             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                            APRIL 1997 SESSION
                                                       FILED
                                                       November 10, 1998

STATE OF TENNESSEE,                )                   Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
                                   )
             Appellee,             )     No. 02C01-9610-CC-00367
                                   )
                                   )     Lauderdale County
v.                                 )
                                   )     Honorable Joe H. Walker, Judge
                                   )
ROBERT GOSS and CARL HALE,         )     (First degree murder and aggravated
                                   )     assault)
             Appellants.           )


For Appellant Goss:                For the Appellee:

Robert Wilder                      Charles W. Burson
Bank of Ripley Bldg.               Attorney General of Tennessee
Ripley, TN 38063                          and
(AT TRIAL)                         Deborah A. Tullis
                                   Assistant Attorney General of Tennessee
D. Michael Dunavant                450 James Robertson Parkway
Bank of Ripley Bldg.               Nashville, TN 37243-0493
Ripley, TN 38063
(AT TRIAL & ON APPEAL)
                                   Elizabeth T. Rice
For Appellant Hale:                District Attorney General
                                   302 Market Street
Gary F. Antrican                   Somerville, TN 38068
District Public Defender                   and
P.O. Box 700                       Mark Davidson
Somerville, TN 38068               Assistant District Attorney General
    and                            Lauderdale County Justice Center
Julie K. Pillow                    675 Highway 51
Assistant Public Defender          Ripley, TN 38063
151 Industrial Road
Covington, TN 38019




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                      OPINION



              The defendants, Robert Goss and Carl Hale, appeal as of right from their

jury convictions in the Lauderdale County Circuit Court for first degree murder and

aggravated assault, a Class C felony. The defendants were sentenced to life

imprisonment for their convictions for first degree murder. The trial court sentenced

Goss as a Range II, multiple offender to ten years in the custody of the Department of

Correction for the aggravated assault conviction. It sentenced Hale as a Range III,

persistent offender to fifteen years in the custody of the Department of Correction for

the aggravated assault conviction. The trial court ordered the defendants to serve their

respective sentences consecutive to each other and consecutive to prior sentences.

On appeal, the defendants contend that the evidence is insufficient to support their

convictions and that the trial court erred by admitting into evidence a photograph of the

murder victim. In addition, Goss contends that the trial court erred by denying his

motion to suppress a statement made by him. Hale also contends that the trial court

improperly denied his motion for a preliminary hearing or, in the alternative, to dismiss

the indictment. We affirm the judgments of conviction.



              Correctional Corporal Henry Love testified that when the offenses

occurred on August 25, 1995, he was working in the control room of Unit 5 at West

Tennessee High Security Facility. He stated that Hale and Willis McDonald, the murder

victim, were housed in cells in C pod located next to each other but that Goss was not

housed in the pod. He said that on the day of the offenses, he saw McDonald in C pod

with a towel wrapped around his body. He stated that he did not see McDonald holding

anything. He said that McDonald had his hands to his side holding the towel. He said

that Hale then closed McDonald's cell door and Goss ran up the stairs toward Hale and

McDonald who were standing near their cells at the top of the stairs. Corporal Love

testified that he looked away to answer the telephone but that when he looked back, he



                                             2
saw one of the defendants jab McDonald with an object, causing him to grab his side.

He said that another inmate climbed up the stairs but turned around when the

defendants faced him. He stated that Goss then hit McDonald in the chest, and

McDonald fell down the stairs.



             On cross-examination, Corporal Love conceded that he could not see all

areas of the pod. He testified that approximately two weeks before the offenses, he

saw inmates throw food and other items where Goss was working, causing Goss to

become upset.



             Correctional Corporal Rudy Cobb testified that he walked McDonald from

the shower on the day of the offenses. He said that he did not search McDonald. He

stated that he later heard McDonald calling for help and saw the defendants stabbing

McDonald repeatedly as they were at the top of the stairs. Corporal Cobb said that he

called for help and that other officers arrived after the defendants and McDonald were

at the bottom of the stairs. He said that he tried to walk toward the defendants but that

they came toward him with knives, causing him to step back. He said that Hale then

stood in front of Corporal Cobb with a knife while Goss continued to stab McDonald in

the chest. He stated that the defendants finally laid the knives on the table. Corporal

Cobb testified that he was scared of the defendants and feared for his life. He said that

the defendants appeared calm after the stabbing.



             On cross-examination, Corporal Cobb admitted that his logbook states

that he was in the shower area when the offenses took place, but he explained that he

must have mistakenly entered the time. He denied telling anyone that he was not

scared of Hale. He testified that he did not know how Goss got into C pod. Officer

Cobb said that Officer Hutcherson and Correctional Corporals Williams and Freeman

were present during the incident.



                                            3
              Correctional Corporal Anthony Freeman testified that he responded to a

call on the radio and saw Goss stabbing McDonald in the chest. He said that McDonald

was lying naked on his back without a weapon. He testified that he did not see the

incident begin and that he did not see Hale stab McDonald. He stated that Hale pulled

a knife out and pointed it at the officers and said, "Nobody mess with Robert Goss while

he's taking care of some business." He said that Goss never came toward them with a

knife and instead kneeled in front of McDonald stabbing him. He conceded that gang

activity existed in the prison, but he said that he did not know if McDonald belonged to a

gang.



