FILED

December 1, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1998

EMMA JEAN BILBREY, ) C.C.A. NO. 03C01-9711-CR-00498

)

Appellant, )

)

) CUMBERLAND COUNTY

VS. )

) HON. JOHN TURNBULL

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF CUMBERLAND COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

STEVEN C. DOUGLAS JOHN KNOX WALKUP

P.O. Box 422 Attorney General and Reporter

Crossville, TN 38557-0422

ELLEN H. POLLACK

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

BILL GIBSON

District Attorney General

DAVID PATTERSON

Assistant District Attorney General

145 S. Jefferson Avenue

Cookeville, TN 38501

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Em ma Jean Bilbrey, appeals the trial court’s denial of postconviction relief pursuant to Tennessee Rule of Appellate Procedure 3(b). She

asserts that her convictions for first degree murder and theft of property less than

$500 should be reversed because she received ineffective assistance of counsel

at trial in violation of her Sixth Amendment right to counsel. We affirm the

judgment of the trial court. 

The procedural history of Defendant’s case is unusual. After a full day of

testimony, the trial judge became ill and was hospitalized; and another judge

completed the trial. Defendant was convicted by a jury on June 1, 1991 of first

degree murder and aggravated robbery. A panel of this Court reversed those

convictions in State v. Bilbrey, 858 S.W.2d 911 (Tenn. Crim. App. 1993), because

the substituted judge had not sufficiently familiarized himself with the record to

allow him to exercise his function as thirteenth juror. 

In addition, at that first trial, Defendant’s lead counsel, James Jones,

became ill and was hospitalized for hypertension and early congestive heart

failure. Hospital records indicated heavy alcohol consumption by counsel over

the course of the preceding days. Counsel’s incapacity occurred after a lengthy,

140-page cross-examination of severed co-defendantDavid Harvey, who testified

for the State. Associated second and third counsel, including John Appman,

represented Defendant throughout the remainder 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 (Compiler’s Notes). 

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Defendant, represented by Appman, was retried in January of 1994; and

a jury convicted her of first degree murder and theft of property less than $500.

We affirmed the convictions, and the supreme court denied permission to appeal.

State v. Bilbrey, 912 S.W .2d 187 (Tenn. Crim. App. 1995), perm. to appeal

denied (Tenn. 1995). She now petitions for post-conviction relief based upon four

assignm ents of error, all of which, she asserts, constitute ineffective assistance

of counsel prejudicing her Sixth Amendment rights.

To be entitled to post-conviction relief on the basis of ineffective assistance

of counsel, Defendant must show that her counsel’s representation was

“deficient” and that “the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong,

counsel’s performance is not deficient when “the advice given, or the services

rendered by the attorney, are within the range of competence demanded of

attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

The second prong requires Defendant to show a reasonable probability that the

result of the trial would have been different but for the deficient representation.

Washington, 466 U.S. at 694. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. 

If afforded a post-conviction evidentiary hearing by the trial court, a

petitioner must do more than merely present evidence tending to show

incompetent representation and prejudice; she must prove her factual allegations

by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f).1 When an
2

 See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108

(1964); State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989).

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evidentiary hearing is held, findings of fact made by that court are conclusive and

binding on this Court unless the evidence preponderates against them. Cooper

v. State, 849 S.W.2d 744, 746 (Tenn. 1993) (citing Butler v. State, 789 S.W.2d

898, 899 (Tenn. 1990)). 

I. MOTION TO SUPPRESS FRUITS OF SEARCH

Defendant’s first issue for review is whether her counsel should have

moved to suppress the fruits of a search conducted on April 19, 1990. The

search was executed pursuant to a warrant that Defendant contends was

insufficient to establish probable cause. Specifically, she asserts that the

supporting affidavit sworn by Tennessee Bureau of Investigation Agent James

Moore failed to identify informants from whom information was obtained or vouch

for their credibility. Therefore, she argues, counsel should have (1) moved for

identification of the informants, or (2) moved to suppress the evidence obtained

from the search. The trial court did not find ineffective assistance of counsel and

the evidence does not preponderate against that conclusion.

Defendant cites only one case to support her argument—State v. Lewis,

641 S.W.2d 517 (Tenn. Crim. App. 1982). Because Lewis was decided under the

rationale of Aguilar-Spinelli, we assume she contests the sufficiency of the

affidavit under what is now the Aguilar-Spinelli-Jacumin line of cases.2 Such an

analysis, in which the affiant must establish both (1) the informant’s basis of 
3

 Or, generally, an informant with a criminal history or something of value to gain from

providing the relevant information. In this circumstance, the information possesses less

inherent reliability and requires external proof. 

4

 Although the affidavit recounts 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 the affidavit, placing Defendant at the scene of the crime at the approximate time

the crime was committed, was sufficient to permit the magistrate to find probable cause to

search Defendant’s home for evidence of the robbery and killing. 

