# FILED
December 1, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1998 EMMA JEAN BILBREY, ) C.C.A. NO. 03C01-9711- CR-00498 ) Appe llant, ) ) ) CUMBERLAND COUN TY VS. ) ) HON. JOHN TURNBULL STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF CUMBERLAND COU NTY
FOR THE APPELLANT : FOR THE APPELLEE : STEVEN C. DOUGLAS JOHN KNOX WALKUP P.O. Box 422 Attorney Generaland Reporter Crossvil le, TN 38557-0422 ELLEN H. POLLACK Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 BILL GIBSON Distri ct Attor ney General DAVID PATTERSON Assistant Distri ct Attor ney General 145 S. Jeffer

son Avenue Cookevill e, TN 38501
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defen dant, Em ma Je an Bilbre y, appeal s the trial cou rt’s denial of p ostconvicti on relief pursuant to T ennesse e Rule of Ap pellate Proced ure 3(b). She asserts that her

convicti ons for fi rst degree murder and theft of property less than $500 should be reversed because she received i neffective assistance of counsel at trialin viol ation of h e r Sixth A mendment right to counsel. We affi rm the judgm ent of the tria l court.

The proce dural h istory of Defe ndan t’s case is unu sual. After a f ull day of testimony, the tri al ju dge became ill and was hospital ized; and anot her judge completed the tri al. Defendant was convicted by a jury on June 1, 1991 of first degree murde r and ag gravated robbery. A pan el of this Court rever sed those convicti ons in S t ate v. Bi lbrey , 858 S.W.2d 911 (Tenn. Crim. App. 1993), because the substituted judge had not sufficiently f amil iarized him self with the record to allow him to exercise his function as thirteen th juror.

In additio n, at tha t first trial, D efend ant’s le ad cou nsel, James Jones, beca me ill and was hospita lized for hypertension and early con gestive heart failur e. Hospital r

ecords indi cated heavy al cohol consumption by counsel over the course of t he preceding days . Counsel’s incapacit

y occurred after a lengthy, 14 0-page cross-examination of se vered co-defendant David Harvey, who testifie d forthe State. Asso ciated secon d and third co unsel, i ncluding John Appman, represe nted D efenda nt throug hout the remain der of the trial.1 Defendant filed her original petition on November 11, 1996 and her amended petition on February

8, 1997, after

the effective

date of the change in burden of proof. See Tenn. Code Ann. § 40-30

-201 (Compi ler’s Note

s). -3- Defendant, re presented by Appman, was retri ed in January of 1994; and
a jury conv icted her of fi rst degree murder and theft of propert

y less tha n $500. We affirmed the convicti ons, and the supr eme court denied per mission to app eal. State v. Bil brey , 912 S.W .2d 187 (T enn. C rim. App . 1995), perm. to appeal denied (Tenn. 1995). She now petitions fo r post-conv iction relief based upon four assignm ents of error, allof which, she asserts, constitute i neffective assi stance of counsel prejudici ng her Sixth Amendment rights.

To be entitl ed to post-convicti on relief on the basis of

ineffecti ve assistance of counsel, Defen dant must show that her counsel’s r

epresentati on was “deficient” and tha t “the deficien t perform ance p rejudiced the defen se.” Strickl and v. Washington , 466 U.S . 668, 687 (1984). U nder the fir st prong,
coun sel’s perform ance is n ot defici en t when “the adv ice given, or the serv ices rendered by the attorney, are w ithin t he range of competence demanded of attorneys in criminal cases .” Baxter v. Rose , 523 S.W.2d 930, 936 (Ten n. 1975). The second prong requi res Defen dant to show a reasonable pr obabili ty that

the result of the trial woul d h ave been differ ent but for

the defic ient repr

esentation
. Washington , 466 U.S. at 694. “A rea sona ble pro bability is a probabil ity suf ficien t to underm ine confidence in the outcom e.” Id.

