        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                            JULY SESSION, 1998         December 1, 1998

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
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-Conviction)


               ON APPEAL 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 General and Reporter
Crossville, TN 38557-0422
                                   ELLEN H. POLLACK
                                   Assistant Attorney General
                                   425 5th Avenu e 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
                                  OPINION

       The Defen dant, Em ma Je an Bilbre y, appeals the trial cou rt’s denial of p ost-

conviction relief pursuant to T ennesse e Rule of Ap pellate Proced ure 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

judgm ent of the tria l court.



       The proce dural h istory of Defe ndan t’s case is unu sual. 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 murde r and ag gravated robbery. A pan el 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 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 counsel, James Jones,

became ill and was hospita lized for hypertension and early con gestive 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-defendant David Harvey, who testified

for the State. Asso ciated secon d and third counsel, including John Appman,

represe nted D efenda nt throug hout the remain der of the trial.




                                          -2-
       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.

W e affirmed the convictions, and the supreme court denied permission to app eal.

State v. Bilbrey, 912 S.W .2d 187 (T enn. C rim. 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 tha t “the deficien t perform ance p rejudiced the defen se.”

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

coun sel’s perform ance is n ot 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 (Ten n. 1975).

The second prong requires Defen dant 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 rea sona ble pro bability is a probability sufficient

to underm ine confidence in the outcom e.” Id.



       If afforde d a po st-con viction e videntia ry hea ring 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. § 40-3 0-210(f). 1 When an


       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).

                                             -3-
evidentiary hearing is held, findings of fact made by that court are conclusive and

binding on this Court unless the evidence preponderates against th em. Cooper

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

898, 89 9 (Ten n. 1990 )).



               I. MOTION TO SUPPRESS FRUITS OF SEARCH

       Defe ndan t’s first issue for review is whether her c ounsel sho uld 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 probab le 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 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 the

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 of




       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).

                                           -4-
knowledge, and (2) the reliability o f either th e inform ant or th e inform ation, is

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

informa nt. 3

       Here, rather, we need not use the Aguilar-Spine lli-Jacum in criteria because

the informant was a private citizen. In his af fidavit, A gent M oore re coun ted, in

relevant p art:

               One of the persons I interviewed related tha t he sa w Da vid
       Harvey and 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, blond hair and drives
       a light blu e, Buic k Reg al, whic h 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 lo cation . Furthe rmor e, this p erson report ed this
       information to the law enforcement authorities after learning that the
       body of U. J. Bryant had been fo und. He stated that he lived in the
       Glade Creek comm unity and was co ncerne d abou t the safety of the
       citizens there. To my knowledge he has no connection with the
       family of U. J. Bryant, nor of E mma Jean Bilbrey or D avid 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 informa nts exist—citizen informants and criminal info rmants . Id. at

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

criminal milieu ’” are m ore inh erently reliable than professional informants—those

who receive so me valu e for their info rmation . Id. at 354-55 (discussing United

States v. Bell, 457 F.2d 1231, 1 238-39 (5th Cir. 1972 ); United States v. Rollins,

522 F.2d 160, 164 (2d Cir. 1975) (both holding that the Aguilar-Spine lli test

       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.

                                               -5-
applies only to crim inal inform ants)); 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 informa nt; the affiant 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 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 (Ten n. Crim . App. 1985), this C ourt

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 pro vides inform ation to po lice officers is e ntitled 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 op enly, in the aid of law
       enforcement by reporting evidenc e of a c rime to the po lice, is
       entitled to greater belief because he has no personal interest in the
       defen dant’s arrest, nor does he normally anticipate any personal
       benefit in exchange for his information.

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

Crim. App. 19 93); State v. Sheila Elaine Thomas, No. 01C01-9304-CC-00131,

1996 WL 75980, at *10 (Tenn. Crim . App., N ashville, Fe b. 23, 199 6) (“[A]n

ordinary citizen is more likely m otivated by a con cern for society or his 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 inferentially—for

presum ing that reliab ility is deserved :




                                             -6-
       It is incumbent, we think, upo n whoe ver seek s a searc h warran t to
       include in the affidavit whether the informational source, named or
       confid ential, qualifies as a citizen informant. Otherwise, the issuing
       magistrate would not know w hich stan dard, Jacu min or Melson, to
       apply. Whether the affidavit describes the status of the source
       directly, by imp lication, or by infere nce, is im materia l; it must,
       however, be apparent before 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 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 a ffidavit

intrinsically accredits the inform ant.”).



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

“concerned private citizen.” In addition, the age nt certified tha t, to his knowledge,

the informant had no connection with the victim, Defendant, or the co-d efenda nt.

