# FILED September 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE AUGUST SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9709- CC-00394 ) Appellee, ) ) LINCOLN COUNTY V. ) ) ) HON. CHA RLES LEE , JUDG E TIMM Y BE AVER S, ) ) Appe llant. ) (FIR ST 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, Cordel l Hull Bui lding JOHN H. DICKEY 425 Fifth Avenue North Assistant Public Defender Nashvill e, TN 37243 MICHAEL D. RA NDLES WIL LI AM MI CHA EL Mc COWN Assistant Public Defender Distri ct Attor ney General P.O. Box 1119 Fayettevi lle, TN 37334 WEAKLEY E. BARNARD Assistant Distri ct Attor ney General GERALD L. GULLE Y, JR. Mars hall Coun ty Courthou se, Room 40 7 P.O. Box 1708 Lewisburg, TN 37091 Knoxvill e, TN 37901-1708 (ON APPEAL ONLY)

OPINION FILED ________________________ AFFIRMED; APPEAL DI SMISSED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

This appeal by Defendant Timmy Be avers attempts to present a certif ied question of law pu rsuant to Rule 3(b ) of the Te nness ee Ru les of Ap pellate Procedu re and Rule 37(b)(2) ofthe Tennessee Rules of Criminal Procedure. The certif ied question Defenda n t attempts to present t o this Court

involves the tri al
co urt’s denial of

a motion to suppr

ess certai n evidence obtained from Defend ant
. Because we co nclud e that th is ma tter is no t prope rly before us, t he judgment below is affirmed and the appea l is dismiss ed.

On October 2, 1995, a search warrant was issued and samplesof Def enda nt’s hair, saliva, and blood were obtained. On September 17 , 1996, Defendant was indict ed on one countof premeditated first degree murder. Defendant filed a motion to suppress the DNA samples, and following a hearing, the t rial co urt ordered the evidence to be suppressed. On April 22, 1997, the State filed a second mot ion to obtain hai r, saliva, and blood s amples from Defendant. The t rial cour t granted the State ’s motion and issued an order and second search warr ant to obtai n the samples from Defendant. On May 23, 199 7, a superseding i ndictment was i ssued, charging Defendant wit h one count of premeditated murder and one count of murder committed during a n attem pted rap e. The initi al indi ctment was dismiss ed. On June 30, 1997, Defendant

filed a second motion to s uppress the sei zed samples of hair, saliva, blood, and some cl othing. The t rial cour t denied t his motion on September 16, 1997. A judgment was entered on July 29, 1997, on Defen dant’s “be st-interest” guilty plea to second degr ee murder with a n agreed sentence of thirty (30) years. The judgment form ref lects t hat Defendant r eserved the r ightto ap peal the t rial-3-

court’s “ruling on motion to suppress.” Def endant fil ed his noti ce of appeal on Augu st 29, 199 7.

Rule 37(b)(2)( I) of t he T enness ee Ru les of C rimina l Proce dure p rovide s in pertinent part as f

ollows: (b) An appeal li es from any order or judgment i n a criminal proceed ing where the law pr ovides for

such appeal, and from any judgment of convicti on: (2) upon a pl ea of guilty or nolo contender

e if: ( I) defendant

entered int o a plea agreement under Ru le 11(e) bu t explicitly reserv ed with the conse nt of th e State a nd of the c ourt the righ t to appeal a certif ied questi on of lawthat is disposit ive of t he case.
Our sup remecourt has al so prescri bed guideli nes thatmus t be ad hered to in orderto perfect a n appe al by Rule 37(b)(2)(I). In State v. Presto n , 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 pr

er equi sites to the consider ation 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 i n prio r petiti ons, orders, col loquy in open court or oth erwise, t he final order or j udgment from which the time b e gins to run to p ursue a T.R.A.P . 3 appeal must contain a statement of the dispo sitive certifi ed quest io n of l aw reserved by defendant for appe llate review and the question of law must be stated so as to clearly identi fy t he scope and the limits of the legal i ssue reserved. For example, wh ere questionsof law invo lve th e val idity of searchesand the admiss ibility of statemen ts and co nfessio ns, etc., the reasons relied upo n by defendant in the trial court at the suppressi on hearing must be identi fied i n the statemento f the certi fied question of law and review by the appell ate courts will belimited to those passed upon by the tri al judge and stated i n the certif ied question , absent a constit utional requirement ot herwise. Without an explicit stateme nt of the cert if ied questi on,-4- n eit her the defendant , the State nor the trial j udge can make a me anin gful determinati on of whether t he issue sought to be re viewe d is dis posi tive of the case. Most

of the reported and unr eported cases seeki ng the l imited app el late review pursua nt to Tenn. R . Crim. P. 37 ha ve been dismissed because the ce r tifi ed question was not disposi tive. Also, the or der must stat e that the certif ied q uestion was exp ressly rese rved as p art of a ple a agreem ent, that the S tate and the trial judge conse nted to the reservat ion and that the State and the t rial j udge are of the opinion that t he qu est ion is d isp osi ti ve of thecase . Of course, the burden is on defendant to see t hat these prerequisites are in the final order and that the re cord brought to the appellat e courts contai ns all of the proceedingsbelow th at bear upon whether t he certifi ed question of law is disp ositive and th e merits of the quest ion certi fied. No issue beyond thescope 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 t he burden of "r eserving, articul ating, and identif ying the issue ." Pendergrass , 937 S.W .2d at 838

.

In the p resent case, it is clear fr

om the record that

Defendant, wi th the agreement of the State and the tri al court, attempted to reserve a cer tifi ed question regarding the tri al court’ s denial of D efen dant ’s mot ion to supp ressthe DNA evidence sam ples. It is e qually clear, how ever, that Preston , Pendergrass , and R ule 37 of the Tenn essee Rules of Crimi nal Procedure have not been fol lowed. 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 state d so as to clearly id entify the scop e and the lim it of t he legal i ssue reserved. The reasons relied upon by Defendant i n the tri al court at th e suppression hearing are not identif ied in the statement of the certif ied questi on of law. Gi ven the clear, manda tory language of Pre s ton and Pendergrass , we must conclude t hat this appeal is not-5-

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