State v. Kyger

• Decision Date: 27 September 1989
• Docket Number: No. 89-6-III,89-6-III
• Citation: 787 S.W.2d 13
• Court: Tennessee Court of Criminal Appeals
• Parties: STATE of Tennessee, Appellee, v. Steve KYGER and Rondol Hammer, Appellants.

Page 13

787 S.W.2d 13

STATE of Tennessee, Appellee, v. Steve KYGER and Rondol Hammer, Appellants.

No. 89-6-III.

Court of Criminal Appeals of Tennessee at Nashville.

Sept. 27, 1989.

Permission To Appeal Denied by

Supreme Court Feb. 5, 1990.

Richard McGee, Nashville, for Kyger.

Scott Daniel, Murfreesboro, for Hammer.

Charles W. Burson, Atty. Gen. and Reporter, Debra K. Inglis, Asst. Atty. Gen., Nashville, Guy R. Dotson, Dist. Atty. Gen., Murfreesboro, for State of Tenn.

OPINION

WADE, Judge.

The defendants, Rondol Hammer and Steve Kyger, were convicted of first degree murder, armed robbery, and joyriding. Each received sentences of life, 35 years and 3 years, respectively. The 35 year sentences are to run consecutive to the life sentences; the 3 year sentences are concurrent.

In addition to an attack upon the sufficiency of the evidence, the defendants present the following issues on appeal:

(1) whether a change of venue should have been granted;

(2) whether the defendants' trials should have been severed;

(3) whether probable cause existed to arrest Kyger;

(4) whether Kyger's Miranda rights were violated;

(5) whether the police failed to take Kyger before a magistrate without unreasonable delay;

(6) whether certain evidence was properly admitted against Hammer;

(7) whether a photograph of the victim was properly admitted;

(8) whether conduct of the trial court and prosecutor prejudiced Hammer;

(9) whether certain jury instructions were proper; and

(10) whether the jury verdict form was sufficient.

We find no reversible error and affirm the judgment of the trial court.

On November 14, 1986, the victim, Frank Robinson, was shot and killed during an armed robbery in Murfreesboro. As was his custom at 4:30 P.M. on each Friday, Robinson left the IGA grocery he co-owned in order to cash checks at a local bank. Afterwards, he returned to the store with approximately $9,000 in cash.

A red truck with a camper top, later determined to be stolen, followed Robinson into his parking lot. Two individuals got out of the truck, drew their guns, and attempted to take the bank bag from the victim. When Robinson resisted, he was shot by the individual who had emerged from the passenger side of the vehicle. The two men then returned to the truck and sped off. Witnesses at the scene described the passenger as a white male approximately 5'7"' to 5'8"' tall and weighing approximately 165 to 170 lbs. He wore a dark army fatigue-type jacket, a dark ski mask and blue jeans. The driver, also a white male, was taller and thinner. His clothing was similar to the passenger's but he wore a looser, sweatsuit-type jacket.

Witnesses saw the getaway truck driven erratically on a street near the scene of the robbery. The vehicle was pulled into a parking lot and the driver and passenger hurriedly jumped out.

Other witnesses saw a bearded white male, similar in description to the passenger of the truck, carrying something in his hand as he ran across Northfield Avenue. Cars slammed on their brakes in order to miss him. The man ran towards a ditch in the back of the Haynes Manor Apartments.

Approximately an hour and a half after the robbery, police observed Kyger enter the PDQ Pizza Store, located within a mile of the murder scene. He had dark hair, a beard, wore a dark shirt, blue jeans, and generally fit the description given of the passenger. Police detected that his blue jeans were soaking wet from the knees down and that his boots were filled with water as if he had recently walked through a stream. Despite a drizzling rain, the rest of his clothing was fairly dry. Kyger's hair was matted and he wore no jacket despite 30 to 40 degree temperatures. He placed an order for a pizza under the name of Hammer.

When asked where he was during the shooting, Kyger stated that he had worked at Hammer's Automotive (owned by his co-defendant and brother-in-law Rondol Hammer) until approximately 4:45 P.M.; afterwards, he walked toward "Bo Hill's house," which he was unable to find. Police first took Kyger to the location of the truck and eventually to the police station. When questioned at the police station, he gave a largely exculpatory statement.