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knowledge, and (2) the reliability of either the inform ant or the inform ation, is

misplaced here, however, because it presumes a confidential, criminal

informant.3 

Here, rather, we need not use the Aguilar-Spinelli-Jacumin criteria because

the informant was a private citizen. In his affidavit, Agent Moore recounted, in

relevant part:

One of the persons I interviewed related that he saw David

Harvey and a woman with bleached, blond hair in a light blue 1984

Buick Regal automobile at a location which is approxim ately twenty

(20) to thirty (30) feet from where the body was found. I personally

know that Emma Jean Bilbrey has bleached, blond hair and drives

a light blue, Buick Regal, which is about a 1984 model. This person

told me that he saw them on April 14, 1990 between 10:30 PM and

midnight at that location. Furthermore, this person reported this

information to the law enforcement authorities after learning that the

body of U. J. Bryant had been found. He stated that he lived in the

Glade Creek comm unity and was concerned about the safety of the

citizens there. To my knowledge he has no connection with the

family of U. J. Bryant, nor of Emma Jean Bilbrey or David Harvey,

but he is simply a concerned private citizen.4

According to State v. Melson, 638 S.W.2d 342 (Tenn. 1982), two

categories of informants exist—citizen informants and criminal informants. Id. at

354. In that case, our supreme court recognized that informants “‘not from the

criminal milieu’” are more inherently reliable than professional informants—those

who receive some value for their information. Id. at 354-55 (discussing United

States v. Bell, 457 F.2d 1231, 1238-39 (5th Cir. 1972); United States v. Rollins,

522 F.2d 160, 164 (2d Cir. 1975) (both holding that the Aguilar-Spinelli test
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applies only to criminal informants)); see State v. Cauley, 863 S.W.2d 411, 417

(Tenn. 1993). Therefore, a lower burden of production is required for an affiant

who attests to hearsay information given by a citizen informant; the affiant need

not provide facts which indicate reliability or credibility of the informant. Id.; State

v. Dick, 872 S.W .2d 938, 943 (Tenn. Crim. App. 1993) (“The reliability of the

‘citizen-inform ant’ is judged by a different standard than that of the typical criminal

informant or ‘tipster.’”).

In State v. George, 706 S.W.2d 91 (Tenn. Crim. App. 1985), this Court

explained in greater detail why citizen informants are entitled to this presumption

of reliability:

In State v. Melson, our own Supreme Court recognized that a citizen

informer who provides inform ation to police officers is entitled to

greater belief in his veracity and his credibility than would be a

typical police informer who, in some instances, are themselves

criminals. Such a person acting openly, in the aid of law

enforcement by reporting evidence of a crime to the police, is

entitled to greater belief because he has no personal interest in the

defendant’s arrest, nor does he normally anticipate any personal

benefit in exchange for his information.

Id. at 93 (citation omitted); see State v. Smith, 867 S.W.2d 343, 345-48 (Tenn.

Crim. App. 1993); State v. Sheila Elaine Thomas, No. 01C01-9304-CC-00131,

1996 WL 75980, at *10 (Tenn. Crim. App., Nashville, Feb. 23, 1996) (“[A]n

ordinary citizen is more likely motivated by a concern for society or his own

safety, thus, the information carries an indicia of reliability.”). 

The informant may not enjoy this heightened degree of reliability, however,

unless the face of the affidavit furnishes a basis—directly or inferentially—for

presum ing that reliability is deserved: 
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It is incumbent, we think, upon whoever seeks a search warrant to

include in the affidavit whether the informational source, named or

confidential, qualifies as a citizen informant. Otherwise, the issuing

magistrate would not know which standard, Jacumin or Melson, to

apply. Whether the affidavit describes the status of the source

directly, by implication, or by inference, is immaterial; it must,

however, be apparent before the less stringent Melson standard can

be used to test the validity of the the warrant. 

Smith, 867 S.W .2d at 348; see Cauley, 863 S.W .2d at 417-18; Sheila Elaine

Thomas, 1996 WL 75980, at *10 (“[A] search warrant, based upon a statement

of the citizen informant, is adequate when the information supplied by the affidavit

intrinsically accredits the informant.”).

In the case before us, Agent Moore attested that his informant was a

“concerned private citizen.” In addition, the agent certified that, to his knowledge,

the informant had no connection with the victim, Defendant, or the co-defendant.

Finally, Agent Moore related that the informant lived in the community where the

crime was committed, was concerned for the safety of residents there, and

reported his knowledge to law enforcement officials immediately after learning

about the crime. The issuing magistrate possessed ample evidence to determine

that Melson was the appropriate standard and that this informant was entitled to

the presumption of reliability as a private citizen informant. 

