IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 16, 2004 Session

LINDA JUNE CROSS v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Cumberland County

No. 3187 Leon C. Burns, Jr., Judge

No. E2003-01969-CCA-MR3-PC - Filed May 6, 2005

The petitioner, Linda June Cross, was convicted by a jury in the Cumberland County Criminal Court

of first degree murder. She was sentenced to life imprisonment in the Tennessee Department of

Correction. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that

because her trial counsel had an actual conflict of interest in representing her, counsel was therefore

ineffective. The post-conviction court denied the petition, and the petitioner now appeals. Upon our

review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE,J., delivered the opinion of the court, in which DAVID H.WELLES and DAVID

G. HAYES, JJ., joined.

Ursula Bailey, Knoxville, Tennessee (on appeal) and Kay M. Doyle, Cookeville, Tennessee (at trial),

for the appellant, Linda June Cross.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney

General, William E. Gibson, District AttorneyGeneral; and Benjamin W. Fann and David Patterson,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In 1992, the petitioner was convicted of first degree murder (hereinafter “the murder case”).

After a delayed appeal, this court affirmed the judgment of the trial court. See State v. Linda June

Cross, No. 03C01-9810-CR-00358, 1999 WL 1076958, at *1 (Tenn. Crim. App. at Knoxville, Nov.

30, 1999). 

Subsequently, the petitioner filed a post-conviction petition, alleging that her trial counsel

were ineffective. The petitioner was represented at trial by James Franklin Logan, Jr., and Kenneth
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Lee Miller. The petitioner asserted that because Logan had previously sued her civilly on behalf of

another client, he had an actual conflict of interest in representing her in the murder case. Further,

the petitioner contended that Logan’s conflict tainted Miller’s representation because Miller and

Logan were members of the same law firm and had represented her jointly in the murder case. 

The petitioner’s claims of conflict begin in 1982 when Logan represented Charles “Bubba”

Smith in a civil action against the petitioner to recoup funds stolen by the petitioner (hereinafter “the

civil case”). Logan obtained a default judgment against the petitioner in the amount of $100,000.

Logan testified at the post-conviction hearing that 

we issued an execution, and quite frankly, I didn’t know if [the

petitioner] would ever speak to me again, because we executed our

judgment, and came to her residence at a time in which she was not

expecting an execution, no exemptions had been filed, and we levied

upon all of her personal property.

Nearly contemporaneously with the civil case, a criminal action was instituted against the

petitioner for embezzlement (hereinafter “the embezzlement case”). The petitioner was represented

in the embezzlement case by Miller. The petitioner ultimately pled guilty to embezzlement of an

amount over $200. 

Later, in 1985 or 1986, Smith disappeared and was presumed dead. At the post-conviction

hearing, Logan testified that he did not represent Smith’s estate. Instead, Smith’s surviving spouse

retained attorneys to represent the estate.

In 1989, Miller joined Logan’s law firm. Thereafter, in 1992, the petitioner was charged with

the murder of her ex-husband’s girlfriend. Logan testified at the post-conviction hearing that the

petitioner’s sister and brother-in-law contacted him about representing the petitioner in the murder

case. At the post-conviction hearing, Logan testified that the petitioner knew that he had been the

attorney for Smith. Miller testified that the petitioner knew that he had represented her in the

embezzlement case. Additionally, both attorneys testified that Logan’s previous representation of

Smith did not result in a conflict of interest prohibiting them from representing the petitioner in the

murder case. Counsel asserted that they would have declined to accept the murder case had there

been a conflict of interest. Specifically, Logan stated:

You understand, Ms. Cross was coming to me for representation.

The person who might possibly have had some reason to prevent me

from doing so would have been, in my mind, that if Mrs. Smith, who

at that time had that asset, or would have had that asset, if there were

some benefit.

Miller acknowledged that at the murder trial, evidence was presented that the petitioner had

been indicted on charges of embezzling approximately $3,600 from Smith and that she had paid Joe
 We note that the State argues that the petitioner waived her right to appeal the denial of post-conviction relief. 1

However, the State previously raised this argument before this court in a motion to dismiss, which motion was denied.

