# FILED February 2, 1999 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. ) (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, 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 THOMAS T. WOODALL, J UDGE-2- 

# OPINION
Following the den ial of his mo tion to sup press e vidence , the De fe ndant, Timmy Beavers, entered a best-i nterest pl ea to second degree m urder, rese rving t he right to appeal the tri al court’s denialof his motion to suppresscertain ev idenc e. An agreed upon s entenc e of thirty (30) ye ars was entered by the trial co urt.

To more clearly

understand how thi s case came before thi s Court, we will give
a brief recitation of th e procedural hi story. On October 2, 1995, a search warrant
was issued and samples of Defendant’s hai r, saliva, and blo od wer e obtain ed. On September 17, 1996, Defendant was indicted on on e co unt of premeditated fi rst degree murder. Defendant filed a motion to suppr ess the DNA samples, and followi ng a hearing, t he trialcourt order ed 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 trialcourt granted the Stat e’s motion and issued an order and second search warrant to obtain the samp les from Defen dant. On May 23 , 1997, a superseding indict ment was issued, ch arging Defend an t with one count of premeditated murder and one count of murder committed duri ng an attempted ra pe. The initi al indi ctmen t w as dismissed by t he State. On June 30, 1997, Defendant filed a seco nd m otio n to suppress the sei zed samples of hai r, saliva, blood, and
some clot hing. 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 agr eed sentence of t hirty (30) years . The judgment form reflect

s that Defendant

reserved t he right to appeal the t rial cour t’s “ruling on motion to suppr ess.” De fendan t filed his notice of appe al.-3- This Court dismiss ed Defendant’s di rect appeal on September 23 , 199 8, because the certified quest ion noted on t he judgment form di d not meet the requirem ents set fort h 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 TennesseeRules of Criminal Proced ure. Th ereafter, co unsel for D efenda nt discove red that th e Or der settin g forth t he certified questi ons to be consider ed on appeal was inadv erten tl y placed with certain sealed d ocum ents and was the refore not ma de part of the record
on appeal. Defendant timely f iled i n th is Court a Pet ition t o Rehear. Attac hed as exhibits to the Peti tion to Reh ear wa s an A ffidavit of th e Linc oln Co unty C ircuit Court clerk and a certi fied copy of the O rder se tting forth Defe ndan t’s certifi ed questions.

In the Affidavit, the clerk stated t hat “[d]ue to i nadvertence by the Clerk’s of fice [ ] this Orde r was m istakenly filed with certain docum ents that were sealed and not sent with the techni cal record. As a r esult of this mistake by the Cler k’s off ice, the Order of August 4, 19 97 was ne ver made part of the record on a ppeal.” By Order filed October 22, 1998, this Court then requesteda response fr om the S tate to Defe ndan t’s P etiti on to Rehear. The State did not contest Defendant’ s reason for seeking a reheari ng , but never theless argued that the certif ied questi ons of law reserved by Defendant di d not clearly identif y the scope and t he limits of the l egal issues.

After du e considerat ion of thetrialcourt’s Order and the cert ified qu estion s presented therein, this Court granted Defendant ’s Petit ion to Rehear. The certif ied questions, as set for

th in the Order, read as follows: 1. On April 22, 1997, the State f iled a moti on and a ffidavit to obtain certain evidence (bl ood, sali va, pubic hair s, head hairs) from the person of Timothy Beavers. After a series-4- of h earings was he ld, the Co urt grante d the Sta te’ s motion. The c er tifi ed question concerns the issue of whetherthe Court erred i n allowi ng hearsay test imony and in finding that suf

ficient pr

obable cause ex isted to grant the State’ s motion to obtain said ev idence. 2. On Jun e 30, 19 97, the de fe ndan t filed a mo tion to suppress evidence, to wit: blood , saliva, public [sic] hairs and head hairs, obtained pursu ant t o a search warrant issued on Ma y 9, 199 7. Said motion raised issues which are incor po rated by reference herei n. On July 16, 1997, the C ourt denied the defendant’s moti on, findi ng the search warrant and subsequent search and seizure val id. The certif ied qu estion conc erns th e issue s pres ented in t h e motion to suppr

ess previously fil ed by the defendant and whether the C ourt e rred in d enying the de fenda nt’s m ot ion to suppress sai d evidence by f inding t hat the search warrant and subsequent search and seizure w ere valid.

After a care ful revie w of the le gal i ssues presented, we affirm the judgment of t he trial court.

