           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE            FILED
                                                    August 15, 1997

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
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                        .




AFFIRMED
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.      Hanley 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

Fairview to Linden.          The Bon Aqua Post Office, where the murder

took place, was one of the stops on Tanner's route.



         In   1982    Timothy     Tanner       married     Beverly      Tanner    and

subsequently the couple had a little girl.                      Marital problems

developed and         the Tanners separated in July of 1990.


                                           2
     During her separation from Tanner, Beverly began dating the

appellant, Bryan R. Hanley, who was an acquaintance from work.

Ms. Tanner filed for divorce in October of 1990 and the divorce

was granted in January of 1991.


     Throughout the separation and 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

Hanley were becoming serious about each other, and particularly

when he realized she would soon be eligible to remarry, he became

increasingly interested in a reconciliation.       At the same time,

Tanner's daughter pressured her mother to reunite the family.

Ultimately, Beverly told Timothy Tanner she would give their

marriage another chance 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

Timothy Tanner 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

Hanley had 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 that Tanner had

tampered with his mail, delaying the receipt of funds against

which Hanley had already written checks.      Hanley was enraged.




                                  3
     In May of 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 May of 1991 that Beverly telephoned Hanley in

an effort to stop him from following Tanner on his postal route.

On three occasions, Hanley 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.

Hanley commented that if he had blasting caps, he would blow up

Tanner's vehicle.     Hanley also remarked to the same friend that

Timothy Tanner 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 he really liked Beverly Tanner and did not like the

fact that Timothy Tanner was interfering in 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,

1991, Hanley told his half-brother, John David Walker, that

Timothy Tanner had been giving him problems and he guessed he was

going to have to kill him.



                                    4
     It was in the late afternoon of June 4 that Hanley flagged

down Walker and solicited his help, supposedly to repair a video

cassette recorder and a television antennae.          After fifteen

minutes of repair work, the two 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."



     Hanley followed 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.



     A couple 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 hydraulic 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 around the hydraulic lift.        The wadding from a shotgun

shell was also left on the ramp.



                                   5
      The mail truck, driven by Hanley, and Hanley's pickup, driven

by Walker, 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 was pulled beneath the

interstate bridge, with Timothy Tanner's body in the back.



      After parking the mail truck, Hanley quickly removed some

mailbags and transferred them and his shotgun to his pickup.

Hanley drove the pickup to a wooded area where he and Walker

hurriedly covered 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 with

pressure hoses.



      Hanley dropped 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 had been observed under the interstate bridge all

night long.    Timothy Tanner's body was found in the back of his

mail truck, and law enforcement, 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 travelled

                                    6
diagonally through his body, back to front and right to left.                  The

path of the pellets was also from down 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 substance used in pellet

form as buffer material in shotgun shells, was found three places:

with Tanner's shirt; in the front passenger 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   that,   when    so

evaluated, it is found to be deficient.



        We hold that federal law controls the assessment of the

adequacy    of   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 appellant frames this

issue in terms of error on the part of the trial judge, the

question of whether federal or state law controls, which is

determined by the respective roles and activities of the law

enforcement officers, was never raised at the hearing on the

                                       7
motion to suppress.    The issue raised at that hearing was a very

general attack on the sufficiency of the affidavit underlying the

search warrant.     Even if error had occurred, it should not be

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 employed by the 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

and its contents were incidental to the homicide, and their

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 largely parallel, they were still

independent    investigations      conducted      on    behalf   of    distinct

governments involving violations of different bodies of law.



                                     8
      Moreover,    the   mere   fact       that   officers   of    the   federal

government obtained the physical evidence and delivered it to the

state laboratory for analysis, instead of having time-consuming

and expensive duplicative scientific procedures performed at a

federal laboratory does not mean that the federal investigation

was subsumed into the state investigation and does not transform

the   postal   inspectors   into   mere       agents   for   the     state   law

enforcement officials.      Agents of the two governmental entities

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 test 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 place.     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         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

                                       9
to   credibility      and    reliability.             Probable     cause    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 statement evidence.                Over the appellant's objection,

the State was allowed to introduce, through Michael Lovell,

Deborah Annette 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 testimony before the federal grand jury and at

trial were emphasized.          One of defense counsel's tactics was to

infer that Walker's account of the murder was fabricated to

minimize his culpability and to allow him to bargain with both the

state and federal authorities for leniency in exchange for his

testimony against Hanley.



     It   is   true      that      it    is    generally     not   permissible       to

corroborate 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        faulty

recollection.       In      such    an    instance,     it    is   permissible       to

demonstrate that before the influence was brought to bear, or at

a time when the matter was fresher in the witness' memory, the

                                          10
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. 2d 427, 433, 434 (Tenn. Crim.

App. 1988).



      In this case, Walker had made the challenged statements

before he was charged.       Indeed, 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.          See, 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 construction 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.

                                      11
    In his final issue, the appellant complains that the trial

judge should have granted his motion for mistrial based on what

appellant characterizes as the judge's erroneous comment 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,
            particularly hearsay evidence, and I have
            reference to the testimony that you heard
            recently by Michael Lovell as to the
            statement that John David Walker made to him
            about where he had been and who had done what
            with reference 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." So you
            can consider that part of Mr. Lovell's
            testimony, if you believe his testimony, only
            to the extent that it reinforces the
            credibility of John David Walker, who the
            proof showed had made prior inconsistent
            statements, that is inconsistent with his
            testimony here 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
            actually happened 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
            that tends to be consistent with John David
            Walker's testimony at trial.



     Defense counsel interrupted with an objection and the trial

judge readily acknowledged that he had already realized he had


                                   12
misspoken by characterizing Mrs. Walker's anticipated testimony as

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 the jury 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 first 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
             jury anything that might indicate that the
             judge may think a witness is truthful or
             untruthful of may think that their testimony
             has weight or doesn't have weight.      And I
             hope I haven't said anything that indicated
             that to you.

             I was more careful in dealing with 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 determine 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 handled the situation.

In conducting any jury trial, but especially 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    inevitable    that   mistakes    will    be   made,

particularly     where   circumstances     compel   the   trial   judge   to

extemporaneously explain 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, which the 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. 2nd

                                      13
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   his   convictions    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 NASHVILLE




                                  14
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.




                                  15
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