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 know ledge to law enforcement officials immediately after learning

about the crime. The issuing magistrate 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 affidavit does not fail because A gent Moo re did not name

the informant, as D efendant claim s. This issue w as square ly addr esse d in

Melson as well:

       W e 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 a ll
       of the circumstances and from the entirety of the affidavit. The
       name of the source is only one factor to be considered.



                                             -7-
638 S.W .2d at 356 ; see Cauley, 863 S.W .2d at 417 ; Luepto w v. State , 909

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

by an unnamed citizen inform ant . . . it is presum ed 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 req uired to revea l the na me o f 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 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 a result of the searc h. This

claim ha s no m erit.



               II. INTRODUCTION OF DAVID HARVEY’S TESTIMONY

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

he conc eded that co -defen dant D avid H arvey’s testimony at Defendant’s first trial

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

exhau stively 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, asse rting his Fifth A mend ment p rivilege aga inst self-

incrimination.5 Defendant now contends that counsel was deficient when he

agreed on direct a ppeal fro m the s econd trial that Harv ey’s testimony was




       5
           At the time of the second trial, Harvey’s post-conviction proceeding was pending.

                                              -8-
adm issible 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 ta ken 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. 80 4(b)(1). A declaran t is “unavaila ble” und er 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 state ment.” Tenn. R.

Evid. 804(a)(1).



       Defendant does n ot contes t 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 -exam ination du ring 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-exam ine Mr. Harvey?
       No, and by then the damage was done.
               Did Mr. Appman have a similar motive to develop the
       testimony? Yes and no.




       6
         The record provided to this Court does not reflect whether counsel objected to
admission of the testimony at trial.

                                         -9-
       With respect to Defendant’s first question—whether Appman had no

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

requires 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 representative,

she de veloped Harvey’s testimon y through cross-e xamina tion.



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

Jones was s ick dur ing the cross -exam ination at the firs t trial, we find that

Appm an’s knowle dge of Jo nes’s illnes s is irrelevan t.         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 a dvoca cy.      Ho weve r, Jone s’s con duct a t the first tria l, in which

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

trial, from wh ich she n ow see ks 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 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,

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

(Tenn. 1992), a fter the first trial an d prior to the secon d 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 w ith Defendant that

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

would fail to recogn ize a differe nce in lan guage betwee n “similar” a nd “sam e.”

                                          -10-
Rule 804(b)(1) does not mandate an identical motive to develop 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 ibility of David Harvey’s testimony 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 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-exam ination of Dav id Har vey in h er first tria l,

resulting 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 reversed Defendant’s first conviction because the trial judge

failed to make himself adequately familiar with the proce eding s, resu lting in h is

inability to function as the thirte enth 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 -exam ined in the se cond trial, the relevant issue at the

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

Cou nsel’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.




         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.

                                             -11-
          B. Attorney Appman’s Decision Not to Introduce Testimony

      Alternatively, Defendant argues that Appman, counsel at the seco nd trial,

shou ld have in troduc ed an d read Harve y’s cross-examination from the first trial

into the record of the second trial. As previously mentioned, 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 the initial trial,

Appman decided to waive re ading the cross-e xamina tion. 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 co unse l’s perfo rman ce m ust be highly
      defere ntial. It is all too tempting for a defendant to second-guess
      coun sel’s assistance after con viction or ad verse se ntence . . . . A
      fair assessment of attorney performan ce requires tha t every effort
      be made to eliminate the distorting effects of hindsig ht, 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 (19 84) (citation omitted) . The co urts

of this state also have long “recognized that it is not our function to ‘second-

guess’ tactical and strategica l choices pertaining to defense m atters or mea sure

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

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

1993) (quoting Hellard v. S tate, 629 S.W .2d 4, 9 (T enn. 19 82)).



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

judgment: to introduce a cross-examination that he conside red ineffec tual or to

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

we find that co unsel’s p rimary ob jection to the examin ation wa s its length and

uselessness. Counse l did not cite Jones’s ina bility to make points that sh ould


                                       -12-
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 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 ecision not

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

strategica l discretion.




               IV. CROSS-EXAMINATION OF DELORES TANNER

       Defe ndan t’s final issue concerns counsel’s allegedly ineffective cross-

examination of Delore s Tan ner, a witness for the State. Tanner, bartender at the

Red Dog Saloon, reported to Tennessee B ureau of Investiga tion Agent M oore

that David Harvey told her he shot a man seven times 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 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 bene ficial to the defense. From our review 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 has failed to de mons trate

prejudice on this issu e. Defen dant’s arg umen t lacks m erit.




                                            -13-
       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 post-

conviction relief.




                                                _________________________
                                                DAVID H. WELLES, JUDGE



CONCUR:



_______________________________
GARY R. WADE, PRESIDING JUDGE



________________________________
JOSEPH M. TIPTON, JUDGE




                                         -14-
