Steve Kyger v. Howard Carlton, Warden

146 F.3d 374
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 20, 1998
Docket96-6651
StatusPublished
Cited by54 cases

This text of 146 F.3d 374 (Steve Kyger v. Howard Carlton, Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Steve Kyger v. Howard Carlton, Warden, 146 F.3d 374 (6th Cir. 1998).

Opinions

BOGGS, J., delivered the opinion of the court, in which KENNEDY, J., joined. MERRITT, J. (pp. 383-384), delivered a separate concurring opinion.

OPINION

BOGGS, Circuit Judge.

Steve Kyger appeals from the district court’s denial of his petition for a writ of habeas corpus. The district court made its decision after a remand from this court, which had vacated a previous denial of habe-as corpus. We now affirm the district court, though we rely on different grounds.

I

A

Around 5:20 p.m., on Friday, November 14, 1986, two men shot and killed Frank Robinson at the IGA grocery store he owned. [376]*376They also robbed him of about $9,000, before speeding away in a truck. The consensus description of the witnesses was that the passenger in the vehicle (the triggerman) was a white male, 5’7” or 5’8” and 165-200 pounds. He was wearing a dark ski mask, blue jeans, and a dark army fatigue jacket. The witnesses saw the robbers pull into a nearby parking lot, abandon their vehicle, and run away.

Other witnesses saw a man similar in description to the triggerman — white and bearded with dark hair, about 5’8”, with a dark jacket and blue jeans — carrying something in his hand, running across a nearby street, and disrupting traffic. He was headed toward a stream behind an apartment building.

About thirty to forty minutes after the robbery occurred, police observed Kyger walking by the side of the road, not far from the crime scene. He generally fit the physical description they had of the triggerman, although the triggerman was reported to have been wearing tennis shoes and an army jacket, and Kyger was wearing boots and no jacket.

Kyger went into PDQ Pizza and a police officer, Sgt. Murdock, followed him in. Although he was not wearing a ski mask, Ky-ger’s hair was matted as if he had been wearing one recently. Kyger inspired suspicion for other reasons. First of all, it was too cold out (around 40 degrees) for a person not to be wearing a jacket. Second, Kyger was soaking wet from the knees down, and his boots were filled with water. There was a slight drizzle outside, to be sure, but the rest of Kyger’s clothes were dry.

Kyger ordered a pizza under the name Hammer, which later proved significant because it was the name of his brother-in-law and alleged accomplice. Murdock began asking Kyger questions about his recent doings and whereabouts. Kyger replied that he had worked at Hammer’s automotive shop until about 4:30 p.m., and then began walking to a friend’s house, which he was unable to find. When asked why he was wet, Kyger replied “[ijt’s been raining.” When asked why he had gone all the way through the rain to PDQ rather than stopping at one of the two pizzerias he passed along his purported route, Kyger said that he preferred PDQ’s pizza.

Sgt. Murdock felt that Kyger was “a prime suspect for further interrogation.” Kyger voluntarily accompanied Murdock to the robbers’ abandoned truck, where another officer asked him some questions (apparently after giving Miranda warnings) before taking him to the police station for more formal questioning. At the outset of the formal questioning, about 7:45 p.m., an officer again read Kyger his Miranda rights and this exchange followed:

OFFICER:.... Steve, do you understand them rights?
KYGER: Yes, sir.
OFFICER: Alright, having them rights in mind; would you answer some of our questions, without an attorney present?
KYGER: I’d just as soon have an attorney [jcause, you know — ya’ll say there’s been a shooting involved and that’s a serious charge.
OFFICER: Yes it is — but we’re investigating. We’re not saying you shot anybody. We’re just investigating. Now, if you’ve got something to hide, I can understand you not wanting to sign that. If you ain’t got nothing to hide, you know, you can answer our questions.
KYGER: I ain’t got nothing to hide.
OFFICER: Okay. But you don’t want to answer our questions without an attorney present now?
KYGER: You know, I’ll answer a certain amount, you know—
OFFICER: Okay, you know — 'well you know you have the right to stop at any time. That’s (inaudible)—
KYGER: Where do I sign at?
OFFICER: Just where it says “sign”—
[377]*377OFFICER: Okay [Kyger then signs].

(JA 80B) (emphasis added).

The interrogation continued, and Kyger was apparently congenial and cooperative. Kyger stated that he had been working at Hammer’s and drinking until 4:45 p.m., at which point he headed toward Bo Hill’s house but got lost. Kyger described the route he took and admitted that he drank a pint of vodka in the hours before he left work. He claimed that he had gotten wet by going “through a yard or two — that’s it.” He denied being at the IGA or in a pickup truck, and he stated that he had not fired a gun that night.

The officers persuaded Kyger to give them his clothes so that they could be taken down to the crime lab — to eliminate Kyger as a suspect, they told him — and to have fingerprints and photographs taken. He also agreed to have a paraffin test (for gunshot-residue detection) performed on his clothes and hands. The interrogation then stopped for a brief period.

It resumed at 11:18 p.m. Kyger was again read his rights, which he said he understood. He then gave his version of events. He said that he had gone to the pizza parlor to “sober [himself] up a bit”; he planned to eat the pizza while walking back up the street, despite the fact that it was drizzling. Kyger explained that he ordered the pizza using Hammer’s name because the latter name was simpler and less likely to cause confusion. He again denied having been at the IGA. He said that he was not wearing a jacket because he “didn’t think it was that cold. It’s about 35 or 40 degrees.” He repeated his story about getting wet by walking through a couple of yards. Finally, he admitted having had “a couple of beers” in addition to his pint of vodka. The second round of questioning took 26 minutes.

B

During their subsequent investigation, police found a pair of dark blue coveralls and a dark ski mask with the price tag still attached, down near the stream toward which the suspects had been seen heading. A coworker of Kyger’s identified the coveralls as ones that she had lent to him. The gunshot residue test performed on Kyger’s hand came up positive.

On November 17, police searched Hammer’s home, where Kyger also lived, and found an army fatigue jacket in Kyger’s closet. While there, they asked Kyger about the coveralls, and he denied owning them. Ky-ger was questioned again on November 19 regarding the coveralls. Officers also talked to Kyger about the coveralls on November 21, and he seems to have been re-read his Miranda rights.

On November 24, police questioned Kyger yet again, purportedly after giving Miranda warnings. He said that he had washed his hands and worn clean clothing when he left work on the day of the murder; that he did not have a pair of dark coveralls; and that he had not fired a gun on the day of the murder.

C

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Bluebook (online)
146 F.3d 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steve-kyger-v-howard-carlton-warden-ca6-1998.