Court of Criminal Appeals of Tennessee, Knoxville
November 28, 2017
from the Circuit Court for Sevier County No. 20240 Paul G.
Summers, Senior Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
C. Miller, Dandridge, Tennessee, for the appellant, Andrew
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
Ross Dyer, J., delivered the opinion of the court, in which
Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
ROSS DYER, JUDGE.
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).
Motion to Suppress
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.
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.
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
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."
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.
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
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.
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.
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.
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.
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.
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.
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.
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 ...