         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 December 10, 2002 Session

                     STEVE KYGER v. STATE OF TENNESSEE

                   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 Kyger, appeals the dismissal of his petition for post-conviction relief by the
Rutherford County Circuit Court. On December 21, 1987, Kyger was convicted of first degree
murder, armed robbery, and joyriding, and received a sentence of life imprisonment plus thirty-five
years in the Department of Correction. On appeal, Kyger challenges these convictions raising the
single issue of ineffective assistance of counsel. Finding no error, we affirm the judgment of the
post-conviction court.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE , JJ., joined.

Darrell L. Scarlett, Murfreesboro, Tennessee, for the Appellant, Steve Kyger.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H.
Findley, Assistant Attorney General; 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 Frank Robinson
during an armed robbery in the parking lot of the IGA grocery store in Murfreesboro. The Appellant
was arrested approximately an hour and a half later within a mile of the scene. On December 21,
1987, a jury found the Appellant guilty of first degree murder, armed robbery, and joyriding. He
received a life sentence for first degree murder, thirty-five years for armed robbery, and three years
for joyriding. The Appellant’s convictions were affirmed by this court on direct appeal. See State
v. Kyger, 787 S.W.2d 13 (Tenn. Crim. App. 1989).
          Examination of the convicting evidence established the following facts:
         As to [the Appellant], the evidence established that a man fitting 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 apartment complex; he
         wore a ski mask. Dark coveralls loaned to [the Appellant] matched those described
         by witnesses to the shooting and were found where the gunman fled. [The Appellant]
         was picked up a short distance from the apartments. His appearance was consistent
         with having 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
         garments. Gun powder residue was found on [the Appellant’s] hands, consistent
         with his having recently (normally within 6 to 8 hours) fired a gun. In our view, this
         circumstantial evidence was sufficient to identify [the Appellant] as the gunman in
         the offenses beyond a reasonable doubt.

Id.

        On January 7, 1993, the Appellant filed a pro se petition for post-conviction relief, which was
held in abeyance pending the outcome of his federal habeas corpus petition. On December 31, 2001,
an amended petition was filed. A hearing was held, and on May 16, 2002, the post-conviction court
dismissed the Appellant’s petition.

                                                        Analysis

         On appeal, the Appellant asserts that the quality of representation provided by trial counsel
fell below the required standard.1 Specifically, the Appellant alleges ineffectiveness based upon trial
counsel’s (1) failure to properly investigate 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 coveralls located near the scene did not fit him. For the
Appellant to succeed on his claim, he bears the burden of establishing the allegations set forth in his
petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). Moreover, the
Appellant must demonstrate that counsel’s representation fell below the range of competence
demanded of attorneys in criminal 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 Appellant must
establish (1) deficient representation and (2) prejudice resulting from the deficiency. The petitioner
is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy, and
cannot criticize a sound, but unsuccessful, tactical decision made during the course of the
proceeding. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This deference to the



         1
           At trial, the Appellant was represented by two attorneys. O n app eal, he fails to distingu ish between his
attorne ys or assign the particular challenged areas of misrepresentation to a specific attorney. W e treat the App ellant’s
claims of ineffectiveness as a general claim.

                                                            -2-
tactical decisions of 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 prejudice to the 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 counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citing Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However,
conclusions of law are reviewed under a purely de novo standard, with no presumption of
correctness. Id. Upon de novo review, accompanied by a presumption that the post-conviction
court’s findings are correct, this court must determine whether the Appellant received the effective
assistance of counsel.

       A. Gunshot residue

        The Appellant first argues that trial counsel failed to properly investigate the case by not
locating the individual who could have provided an alternative explanation for the presence 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 could have fired
or handled a gun.” At the time of the crimes, the Appellant, although not employed, was “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 present, not because he
had fired a gun, but because he had set off a safety flare that morning in the course of towing a van
back to the body shop. The Appellant contends that trial counsel should have located the man
whose van he towed and that this person should have been called as a witness at trial to establish this
fact. He also asserted that the presence of the residue on his palm was more consistent 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 expert 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 there was 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 deficient.

        In addition, the Appellant’s argument must fail because he failed to present any proof at the
post-conviction hearing other than his own bare allegation that he had operated a tow truck or ignited
a flare on the day in question. When a petitioner claims that trial counsel failed to interview or
present a witness in support of his defense, the Appellant should 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 owner of the allegedly disabled van or even business records


                                                 -3-
supporting his claim, it would be speculative to conclude that his testimony would have affected the
outcome of the case. Accordingly, the Appellant’s allegation of deficient pre-trial investigation falls
far short of clear and convincing evidence. Accordingly, this issue is without merit.

        B. Coveralls

       At trial, the State introduced a pair of discarded coveralls which were recovered in the area
where the gunman fled and linked to the Appellant. The Appellant admitted that the coveralls had
once belonged to him but, because they were too small, he had left them at the co-defendant’s body
shop. Trial counsel refused the Appellant’s request to be allowed to demonstrate to the jury that the
coveralls were too small. This decision was made after trial counsel observed the prosecutor, who
was approximately the same size as the Appellant, put the coveralls 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 hang [the Appellant] than it would bring some reasonable doubt before the jury.” Trial
counsel made the tactical decision to advance a defense based on misidentification, as witnesses to
the crime had testified that the shooter was wearing an army jacket and tennis shoes, and the
Appellant was wearing no jacket and boots when he was arrested.

        The post-conviction court found that trial counsel’s performance in not permitting the
Appellant to try on the coveralls before the jury did not constitute deficient performance. The post-
conviction court treated trial counsel’s decision as a tactical one based on the fact that the prosecutor,
approximately the same size as the petitioner, “tried to put [the coveralls] on and had no problem,”
and on the petitioner’s own admission that the bottom part of the coveralls fit him and the tightness
did not stop him from wearing the garment with the arms tied around his waist. We conclude that
the proof does not preponderate against this finding. Accordingly, this issue is without merit.


                                           CONCLUSION

        Based upon the foregoing, we conclude that the Appellant was afforded the effective
assistance of counsel. Accordingly, we affirm the dismissal of his petition for post-conviction relief.




                                                         ___________________________________
                                                         DAVID G. HAYES, JUDGE




                                                   -4-