If afforde d a po st-con viction e videntia ry hea ring by the tria l court, a petit ioner

must do more than merely present evi dence tending to s ho w incompetentrepresentat ion and prej udice; she must pr ove her fa ctual al legations by clear and convinci ng evidence. Tenn. Code Ann. § 40-3 0-210(f). 1 When an2 See Spinelli v. U nited States , 393 U.S. 41 0 (1969); Aguilar v. Texas , 378 U.S. 108 (1964); State v. Jacumin , 778 S.W.2d 430 (Tenn. 1989). -4- evidentiary hearing is

held, fi ndings of fact made by that court are conclusi ve and binding on this Court unlessthe evidence preponderatesagainst th em. Cooper v. State , 849 S.W.2d 744, 746 (Tenn. 1993) (cit ing Butler v. Sta te , 789 S.W.2d 898, 89 9 (Ten n. 1990 )).

I. M OTION TO SUPPRESSFRUITS OF S EARCH Defe ndan t’s first issue for revi ew is whether her c ounsel sho uld have moved to suppre ss the fruit s of a search conduc ted on April19, 1990. The search was executed purs uant to a warr ant tha t Defendant contends was insuffi cientto establish probab le cause . S pecif icall y, she assert s that the supporting affidav it sworn by Tennessee Bureau of Investigati on Agent James Moore failedto identify informants from whom information was obtained or vouch fortheir credibi lity. Therefore, she argues, counsel sh ou ld have (1) moved for identif icatio n of the informants, or (2) moved to suppress the evidence obtained from the search
. The trial court did not find i neffective assistance of counsel an d the evidence d oes not preponderate against t hat conclusi on.

Defen dant cites only o ne cas e to supp ort her arg umen t— State v. Lewis , 641 S.W.2d 517 (Tenn. Crim. App. 1982 ). Because Lewis was decided under the rationa le of Aguilar - Spine lli , we assu me sh e conte sts the su fficiency of th e affidav it under what is now the Aguilar- Spine lli - Jacu min line of cases. 2 Such an analysis, in which the affiant mu st establish both (1) th e inform ant’s bas is of3 Or, generall y, an informant with a criminal history or som ething of val ue togain from providing the relevant information. In this circumstance, the information possesses less inherent re liabilit

y and requi res external proof.
4 Although the af fidavi t rec ounts information from as many as eleven unnamed informants, we need not address their reliability under either Jacumin or Melson . We find that this portion of th e affidavit,placing Defendant at the scene of the crime at the approx

imate time the crime

was c ommitt ed, w as sufficien

t to pe rmit the magi strate to fi nd probable cause to search Defendant’s home for evidence

of the robbery

and killi ng. -5- knowledge, and (2) the reliability o f either th e inform ant or th e inform ation, is misplaced here, however , because i t pres umes a confidenti al, cri minal informa nt. 3 Here, rather, we nee d not use the Aguilar
- Spine lli - Ja cum in criteri a because the informant was a private citize n . In his af fidavit, A gent M oore re coun ted, in relevant p art:

One of the persons I interviewed re la ted tha t he sa w Da vid Harveyand a woman with bleached, blond hair in a light blue 1984 Buick Rega l autom obile at a loca tion wh ich is approxim ately twen ty (20) to thirty (30) feet from whe re the bod y was fou nd. I perso nally know that Emma Jean Bilbrey has bleached, bl ond hair and drives a light blu e, Buic k Reg al, whic h is about a 1984 model. This per son told me that he saw them on Apri l 14, 1990 bet ween 10:30 PM and midnightat that lo cation . Furthe rmor e, this p erson report ed this informati on to the l aw enforcementauthorit ies afte r learning t hat the body of U. J. Br

yant had been fo und. He stated that he lived i n the Glade Creek comm unity and was co ncerne d abou t the safety of the citiz ens there. To m y knowledge he has no connect ion with t he family of U. J. Bryant, nor of E mma Jean Bilbrey or D avid Harvey, but he is si mply a concerned pr ivate ci tizen. 4
According to State v. Melson , 6 38 S. W.2d 342 (Tenn. 198 2), t wo categories