We will not now revisit this issue. 

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Norman, a co-defendant in the murder case, approximately $3,500 to commit the murder. However,

Miller noted that he pointed out to the jury that the petitioner actually pled guilty to embezzlement

of an amount over $200, and the actual amount of money taken was not determined. Miller further

explained that the amount of money taken could have been greater or less than the amount for which

the petitioner was indicted and had no relevance to the amount of money paid to Norman.

The petitioner did not testify at the post-conviction hearing.

At the conclusion of the hearing, the post-conviction court found that 

Mr. Logan did not, in my opinion, have a conflict in

representing [the petitioner]. His representation against her had

ceased. Nothing was obtained by him in the representation of his

other clients against her. No information was obtained in any sort of

confidential way. She was aware that he had sued her on behalf of

Charles Smith, and freely then chose to employ him to represent her

in this case. As I said, there’s no information or nothing gained from

her in pursuing that case of action against her that would have in

some way compromised the representation in the criminal case. 

So, one, I don’t see any conflict, and two, there certainly has

been no prejudice shown here in the representation byMr. Logan and

Mr. Miller in the trial of the case or in the appeal. So it would be the

judgment of this Court then, that the petition fails, has no merit, and

should be dismissed. . .

The petitioner now appeals this ruling.1

II. Analysis

To be successful in her claim for post-conviction relief, the petitioner must prove all factual

allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.

Code Ann. § 40-30-110(f) (2003). “‘Clear and convincing evidence means evidence in which there

is no serious or substantial doubt about the correctness of the conclusions drawn from the

evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.

Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses,

the weight and value to be accorded their testimony, and the factual questions raised by the evidence

adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.

State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings
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of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing

that the evidence in the record preponderates against those findings. Id. at 578.

A claim of ineffective assistance of counsel is a mixed question of law and fact. See State

v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of

fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely

de novo. Id. 

“To establish ineffective assistance of counsel, the petitioner bears the burden of proving

both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad

v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court

must determine whether counsel’s performance was within the range of competence required of

attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

The petitioner’s claim of ineffectiveness stems from her assertion that “[a]t the time he

agreed to represent Ms.Cross, AttorneyLogan was actively representing a conflicting interest of Ms.

Cross’.” This court has noted that “[a]n actual conflict of interest is usually defined in the context

of one attorneyrepresenting two or more parties with divergent interests.” State v. Tate, 925 S.W.2d

548, 552 (Tenn. Crim. App. 1995); see also Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. 2001).

Tenn. Sup. Ct. R. 8, DR 5-105 (1992), which was in effect at the time of the murder case,

specifically provides: 

(A) A lawyer shall decline proffered employment if the exercise of

his independent professional judgment in behalf of a client will be or

is likely to be adversely affected by the acceptance of the proffered

employment, or if it would be likely to involve him in representing

differing interests, except to the extent permitted under DR 5-105(C).

(B) A lawyer shall not continue multiple employment if the exercise

of his independent professional judgment in behalf of a client will be

or is likely to be adversely affected by his representation of another

client, or if it would be likely to involve him in representing differing

interests, except to the extend permitted under DR 5-105(C).

(C) In the situations covered [above], a lawyer may represent multiple

clients if it is obvious that he can adequately represent the interest of

each and if each consents to the representation after full disclosure of

the possible effect of such representation on the exercise of his

independent professional judgment on behalf of each.
 “Effective March 1, 2003, the Code of Professional Responsibility was replaced by the Tennessee Rules of 2

Professional Conduct, likewise codified at Tennessee Supreme Court Rule 8.” State v. McCullough, 144 S.W.3d 382,

385 n.1 (Tenn. Crim. App. 2003). New Rule 1.9(a) of the Rules of Professional Conduct provides:

A lawyer who has formerly represented a client in a matter shall not thereafter

represent another person in the same or a substantially related matter in which that

person’s interests are materially adverse to the interests of the former client, unless

the former client consents in writing after consultation.

