IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                      AT NASHVILLE
                                            May 15, 2001 Session

                       BRYAN HANLEY v. STATE OF TENNESSEE

                  Appeal as of Right from the Circuit Court for Hickman County
                          No. 98-5053C-I     Timothy L. Easter, Judge



                      No. M2000-02182-CCA-R3-PC - Filed November 16, 2001


The petitioner, Bryan Hanley, was convicted by a jury in the Hickman County Circuit Court of one
count of first degree murder and one count of theft of property over $1000. The petitioner was
sentenced to life imprisonment in the Tennessee Department of Correction for the murder conviction
and to three years incarceration for the theft conviction, with the sentences to run concurrently.
Subsequently, the petitioner filed a post-conviction petition alleging the ineffective assistance of
counsel. The post-conviction court denied the petition and the petitioner appeals. Upon 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 Circuit Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN
EVERETT WILLIAMS, JJ., joined.

Melanie Totty Cagle, Centerville, Tennessee, for the appellant, Bryan Hanley.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Ronald Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                                     OPINION

                                      I. Factual Background
                On November 1, 1994, the petitioner was convicted in the Hickman County Criminal
Court of the first degree murder of Timothy Tanner and of the theft of over $1000 worth of property
from Tanner’s mail truck. At trial, the primary evidence against the petitioner was the testimony of
his co-defendant and half-brother, John David Walker.1 Subsequent to his convictions, the petitioner


         1
         For a full recitation of the facts un derlying the petitione r’s convictions, see Bryan R . Hanley v. State, No.
01C01-9508 -CC-00266, 199 7 WL 469 430, at **1-3 (Tenn. Crim. A pp. at Nashville, August 15, 1997).
filed a pro se post-conviction petition alleging ineffective assistance of counsel and several other
grounds for relief. Upon reviewing the petition, the post-conviction court ruled that ineffective
assistance of counsel was the only viable ground for relief alleged in the petition. Accordingly, the
post-conviction court appointed counsel to represent the petitioner and to file an amended petition
furthering the petitioner’s arguments concerning the ineffectiveness of his trial counsel.

                 On June 15, 2000, a post-conviction hearing was held where the petitioner presented
proof of the ineffective assistance of his trial counsel. The petitioner alleged that his trial counsel,
Dale Quillen, was ineffective on the following grounds: (1) Quillen did not disclose to the petitioner
the full financial relationship between Quillen and Michael Flanagan, the attorney for the petitioner’s
co-defendant, John David Walker, thereby nullifying the petitioner’s waiver of conflict-free counsel;
(2) Quillen and Flanagan engaged in joint representation of the petitioner and Walker to the
detriment of the petitioner; (3) Quillen failed to challenge the factual allegations in the application
for a search warrant and affidavit which led to the presentation of certain scientific evidence at trial;
and (4) Quillen failed to adequately investigate the case prior to trial.

                At the post-conviction hearing, the petitioner testified that, at their initial meeting,
Quillen and Flanagan both came to the Hickman County Jail and spoke with the petitioner and
Walker. They decided that Quillen would represent the petitioner for a fee of twenty-five thousand
dollars ($25,000) and Flanagan would represent Walker for the same amount, for a total of fifty
thousand dollars ($50,000). Additionally, the petitioner adduced proof of Quillen’s representation
of both the petitioner and Walker at the arraignment and the existence of several identical motions
which were filed by Quillen and Flanagan.

               At the initial meeting, Quillen and Flanagan disclosed to the petitioner that Flanagan
was “associated” with Quillen in that they shared office space. Quillen testified that he thoroughly
apprised the petitioner of the potential conflict of interest due to his representation of the petitioner
and Flanagan’s representation of Walker. Quillen maintained that the petitioner was satisfied with
the terms of representation.

               Evidence at the post-conviction hearing revealed that Quillen and Flanagan did indeed
share the same office space, including the same secretary. Additionally, Flanagan explained that he
was an “independent contractor” with Quillen. Quillen paid Flanagan a bi-weekly salary of two
thousand dollars ($2,000) in addition to a bonus of twenty percent (20%) of any fees he earned for
the firm. Nonetheless, both Quillen and Flanagan testified that they did not share any information
regarding the case, specifically noting that Quillen learned from the State, not Flanagan, that Walker
would testify against the petitioner at trial.