of informa nts exist—cit izen informants and criminal info rmants
. Id. at 354. In that case, our supreme court recogni zed tha t inf ormants “‘not from the criminal milieu ’” are m ore inh erently reliable than professional inf ormants—those who receive so me valu e for their info rmation
. Id. at 354-55 (di scussing U nit ed States v. Bell , 457 F.2d 1231, 1 238-39 (5th Cir. 1972 ); United States v. Roll ins , 522 F.2d 160, 164 (2d Cir. 1975) ( both holdi ng that t he Aguilar - Spine lli test-6-

appliesonly to crim inal inform ants)); see State v. Cauley , 863 S.W.2d 411, 417 (Tenn. 1993). Therefore, a lower burden of product ion is required for an affian t who attests

to hearsay i nformation given by a citizen informa nt; the affi ant need not provide fa cts which indicate re liability or credib ility of the inform ant. Id. ; State
v. Dick , 872 S.W .2d 938 , 943 (T enn. Crim. App. 1993) (“The r eliabi lity of the ‘citizen-inform ant’ is judged by a differ ent standard t han that of the typi cal cri minal informant or ‘tipster.’”).

In State v. George , 706 S .W .2d 91 (Ten n. Crim . A pp. 1985), this C ourt explained in greater

detail why citi zen informants are entit led to thi s presumption of reliability: In State v. Melson , our own Supreme Court r ecognized that

a citi zen informer who pro vides inform ation to po lice officers is e nti tl ed to gr eaterbelief in his ver acity and hi s credibi lity than would be a typicalpolice inform er wh o, in some instances, are t hemselves criminals. Such a person acting op enly, in the aid of law enforcementby report ing ev idenc e of a c rime to the po lice, is entitl ed to greater beli ef because he has no personal interest in the defen dant’s arrest, nor does he normall y antici pate any personal benefit i n exchange for hi s informati on. Id. at 93 (cita tion om itted); see State v. S mith , 867 S.W.2d 343, 345-48 (Tenn. Cri m. App. 19 93); State v. Sheila Elai ne Thomas , No. 01C01-9304-CC-00131, 1996 WL 75980, at *10 (Te nn. Crim . App., N ashville, Fe b. 23, 199 6) (“[A]n ordinary citizen is more likely m otivated by a con cern for s ocie ty or h is own safety, thus , the inform ation carrie s an indic ia of reliability.”).

The informant m ay not enjoy this he ightened de gree of reliability, however, unless the fac e of the affidavit fu rnishe s a ba sis— directly o r in ferenti al ly—for presum ing that reliab ility is deserved :-7- It is incumbent , we think, upo n whoe ver seek s a searc h warran t to include i n the affi davit whet her the inf ormational source, named or confid ential, qualifies as a citi zen informant. Otherwise, the issui ng magistrate woul d not know w hich stan dard, Jacu min or Melson , to apply. Whether the affi davit describes the status ofthe so urce directly, by imp lic ation, or by infere nce, is im materia l; it must, however, be apparentbefore the less stringent Melson standard can be use d to test the validity of the the warrant. Smith , 867 S.W .2d at 348 ; see Ca uley , 8 63 S.W .2d at 417 -18; Sheila Elai ne Thomas , 1996 WL 75980, at *10 (“[A]search warrant , based upon a statement of the cit izen informant, is a dequate when the information suppli ed by the a ffidavit intrinsically accredits the inform ant.”).

