           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.




                                          -2-
       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

                                             -3-
               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:




                                            -4-
            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 .




                                          -5-
      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




                                            -6-
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




                                           -7-
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




                                            -8-
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.




                                            -9-
    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




                                      -10-