Tenn. Sup. Ct. R. 8, RPC 1.9(a) (2003).

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See also Tenn. Sup. Ct. R. 8, EC 5-1 (1992) (“The professional judgment of a lawyer should be

exercised, within the bounds of the law, solely for the benefit of his client and free of compromising

influences and loyalties.”). 

2

In sum, an actual conflict of interests exists “where an attorney is placed in a position of

divided loyalties.” Kevin Burns v. State, No. W2000-02871-CCA-R9-PD, 2001 WL 912817, at *4

(Tenn. Crim. App. at Jackson, August 9, 2001). It is unquestioned that “an accused is entitled to

zealous representation by an attorney unfettered by a conflicting interest.” State v. Thompson, 768

S.W.2d 239, 245 (Tenn. 1989). To establish a denial of the Sixth Amendment right to counsel, a

petitioner need show only that an actual conflict existed. Id. Prejudice is presumed to exist when

an attorney represents divergent interests. Id. 

The petitioner contends that Logan had an actual conflict of interest which developed because

Logan had previously represented Smith in a civil lawsuit against the petitioner for embezzling

money from Smith’s business. The petitioner argues that because the State implied at trial that the

money she used to pay Norman for the murder came from the embezzlement, Logan had an actual

conflict and thus should not have represented her. We fail to see how the foregoing facts indicate

that Logan suffered from an actual conflict of interest in representing the petitioner. Logan sued the

petitioner civilly and obtained a default judgment against her. The petitioner was later tried

criminally on embezzlement charges. During the embezzlement case, the petitioner was represented

by Miller. Logan was not involved in the criminal case, but he testified that he monitored the

proceedings because of the civil case. The petitioner ultimately pled guilty to embezzlement. The

petitioner later sought Logan’s representation when she was charged with murder. The petitioner’s

civil case and her murder case did not involve divergent interests. Moreover, as the State noted in

its argument during the post-conviction hearing: 

[T]he best compliment that an attorney can have is that after he tries

a case, that somebody on the jury comes and retains him to represent

them, or the other party comes to him later in a different case and asks

to represent them. And they do, and there’s no conflict. 

Therefore, we conclude that the petitioner has failed to prove that Logan had an actual conflict of

interest in representing her. 
 We note that the “American Bar Association’s Model Rules of Professional Conduct . . . patently rejects the 3

[appearance of impropriety] standard.” Clinard, 46 S.W.3d at 186. Further, Tennessee’s current Rules of Professional

Conduct are patterned after the Model Rules. See State v. Christopher A. Davis, M2001-01866-CCA-R3-DD, 2003 WL

1523277, at *19 n. 3 (Tenn. Crim. App. at Nashville, Mar. 25, 2003), aff’d, 141 S.W.3d 600 (Tenn. 2004). Specifically,

this court has noted that “[n]either Rule 1.10 or 1.11 [of the new model rules] adopts an appearance of impropriety

standard.” State v. Frankie E. Casteel, No. E2003-01563-CCA-R3-CD, 2004 WL 2138334, at *16 (Tenn. Crim. App.

at Knoxville, Sept. 24, 2004), perm. to appeal denied, (Tenn. 2004). However, these rules only apply prospectively “to

any relationship existing on or conduct taken after March 1, 2003.” Id. at *15.

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The petitioner also contends that the post-conviction court “erred by limiting its

determination to the question of actual conflict,” contending that the court should have also

considered the possible appearance of impropriety. Our review of the record reveals that the 3

petitioner consistently maintained that her claim of ineffective assistance was based solely upon her

contention that Logan had an actual conflict of interest. The petitioner never asserted that there was

an appearance of impropriety until she raised the issue before this court. An issue raised for the first

time on appeal is considered waived. See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim.

App. 1996). We conclude that this issue is waived, and we will not address this issue on the merits.

III. Conclusion

Finding no error, we affirm the judgment of the post-conviction court. 

___________________________________ 

NORMA McGEE OGLE, JUDGE