Police found a police scanner in the abandoned truck which they eventually traced to Hammer. His fingerprints were found on both the scanner and the ashtray of the stolen truck. The truck's owner testified that he had never taken the truck to Hammer's or any other garage for repairs.

A pair of dark blue coveralls and a dark ski mask with the price tag still attached were found near a stream behind the Haynes Manor Apartments. The coveralls were identified by Virginia Hulse, a co-worker of Kyger, as a pair she had loaned Kyger while he worked on a car at her home. The defendant had never returned the coveralls, which had Ms. Hulse's name printed on them.

Police conducted two searches of the Hammer residence where both defendants lived. In the second search, an army fatigue type jacket was found in the closet Kyger used. A swab test of Kyger's hands taken during his initial interrogation revealed gunshot residue, consistent with his having fired a gun.

When questioned by police, Hammer denied any knowledge of the red truck. He told police that he and his wife had gone to Taco Bell, University Ford, Stones River Motors and Franklin Nissan on the afternoon of the robbery. He claimed that he bought the scanner at a flea market and that it had been stolen from him some two months before the murder. Hammer admitted that he did not report its theft. Police learned later that Hammer had actually acquired the scanner at an auto parts store. During his interrogation, Hammer said, "I might be up to my neck in it, but I didn't do it."

At trial, Kyger presented no proof.

Hammer's wife testified that she left work at 4:30 P.M., took about 15 to 20 minutes to drive to her husband's shop, and waited there about 10 minutes while he finished his work. Afterwards, the two went to Taco Bell and then to University Ford where they spoke to a car salesman. They drove through the parking lot at Stones River and then traveled about 30 minutes to a Nissan dealer in Franklin. Mrs. Hammer dropped her husband off at his business to pick up his car and returned home; he arrived about five minutes later. The next day Hammer and his wife returned to Franklin Motors and purchased a car they had seen the day before.

The sales manager at Franklin Motors confirmed that he saw the Hammers on the day after the homicide but could not recall their presence on the day of the shooting. The salesman at University Ford claimed to have spoken with the Hammers on either the 14th or 15th of November. He did not, however, have their names on his "up list" (written records of his prospective clients) or remember their names when he was initially questioned by police.

Hammer's other witnesses claimed to have seen a red truck turning into Red Line Foods at 4:30 P.M. and into the Haynes Manor Apartments at 4:55. One witness saw the truck making a U-turn into the apartment complex at about 5:00 P.M. This witness originally described the truck as having a police CB antenna, a license plate containing numbers 36189, and something "greenish" on its rear. None of these descriptions fit the truck used in the robbery.

Another of Hammer's witnesses testified he saw a red Ford truck cut in between his car and that driven by the victim on Northfield Avenue at about 5:00 to 5:15 P.M. He described the two men in the truck as wearing navy or black stocking caps. The driver was tall and skinny with reddish, shoulder length hair. The passenger was "fat and low."

Other witnesses confirmed Hammer's presence at his shop until 4:55 P.M. One witness stated that only a few months before the robbery, he had helped Hammer move a red truck with a camper top which was blocking their way. This evidence was presented in an attempt to explain Hammer's fingerprint in the stolen truck. This truck, however, had a camper that extended over the driver's compartment, while the robbers' truck did not. It was described as "beat up" while the body of the truck used in the robbery was in good condition.

Although the state's proof was entirely circumstantial, a criminal offense may be established exclusively by such evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn.1973). Whether the conviction is based on direct or circumstantial evidence, the standard for appellate review is the same. State v. Brown, 551 S.W.2d 329 (Tenn.1977).

On appeal, the state is entitled to the strongest legitimate view of the evidence, together with all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn.1978). A verdict against the defendant removes the presumption of innocence and raises a presumption of guilt, Anglin v. State, 553 S.W.2d 616, 620 (Tenn.Crim.App.1977), which the defendant has the burden of overcoming. Pennington v. State, 573 S.W.2d 755, 757 (Tenn.Crim.App.1978).

Viewed in this manner, the appropriate standard is whether any rational trier of fact could find the elements of the crime beyond a reasonable doubt. Rule 13(e), Tenn.R.App.P.; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

As to Kyger, 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 Kyger'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 Kyger matched those described by witnesses to the shooting and were found where the gunman fled. Kyger 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...