### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Decem ber 10, 200 2 Session STEVE KYGER v. S TATE OF TENNES SEE Appeal from the Circuit Court for Rutherford County No. F-26722 Douglas A. Meyer, Judge, Sitting By Interchange

No. M2002-01449-CCA-R3-PC - Filed May 22, 2003

The Appellant, Steve Kyg er, appeals the dismissal of his petition for post-conviction re lie f by the RutherfordCounty Circuit Court. On December 21, 1987, Kyg er was convicted of first degree murder, armed r obber y, and joyrid ing, and received a sentence of life imprisonment plus thirty -five yearsin the Department of Correction. On appeal, Ky ger challengesthese convictions raising the si ngle issu e of ineffective assistance of counse l. Finding no error, we affirm the judg ment of the post-conviction court.

Tenn. R. App.P. 3; Judg ment of t he Circui t Court A ffirmed. D AV ID G. H AYES , J., delivered the opinion of the court, in which J OHN E VERE TT W I LL IAM S and N ORMA M C G EE O GLE , JJ., joined. Darrell L. Scarle

tt, Murfreesboro, Tennessee, for the Appe llant, Steve Kyg er. Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor General; David H. Fi nd le y, Assistant Attorne y Ge neral; William C. Whitesell, Jr., District Attorney General, for the Appellee, State of Tennessee.

OPINION Procedural History On November 14, 1986, the Appellant and a co-defendant shot and killed Fr ank Robinson during an armed

robbery in the pa

rking lot of the IGA g

rocery store in Murfreesboro. The Appellant was arrested approxima

tely an hour a

nd a half later with in a mile of the scene. On December 21, 1987, a jury found the Appe llant guilty of first deg ree murder, armed robbery , and joyriding. He received a life sentence for

first degree murder, thirty -five ye ars for armed robbery , and three y ears for joyriding. The

Appellant’s convictions were affirmed by this court on direc t appeal

. See State v. Kyger , 787 S.W.2d 13 (Tenn. Crim. App. 1989).1 At tri al, the App ella nt wa s repr esente d by tw o atto rneys. O n app eal, he fa ils to distingu ish betw een his

attorne ys or assi gn the par ticu lar chal leng ed area s of misr epres enta ti on to a sp ecific atto rney. W e treat the App ellant’s cla ims of i nef

fe cti ven ess as a

gen era l c lai m. -2- Examination

of the co nvicting

evidenc e establ

ished the following

facts: As to [the Appe

llant], the evidenc e establ

ished tha t a man fittin g his description shot and robbed the victim and was seen leaving the scene in a red truck. A short distance from where the truck was abandoned, a man fitting [the Appellant’s] description was observed running across a busy

street towards the rear of an apa rtment comp lex; he wore a ski mask. Dark coveralls loaned to [the Appellant] matched those described by witnesses to the shooting and were found where the g unman fled. [The Appellan t] was picked up a short distance from the apartments. His appeara nce was consistent withhaving waded through water and with having worn a jacket and a cap. He was without a coat

despite the cold weather, consistent with his having discarded his outer garme nts. Gun powder residue was found on [ the Appe llant’s] hands, consistent withhis having recent

ly (normally

within 6 to

8 hours) f

ired a g un. I n our view , this circumst antial ev idence w as sufficient to ide ntify [the Appellant] as the gun man in the offe nses bey ond a rea sonable d

oubt. Id. On January 7, 1993, the Appellant filed a pro se petition for post-conviction relief, which was held in abeyanc e pending the outcome of his federal ha beas corpus petition. On December 31, 2001, an amended petition was filed. A hearing washeld, and on May 16, 2002, the post-c onviction court dismissed the Appellant’s petition. Analysis On appeal, the Appellant asserts that the quality of repre sentation provided by trial counse l fell below the required standard. 1 Specifi ca ll y, the Ap pellant alleges ineffectiveness base d upon trial counsel’s (1) fail

ure to pr operly investig ate and locate the individual who could have provided an alternative explanation for the presence of gunshot residue on his hands and (2) failure to allow the Appellant to demonstrate to the jury that the c overalls located near the scene did not fit him. For the Appellant to succeed on his claim, he bears the burde n of esta blishing the alleg ations se

t forth in his petition by clear

and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997) . Moreover, the Appellant must demon strate th at counse l’ s representation fell below the range of competence demanded

of attorneys in cr

iminal cases. Baxter v . Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland

v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984) , the Appe lla nt must establish (1) deficient

representation and (2) prejudice re sulting from the deficiency . The petitioner is not entitle d to the be

nefit of h indsight , may

not second-gue ss a reasonably based trial strategy , and cannot criticize a sound, but unsuccessful, tactical decision made during the cour se of t he procee ding. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This defe rence t o the-3-

