# FILED

Au gust 15, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

BRYAN R. HANLEY, ) Petitioner/Appellant ) HICKMAN COUNTY ) ) C.C.A. NO: v. ) 01C01-9508-CC-00266 ) ) HENRY DENMARK BELL STATE OF TENNESSEE, ) JUDGE Appellee ) )

FOR APPELLANT : FOR APPELLEE (STATE) : DALE M. QUILLEN RONALD L. DAVIS Attorney at Law and 95 White Bridge Rd. DEREK K. SMITH Suite 208 Assistant Dist. Attorneys General Nashville, TN 37205 P.O. Box 937 Franklin, TN 37065-0937 JOHN KNOX WALKUP Attorney General and Reporter CHARLOTTE H. RAPPUHN Assistant State Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 LISA A. NAYLOR Legal Assistant Office of State Attorney General

OPINION FILED .

AFFIRMED2

WILLIAM S. RUSSELL, SPECIAL JUDGE OPINION The appellant, Bryan R. Hanley, appeals from his August 12, 1994, convictions by jury verdict of the premeditated first degree murder of Timothy Tanner and the Class D felony grade theft of property. Hanl ey received a life sentence for the murder and a concurrent three year sentence, plus a two thousand dollar fine, for the theft conviction.

In this direct appeal, the appellant challenges the legality of the search warrant; asserts that the trial court erred in allowing the state to introduce proof of prior consistent statements of a state witness; and contends that the trial judge commented on the evidence and should therefore have granted a mistrial. We find no reversible error and affirm the convictions.
Although the sufficiency of the convicting evidence has not been challenged, a summary of the State's proof is provided to facilitate an understanding of the case under review.
Timothy Tanner, the murder victim, was a young man employed
as a driver by Sayl-Co, a Dickson, Tennessee company which contracted with the United States Postal Service to pick up and deliver mail on a designated route. In mid-1991, Tanner's job was to drive a mail truck to half a dozen post offices situated from Fairvi ew to Linden. The Bon Aqua Post Office, where the murder took place, was one of the stops on Tanner's route.

In 1 982 T imothy Tanner married Beverly Tanner and subsequ ently the couple had a little girl. Marital problems developed and the Tanners separated in July of 1990.3 During her separation from Tanner, Beverly began dating the appellant, Bryan R. Hanley, who was an acquaintance from w ork . Ms. Tanner filed for divorce in October of 1990 and the divo rce was granted in January of 1991. Throughout the separati on an d after the divorce, Beverly Tanner continued to see both Timothy Tanner and Bryan Hanley. Each man was aware of the other's relationship with Beverly.

It was Beverly's perception that when Tanner saw that she and Hanleywere becoming s erio us about each other, and particularly when he realized she would soon be eligible to remarry, he became increasin glyin terested in a reconciliation. At the same time, Tanner's daughter pressured her mother to reun ite the family. Ultimately, Beverly told Timothy Tanner she would give their marriage another chan ce if he would agree to obtain counseling. Tanner began counseling sessions and Beverly, in turn, terminated her relationship with Bryan Hanley.
During this domestic transition, animosity developed between TimothyTanner and Bryan Hanley. The level of Hanley's hostility increased as Beverly and Tanner resumed a social relationship and began discussing remarriage.

On at least two occasions prior to Tanner's death, he and Hanleyhad confrontations when Hanley would show up at a post office where Tanner was working. The second encounter became heated.

In April of 1991, Hanley became convinced th at Tanner had tampered with his mail, delaying the receipt of funds against which Hanley had already written checks. Hanley was enraged.4 In Mayof 1991, Bryan Hanley reported to Beverly that he had
seen the Tanner family at WalMart, and that Timothy had given him
a "shitty" smile because he [Tanner] had won the battle for Beverly's affections. On that occasion, Hanley followed the Tanners home.