Furthermore, the affidavit does not fail because Agent Moore did not name

the informant, as Defendant claims. This issue was squarely addressed in

Melson as well: 

We have no difficulty in holding that the name of the source is not

required, as a matter of law, to be disclosed in the affidavit. The

reliability of the source and the information must be judged from all

of the circumstances and from the entirety of the affidavit. The

name of the source is only one factor to be considered.
5

 At the time of the second trial, Harvey’s post-conviction proceeding was pending.

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638 S.W.2d at 356; see Cauley, 863 S.W .2d at 417; Lueptow v. State, 909

S.W.2d 830, 832 (Tenn. Crim. App. 1995) (“[W]hen the information is supplied

by an unnamed citizen informant . . . it is presumed reliable.”); Smith, 867 S.W.2d

at 347 (stating that “the name of the source need not be disclosed in the

affidavit”). 

In this case, Agent Moore was not required to reveal the name of his

citizen informant; and judging the entirety of the affidavit, we find that it indicates

substantial reliability. According to the law of this state, Defendant’s counsel had

no duty to challenge this affidavit in a motion to suppress or motion to disclose

the informant. Furthermore, if counsel had so moved, Defendant would not have

been entitled to suppression of the evidence found as a result of the search. This

claim has no merit.

II. INTRODUCTION OF DAVID HARVEY’S TESTIMONY

Next, Defendant argues her counsel was ineffective, to her prejudice, when

he conceded that co-defendant David Harvey’s testimony at Defendant’s first trial

was admissible at her second trial. As discussed, Harvey testified and was

exhaustively cross-examined at the initial trial of this matter. The resulting

conviction was reversed, however; and upon Defendant’s second trial, Harvey

refused to testify, asserting his Fifth Amendment privilege against selfincrimination.5

 Defendant now contends that counsel was deficient when he

agreed on direct appeal from the second trial that Harvey’s testimony was
6

 The record provided to this Court does not reflect whether counsel objected to

admission of the testimony at trial.

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admissible as a hearsay exception under Tennessee Rule of Evidence

804(b)(1).6

Tennessee Rule of Evidence 804(b)(1) provides:

The following are not excluded by the hearsay rule if the

declarant is unavailable as a witness:

. . . Testimony given as a witness at another hearing of the

same or a different proceeding or in a deposition taken in

compliance with law in the course of the same or another

proceeding, if the party against whom the testimony is now offered

had both an opportunity and a similar motive to develop the

testimony by direct, cross, or redirect examination.

Tenn. R. Evid. 804(b)(1). A declarant is “unavailable” under the rule if the

witness “[i]s exempted by ruling of the court on the grounds of privilege from

testifying concerning the subject matter of the declarant’s statement.” Tenn. R.

Evid. 804(a)(1).

Defendant does not contest that David Harvey was “unavailable” at the

second trial within the meaning of Rule 804(a)(1). Rather, she asserts that

under Rule 804(b)(1), she did not have a “similar motive to develop the

testimony” by cross-examination during the first trial. In particular, Defendant

argues in her brief:

Did Mr. Appman [lead counsel at second trial] have an

opportunity to cross-examine Mr. Harvey at the first trial? No. At

the second trial? No. Did he know Mr. Jones [lead counsel at first

trial] was sick when he attempted to cross-examine Mr. Harvey?

No, and by then the damage was done.

Did Mr. Appman have a similar motive to develop the

testimony? Yes and no. 
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With respect to Defendant’s first question—whether Appman had no

opportunity to cross-examine Harvey at the first trial, we note that Rule 804(b)(1)

requires the “party” to have had an opportunity to develop the testimony.

Regardless of whether Appman or another acted as Defendant’s representative,

she developed Harvey’s testimony through cross-examination. 

Further, regarding Defendant’s third question—whether Appman knew

Jones was sick during the cross-examination at the first trial, we find that

Appm an’s knowledge of Jones’s illness is irrelevant. Appman served as

Defendant’s “third-chair” representative during her first trial. If, as Appman

testified, the cross-examination of Harvey was deficient, he had both an

opportunity and a duty to cause it to be concluded, regardless of the reason for

any poor advocacy. However, Jones’s conduct at the first trial, in which

Defendant’s conviction was reversed, does not affect the conviction at her second

trial, from which she now seeks relief. 

Finally, Defendant relies on her third question—whether Appman had a

similar motive to develop the testimony. We agree with Defendant’s assertion

that he did and disagree with Defendant’s assertion that he did not. In both trials,

Defendant was charged with first degree murder. Defendant argues, however,

that because the supreme court published State v. Brown, 836 S.W.2d 530

(Tenn. 1992), after the first trial and prior to the second trial, “there was a

difference in how one would develop the examination of a witness in a murder

case.” While we agree with this statement, we also agree with Defendant that

“[t]he distinction is subtle.” If this Court were to adopt Defendant’s position, we

would fail to recognize a difference in language between “similar” and “same.”
7

 Likewise, we find no violation of the Confrontation Clause, a related matter. However,

because Defendant did not complain of such a violation in this petition, we need not address

this issue.

