin told her that he wanted to kill somebody or burn something. The defense presented inconsistencies in Chattin's accounts of the circumstances surrounding Defendant's telling him about the killing and Chattin's "escape" from the house afterward. Another of Chattin's acquaintances testified that Defendant had answered the telephone at 1:30 a.m. on the night of the murder when the witness called Chattin's house.
Pam Treadway, Chattin's neighbor, testified that in May 2001, Chattin had asked her to lie to a sheriff's officer who had come to his house looking for him and tell the officer that he was not at home. Later that night Chattin came to Treadway's house, laid some papers and a .9 mm gun on her coffee table, and told her not to touch the gun, that he was going to "kill him a cop." Chattin left the gun with Treadway. Treadway also testified that on the night of the killing she looked through her window and saw Defendant sleeping on the couch in Chattin's living room. Treadway said that she saw Chattin and Bishop leave Chattin's house around midnight September 6 and come back at 12:30 a.m. Chattin then followed Bishop in his car as she drove away in her car. Around 1:30 a.m. she saw Cantrelle leave in Chattin's truck. About 2 a.m. Treadway observed Cantrelle packing garbage bags and "stuff" behind the seat of a Chevette and then drive away. Later that night, as she and Defendant were watching police cars respond to the murder, Defendant, who was dressed in shorts and a top, acted like someone who had just woken up. After the murder, Treadway said, Chattin told her to keep her mouth shut or he would shut it for her; he also threatened to set fire to her house and unscrewed the bulbs out of her security lights.
The defense also presented the testimony of Dr. Marilyn Miller, a professor of forensic science and crime scene investigation. Dr. Miller testified in detail about the shortcomings in the criminal investigation of this case, including inadequate security at the crime scene; the failure to test for fingerprints on the hood of Chattin's truck; and the "meaningless" gunshot residue tests. Dr. Miller also testified that chemical examination of the fibers found in the victim's patrol car disclosed that they had not come from the same source as the burlap fabric sown on the sweatshirt found beneath the deck at Chattin's house.
To raise doubt about Defendant's willingness to commit a murder on the night of September 5th, the defense called the attorney representing Defendant in his federal lawsuit to testify that he and Defendant had an appointment scheduled for 8:30 a.m. on September 6 to discuss a possible settlement of the case. On cross-examination of the attorney, the State introduced Defendant's July 2001 answer to an interrogatory in the case, in which he stated that he had "grown to despise the police" and felt that they were "crooked."
This ended the proof in the guilt/innocence phase of the trial. Following deliberations, the jury returned its verdicts, convicting Defendant of first degree premeditated murder, first degree felony murder committed during the perpetration of arson, and first degree felony murder committed during the perpetration of theft.

State v. Kiser, 284 S.W.3d 227, 234-39 (Tenn. 2009) (footnotes omitted). At sentencing, the Petitioner waived the presentation of any mitigation evidence. Following a jury-out colloquy, "in the presence of the jury, the defense stated that it would present no further evidence." Id. at 241. The State relied upon the evidence presented during the guilt-innocence phase to establish the single aggravating circumstance.

         On direct appeal, relative to the guilt-innocence phase of the trial, the Petitioner alleged that he was denied a fair and impartial jury by the State's exercise of peremptory challenges and by the trial court's refusal to excuse for cause two jurors, that the trial court erroneously denied a pretrial hearing to determine the admissibility of the State's proposed expert testimony, that the evidence was insufficient to support his convictions for first degree murder, that the trial court erroneously admitted the Petitioner's statements to others expressing his hostility toward the police, that the trial court erroneously limited testimony that would have established Chattin's motive to frame the Petitioner (to wit: the Petitioner had an affair with Chattin's wife, Tina) and shown Chattin's animosity toward the police, that the trial court erroneously excluded evidence of an anonymous telephone call to Ardena Garth implicating Chattin and Cantrelle in Deputy Bond's murder, that the trial court erroneously instructed the jury concerning reasonable doubt, and that the trial court committed reversible error in failing to instruct the jury concerning residual doubt.

         Post-Conviction Hearing Testimony

         Mack Donald Heard testified at the post-conviction hearing that he was "assigned to a federal joint drug task force" operating in Chattanooga from 1988 through 2003. He testified that, although he was not on payroll with any law enforcement agency, he received payment for "chasing drug dealers" by locating dealers and performing undercover work that resulted in the arrest and prosecution of several drug dealers in the Chattanooga area. He claimed that he had worked with the drug task force for money, not because he had been arrested on any drug charges. Heard testified that he reported to Tennessee Bureau of Investigation Agent Joe Copeland and that Agent Copeland took part in the surveillance and sting activities in which Heard was involved. Heard stated that he always wore a wire and recording device when participating in actual and potential drug transactions. He also stated that he delivered recordings to Agent Copeland throughout his association with the drug task force.

         In addition to his work with the drug task force, Heard testified that he operated a used car business. Heard said that he first met Mike Chattin sometime from 1994 to 1996 when he purchased a used pick-up truck from Chattin. He acknowledged that he used his interest in purchasing the truck as a means to establish rapport with Chattin in hopes of selling drugs to Chattin in furtherance of his work with the drug task force. Heard said that Chattin never "trusted" him enough to buy drugs from him.

         After Deputy Bond's death, Heard continued to approach Chattin in an effort to engage Chattin in drug transactions. Heard recounted multiple times that Chattin admitted his complicity in the victim's death. Heard testified that during one conversation, Chattin pointed a .9 millimeter handgun at Heard and threatened to "gut [him] like he did the cop if [he] was there to set him up." Heard claimed that Chattin admitted that he stripped off his clothes after shooting Deputy Bond and put the clothing in "that guy's room" - a reference that Heard understood was to the Petitioner. Heard also testified that Chattin told Heard that he and Carol Bishop rode around for a few minutes to "get their story straight" before flagging down a police officer to "play" the shooting on the Petitioner. He recalled Chattin's telling him that he took the victim's vest and gun and left them at his house.

         Heard testified that he did not record all of his conversations with Chattin and that, of the ones recorded, he did not turn all of the recordings over to the drug task force. He recalled "time and time again" telling the drug task force investigators about Chattin's admissions while the Petitioner's case was pending trial. He said that not only was Chattin not investigated for the victim's death, but Chattin was never charged with any drug-related crimes despite participating in at least two drug transactions with Heard. Heard recalled that Agent Copeland told him "not ...

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