Rule 37(b)( 2)(i) of th e Te nnes see R ules o f Crim inal Pr oced ure pro vides in pertinent part as f

ollows: (b) An appeal li es from any order or judgment i n a criminal proceeding where the law provides for such appeal, and from any judgment of convicti on: (2) upon a plea of gu ilty or nolo contender

e if: ( i) defendant

entered int

o a plea agree me nt under R ule 11(e ) but explicitly res erved w ith t he consent of t he State and of t he court theright t o appeal a certif ied questi on of lawthat is disposit ive of t he case.
Our supreme court has al so prescri bed guideline s that mu st be adh ered to in orderto perfectan 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:-5- 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 uisite s to the consider ation of the merits of a question of law certified pursuant to Tenn. R. Cri m. P. 37(b)(2 )(i) or (iv). Regardless of what has appeared in prior pet itions, orders, collo quy in open court or othe rwise , the final order or j udgment from which the ti m e 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 certifi ed que stion of law reser ved by def

endant for appellate revie

w and the question of la w m ust be stated so as to clear ly i dentify the scope a nd the lim its of the legal issue reserved. For e xample, w here quest ions of law involve t he vali dity of searchesand the admissibi lity

of statements and confessions, etc., the reasons relied upo n by defendant in the trial court at the suppressi on hearing must be identi fied i n the statementof the cer tifi ed question o f law and review by the appe llate courts w ill be limited to those passed upon by the tri al judge and stated i n the certif ied question , absent a constitutionalrequirement otherwise. Without an explicit stateme nt of the cert if ied questi on, n either the defendant , the State nor the trial j udge ca n m ake a meaningful determination of whether the i ssue sought to be revi ewed is dispos itiv e of the case. Most of the reported and unr eported cases seeking the l imited appellate review pu rsuant to Tenn . R. Crim . P
. 37 have been dismissed b e cause the cert ified qu estion was not disposit ive. Also, the o rder must state that the certif ied ques tion was expressly reserved as par

t of a p le 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 the qu estion is dispositive of thecase . Of course, the burd en is on d efendan t to see that t hes e prerequisites are in the final order and that the re cord brought to the appel late cour ts contains a ll of the pr oceedings below that bear upon whether the certifi ed quest ion of law is disposit ive and the merits of the questi on certi fied. No issue beyond t he 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 t he burden of "r eserving, articul ating, and identif ying the issue ." Pendergrass , 937 S.W .2d at 838
.-6- In Defe ndan t’s appellate brief, the issue s presented for review are framed as follows: 1. Did the t ri al court err by all owing the State to petit ion

the Cour t for an O rder allo wing th e State to obta in samples of bod ily fluidsand h airs from the De fenda nt in violat ion of Tenne ssee Constit utio n art icl e I, §7 and U.S

. Constitut ion amend ment IV, after the trial court suppressed sam ple s of the same items earlier t aken pursua nt to a sea rch warra nt? 2. Did the trial c ourt err by fin ding th at the State had establi shed probable cause t hat the Defendant had committed a crime su fficient to suppo rt a search warrant, or Orderof the Court, to obtain samples of the Defenda nt’s bodily fluids and ha ir?
It appears that Defendant has substanti ally dev iated fr om the certi fied questions of law as set forth pr evious ly in this opinion, desp ite the straightforward a nd man datory language f ound in Preston and Pendergrass . Again, our review i s limited to th e issues stated i n the certified quest ions setforth i n the tri al 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 c an not eve n be lib erally interpr eted as being encompassed in either of t he certif ied questi ons in the t rial court’s Order. Therefore, the fi rst 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 B aker recognized two procedural metho ds for obtai ning evidence: ( 1) a search warrant or (2) a moti on seeking a judici al order with an adver

sarial evidentiar

y hearing. C.C.A. No. 02-C-0 1- 9511-CC-00347, slip op. at 7 , Ti pton Co unty (Tenn. Cri m. App, Jackson, Jan. 27, 1997), per m. to appeal deni ed (Tenn. 1997). Defendant was given an adver

sarial evidentiary hearing in this case to determine whether the evidence establi shed-7-