I n the case before us, Agent Moore attested t hat his informant was a “concerned private citi zen.” In add ition, the age nt certified tha t, to his knowl edge, the informant had no connection with the v ictim, Defendant, or the co-d efenda nt. Finally, Agent Moore relat ed thatthe informant lived i n the community where the
c ri me was committed, was concerned for t he safety of residents

there, and reported his know ledge to la w enforcement off icial s immediately after l earning about the crime. The issuing magist rate possessed ample evidence to determine that Melson was the app ropriate standa rd and th at this informa nt was e ntitled to the pres umptio n of reliability as a private citize n inform ant.
Furthermore, the affi davit does not fail because A gent Moo re didnot name the informant, as D efendant claim s. This issue w as square l y addr esse d in Melson as well: We have n o d iffi culty i n holding t hat the name of t he source is not required, as a matter of law, to be disclosed i n the affi davit. The reliability of the source and the i nformation must be judged from a ll of the circu mstances and from the ent irety of the aff idavit . The name of the source i s only one factor to be considered.5 At the time of th e secon d trial , Harve y’s po st-conv iction proceed ing was

pendin g. -8- 638 S.W .2d at 356 ; see Cauley , 863 S.W .2d at 417 ; Luepto w v. State , 909 S.W.2d 830, 832 ( T enn. Crim. App. 1995) (“[W]hen the informati on is suppli ed by an unnamed citizen inform ant . . . it is presum ed reliable .”); Smith , 867 S.W.2d at 347 (stati ng that “t he nam e of the source need not be disc losed in t he affidavit”).

In this case, Age nt Moor e was not req uired to revea l the na me o f his citiz en informant; and judging t he entiret y of the af

fidavi t, we fi nd thatit in dicates substanti al reliabi lity . According t o the law of

this state, Defendant’s cou nsel had
no duty to challenge t his affidavi t in a motion to suppressor mo tion to discl ose the informa nt. Furthe rmor e, if counsel ha d so move d, Defenda nt would not ha ve been entitled to suppression of the evidence found as aresult of the searc h. This claim ha s no m erit.

II. INTRODUCTI ON OF DAVID HAR VEY’S T ESTIMONY N ext, Defendant a rgues her counselwas ineffective, to her prej udice, when he conc eded that co -defen dant D avid H arvey’s testimony at Defendant’s f irsttrial
was admissible at

her second tr ial. As di scus sed, Harvey testifi ed and was exhau stively cross-examined at the init ial trial of this matt er. The resul ting convicti on wa s reversed, however; and upon Defendant’s second t rial, Harvey refused t o testify, asse rting his Fifth A mend ment p rivilege aga inst selfincrimin a tio n. 5 Defendant now contends that counselwas defici ent when he agreed on direct a ppeal fro m the s econd trial that Harv ey’s testi mony wa s6 The record prov ided to this Court does not reflect w

hether couns

el objected

to admission of the testimony at trial. -9- adm issible as a hearsay excepti on under Tennessee Rule of Evidence 804(b)(1). 6
Tennessee Rule of Evidence 804(b)(1) provides: T he foll owing are not ex cluded by the hearsay rul e if the declarant is unavail able as a witness:

. . . Testi mony given as a wi tness at anot her hearing of the same or a diff

erent proceedi ng or in a depo sition ta ken in compliance wi th law i n the course of the same or another proceeding, if the party against whom the testimonyis now offered had both an opportun ity and a si milar motiv e to d evelop the testimony by

direct, cross, or redirect examination. Tenn. R. Evid. 80 4(b)(1). A declaran t is “unavaila ble” und er the rule if th e witness “[i] s exempted by rul ing of thecourt on thegrounds of privilege f rom testif ying concerning t he subject matter ofthe declarant’s state ment.” Tenn. R. Evid. 804(a)(1).

Defendant does n ot contes t th at Davi d Harvey was “unavailabl e” at the second trialwithin t he mean ing of Rule 804(a)(1). Rather, she asser ts that under Rule 80 4(b)(1), she did not have a “simil ar motive to develop the testimony” by cross -exam ination du ring the first trial. In p articul ar, Defendant argues in her brief:

Did M r. Appma n [lead counselat second tr ial] hav e an oppor tunit y to cr

oss-ex amine Mr . Harvey at the f irst tri al? No. At the second trial ? No. Did he know Mr. Jones [lead counsel at fi rst trial] was sick when he att empted to cross-exam ine Mr. Harvey? No, and by then t he damage was done. Did Mr. Appman have a similar motive to dev

elop the testimony? Ye s and no.-10- With respect to

Defendant ’s f irst question—whether Appman had no opportu nity to cross-examineHarvey at t he first trial , we note that