                The petitioner also argued that Quillen did not adequately challenge the veracity of
the affidavit underlying the warrant authorizing the authorities to search his truck for evidence of the
crimes. He maintains that several people had informed Postal Inspector William L. Stinson, the
drafter of the affidavit, of the petitioner’s whereabouts between 4:30 p.m. and 7:45 p.m. the night
of the murder; however, in the affidavit, Stinson averred that the petitioner’s whereabouts during that

                                                  -2-
time frame were unknown. The petitioner argues that Quillen was ineffective in not presenting this
evidence to challenge the search warrant.

                Finally, the petitioner complains that Quillen inadequately investigated the case.
Specifically, the petitioner contends that Quillen should have pursued the testimony of William
Wise, a witness who saw someone who did not match the petitioner’s description driving a mail
truck similar to the victim’s near the location where the victim’s body was found. After considering
the proof, the post-conviction court issued an order denying the petition for relief. It is from this
ruling that the petitioner now appeals.

                                            II. Analysis
                In order to be entitled to relief, the petitioner must prove all factual allegations
contained in his post-conviction petition by clear and convincing evidence. Tenn. Code Ann. § 40-
30-210(f) (1997). This court has explained that “[e]vidence is clear and convincing when there is
no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). The post-conviction court must
determine witness credibility as well as the weight and value to be accorded their testimony. Black
v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Accordingly, appellate courts will grant
the findings made by the post-conviction court at a hearing after observing witnesses testify and
considering conflicting testimony the weight of a jury verdict. Bratton v. State, 477 S.W.2d 754,
756 (Tenn. Crim. App. 1971).

                On appeal, this court will review the post-conviction court’s factual findings de novo
with a presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); see also Burns
v. State, 6 S.W.3d 453, 461 (Tenn. 1999). That is to say, we will uphold the post-conviction court’s
factual determinations unless the evidence preponderates against such findings. Fields, 40 S.W.3d
at 458. However, we will conduct a purely de novo review of the post-conviction court’s
“conclusions of law.” Id.

                 In order to demonstrate ineffective assistance of counsel, the petitioner must satisfy
a two-pronged test: first, the petitioner must prove that the performance of counsel was deficient,
and, second, he must prove that such deficiency prejudiced him by creating a reasonable probability
that the result of his trial is unreliable or the proceedings were fundamentally unfair. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). If the petitioner fails to prove one
of the prongs of the test, this court need not analyze further because the petitioner has then not met
his burden. See Burns, 6 S.W.3d at 461. In connection with this issue, we note that this court must
decide whether counsel’s performance was within the range of competence required of attorneys in
criminal cases in evaluating whether or not counsel’s performance was deficient. Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975).

                                       A. Conflict of Interest
               As they are so closely related, we will address together the first two issues presented
by the petitioner. The petitioner essentially argues that Quillen operated as his counsel while

                                                 -3-
laboring under a conflict of interest and did so to the petitioner’s detriment, thereby performing
ineffectively.

                 “Clearly, the right of an accused in a criminal prosecution to conflict-free
representation of counsel is inherent in the Sixth Amendment to the United States Constitution and
Article I, § 9 of the Tennessee Constitution.” State v. John W. Walden, No. 37, 1988 WL 69538,
at *1 (Tenn. Crim. App. at Knoxville, July 8, 1988). However, this court has recognized that “[a]n
actual conflict, rather than the mere possibility, must be established prior to any removal or
withdrawal of counsel.” State v. Parrott, 919 S.W.2d 60, 61 (Tenn. Crim. App. 1995). We note that
“[a]n ‘actual conflict of interest’ usually involves one attorney representing two or more persons
with diverse interests. In essence, it is 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) (citing State v. Tate, 925 S.W.2d 548, 552-553 (Tenn. Crim. App.
1995)); see also Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. 2001). Regardless, “even when a
conflict of interest is created by joint representation, a defendant may waive his right to conflict-free
representation.” State v. Tyrice Porter, No. 11, 1987 WL 18072, at *2 (Tenn. Crim. App. at Jackson,
October 7, 1987). In sum, “a Defendant will not be deprived of his retained counsel of choice in a
situation presenting a conflict of interest where the Defendant knowingly and intelligently affirms
his choice.” Parrott, 919 S.W.2d at 61.

