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State v. Beverly

Court of Criminal Appeals of Tennessee, Knoxville

December 14, 2017

STATE OF TENNESSEE
v.
ANDREW BERNARD BEVERLY

          November 28, 2017

         Appeal from the Circuit Court for Sevier County No. 20240 Paul G. Summers, Senior Judge

         After a jury trial, the defendant, Andrew Bernard Beverly, was convicted of first-degree premeditated murder, first-degree felony murder, attempted first-degree murder, and possession of a firearm during the commission of a dangerous felony. On appeal, the defendant asserts the evidence was insufficient to support his convictions for premeditated murder, felony murder, and attempted murder, arguing the State failed to prove the appropriate mens rea for the offenses. The defendant also claims the trial court erred in denying his motion to suppress three statements made after his arrest claiming his Miranda waiver prior to the initial interview did not pass constitutional muster. Following our review, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

          Edward C. Miller, Dandridge, Tennessee, for the appellant, Andrew Bernard Beverly.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Jimmy B. Dunn, District Attorney General; and Ronald C. Newcomb, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          J. ROSS DYER, JUDGE.

         FACTS

         On March 3, 2015, a Sevier County Grand Jury indicted the defendant for twenty-three crimes for actions committed against victims, Angela Beverly and Jabari Dial. At issue in this appeal are the crimes committed against the victims on September 24, 2014, in Sevier County, Tennessee. On that day, the defendant shot and killed Ms. Beverly, his estranged wife, and attempted to kill Mr. Dial. After fleeing the scene of the shooting, the defendant was arrested in Harlan County, Kentucky on the evening of September 24, 2014. Subsequent to his arrest, the defendant gave three separate statements regarding his involvement in the crimes, twice to Sevier County officers and once to the news media. Following several pre-trial hearings, the defendant proceeded to trial for the first-degree, premeditated murder of Ms. Beverly (Count 1), the first-degree, felony murder of Ms. Beverly during the attempted murder of Mr. Dial (Count 3), the attempted first-degree, premeditated murder of Mr. Dial (Count 4), and the possession of a firearm during the commission of a dangerous felony (Count 18).[1]

         I. Motion to Suppress

         Prior to trial and significant to this appeal, the trial court conducted a hearing on the defendant's motion to suppress the three statements made after his arrest. The first statement occurred during the defendant's initial interrogation by Sevier County officers in Harlan County, Kentucky on September 25, 2014. The defendant made his second statement to the news media while still incarcerated in Harlan County on September 25, 2014. The third statement occurred on September 26, 2014, during the defendant's second interview with Sevier County officers after he was extradited to Tennessee. In his motion to suppress, the defendant argued he "did not waive his right against self-incrimination prior to his initial statement, " thus rendering it involuntary. The defendant further argued the two "subsequent statements were fruit of the prior unconstitutional statement" and should be suppressed. The State disagreed, and presented evidence regarding the constitutionality and admissibility of the three separate statements at the suppression hearing.

         Deputy Will Pope and Officer Michael Boggs were on duty in Harlan County, Kentucky on September 24, 2014, prior to the defendant's arrest. Deputy Pope testified he apprehended the defendant in a gas station parking lot in Harlan County and eventually charged him with first-degree murder on a Sevier County warrant. Neither Deputy Pope nor Officer Boggs interviewed the defendant upon his arrest; however, both officers testified the news media was at the Harlan County jail on September 25, 2014.

         Captain Stephanie Hodges and Detective Jeff McCarter of the Sevier County Sheriff's Office conducted the initial interview of the defendant in Harlan County on September 25, 2014. During Captain Hodges' testimony, the State entered the audio recording and transcript of the initial interview into evidence. On cross-examination, Captain Hodges explained she and Detective McCarter conducted the interview in a chapel inside the Harlan County jail. When the defendant entered the chapel, Captain Hodges and Detective McCarter introduced themselves, explained why they were there, and read the defendant his Miranda rights. According to Captain Hodges, the chapel had an "outrageous" echo and, as a result, she did not initially record the interview with the defendant. However, after approximately five minutes she "decided to take [her] chances and hit record." Accordingly, the remainder of the interview was captured and transcribed.

         After turning the recording on, Captain Hodges interrupted the defendant to confirm he understood his Miranda rights. Captain Hodges read the transcript of this portion of the interview into the record, stating: "I said, 'Okay, well, like I said, you understand what your rights are?' [The defendant] said, 'Right.' And then on page two, there's another one. Then on page two, 'And I read you your rights, okay, and you understand what they are?' [The defendant] said, 'Right.'" Captain Hodges further stated, "I read the Miranda warning to [the defendant] in the presence of Chief McCarter, explained to him why we were there. Okay? He was read his Miranda warnings." Though Captain Hodges read and explained the defendant's Miranda rights to him from a waiver, she acknowledged the defendant did not sign the waiver during the initial interview. Rather, the defendant signed a waiver of rights during the second interview with Sevier County officers conducted after his extradition to Tennessee on September 26, 2014. Despite his failure to sign a waiver, Captain Hodges testified the defendant waived his rights during the initial interview and "acknowledged to [her] that he was certainly ready to make a statement and answer questions and go forward."

         Further, at the suppression hearing, Captain Hodges discussed why she did not stop the interview after the defendant indicated he might want "to talk to somebody." During the interview, the following exchange occurred:

[The defendant]: I'm (inaudible) to talk to somebody because I mean you all talking to me like this right here.
[Chief McCarter]: Well we're just telling you how it is.
[Captain Hodges]: Hey, I've not lied to you once.
[Chief McCarter]: We're just telling you how it is.
[The defendant]: Well I'm trying to tell you guys how it all begin (sic), ok, that's what I'm trying to do.
[Captain Hodges]: Well I'm all ears.

