Nashville, Tenn. - The Tennessee Supreme Court has upheld the death sentence of Marlon Duane Kiser for the first degree premeditated murder of Hamilton County Deputy Sheriff Donald Bond. Kiser shot Deputy Bond several times with a high-powered assault rifle when Bond interrupted Kiser’s arson attempt of a Chattanooga fruit stand on September 6, 2001.
In a unanimous opinion authored by Justice Cornelia A. Clark, the Court reiterated that a criminal defendant facing the death penalty may waive his or her right to present mitigating evidence so long as the record establishes that the waiver is intelligent, knowing, and voluntary.
During the sentencing phase of his capital trial, Kiser, against the advice of his counsel, waived his right to present mitigating evidence. However, on appeal, he claimed the process for determining the validity of his waiver violated his constitutional rights. He contended that the trial court failed to make adequate inquiry into his competence to waive this right. The Court held that, in the absence of a request, and without adequate proof of a defendant’s incompetence at the time, a trial judge is not required to conduct a competency hearing before allowing a defendant to waive his right to present mitigating evidence.
The defense counsel also argued that the defendant should not be permitted to decide how he wants his sentencing hearing to be conducted. The Court determined, however, that the procedural requirements of State v. Zagorski were still valid and had been met in this case.
"Defendant gave significant thought to his alternatives," Clark wrote. "Defense counsel may disagree with their client…Nevertheless, this court will not deprive a defendant, capital or otherwise, of his or her critical choices with respect to his or her trial."
Kiser also asserted that the prosecution rejected potential jurors based on race. The prosecution exercised nine of its nineteen challenges on minorities.
"The trial court noted that four of the jurors selected to serve were African American, and two of them ‘were the very first ones placed in the jury box,’" Clark wrote.
The jury selected to hear the case ultimately included six minorities. Clark held that the prosecution dismissed jurors based on their personal beliefs about the death penalty, not based on race. Thus, no violation was found.
The Court also rejected all of the other issues raised in Kiser’s automatic appeal. The Court held that the sentence was not imposed arbitrarily, nor was the sentence excessive or
disproportionate. The Court also reaffirmed the constitutionality of Tennessee’s current lethal injection protocol. The Court set Kiser’s execution date at May 19, 2010.