                 The United States Supreme Court has noted “a court confronted with and alerted to
possible conflicts of interest must take adequate steps to ascertain whether the conflicts warrant
separate counsel.” Wheat v. United States, 486 U.S. 153, 160, 108 S. Ct. 1692, 1697 (1988).
Additionally, Tenn. R. Crim. P. 44(c) provides:
                 Whenever two or more defendants have been jointly charged pursuant
                 to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are
                 represented by the same retained or assigned counsel or by retained
                 or assigned counsel who are associated in the practice of law, the
                 court shall promptly inquire with respect to such joint representation
                 and shall personally advise each defendant of the right to the effective
                 assistance of counsel, including separate representation. Unless it
                 appears that there is good cause to believe no conflict of interest is
                 likely to arise, the court shall take such measures as may be
                 appropriate to protect each defendant’s right to counsel.
See also State v. Ray Edward Polk, No. 1194, 1991 WL 188885, at *8 (Tenn. Crim. App. at
Knoxville, September 26, 1991). It is quite clear that Quillen and Flanagan were “associated in the
practice of law” at the time that they represented the petitioner and Walker, respectively. Therefore,
in order to satisfy Tenn. R. Crim. P. 44(c), the trial court must comply with the test adopted in Polk,
No. 1194, 1991 WL 188885, at *9 (alterations in original) (quoting United States v. Garcia, 517 F.2d
272, 278 (5th Cir. 1975):
                 [T]he ... [trial] court should address each defendant personally and
                 forthrightly advise him of the potential dangers of representation by
                 counsel with a conflict of interest. The defendant must be at liberty

                                                   -4-
              to question the [trial] court as to the nature and consequences of his
              legal representation. Most significantly, the court should seek to
              elicit a narrative response from each defendant that he has been
              advised of his right to effective [conflict-free] representation, that he
              understands the details of his attorney's possible conflict of interest
              and the potential perils of such a conflict, that he has discussed the
              matter with his attorney or if he wishes with outside counsel, and that
              he voluntarily waives his Sixth Amendment protections.
See also Howard Clifton Kirby v. State, No. 03C01-9303-CR-00074, 1994 WL 525086, at *6 (Tenn.
Crim. App. at Knoxville, September 28, 1994).

                 The issue of Quillen’s conflict of interest was raised by the State in a disqualification
hearing approximately one year prior to trial. After hearing the proof, then trial judge Cornelia Clark
found that although a potential conflict of interest existed, the co-defendants had executed valid
waivers of their right to conflict-free counsel. Moreover, at the hearing, both the petitioner and
Walker asserted that they had been informed of the dangers of joint representation and wished to
proceed with their chosen counsel. It is clear from the transcript of the disqualification hearing that
the petitioner “was [thoroughly] made aware of the dangers of joint representation, the implications
it held for his plea bargaining position, [and] the straight-jacket into which it thrust his attorney.”
Kirby, No. 03C01-9303-CR-00074, 1994 WL 525086, at *6

              Moreover, in the order denying the State’s motion to disqualify the petitioner’s
counsel, which order was expressly adopted by the post-conviction court in its ruling, Judge Clark
noted that
              [Quillen’s and Flanagan’s] statements in open court indicate . . . that
              they are associated with one another in the practice of law in the same
              firm. Each has been retained to represent co-defendants, who are
              both charged with first degree murder, felony murder, and theft of
              property. The lawyers have further stated in open court that they have
              been sensitive to the potential for conflict of interest since the
              beginning of the representation, have exchanged no information with
              one another, and will continue to exercise independent judgment in
              the representation of their co-defendant clients.
              ...
              In this case, the Court has on two occasions examined the defendants
              under oath in open court about their right to effective assistance of
              counsel, including separate representation. The Court has further
              addressed the defendants concerning the written waivers they have
              executed. Through the course of discussions defendants have been
              made aware of the prospect that the State may be planning to treat
              their cases differently, and may in fact be seeking to bargain with and
              solicit the testimony of one co-defendant against the other as the case
              progresses. It is clear that a potential conflict of interest exists, but all

                                                   -5-
               parties are fully aware of that potential.
               ...
               [B]oth defendants have been fully advised of the consequences [of
               joint representation] by their counsel and by the Court, and the court
               finds that their waivers [of the right to conflict-free counsel] are
               knowing and voluntary.