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Rule 804(b)(1) does not mandate an identical motive to develop the

testimony—only a “similar” motive. We find a similar motive here.7

 Counsel was

not ineffective for conceding admissibility of David Harvey’s testimony from

Defendant’s first trial under Rule 804(b)(1). 

III. CROSS-EXAMINATION OF DAVID HARVEY 

A. Attorney Jones’s Cross-Examination

Defendant argues her third issue in the alternative. First, she asserts that

she suffered ineffective assistance of counsel due to a deficient performance by

Attorney Jones during the cross-examination of David Harvey in her first trial,

resulting in prejudice to her during the second trial because of Harvey’s

unanticipated refusal to testify. We find no m erit in this argument.

This Court reversed Defendant’s first conviction because the trial judge

failed to make himself adequately familiar with the proceedings, resulting in his

inability to function as the thirteenth juror. Thereafter, Defendant was entitled to

and received an entirely new trial. This Court can no longer review allegations

of error in the initial trial of this matter. Although it may be unfortunate that

Harvey could not be cross-examined in the second trial, the relevant issue at the

second trial was whether Harvey’s prior testimony was admissible as evidence.

Counsel’s effectiveness in cross-examining Harvey at the first trial is relevant to

the resolution of this issue, but ineffective assistance of counsel at the first trial

will not provide a basis for post-conviction relief from the conviction in the second

trial.
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B. Attorney Appman’s Decision Not to Introduce Testimony

Alternatively, Defendant argues that Appman, counsel at the second trial,

should have introduced and read Harvey’s cross-examination from the first trial

into the record of the second trial. As previously mentioned, Appman considered

the cross-examination perform ed by Jones to be unskillful—weak and lengthy.

Though the State introduced Harvey’s direct testim ony from the initial trial,

Appman decided to waive reading the cross-examination. We find no ineffective

assistance of counsel in this determination.

With respect to rationalization of attorney conduct in an effective

assistance of counsel case, the Supreme Court of the United States instructed,

Judicial scrutiny of counsel’s performance must be highly

deferential. It is all too tempting for a defendant to second-guess

counsel’s assistance after conviction or adverse sentence. . . . A

fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.

Strickland v. Washington, 466 U.S. 668, 689 (1984) (citation omitted). The courts

of this state also have long “recognized that it is not our function to ‘secondguess’ tactical and strategical choices pertaining to defense matters or measure

a defense attorney’s representation by ‘20/20 hindsight’ when deciding the

effectiveness of trial counsel.” Cooper v. State, 849 S.W .2d 744, 746 (Tenn.

1993) (quoting Hellard v. State, 629 S.W .2d 4, 9 (Tenn. 1982)). 

At Defendant’s second trial, counsel was faced with a decision of

judgment: to introduce a cross-examination that he considered ineffectual or to

waive cross-examination. From the testimonyat Defendant’s evidentiary hearing,

we find that counsel’s primary objection to the examination was its length and

uselessness. Counsel did not cite Jones’s inability to make points that should
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have been highlighted; rather, he stated that Jones should have ended the

examination much sooner. Furthermore, the second trial court permitted

Defendant to introduce and play an audiotape recording of David Harvey in which

he recanted much of his former testim ony. Therefore, we find the decision not

to introduce the cross-examination reasonable and well within counsel’s

strategical discretion. 

IV. CROSS-EXAMINATION OF DELORES TANNER

Defendant’s final issue concerns counsel’s allegedly ineffective crossexamination of Delores Tanner, a witness for the State. Tanner, bartender at the

Red Dog Saloon, reported to Tennessee Bureau of Investigation Agent Moore

that David Harvey told her he shot a man seven times and asked her not to tell

Defendant. Tanner apparently did not testify inconsistently at trial; she simply did

not mention this portion of her prior statement. Defendant argues that her

testimony would have contradicted the State’s theory—and David Harvey’s direct

testimony—that Defendant not only had knowledge, but also participated in the

killing by firing several of the bullets that hit the victim.

At the evidentiary hearing, counsel stated that he did not believe the

testimony would have been beneficial to the defense. From our review of the

record, we find no deficiency in failing to elicit Tanner’s testimony of statements

made by Harvey. Furthermore, the Defendant has failed to demonstrate

prejudice on this issue. Defendant’s argument lacks merit.
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Because we find no merit in Defendant’s claims of ineffective assistance

of counsel, we affirm the judgm ent of the trial court denying the Defendant postconviction relief. 

_________________________

DAVID H. WELLES, JUDGE

CONCUR:

_______________________________

GARY R. WADE, PRESIDING JUDGE

________________________________

JOSEPH M. TIPTON, JUDGE