FILED

February 2, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

AUGUST SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9709-CC-00394

)

Appellee, )

 ) LINCOLN COUNTY

V. ) 

)

) HON. CHARLES LEE, JUDGE

TIMM Y BEAVERS, ) 

)

Appellant. ) (SECOND DEGREE MURDER)

FOR THE APPELLANT: FOR THE APPELLEE:

CURTIS H. GANN JOHN KNOX WALKUP 

District Public Defender 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
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OPINION

Following the denial of his motion to suppress evidence, the Defendant,

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 sentence of thirty (30) years was entered by the trial court. 

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 evidence to be suppressed. On April

22, 1997, the State filed a 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, 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 indictment was dismissed by the State. 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 Defendant’s best-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 court’s “ruling on

motion to suppress.” Defendant filed his notice of appeal. 
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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 (Tenn. 1988), or Rule 37 of the Tennessee Rules of

Criminal Procedure. Thereafter, counsel for Defendant discovered that the Order

setting forth the certified questions to be considered on appeal was inadvertently

placed with certain sealed documents and was therefore not made part of the record

on appeal. Defendant timely filed in this Court a Petition to Rehear. Attached as

exhibits to the Petition to Rehear was an Affidavit of the Lincoln County Circuit Court

clerk and a certified copy of the Order setting forth Defendant’s certified questions.

In the Affidavit, the clerk stated that “[d]ue to inadvertence by the Clerk’s office

[ ] this Order was mistakenly filed with certain documents 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, 1997 was never made part of the record on appeal.” By Order

filed October 22, 1998, this Court then requested a response from the State to

Defendant’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 affidavit

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 held, the Court granted the State’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 June 30, 1997, the defendant filed a motion to

suppress evidence, to wit: blood, saliva, public [sic] hairs

and head hairs, obtained pursuant to a search warrant

issued on May 9, 1997. 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 concerns the issues presented in

the motion to suppress previously filed by the defendant

and whether the Court erred in denying the defendant’s

motion to suppress said evidence by finding that the

search warrant and subsequent search and seizure were

valid.

After a careful review of the legal issues presented, we affirm the judgment of the

trial court. 

Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure provides 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 Rule 11(e) but explicitly reserved with

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 guidelines that must be adhered to in

order to perfect an appeal 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 held: 
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 This is an appropriate 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 prior petitions, orders, colloquy in open

court or otherwise, the final order or judgment from

which the time begins to run to pursue a T.R.A.P. 3

appeal must contain a statement of the dispositive

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 and the limits

of the legal issue reserved. For example, where

questions of law involve the validity of searches and

the admissibility of statements and confessions, etc.,

the reasons relied upon 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 statement 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 pursuant 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 State and the trial judge consented 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 record

brought to the appellate courts contains all of the

proceedings below that bear upon whether the

certified question of law is dispositive and the merits

of the question certified. No issue beyond the scope of

the certified question will be considered. 

Pendergrass, 937 S.W.2d at 836-37 (citing Preston, 759 S.W.2d at 650) (em phasis

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 Defendant’s appellate brief, the issues presented for review are framed as

follows:

1. Did the trial court err by allowing the State to petition

the Court for an Order allowing the State to obtain

samples of bodily fluids and hairs from the Defendant in

violation of Tennessee Constitution article I, § 7 and U.S.

Constitution amendment IV, after the trial court

suppressed samples of the same items earlier taken

pursuant to a search warrant?

2. Did the trial court err by finding that the State had

established probable cause that the Defendant had

committed a crime sufficient to support a search warrant,

or Order of the Court, to obtain samples of the

Defendant’s bodily fluids and hair?

It appears that Defendant has substantially deviated from the certified questions of

law as set forth previously in this opinion, despite the straightforward and mandatory

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 outside those boundaries. See Pendergrass, 937 S.W.2d at 836-37.

Defendant’s first issue as set forth in his brief cannot even be liberally

interpreted as being encompassed in either of the certified questions in the trial

court’s Order. Therefore, the first issue is not proper for review. However, even if

addressed on the merits, it is still without merit. State v. Bobby 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 hearing was procedurally

correct and Defendant’s argument is without merit.

Defendant’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 not comply with the requirements set 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 grant the State’s motion 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 Court dismissed an appeal of a

certified question of law, finding “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, Order (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 identify the scope and the
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limit of the legal issue reserved. Therefore, we must conclude on the merits that

Defendant’s first certified question is not appropriate for review.

Defendant’s second issue as set forth in his brief can be liberally interpreted

to be encompassed by his second certified question of law, but only on the probable

cause issue. Also, since Defendant’s second certified question does incorporate by

reference his motion to suppress, we find the second certified question to be

properly before us. The trial judge gave detailed findings of fact in determining there

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, Defendant’s

roommate, testified that he and Defendant did not expect to be compensated for

their roofing work for at least two or three days after the night of the murder. 

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. They looked for Defendant later in the trailer park to make 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 evening, Defendant asked his roommate to take him to

his sister’s residence that was about four or five miles away, but his roommate
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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 stabbed to death 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 by his relatives. For days

following the stabbing, Defendant stayed in the woods behind 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 Defendant later left town under what it considered “precarious circumstances.”

The shirt Defendant was seen wearing on the night of the stabbing was found behind

his sister’s residence with human blood on it.

As the trial court noted, the State was only required to establish probable

cause for issuance of a court order permitting the search. While the proof may not

have established the guilt of Defendant beyond a reasonable doubt, this standard

was not the State’s burden. This Court is obliged 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 (Tenn. 1994). After reviewing the trial court’s findings of fact and the

record, we cannot conclude that the judge erred in his ruling that there was probable

cause in issuing the search warrant. 
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Based on all the foregoing, the judgment of the trial court is affirmed. 

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOHN H. PEAY, Judge

___________________________________

L.T. LAFFERTY, Special Judge