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
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 16