It was also in Mayof 1991 that Beverly telephoned Hanley in an effort to stop him from following Tanner on his postal route. On three occasio ns, H anley had pulled out of the parking lot of Rubee's bar, pulling behind Tanner's mail truck and following him. Around May of 1991, a friend of Hanley's observed that Hanley possessed a written chart of the locations and arrival times on Tanner's route.
It was also around May of 1991, when Hanley, visibly upset, remarked to a friend that he was having problems in his relationship with Beverly because Timothy Tanner was around a lot. Hanleycommented that if he had blasting caps, he wo uld b low up Tanner's vehicle. Hanley also remarked to the same friend that TimothyTanner must have been running late on his route on a given day, because "someone had missed him" by only five minutes.
Finally, around May of 1991, Hanley, upset, told a different friend that h e rea lly liked Beverly Tanner and did not like the fact that Timothy Tanner was interferi ng i n their relationship. A week or two before Tanner was killed, in speaking to this same friend, Hanley threatened Tanner.
Once or twice before Timothy Tanner was murdered on June 4, 199 1, Hanley told his half-brother, John David Walker, th a t TimothyTanner had been giving him problems and he guessed he was going to have to kill him.5 It was in the late afternoon of June 4 that Hanley flagged down Walker and solicited his help, supposedly to repair a video
ca sset te recorder and a television antennae. After fifteen minutes of repair work, th e tw o went to Rubee's bar and began drinking beer.
Rather abruptly, Hanley purchased a twelve pack of beer "to go" and he and Walker left Rubee's. They pulled out of the parking lot behind the mail truck and Hanley stated, "I'm going to fuck him up."
Hanleyfollowed Tanner's mail truck to the Bon Aqua Post Office. While Tanner pulled around back to the loading dock, Hanley parked out front. Hanley got out of his pickup, pulled a sawed-off shotgun from behind the seat, tucking it down behind his leg, and walked around to the rear of the post office.

Acouple of minutes or so later, Hanley came out from behind the post office driving Tanner's mail truck. Walker followed in Hanley's pickup truck.

It was apparent to the investigating officers that Tanner had been interrupted as he performed his normal job duties. His keys
were left dangling in the back door of the post office where he had activated the hy dra ulic lift. The rolling mail container, still loaded, was outside the partially open door, partway on the lift. When accosted, Tanner had been standing on the lift, above ground level, preparing to load the mail.

Blood and tissue were left in the dock area, on the ramp, and
on and ar ound the hydraulic lift. The wadding from a shotgun shell was also left on the ramp.6 The mail truck, driven by Hanley, and Hanley's pickup, driven byWalker, caravaned from the post office to the Bucksnort Exit off Interstate 40. Hanley led Walker up a dirt road leading to the old rock quarry. The mail truck wa s p ulled beneath the interstate bridge, with Timothy Tanner's body in the back.

After parking the mail truck, Hanley quickly removed some mailbags and trans ferred them and his shotgun to his pickup. Hanley drove the pickup to a wooded area where he and Walker hurriedlycovered the mailbags with leaves in an effort to make the killing look like the by-product of a mail robbery. Back on the road, Hanley instructed Walker on how to dismantle the shotgun, which was then discarded piecemeal. Hanley subsequently altered the tires on his pickup and cleaned his truck wit h pressure hoses.
Hanleydropped his younger half-brother off at a friend's house around 7:00 p.m. that evening. Within minutes, Walker had told his friend what Hanley had done. Meanwhile, around 7:30 p.m. the same day, the abandoned mail truck was noticed, but not reported.

It was just after 2:00 a.m. on June 5 when Tanner and the mail truck were reported as missing to the local sheriff. Later
on the morning of June 5, an employee of a gas station - market off the Bucksnort Exit sent a customer to check out the mail truck, which h ad been observed under the interstate bridge all night long. Timothy Tanner's body was found in the back of his mail truck, and lawenforcement, already searching for the missing man, was summoned.

The subsequent autopsy revealed that Tanner died from a shotgun blast to his chest and neck. The pellets travelled7

diagonallythrough his body, back to front and right to left. The pathof the pellets was also fromdown to up. Tanner was shot in the back as he stood elevated on the lift preparing to load the mail.

White pellets of polypropylene, a substa nce used in pellet formas buffer material in shotgun shells, was found three places: withTanner's shirt; in the front passen ger compartment of the mail truck; and inside the passenger compartment of Hanley's pickup truck. A bloodstain resembling blood spatter was found on the back window of Hanley's pickup. That blood was Type A, which matched that of Tanner.
In the appellant's first issue challenging his convictions, he contends that the trial judge erred in not suppressing the evidence obtained in the search of his pick up truck on the ground that the affidavit utilized to obtain the search warrant did not establish probable cause.
Appellant urges at this level that the search warrant should be evaluated under applicable state law and th at, wh en so evaluated, it is found to be deficient.

We hold that feder al law controls the assessment of the adequacyof the affidavit utilized in obtaining the search warrant. We further find that the affidavit was sufficient to establish probable casue.

It should be noted that although the a ppellant frames this issue in terms of error on the part of the trial judge, the question of whether federal or stat e l aw controls, which is d etermined by the respective roles and activities of t he la w enforcement officers, was ne ver ra ised at the hearing on the8

motion to suppress. The issue raised at that hearing was a very general attack on the sufficiency of the affidavit underlying the searchwarrant. Even if error had occurred, it should n ot b e inferred that the issue raised on appeal was presented to the trial judge and that he made an erroneous decision.

