State v. Timmy Beavers ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST SESSION, 1998 September 23, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9709-CC-00394
)
Appellee, )
) LINCOLN COUNTY
V. )
)
) HON. CHARLES LEE, JUDGE
TIMM Y BE AVER S, )
)
Appe llant. ) (FIRST DEGREE MURDER)
FOR THE APPELLANT: FOR THE APPELLEE:
CURTIS H. GANN JOHN KNOX WALKUP
District Public Defe nder Attorney General & Reporter
DONNA L. HARGROVE ELIZABETH B. MARNEY
Assistant Public Defender Assistant Attorney General
2nd Floor, Cordell Hull Building
JOHN H. DICKEY 425 Fifth Avenue North
Assistant Public Defender Nashville, TN 37243
MICHAEL D. RANDLES WILLIAM MICHAEL McCOWN
Assistant Public Defender District Attorney General
P.O. Box 1119
Fayetteville, TN 37334 WEAKLEY E. BARNARD
Assistant District Attorney General
GERALD L. GULLEY, JR. Marshall County Courthouse, Room 407
P.O. Box 1708 Lewisburg, TN 37091
Knoxville, TN 37901-1708
(ON APPEAL ONLY)
OPINION FILED ________________________
AFFIRMED; APPEAL DISMISSED
THOMAS T. WOODALL, JUDGE
OPINION
This appeal by Defendant Timmy Beavers attempts to present a certified
question of law pursuant to Rule 3(b ) of the Te nness ee Ru les of Ap pellate
Procedu re and Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure. The
certified question Defendant attempts to present to this Court involves the trial
court’s denial of a motion to suppress certain evidence obtained from Defendant.
Because we co nclud e that th is ma tter is no t prope rly before us, the judgment below
is affirmed and the appea l is dismiss ed.
On October 2, 1995, a search warrant was issued and samples of Def enda nt’s
hair, saliva, and blood were obtained. On September 17, 1996, Defendant was
indicted on one count of premeditated first degree murder. Defendant filed a motion
to suppress the DNA samples, and following a hearing, the trial court ordered the
evidence to be suppressed. On April 22, 1997, the State filed a second motion to
obtain hair, saliva, and blood samples from Defendant. The trial court granted the
State ’s motion and issued an order and second search warrant to obtain the
samples from Defendant. On May 23, 199 7, a superseding indictment was issued,
charging Defendant with one count of premeditated murder and one count of murder
committed during a n attem pted rap e. The initial indictment was dismissed. On June
30, 1997, Defendant filed a second motion to suppress the seized samples of hair,
saliva, blood, and some clothing. The trial court denied this motion on September
16, 1997. A judgment was entered on July 29, 1997, on Defen dant’s “be st-interest”
guilty plea to second degree murder with an agreed sentence of thirty (30) years.
The judgment form reflects that Defendant reserved the right to appeal the trial
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court’s “ruling on motion to suppress.” Defendant filed his notice of appeal on
Augu st 29, 199 7.
Rule 37(b)(2)(I) of the Tennessee Ru les of C rimina l Proce dure p rovide s in
pertinent part as follows:
(b) An appeal lies from any order or judgment in a criminal
proceeding where the law provides for such appeal, and
from any judgment of conviction: (2) upon a plea of guilty
or nolo contendere if: (I) defendant entered into a plea
agreement under Ru le 11(e) but explicitly reserv ed with
the conse nt of the State and of the c ourt the righ t to
appeal a certified question of law that is dispositive of the
case.
Our supreme court has also prescribed guidelines that mus t be ad hered to in
order to perfect a n appe al by Rule 37(b)(2)(I). In State v. Preston, 759 S.W.2d 647
(Tenn. 1988 ), and a gain in State v. Pendergrass, 937 S.W .2d 834 (Te nn. 1996), the
court he ld:
This is an approp riate time for this Court to make explicit
to the bench and bar exactly what the appellate courts will
hereafter require as prerequisites to the consideration of
the merits of a question of law certified pursuant to Tenn.
R. Crim . P. 37(b)( 2)(I) or (iv). Regardless of what has
appeared in prio r petitions, orders, colloquy in open
court or otherwise, the final order or judgment from
which the time begins to run to p ursue a T.R.A.P . 3
appeal must contain a statement of the dispo sitive
certified quest ion of law reserved by defendant for
appellate review and the question of law must be
stated so as to clearly identify the scope and the limits
of the legal issue reserved. For example, where
questions of law invo lve the validity of searches and
the admiss ibility of statemen ts and co nfessio ns, etc.,
the reasons relied upo n by defendant in the trial court
at the suppression hearing must be identified in the
statement of the certified question of law and review
by the appellate courts will be limited to those passed
upon by the trial judge and stated in the certified
question, absent a constitutional requirement otherwise.
Without an explicit stateme nt of the certified question,
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neither the defendant, the State nor the trial judge can
make a me aningful determination of whether the issue
sought to be re viewe d is dispositive of the case. Most of
the reported and unreported cases seeking the limited
appellate review pursua nt to Tenn. R . Crim. P. 37 ha ve
been dismissed because the certified question was not
dispositive. Also, the order must state that the certified
question was exp ressly rese rved as p art of a plea
agreem ent, that the S tate and the trial judge conse nted to
the reservation and that the State and the trial judge are of
the opinion that the question is dispositive of the case. Of
course, the burden is on defendant to see that these
prerequisites are in the final order and that the re cord
brought to the appellate courts contains all of the
proceedings below that bear upon whether the
certified question of law is disp ositive and th e merits
of the question certified. No issue beyond the scope of
the certified question will be con sidered .
Pendergrass, 937 S.W.2d at 836-37 (citing Preston, 759 S .W .2d at 6 50) (em phas is
added). The Defendant bears the burden of "reserving, articulating, and identifying
the issue ." Pendergrass, 937 S.W .2d at 838 .
In the present case, it is clear from the record that Defendant, with the
agreement of the State and the trial court, attempted to reserve a certified question
regarding the trial court’s denial of Defendant’s motion to suppress the DNA
evidence sam ples. It is e qually clear, how ever, that Preston, Pendergrass, and R ule
37 of the Tennessee Rules of Criminal Procedure have not been followed. The
judgment in this cas e indic ates o nly that “D efend ant res erves right to a ppea l court’s
ruling on m otion to supp ress.” T herefo re, the c ertified q uestio n is not stated so as
to clearly id entify the scop e and the lim it of the legal issue reserved. The reasons
relied upon by Defendant in the trial court at th e suppression hearing are not
identified in the statement of the certified question of law. Given the clear, manda tory
language of Preston and Pendergrass, we must conclude that this appeal is not
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properly before u s. Accordingly, the jud gme nt belo w is affirm ed an d the a ppea l is
dismissed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOHN H. PEAY, Judge
___________________________________
L.T. LAFFERTY, Special Judge
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