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 c ertif ied qu estion of law as set forth in t he Order has not been briefed by Defendantand should ther efore not be addr

essed. However, even in addressed on the merits, we find t hat Defendant’s fir st certif ied question as se t forth in the O rder st ill does n ot com ply with th e requ ireme nts se t forth in Pendergrass and Preston . The first certi fied quest ion states that i t concerns “the issue of whether t he [c]ourt erred in al lowing hearsa y testi mony and in fi nding that suffic ientprobable cause existed to gran t the Sta te’s m otion to obtain said
e vidence .” We do recognize that our supreme court appear s to have rel axed the Preston requirements s omewhat by its or der in State v. Sarah Hutton Downey , C.C.A. No. 03C01-9307-CR-00221, Hamilton County (Tenn. Crim. App., Knox vill e, July 6, 1994) , aff’d (Te nn. 1997). I n Downey , this Cou rt dismiss ed an a ppeal o f a certif ied question of law, fin ding “in this case t he final order simply incorporated by referenc e variou s issues the a ppellant raised in several moti ons before the trial court.” Id
. at 3. Our supreme court remanded the case “for considerat ion of the certif ied issue,” and set fort h what it had determined thecertif ied issueto be. State
v. Sarah Hutton Downey , Orde r (file d Oct. 31 , 1994). However, we have no such incorporat ion in this case . Alth ou gh this quest ion does ident ify hear say as the
reason relied upon by Defendant at the suppressi on hearing, it does notindicate the nature of the purpor

ted hearsay testimony, what witness or

witnesses al legedl y testif ied to hearsay test imony, why the hearsay testimony was i nadmissible, or how the hearsay test imony affected the outcome of t he suppression hea ri ng. In othe r words, the certified quest ion is not stated so asto clearly ide ntify the scope and the-8-

limit of the lega l issue res erved. T herefore , we mu st conclu de on th e m erits t hat Defendant ’s fi rst cer

tif ied quest ion is

not appr

opriate for r

eview.

Defe ndan t’s secon d issue a s set forth in his br ief can beliberal ly interpreted to be encompassed by his second ce rtif ied questi on of law, bu t only on the pro bable
cause issue. Al so, since Defendant’s second certif ied questi on does incorpor ate by
r eference his mo tion to s uppre ss, we find the seco nd ce rtified qu estio n to b e prope rly before us. The trial judge ga ve detailed findings o f fact in determining the re to be probabl e cause toissue a s earch wa rrant. Dean Mason testif ied that Defendant had consumed alcohol on the evening of t he stabbing and t hat Defendant had told hi m that he would pay him back later

for the al cohol. At s ome point duri ng thatconversati on, Defendant told Mason that hewould be coming int o a sum of money in t he ver

y near fut ure, possi bly

the n ext

day. Ro bbie Byer s, Defe ndan t’s roommate, testified that h e and D efenda nt d id 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.

Laterthat eveni ng, Mason took Defendant to the tr ailer park where Defendant shared a trailer with Robbie Byers. At approximately 10:30 p. m., Rhonda French, HeatherSchlatter

and Laura Meade saw Defendant and testifi ed 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 himsel f because of hi s intoxi cated state, but they never saw him agai n that eveni ng.

Somet ime later that eve ning, De fendan t asked h is room mate to take him to his sister’ s res ide nce tha t was ab out four o r five miles a way, but h is room mate-9-

refused. His room mate testif ied that h e did not see Defendant again af ter 11:20p.m. Mr. Byers woke up about 2:00 a.m. and found Defendant was not i n his bed.

The victim was stabbe d to dea th some ti me be twe en 10 :00p.m. and 2:0 0 a. m. thatevening. I t was determinedthat some money was stol en from a water bottle at the vict im’s resi dence.

Defendant was next seen at 7:00 the next morning b y his relatives. For days followi ng the sta bbing , Defe ndan t stayed in the w oods behin d his sister’ s home and
was seen on occasion goi ng into hi s sister’s home. On one of these occas ions after the discovery of the victi m’s body, the police went to Defendant’s sister’ s house in
an effort to f ind Defendant but he refused to come to the door. The court al so found thatDefen dant later le ft town un der wha t it considere d “preca rious circu mstan ces.” The shirt Defendant was seen weari ng on the night of the stabbi ng was found behind his sister’s re sidence with hum an bloo d on it.

As the trial cour t noted, t he Sta te was only req uired to estab lish pro bable
cause for iss uance of a court order permit

ting the s earch. While theproof maynot have estab lished the gu il t 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 t rial court's findings of fact in a suppression heari ng unless t he evi dence prepon derate s ag ain st t hem. State v. Odom , 928 S.W .2d 18, 23 (Tenn . 1996); State v. Stephenson , 878 S.W.2d 530, 544 (Ten n. 1994). After r eviewing t he trialcourt’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.-10- Based on al l 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