Rule 804(b)(1) requi res the “pa rty” to ha ve had an op portun ity to dev elop th e testim ony . Regardless of whether Appman or another acted as Defendant’s r epresentative, she de veloped Harvey’s testimon y through cross-e xamina tion.
Further, regarding Defendant’s t hird questi on—whe th er Appman knew Jones was s ick dur ing the cross -exam ination at the firs t tria l, we find that Appm an’s knowle dge of Jo nes’s illnes s is irrelevan t. A ppman ser ved as Defendant ’s “third -chair” representat ive duri ng her fir st tri al. If , as Appman testif ied, the cross-examination of Harvey was defi cient, h e had both an opportunit

y and a duty to cau se it to be concluded, r egardless of

the reason for a ny poor a dvoca cy. Ho weve r, Jone s’s con duct a t the first tria l, in whic h Defe ndan t’s co nviction was reversed, does not affect the convi ction at her seco n d trial, from wh ich she n ow see ks relief.
Finally, Defendant rel ies on her t hird questi on—w he ther Appman had a similar motive to dev

elop the testimony. We agree with Defendant’ s asserti on thathe did an d disagre e with Defe ndan t’s asse rtion tha t he did not. In both trials, Defen dant wa s charg ed with first degree murde r. Defenda nt argues, how ever, thatbecause the supreme court published State v . Brown , 836 S.W.2d 5 30 (Tenn. 1992), a fter the first trial an d prior to the secon d tr ial, “ ther e was a difference in how one would develop the examin ation of a wi tness in a murder case.” While we agree with t his statement, we alsoagree w ith Defendant that “[t]he dis tinction is subtle.” If t his Court were to a dopt Defen dant’s posit ion, we would fail to recogn ize a differe nce in lan guage betwee n “similar” a nd “sam e.”7 Likewise, we find no violation of the Confrontation Clause, a related matte r. Howev er, because Defendant did not complain of such a violation in this petition , we need not address this issue. -11- Rule 804(b)(1) d oes not mandate an ident ical moti ve to devel op the testim ony— only a “similar” m otive. We find a similar motive here. 7 Counsel was not ineffec tive for co nced ing ad miss ibili ty of David Harvey’ s testi mony from Defen dant’s first trial un der Ru le 804(b )(1).

III. CROSS-EXAMINAT ION OF DAVID HARVE Y A. Attorney Jones’s Cro ss-Examinati

on Defendant argues her thir d issue in t he alternat ive. Fi rst, she as serts that she suffered ineffective assistance of counsel due to a defi cient performance by Attorney Jones during t he cross -exam ination of Dav id Har vey in h er first tria l,
r esul ting in preju dice to her du ring the seco nd trial b ecau se of H arvey’s unanticip ated refu sal to testify. W e find no m erit in this argu ment.

This Court re vers ed Defendant’s f irst conv iction because the tr ial j udge failed t o make himself adequately famil iarwith theproce eding s, resu lting in h is inability to function as the thirte enth juror. Thereafter, Defendant was entitled to and receiv

ed an enti rely new tri al. This Cour t can no longer

review al legations of error in t he ini tialtri al of

thi s matte r. Al though it may be unfortunate that Harveycould not be cross -exam ined in the se cond trial, the relev ant issue at t he second trialwas whether Harvey’s prior test imony was admissibl e as evidence. Cou nsel’s effectiveness in cr oss-examining Harvey at t he first trialis relevant to the resoluti on of this

issue, but

ineffec tive assi stance of counselat the first trial will not provi de a basis for post-convi ction rel ief fr om the convict ion in t he second trial.-12- B. Attorney Appman’s Decisi on Not to Int

roduce Testimony Alternatively, Defendant arguesthat Appman, counselat the seco nd trial, shou ld have in troduc ed an d read Harve y’s cross-examinat ion from the fir st tri al into the record of

the second trial . As previ ously mention ed, Appman considered the cross-e xamina tion perform ed by Jo nes to be unskillful—we ak and leng thy. Though the State introduce d Harve y’s direct testim ony from th e initia l trial, Appman decided to waive re ading the cross-e xamina tion. We find no ineffective assistance of

counsel in t his determi nation.

