State of Tennessee v. Timmy Beavers ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST SESSION, 1998 February 2, 1999
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. ) (SECOND 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
THOMAS T. WOODALL, JUDGE
OPINION
Following the den ial of his mo tion to sup press e vidence , the De fendant,
Timmy Beavers, entered a best-interest plea to second degree murder, reserving the
right to appeal the trial court’s denial of his motion to suppress certain evidence. An
agreed upon s entenc e of thirty (30) ye ars was entered by the trial co urt.
To more clearly understand how this case came before this Court, we will give
a brief recitation of the procedural history. On October 2, 1995, a search warrant
was issued and samples of Defendant’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 evide nce to be suppre ssed. On A pril
22, 1997 , the Sta te filed a motio n to ob tain ha ir, saliva, a nd blo od samples from
Defen dant. The trial court granted the State’s motion and issued an order and
second search warrant to obtain the samp les from Defen dant. On May 23 , 1997, a
superseding indictment was issued, charging Defendant with one count of
premeditated murder and one count of murder committed during an attempted rape.
The initial indictmen t was dismissed by the State. On June 30, 1997, Defendant
filed a seco nd m otion to suppress the seized samples of hair, saliva, blood, and
some clothing. Th e trial court d enied this motion on Sep tembe r 16, 199 7. A
judgment was e ntered on Ju ly 29, 1997, on Defen dant’s be st-interest g uilty 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 court’s “ruling on
motion to suppr ess.” De fendan t filed his notice of appe al.
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This Court dismissed Defendant’s direct appeal on September 23, 1998,
because the certified question noted on the judgment form did not meet the
requirem ents set forth in State v. Pendergrass, 937 S.W.2d 834 (Tenn . 1996), State
v. Preston, 759 S.W .2d 647 (T enn. 1988), or Rule 37 of the Tennessee Rules of
Criminal Proced ure. Th ereafter, co unsel for D efenda nt discove red that th e Order
settin g forth the certified questions to be considered on appeal was inadvertently
placed with certain sealed d ocum ents and was the refore not ma de part of the record
on appeal. Defendant timely filed in this Court a Petition to Rehear. Attached as
exhibits to the Petition to Reh ear wa s an A ffidavit of th e Linc oln Co unty C ircuit Court
clerk and a certified copy of the O rder se tting forth Defe ndan t’s certified questions.
In the Affidavit, the clerk stated that “[d]ue to inadvertence by the Clerk’s office
[ ] this Orde r was m istakenly filed with certain docum ents that were sealed and not
sent with the technical record. As a result of this mistake by the Clerk’s office, the
Order of August 4, 19 97 was ne ver made part of the record on appeal.” By Order
filed October 22, 1998, this Court then requested a response from the State to
Defe ndan t’s Petition to Rehear. The State did not contest Defendant’s reason for
seeking a rehearing, but nevertheless argued that the certified questions of law
reserved by Defendant did not clearly identify the scope and the limits of the legal
issues.
After due consideration of the trial court’s Order and the certified questions
presented therein, this Court granted Defendant’s Petition to Rehear. The certified
questions, as set forth in the Order, read as follows:
1. On April 22, 1997, the State filed a motion and a ffidavit
to obtain certain evidence (blood, saliva, pubic hairs, head
hairs) from the person of Timothy Beavers. After a series
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of hearings was he ld, the Co urt grante d the Sta te’s
motion. The certified question concerns the issue of
whether the Court erred in allowing hearsay testimony and
in finding that sufficient probable cause existed to grant
the State’s motion to obtain said evidence.
2. On Jun e 30, 19 97, the de fendant filed a mo tion to
suppress evidence, to wit: blood , saliva, public [sic] hairs
and head hairs, obtained pursuant to a search warrant
issued on Ma y 9, 199 7. Said motion raised issues which
are incorporated by reference herein. On July 16, 1997,
the Court denied the defendant’s motion, finding the
search warrant and subsequent search and seizure valid.
The certified question conc erns th e issue s pres ented in
the motion to suppress previously filed by the defendant
and whether the Court erred in d enying the de fenda nt’s
motion to suppress said evidence by finding that the
search warrant and subsequent search and seizure w ere
valid.
After a care ful revie w of the legal issues presented, we affirm the judgment of the
trial court.