         According to Captain Hodges, the defendant "continued to talk" after indicating he might want to talk to someone. She further explained:

[The defendant] made the statement along the lines of -- when I reread it, "maybe I should talk to somebody because you all are being harsh, " something along those lines. And then Chief McCarter answered with, "We're just telling you how it is." Again, he was just at that point pretending to not know what we were talking about or why we were there. Your client was very cooperative and he understood his Miranda warnings and I explained those initially.

         Though he was cooperative, the defendant initially denied any knowledge of the death of his wife, Ms. Beverly, even acting "surprised at first." However, as the interview progressed, the defendant ultimately confessed to shooting Ms. Beverly. The defendant further admitted he intended to shoot Mr. Dial on September 24, 2014. Before concluding the interview, the defendant signed forms consenting to the search of his car, telephone, and home.

         Chief McCarter also testified regarding the defendant's initial interview in Harlan County, Kentucky. According to him, Captain Hodges read the defendant his Miranda rights prior to beginning the interview, despite them not being captured in the recording. At the motion to suppress hearing, Chief McCarter acknowledged he made a statement to the defendant during the interview suggesting that if he confessed, he might avoid the death penalty. Specifically, Chief McCarter testified this statement was made at a point in the interview when the defendant maintained he had no knowledge of Ms. Beverly's death. Chief McCarter stated: "You can set (sic) here and hold to that story and you can fry in the electric chair or you can set (sic) here and you can be a man and tell us what happened. It might help you from getting the death penalty." Chief McCarter explained he made the statement "to try to elicit a response from [the defendant]." However, Chief McCarter testified the comment was not a promise of leniency used to obtain a confession from the defendant. Captain Hodges testified Chief McCarter made this statement to the defendant during the initial interview.

         Additionally, while in the Harlan County jail, the defendant agreed to speak to the news media. Chief McCarter testified that during "the latter part of the interview" a Harlan County officer interrupted the interview to inform the defendant the news media was ready to speak with him. Before the defendant gave a statement to the media, Chief McCarter discussed the request with the defendant. Chief McCarter explained:

As we were leaving the interview -- well, it wasn't an interview room. It actually, I believe, [was] a chapel. As we were walking out with [the defendant] and I believe it was Officer Moore from Harlan County jail, again, I stopped in the hallway and my words to [the defendant] were, ". . . I'm not your attorney and I'm in no way your legal adviser, but I believe if I was a man in your shoes I don't believe I would be talking to the TV station." Then he just looked at me and said, "Thank you." And I believe he even shook my hand and that was the last time I ever saw him until we got back to Sevier County.

         Regarding the defendant's media interview, Chief Derrick Moore of the Harlan County Sheriff's Department explained he approached the defendant with the news media's request for an interview. Chief Moore asked the defendant if he would like to speak to the media, and the defendant stated he would. Chief Moore testified he did not force the defendant to speak to the media, stating "if [the defendant] would have said no during the interview, we would have told them to shut the cameras off." Further, Chief Moore stated he had no control over the interview and would not have allowed it if the defendant stated he did not want to participate. During Chief Moore's testimony, the defendant's statement to the media was admitted into evidence and played at the suppression hearing. In the interview, the defendant again confessed to shooting Ms. Beverly and admitted he intended to shoot Mr. Dial.

         Finally, Chief McCarter discussed the defendant's third recorded interview given on September 26, 2014. Prior to the interview, the defendant signed a written waiver of his Miranda rights. After doing so, the defendant showed Chief McCarter how he shot Ms. Beverly. According to Chief McCarter, the defendant's third statement was consistent with the statement from the first interview.

         Upon its review, the trial court issued an order denying the defendant's motion to suppress the three statements finding the defendant knowingly waived his Miranda rights. The State proceeded to trial with this evidence.

         II. Trial

         At trial, the surviving victim, Jabari Dial, explained he was at Ms. Beverly's home in Sevier County, Tennessee on the morning of September 24, 2014. Around 10 a.m., Mr. Dial made coffee while Ms. Beverly prepared to take out the garbage. According to Mr. Dial, Ms. Beverly had to "walk around the corner [of the house] to take the trash to the trash can." Mr. Dial stated Ms. Beverly walked outside to do so, and then he heard her scream. After hearing Ms. Beverly scream, Mr. Dial looked outside and saw the defendant holding a gun over her. He described the scene, as follows:

Then the next -- from where I was standing in the window, I heard the scream and then the next thing I seen was I seen [Ms. Beverly] backing up holding the -- she was holding the trash bag still in one hand and holding [the defendant's] hand with the gun over her head with another -- with her other arm as she was backing up.

         Mr. Dial ran outside and asked the defendant, "what are you doing, why do you have a gun . . . what are you going to do, you going to shoot us now, shoot her now." According to Mr. Dial, the defendant stated, "yeah, I'm going to shoot her and then I'm going to shoot you." Mr. Dial "kind of froze for a minute, " and then the defendant "took the gun and he pointed it down on top of [Ms. Beverly] and he shot her." After the defendant shot her once, "right on her head, " Ms. Beverly fell to the ground face-first. During cross-examination, Mr. Dial testified the struggle between the defendant and Ms. Beverly lasted approximately "seven to eight minutes, conversation and all." He stated, "for the majority of the ...


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