              Reviewing all of the evidence from the trial and the post-conviction hearing, the post-
conviction court concluded that
               there is very little, if any, additional evidence at this post trial stage
              that supports any more of a conflict exist now than at the time of the
              [order denying the disqualification of petitioner’s counsel]. . . .
              Conflict(s) and all, Mr. Quillen was the petitioner’s counsel of choice
              and the petitioner went into this prosecution with his eyes wide open
              to that fact. The Court should not overrule the informed decision of
              a defendant who knowingly and intelligently waives the conflict and
              agrees to accept the consequences.
              ...
              The conflict of interest was one imposed on Quillen by the petitioner
              and this is not the kind of conflict that would render his
              representation constitutionally infirmed and require relief under the
              Strickland inquiry.

               Furthermore, there is no evidence that even if Quillen had abandoned
               representation of the petitioner that the result of the trial would have
               been different. Indeed it is reasonable to believe that the State would
               still present Walker’s testimony and the jury would have accredited
               his testimony and convicted the petitioner. There is no evidence that
               there is a reasonable probability that but for Quillen’s representation
               that a finder of fact would have had a reasonable doubt regarding the
               petitioner’s guilt.
We find no error in the trial court’s conclusions. We conclude that
               the record [has] establish[ed] by a preponderance of the evidence that
               (a) the trial court advised that defendant of his right to conflict-free
               representation, (b) the defendant was aware of his right to separate
               counsel, (c) the defendant was aware that an actual conflict of interest
               existed, and (d) the defendant realized and appreciated the impact that
               the conflict would have upon his defense if he opted for joint
               representation.
Polk, No. 1194, 1991 WL 188885, at *10. This issue is without merit. See Robert Lloyd Wiggins
v. State, No. 03C01-9605-CC-00191, 1997 WL 124253, at *12 (Tenn. Crim. App. at Knoxville,
March 20, 1997); see also Antonio Chaney v. State, No. 02C01-9807-CR-00223, 1999 WL 504513,
at *2 (Tenn. Crim. App. at Jackson, July 16, 1999).

                                                -6-
                                          B. Search Warrant
                The petitioner also argues that Quillen was ineffective by failing to challenge the
factual allegations in the application for a search warrant and the accompanying affidavit. The
petitioner claims that this failure led to the dismissal of the motion to suppress and, ultimately, to
the presentation of certain scientific evidence at trial. Particularly, the petitioner contends that
Quillen should have argued that, in Inspector Stinson’s affidavit underlying the search warrant,
Inspector Stinson incorrectly noted that the petitioner’s whereabouts between 4:30 p.m. and 7:45
p.m. the day of the murder were unknown. We note that the record reflects that Quillen did
challenge the sufficiency of the search warrant; however, he did not raise the specific facts of which
the petitioner complains.

               On direct appeal, the petitioner raised a complaint as to the sufficiency of the facts
underlying the search warrant. This court concluded that
               [t]he sufficiency of the search warrant is therefore to be determined
               by the federal standard, which is the totality of the circumstances test
               for probable cause.
               ....
               The subject affidavit is detailed and in proper form. It contains a
               thorough chronological account of events and allegations, and an
               explanation of the corroboration 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
               necessary neutral and detached determinations as to credibility and
               reliability. Probable cause is well established.
Bryan R. Hanley v. State, No. 01C01-9508-CC-00266, 1997 WL 469430, at **4-5 (Tenn. Crim.
App. at Nashville, August 15, 1997).