Rule 37(b)( 2)(i) of th e Te nnes see R ules o f Crim inal Proced ure pro vides 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 gu ilty
or nolo contendere if: (i) defendant entered into a plea
agreement under R ule 11(e ) but explicitly res erved w ith
the consent of the State and of the court the right to
appeal a certified question of law that is dispositive of the
case.
Our supreme court has also prescribed guideline s that mu st be adh ered to in
order to perfect an appea l by Rule 37(b)(2 )(i). In State v. Preston, 759 S.W.2d 647(Tenn. 1988), and again in State v. Pendergrass, 937 S.W.2d 834 (Tenn. 1996), the
court he ld:
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This is an approp riate time for this Cou rt to ma ke exp licit
to the be nch a nd ba r exact ly what the appe llate co urts will
hereafter require a s prereq uisites 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 prior petitions, orders, colloquy in open
court or othe rwise , the final order or judgment from
which the time begin s to run to purs ue a T.R .A.P. 3
appeal must conta in a state men t of the d ispositive
certified question of law reserved by defendant for
appellate review and the question of law must be
stated so as to clearly identify the scope a nd the lim its
of the legal issue reserved. For e xample, w here
questions of law involve the validity of searches and
the admissibility of statements and confessions, 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 appe llate courts w ill 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,
neither the defendant, the State nor the trial judge can
make a meaningful determination of whether the issue
sought to be reviewed is dispositive of the case. Most of
the reported and unreported cases seeking the limited
appellate review pu rsuant to Tenn . R. Crim . P. 37 have
been dismissed because the certified question was not
dispositive. Also, the order must state that the certified
question was expressly reserved as part 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 qu estion is dispositive of the case. Of
course, the burd en is on d efendan t 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 quest ion of law is dispositive and the 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 .
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In Defe ndan t’s appellate brief, the issue s presented for review are framed as
follows:
1. Did the trial court err by allowing the State to petition
the Court for an O rder allo wing th e State to obta in
samples of bod ily fluids and h airs from the De fenda nt in
violation of Tennessee Constitution article I, § 7 and U.S.
Constitution amend ment IV, after the trial court
suppressed sam ples of the same items earlier taken
pursua nt to a sea rch warra nt?
2. Did the trial c ourt err by fin ding that the State had
established probable cause that the Defendant had
committed a crime su fficient to suppo rt a search warrant,
or Order of the Court, to obtain samples of the
Defenda nt’s bodily fluids and ha ir?
It appears that Defendant has substantially deviated from the certified questions of
law as set forth pr evious ly in this opinion, desp ite the straightforward a nd man datory
language found in Preston and Pendergrass. Again, our review is limited to the
issues stated in the certified questions set forth in the trial court’s Order and we will
not go o utside tho se bou ndaries . See Pendergrass, 937 S.W.2d at 836-37.
Defe ndan t’s first issue as set forth in h is brief cannot eve n be lib erally
interpreted as being encompassed in either of the certified questions in the trial
court’s Order. Therefore, the first issue is not pro per for review . How ever, e ven if
addressed on the m erits, it is still without m erit. State v. Bobb y Baker recognized
two procedural methods for obtaining evidence: (1) a search warrant or (2) a motion
seeking a judicial order with an adversarial evidentiary hearing. C.C.A. No. 02-C-01-
9511-CC-00347, slip op. at 7 , Tipton County (Tenn. Crim. App, Jackson, Jan. 27,
1997), perm. to appeal denied (Tenn. 1997). Defendant was given an adversarial
evidentiary hearing in this case to determine whether the evidence established
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probable cause for issuance of the search warrant. The h earing was p roced urally
correct a nd De fendan t’s argum ent is witho ut merit.