The search warrant in question was obtained by postal inspectors employe d by t he United States government. It was issued by Federal District Judge L. Clure Morton.
The appellant contends that those federal postal inspectors
were mere agents of the State law enforcement officers involved in the homicide and theft investigation and that state law, with its stricter standard for establishing probable cause, applies. The facts do not support appellant's contention.
As is apparent from the relatively detailed factual summary contained hereinbefore, the appellant's criminal conduct violated the laws of two sovereigns, the federal government and the state government. The evidence reveals that the appellant's intention
was to eliminate a romantic rival. The theft of the mail truck
a nd its contents were incidental to the homicide, and th ei r disposition was to delay the detection of the murder and to disguise the true motive and identity of the killer.
Under this set of facts, the federal and state offenses and attendant investigations were obviously interrelated. However, even though the persons, activities, and physical evidence being investigated were the same and the state and federal investigations were therefore largelypar allel, they were still independent investigations conducted on behalf of distinct governments involving violations of different bodies of law.9 Moreover, the mere f act that officers of the federal government obtained the physical evidence and delivered it to the state laboratory for analysis, instead of having time-c onsu ming and expensive duplicative scientific procedures perf o rmed at a federal laboratory does not mean that the fede ral investigation was subsumed into the state investigation and does not transform the post al inspectors into mere agents for the state law enforcement officials. Agents of the two governmental ent ities
can work side-by-side and even share resources without forfeiting independent control and accountability. See , Dillon v. State , 844 S.W. 2d 139 (Tenn. 1992); State v. Hudson , 849 S.W. 2d 309 (Tenn. 1993); State v. Cauley , 863 S.W. 2d 411 (Tenn. 1993).

The sufficiency of the search warrant is therefore to be determined by the federal standard, which is the totality of the circumstances te st for probable cause. Illinois v. Gates , 462 U.S. 213, 103 S.Ct. 2317, 76 L. Ed. 2d 527 (1983). In Gates , the duties of the issuing and the reviewing courts are explained:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular pla ce. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed. 462 U.S. at 238, 239, 103 S.Ct. at 2332

The subject affidavit is detailed and in proper form. It contains a thorough chronological acc o unt of events and allegations, and an explanation of th e corr oboration of many of those points. The sources are sufficiently defined. In summary, it contains ample appropriate information to allow the issuing judge to make the necessaryneutral and detached determinations as10

to credibility and reliability. Probabl e ca use is well established.
Appellant's challenge to the sufficiency of the affidavit is therefore meritless.

The appellant next complains that it was error for the trial court to allow three witnesses for the State to recount prior consistent state ment evidence. Over the appellant's objection, the State was allowed to intr oduce, through Michael Lovell, DeborahAnnette Walker and Ramsey Mosley, evidence that John David Walker made statements to them which were substantially consistent with his testimony at trial.

At the time the corroborative proof was admitted, Walker had already completed his trial testimony. In his cross-examination of Walker, appellant's skilled attorney vigorously challenged the truthfulness of Walker's testimony on direct. The inconsistencies between Walker 's tes timony before the federal grand jury and at trial were emphasized. One of defense counsel's tactics was to infer that Walker's ac count of the murder was fabricated to minimize his culpabilityand to allow him to bargain with both the state and federal authorit ies for leniency in exchange for his testimony against Hanley.

It is true that it is generally not permissible to
corr ob orate any witness with proof of consistent statements. However, there are exceptions to this general rule. One of those is where, as here, it is contended that the witness' testimony derives from recent influence or is based upon f ault y recollection. In such an instance, it is permis sib le to demonstrate that before the influence was brought to bear, or at
a time when the matter was fresher in the witness' memory, th e11

witness had made statements consistent with the ultimate testimony. State v. Meeks , 867 S.W. 2d 361, 374 (Tenn. Crim. App. 1993); State v. Benton , 759 S.W. 2 d 427, 433, 434 (Tenn. Crim. App. 1988).

In this case, Walker had made the challenged statements before he was charged. Indee d, it was apparently the fact that two of the three people he told in turn reported his account of the killing to the sheriff which led to Walker being charged. While it has long been acknowledged that it is sometimes difficult to judge when a witness' motive to misrepresent the facts arose, it is clear that at the time Walker made the statements that were consistent with his subsequent trial testimony, he had no direct
or immediate pressure to lie. S ee , Legere v. State , 111 Tenn. 368, 374, 77 S.W. 1059 (1903).