With respect to rati onalization of at torney co nd uct in an effective assistance of counsel cas e, the Supreme Court of the United States instructed,

Judicialscr ut iny of co unse l’s perfo rman ce m ust be highly defere ntial. It is a ll t oo tempting for a defendant to second-guess coun sel’s assistan c e after con viction or ad verse se ntence . . . . A fair assessment of at torne y performan ce requires tha t every effort be made to eliminate the distor ting effects of hindsig ht, to reconstructthe circ umstances of counsel ’s chall enged conduct, and to evaluate the conduct f rom counsel’s per spective at

the time. Strickl and v. Washington , 466 U.S. 668, 689 (19 84) (citation omitted) . The co urts of this state also have long “reco gnized that it is not our func

tion to ‘secondguess’ tactical and strategica l choices pertaining to defense m atters or mea sure a defense attorney’s r epresentati on by ‘20/20 hi ndsight’ when deciding t he effectivenessof trial counsel.” Coop er v. State , 849 S.W .2d 744 , 7 46 ( Tenn. 1993) (quoti ng Hellard v. S tate , 629 S.W .2d 4, 9 (T enn. 19 82)).

At Defendant ’s sec ond trial , counsel was f aced with a deci sion of judgment: to introduce a cross-examinat ion that he conside red ineffec tual or to waive cross-e xamination. From the testimony at D efendant’s evidenti ary heari ng, we find that co unsel’s p rimary ob jection to the examin ation wa s its len gth and uselessness. Counse l did not cite Jones’s ina bility t o make points that sh ould-13-

hav e been highli ghted; rat her, he stated that Jones shoul d have ended the examination much so o ner. Furt hermore, the seco nd trialcourt permit ted Defendant to intr

oduce and play

an au diotap e reco rding o f David Harvey in which he recan ted m uch o f his form er testim ony. T herefo re, we fin d the d ecis ion no t to introduce the cross-ex amination reas onable and wel l withi n cou nsel’s strategica l discretion.

IV. CROSS- EXAMINATION OF DELORES TANNER Defe ndan t’s fin al issue concerns counsel’s all egedly ineffective crossexamination of Delore s Tan ner, a witness for the State. Tanner, bar tender at t he Red Dog Sal oon, repo rte d to Te n nessee B ureau of Investiga tion Agent M oore thatDavid Harvey tol d her he shot a man seven t imes and asked her not to te ll Defen dant. Tan ner ap paren tly did not tes tify incon sisten tly at trial; sh e sim ply did not mention thi s portion of her pri or statement. Defendant argues t hat her testimony

would have cont radicted t he State’s theory—and David Harvey’s direct testimony—that

Defendant not only had knowledge, but also par ticipated in the kil li ng by

fi ri ng s eve ralof t he bu ll etsthat hi t t he v ict im.

At the evident iary hear ing, couns el state d that he di d not beli eve the testimony

would have been bene fic ial to the defense. From our revi ew of the record, we find no de ficienc y in failing to elicit Ta nner’s testimon y of statem ents made by Harvey. Furthermore, the Defendant ha s failed to de mons trate prejudice on this issu e. Defen dant’s arg umen t lacks m erit.-14- Because we find no merit in De fendant’s claim s of ineffective assistance of couns el, we affirm the judgm ent of the tria l court den ying the D efenda nt postconviction relief.

_________________________ DAVID H. WELLES , JUD GE

CONCUR:

_______________________________ GARY R. WADE, PRESI DING J UDGE

________________________________ JOSEPH M. TIPTON, JUDGE