                In light of this determination, we note that the contested portion of the affidavit
constitutes only a small portion of the detailed account underlying the search warrant. Cf. Johnny
Rutherford v. State, No. E1999-00932-CCA-R3-PC, 2000 WL 246411, at **10-11 (Tenn. Crim.
App. at Knoxville, March 6, 2000), perm. to appeal denied, (Tenn. 2000); Brett Allen Patterson v.
State, No. 01C01-9805-CC-00221, 1999 WL 701455, at **7-9 (Tenn. Crim. App. at Nashville,
September 10, 1999). Moreover, we also note that the testimony describing the petitioner’s
whereabouts to Inspector Stinson is somewhat inconsistent. For example, in the deposition of a
former co-employee of the petitioner, Ron Powers, which deposition was admitted into evidence at
the post-conviction hearing, Powers contends that the petitioner did not leave work until 6:00 or 6:30
p.m. on the day of the murder. The petitioner’s father alleged that, on the day of the offense, the
petitioner was at his house at 6:00 p.m. The petitioner’s mother speculated that the petitioner visited
at 5:30 p.m. Therefore, Inspector Stinson’s statement regarding the uncertainty surrounding the
petitioner’s whereabouts during the time frame in question is well-founded. The petitioner has not
demonstrated either a deficiency in Quillen’s performance on this issue or that he experienced a
detriment to his defense as a result of that deficiency. Therefore, this issue is also without merit.

                                                 -7-
                                           C. Investigation
                Finally, the petitioner contends that Quillen was ineffective because he inadequately
investigated the petitioner’s case in the following respects: (1) he failed to locate and interview
William Wise, a person who saw someone driving a mail truck in the area where the victim’s body
was found and who described that person in a manner inconsistent with the petitioner; (2) he failed
to effectively communicate with the petitioner as to the scientific evidence that was provided by the
State; and (3) he failed to interview Walker, the State’s key witness.

                The petitioner maintains that Quillen should have interviewed Wise concerning
Wise’s description of a person driving a mail truck on Bucksnort Road.2 The petitioner contends that
the description indicates that the person described was wearing a disguise and there was no
testimony that the petitioner wore a disguise during the commission of the offense. Accordingly,
the petitioner argues, the jury could have concluded that someone other than the petitioner
committed the charged offenses. Quillen’s son, Kenneth Quillen, did Quillen’s investigative work
on the petitioner’s case. He described Wise’s description as “goofy” and concluded that
interviewing Wise would not have beem helpful. The petitioner claims that the testimony would
have exonerated him. However, the petitioner did not present the testimony of Wise at the post-
conviction hearing. This court may not speculate as to the content of a witness’ testimony. See
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The petitioner has not met his burden
of demonstrating ineffective assistance or prejudice in this instance.

                  The petitioner also argues that Quillen did not adequately review the scientific
evidence with him prior to trial. The petitioner contends that most of the scientific evidence was
inconclusive and did not connect him to the commission of the offense. Regardless of the
petitioner’s contentions, the record reflects that Quillen thoroughly cross-examined Tennessee
Bureau of Investigation forensic scientist Audrey Shaw regarding some of the lab results and
suggested alternatives other than the petitioner’s guilt for the presence of the shotgun buffer material
polypropylene which was found near the victim’s body and in the petitioner’s truck.3 The petitioner
also argues that the lab results of the materials from the crime scene did not reveal the presence of
hairs, fibers, or tire tracks matching the petitioner or his truck, thereby proving that he could not have
been at the scene of the crime. However, Walker testified at trial that, subsequent to the murder and
theft, the petitioner destroyed his tires and bought new ones and the petitioner also pressure cleaned
his truck, thus providing an explanation for the test results. The petitioner has failed to demonstrate
prejudice.

              Finally, the petitioner argues that counsel was ineffective for failing to interview
Walker prior to trial. Flanagan, Walker’s attorney, testified at the post-conviction hearing that

         2
         The proof at the petitioner’s trial indicated that the petitioner drove Tanner’s mail truck to a location not far
from Bucksnort Road and, at that location, abandoned both the truck and Tanner’s body.

         3
             The victim d ied as the result of shotgu n woun ds.

                                                             -8-
Walker would not have talked to Quillen if Quillen had pursued an interview. Moreover, the
petitioner has failed to present specific evidence to establish how interviewing Walker prior to trial
would have changed the proceedings. This court’s opinion on direct appeal notes that, “[i]n his
cross-examination of Walker, appellant’s skilled attorney [Quillen] vigorously challenged the
truthfulness of Walker’s testimony on direct. The inconsistencies between Walker’s testimony
before the federal grand jury and at trial were emphasized.” Hanley, No. 01C01-9508-CC-00266,
1997 WL 469430, at *5. Accordingly, the petitioner has failed to prove that he was prejudiced by
counsel’s failure to interview Walker prior to trial.

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




                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




                                                 -9-