Under the circumstances, we find that the trial judge did not
err in allowing Walker's prior consistent statements to be admitted into evidence.
In conjunction with this issue, the appellant contends that Sutton v. State , 291 S.W. 1069, 1070 (Tenn. 1927) and State v . Jones , 385 S.W. 2d 80, 85 (Tenn. 1964) stand for the proposition that the exception to the rule against admissibility of prior consistent statements cannot be invoked if the party whose witness' credibility requires shoring up has itself challenged the witness' credibility. This argument is based on the language that "the exception is applied when the attack upon the testimony of the witness has been made in the form of cross-examination only ." (emphasis added). Appellant's construc tion of the holding is
erroneous. The relied-upon language means that there need be no impeachment of the witness above and beyond cross-examination to trigger application of the exception.12 In his final i ssue, the appellant complains that the trial judge should have granted his motion for mistrial based on what appellant characterizes as the judge's erroneous commen t on the evidence.
As mentioned in conjunction with the preceding issue, after Michael Lovell testified as to a prior consistent statement made to him by John David Walker, and before Deborah Annette Walker offered similar testimony, the trial court gave the jury a limiting instruction regarding their consideration of that evidence. Specifically, the trial judge instructed:

Ladies and gentlemen, I'm going to give you a brief lesson in the law of evidence, particularlyhearsay evidence, and I have reference to the testimony that you heard recentlyby Michael Lovell as to the statement that John David Walker made to him about where he had been and who had done what withreference to a killing. Much of what he told his friend, that is, it was a statement made out of court not under oath, not subject to cross examination, by the witness who says, "Somebody told me something. " S o you can consider that part of Mr. Lovell's testimony, if you believe his testimony, only to the extent that it reinforces the credibilityof John David Walker, who the proof showed had made prior inconsistent statements, that is inconsistent with his testi monyh ere today. Under the law of evidence, the state in this case, where their witness has been impeached in that way, can bring in prior consistent statements. But it's for that limited purpose, testing the credibility of John David Walker, particularly, and not for establishing what actuallyhappened at the scene of the killing. The same thing, basically, will apply to this witness' testimony which you're about to hear, it's another statement by this witness th at t ends to be consistent with John David Walker's testimony at trial.
Defense counsel interrupted with an objection and the trial judge readilyac knowledged that he had already realized he had13

misspoken by characterizing Mrs. Walker's anticipated testimonyas corroboration of Mr. Walker's. The trial judge immediately gave the following remedial instruction to the jury:

Ladies and gentlemen, as in every case, you'll be instructed that t he ju ry is the sole and exclusive judge of the credibility of the witnesses and the weight to be given to the testimony of the various witnesses, and a judge, in the fi rst place, has no opinion, is not entitled to have any opinion, and he's forbidden to comment on the evidence, and that means expressing to the juryanything that might indicate that the judge may think a witness is truthful or untruthful of may think that their testimony has weight or d oesn 't have weight. And I hope I haven't said anything that indicated that to you. I was more careful in dealing wi t h Michael Lovell's testimony when I said only if you believe his testimony does it tend to show a prior consistent statement. But that's for you to det ermi ne in his case, and also in this lady's case. If you believe her testimony, then it will have whatever weight you think it has as constituting a prior consistent statement.

We believe the trial judge properly ha ndle d the situation. In conducting any jury trial, but espec ially a lengthy homicide trial, a trial judge is constantly faced with unanticipated issues demanding immediate answers and action on the part of the judge. It is absolutely i nevi table that mistakes will be made, partic ula rlywhere circumstances compel the trial judge to extemporaneouslyexplain a complicated rule of evidence to the jury.

The important thing in our analysis of whether the appellant received a fair trial is whether the mistake was recognized and corrected by the trial court. In this case, the immediate curative instruction, whichthe jury is presumed to have followed, was adequate to counter any previous misstatement on the part of the trial court. See , Monts v. State , 214 Tenn. 171, 379 S.W. 2nd14

34, 42 (1964). See also , generally , Francis v. State , 498 S.W. 2d 107, 113, 114 (Tenn. Crim. App. 1973); State v. Hall , 667 S.W. 2d 507, 509 (Tenn. Crim. App. 1983). Thus, no error occurred. For the foregoing reasons, we conclude that the appellant's challenges to hi s co nvictions are without merit. Those convictions are affirmed.

WILLIAM S. RUSSELL, SPECIAL JUDGE

CONCUR:

DAVID GREENE HAYES, JUDGE

JERRY LYNN SMITH, JUDGE

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE15

BRYAN R. HANLEY, ) Petitioner/Appellant ) HICKMAN COUNTY ) ) C.C.A. NO: v. ) 01C01-9508-CC-00266 ) ) HENRY DENMARK BELL STATE OF TENNESSEE, ) JUDGE Appellee ) )

JUDGMENT
This cause came on to be regularly heard and was taken under advisement. After a full consideration of all of the issues the Court is of the opinion that the judgment against the defendant is without reversible error, and said judgment is affirmed. Costs on appeal are assessed to the appellant. Hayes, J. Smith, J. Russell, Sp. J.16