Defe ndan t’s first certified question of law as set forth in the Order has not
been briefed by Defendant and should therefore not be addressed. However, even
in addressed on the merits, we find that Defendant’s first certified question as set
forth in the Order still does n ot com ply with th e requ ireme nts se t forth in
Pendergrass and Preston. The first certified question states that it concerns “the
issue of whether the [c]ourt erred in allowing hearsay testimony and in finding that
sufficient probable cause existed to gran t the Sta te’s m otion to obtain said
evidence .” We do recognize that our supreme court appears to have relaxed the
Preston requirements somewhat by its order in State v. Sarah Hutton Downey,
C.C.A. No. 03C01-9307-CR-00221, Hamilton County (Tenn. Crim. App., Knoxville,
July 6, 1994), aff’d (Tenn. 1997). In Downey, this Cou rt dismiss ed an a ppeal o f a
certified question of law, fin ding “in this case the final order simply incorporated by
reference various issues the appellant raised in several motions before the trial
court.” Id. at 3. Our supreme court remanded the case “for consideration of the
certified issue,” and set forth what it had determined the certified issue to be. State
v. Sarah Hutton Downey, Orde r (filed Oct. 31, 1994). However, we have no such
incorporation in this case . Although this question does identify hearsay as the
reason relied upon by Defendant at the suppression hearing, it does not indicate the
nature of the purported hearsay testimony, what witness or witnesses allegedly
testified to hearsay testimony, why the hearsay testimony was inadmissible, or how
the hearsay testimony affected the outcome of the suppression hearing. In other
words, the certified question is not stated so as to clearly ide ntify the scope and the
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limit of the lega l issue res erved. T herefore , we mu st conclu de on th e merits that
Defendant’s first certified question is not appropriate for review.
Defe ndan t’s secon d issue a s set forth in his brief can be liberally interpreted
to be encompassed by his second certified question of law, bu t only on the pro bable
cause issue. Also, since Defendant’s second certified question does incorpor ate by
reference his mo tion to s uppre ss, we find the seco nd ce rtified qu estion to be
prope rly before us. The trial judge ga ve detailed findings o f fact in determining the re
to be probable cause to issue a search warrant. Dean Mason testified that
Defendant had consumed alcohol on the evening of the stabbing and that Defendant
had told him that he would pay him back later for the alcohol. At some point during
that conversation, Defendant told Mason that he would be coming into a sum of
money in the very near future, possibly the next day. Robbie Byers, Defe ndan t’s
roommate, testified that h e and D efenda nt did not expect to be compensated for
their roofing work for a t least two o r three da ys after the n ight of the m urder.
Later that evening, Mason took Defendant to the trailer park where Defendant
shared a trailer with Robbie Byers. At approximately 10:30 p.m., Rhonda French,
Heather Schlatter and Laura Meade saw Defendant and testified that he appeared
to be intoxicated. Th ey looked for Defenda nt later in the trailer park to ma ke sure
he had not passed out or hurt himself because of his intoxicated state, but they
never saw him again that evening.
Sometime later that eve ning, De fendan t asked h is room mate to take him to
his sister’s residence tha t was ab out four o r five miles a way, but h is room mate
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refused. His room mate testified that he did not see Defendant again after 11:20 p.m.
Mr. Byers woke up about 2:00 a.m. and found Defendant was not in his bed.
The victim was stabbe d to dea th sometime between 10:00 p.m. and 2:00 a.m.
that evening. It was determined that some money was stolen from a water bottle at
the victim’s residence.
Defendant was next seen at 7:00 the next morning b y his relatives. For days
following the sta bbing , Defe ndan t stayed in the w oods behin d his sister’s home and
was seen on occasion going into his sister’s home. On one of these occasions after
the discovery of the victim’s body, the police went to Defendant’s sister’s house in
an effort to find Defendant but he refused to come to the door. The court also found
that Defen dant later le ft town un der wha t it considere d “preca rious circu mstan ces.”
The shirt Defendant was seen wearing on the night of the stabbing was found behind
his sister’s re sidence with hum an bloo d on it.
As the trial cour t noted, the Sta te was only req uired to estab lish pro bable
cause for issuance of a court order permitting the search. While the proof may not
have estab lished the gu ilt of Defe ndant beyo nd a reaso nable doub t, this standard
was not the S tate’s burd en. This Court is o bliged to uphold the trial court's findings
of fact in a suppression hearing unless the evidence preponderates against them.
State v. Odom, 928 S.W .2d 18, 23 (Tenn . 1996); State v. Stephenson, 878 S.W.2d
530, 544 (Ten n. 1994). After reviewing the trial court’s findings of fact and the
record, we cann ot con clude that the judge erred in his ruling th at there was p robab le
cause in issuing th e searc h warran t.
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Based on all the foreg oing, the ju dgme nt of the trial co urt is affirme d.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOHN H. PEAY, Judge
___________________________________
L.T. LAFFERTY, Special Judge
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