tactical decision s o f trial counsel is dependant upon a showing that the decisions were made after adequate preparation. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). The issues of deficient performance by counsel and possible prej udice to t h e defense are mixed questions of law and fact. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). “[A] trial court’s findings of fact

underlying

a claim of ineffective assistance of counse l are reviewed on appeal under a de novo standar

d, acco mpanied w ith a pre sumptio n that tho se findings are correct unless the preponderance

of the evidence is otherwise.” Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001) (citin g Te nn. R. App. P. 13(d); Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997)). However, conclus ions of law ar e r ev ie we d u nd er a p ur el y de novo standard, with no presumption of correctness. Id. Upon de novo re vi ew , a cc om pa ni ed by a pre sumption that the post-conviction court’s findings are correct, this court must determine whe ther the Appellant received the effective assistance of counsel. A. Gunshot

residue The Appellant first argues that trial counsel failed t o pro perly investig ate the case by not locating t he indiv idual who could have provided an alternative explanation for the pre sence of gunshot residue on the Appellant’s palm. The State’s proof at trial established that gunshot residue was present on the Appellant’s right palm, which could indicate “that the subject c ould

have fired or handled a gun.” At the time of the crimes, the Appe llant, although not employed, w as “hanging around”the co-defendant’s auto body shop, where he assisted in operating a tow truck on occasion. The Appellant testified at the post-conviction hearing that the residue was pre sent, not because he had fired a gun, but because he ha d set off a safety

flare that morning in the

course of towing a van back to the body shop. The Appellant c o nten ds that trial counsel should have located the man whose van he towed and that

this person should hav e been c alled as a witnessat trial to establish this fact. He also asserted that thepresence of the residue on his palm was more c onsistent with handling a gun rather than firing one , a fact which would refute the State’s theory that he was the shooter. Trial counsel testified that a search for the owner of the van

had been conducted but that the claim could not be substantiated. In addition, trial counsel stated that an e xpert on gunshot residue had been contacted and, in his opinion “there was more of a risk that [the Appellant’s] explanation would not hold water than therewas that it would. . . .” Thus, trial counsel made a tactical decision to contradict the State’s proof of the gunpowder residue only through cross-examination of the State’s expert. We find this to be a “ reasonably based trial strategy” and conclude that trial counsel’s performance was not defic ient. In addition, the Appellant’s a rgumen t must fail because he failed to present any proof at the post-conviction hearing other than his own bare allegation that he had opera ted a tow truck

or ignited a flare on the day

in question. When a petitioner clai ms that trial counsel failed to interview or present a witness in support of his defense, the Appellant sho u ld present that witness at the evidentiary

hearing. Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Because the Appellant failed to produce the owne

r of the a

lleged ly d isabled v an or eve

n businessr ec ords-4-

supporting his claim, it would be speculative to conclude that his testimony would have a ffected the outcome of the case. Accordingly , the Appellant’s allegation of defic ient pre -trial in

vestiga tion falls far short of clear and convincing evidence. Accordingly , this issue is without merit. B. Cover

alls At trial, the State introduced a pair of discarded coveralls which were r ecovered in the area where the gunman fled and linked to the App ellant. The Appellant admitted that the coveralls had once belong ed to him bu

t, becau se they

were too small, he hadleft them at the co-defendant’s body shop. Trial counsel refused the Appellant’s request to be a llowed to demonstrate to the jury that the covera lls were too small. This decision was made after trial counsel observed the prosecutor, who was approximately the same size as the Appellant, put the c overalls on with “no problem.” Trial counsel testified that allowing the Appellant to try on the coveralls would create “more of a risk that we would han g [the Ap

pellant] th an it would

bring so me reas onable do ubt b ef ore the jury.”

Trial counsel made the tactical decision to advance a defen se based on misiden

tificatio n, as witne sses to th e crime had testified that the shooter was wearing an army jac

ket and tennis shoes, an d th e Appellant was wearing no jacket a nd boots when he was arrested. The post-conviction court found that trial counsel’s performance in not pe rmitting the Appellant to try on the cov eralls be

fore the jury didnot constitute def

icient pe rforman ce. Thepostconviction court treated trial counsel’s decision as a tactica l one based on the fact that the prosecutor, approxima

tely the same size as the

petitione r, “trie d to put [the coveralls] on and had no problem,” and on the pet

itioner’ s own admis sion that th e bottom pa

rt of the c overall s fit him

and the ti ghtness didnot stop him f

rom wear ing the g arment w iththe arms tied around his waist. We conclude that the proof does not pr

eponder ate ag ainst this f

inding. A

ccordin gly , this issue

is without me

rit.

CONCLUSION Based upon the foregoing, we conc lude that the Appellant was afforde d th e effective assistance of

co un se l. Ac co rd in gl y, we affirm the dismissal of his petition for post-convictionrelief.

___________________________________ DAVID G. HAYES, JUDGE