              Correctional Corporal Major Williams testified that he responded to the

call for assistance. He said that he saw Hale standing at the pod door with a knife

telling the officers to stay back. He said that Hale told the officers that he had nothing

against them and that Goss was "taking care of business." He stated that Goss was

stabbing McDonald. He said that he told the defendants to put the knives on the table

and Hale replied that he wanted Goss to be safe. He said that he told the defendants a

second time to place the knives on the table, and they complied. Corporal Williams

testified that McDonald died about one minute later. Corporal Williams testified that

Goss never said anything to him. Corporal Williams said that he did not see the

beginning of the incident, nor did he see McDonald with a weapon. He acknowledged

that gang activity existed in the prison, but he stated that he did not know if McDonald

was a member of a gang.



              Corporal Williams testified that he was the pod officer for A pod and that

Goss cleaned the pod. He said that there was garbage in the floor sometimes and that

Goss would clean it up. He stated that Goss did not express any concerns to him, other

than a request for a job change.



                                             4
             Correctional Clerical Officer Everett Hutcherson testified that he also

worked in Unit 5 on the day of the offenses and that he went to C pod in response to

the code call. Officer Hutcherson testified that he saw Goss stabbing McDonald. He

said that McDonald was lying flat on his back and had no weapon. He said that he also

saw Hale with a knife and that Hale's hand was bloody. He stated that Hale told the

officers not to bother Goss. Officer Hutcherson testified that he went in the pod along

with Officers Freeman and Williams. He said that he did not remember seeing Officer

Cobb. He said that Hale came toward the officers with a knife. He testified that after

Goss put his knife on the table, Hale picked it up but then laid the knife back down. He

stated that he never saw Hale do anything to McDonald. He testified that he did not

know whether McDonald had a knife. He said that he did not see the beginning of the

incident.



             Correctional Corporal Scott Wilson testified that he was about one

hundred yards away from Unit 5 in the property room when he heard and responded to

the call for assistance. He said that when he arrived, Goss was standing by the door

with blood on his hands and the officers were going inside the pod. Corporal Wilson

said that he did not advise Goss of his rights before he walked up to Goss and asked

him what happened. He stated that Goss replied that he had killed McDonald, referring

to him by a racial epithet. Corporal Wilson testified that he asked Goss, “Do what?” and

Goss replied a second time that he had killed McDonald. He stated that he told Goss

that he may not have killed him. Corporal Wilson said that Goss appeared calm and

that he had blood on his hands. He testified that Goss told him that he did not want to

be handcuffed because he was afraid of being attacked by the inmates. He stated that

Goss was then taken to D pod and handcuffed. Corporal Wilson testified that

Lieutenant Timothy Bratton then read Goss the Miranda warnings. He stated that

during the interview, Goss confessed and explained that he was having trouble with



                                            5
some inmates in A pod. He testified that Goss refused to answer questions about Hale

and then asked for a lawyer.



             On cross-examination, Corporal Wilson stated that he did not see what

happened or how it began. He conceded that he had a prior conviction for writing bad

checks. He acknowledged that gang activity existed in the prison, but he said that he

did not know if McDonald belonged to a gang.



             Officer Carlos Hardy testified that he was the captain of the first shift. He

said that he was in the officer's dining room when he heard and responded to the call

for assistance. He stated that he saw many other officers in the pod and that he saw

McDonald lying on the floor. Officer Hardy testified that he ordered a lockdown of the

unit and the investigation of the incident was conducted by Lieutenant Timothy Bratton.

Officer Hardy said that Officer Boyd gave him two homemade knives that had blood on

them. He identified the two knives for the jury.



             Lieutenant Timothy Bratton testified that he investigated the stabbing. He

said that although he did not see the stabbing take place, he saw McDonald lying on

the floor. He described the area as being blood soaked. He said that he also talked to

Goss after the incident. He stated that Goss appeared calm and had blood on his

hands and shoes. He said that he read Goss his rights and that Goss told him that he

had experienced problems with inmates in another pod. He testified that Goss said that

these other inmates were gang members and that McDonald was "trying to take up

where they left off." He said that Goss told him that he got McDonald before McDonald

and the other inmates got him. He testified that Goss told him that he would do it again

if necessary, and that he did not know why Hale was involved. He said that Goss did

not tell him that threats had been made on his life. He said that he did not see Hale




                                            6
until a couple of days after the incident. He said that Hale had scratches on his chest

and hand.



             Lieutenant Bratton identified photographs he took of McDonald, the

scene, and the defendants. A photograph of the scene showed a sandal worn by

inmates during showers. Lieutenant Bratton testified that a Tennessee Bureau of

Investigation agent reviewed his investigation but made no further investigation. He

testified that two metal homemade knives were recovered from the scene. He

conceded that gang activity existed in the prison, but he said that he did not know

whether McDonald was a gang member.



             Dr. Wendy Gunther, a forensic pathologist, testified that she performed

the autopsy of McDonald. She said that McDonald suffered injuries to the heart, a lung,

and other organs, causing death by internal bleeding. Dr. Gunther testified that

McDonald received a total of twenty-five stab wounds, ten of which would have been

fatal by themselves. Dr. Gunther described defensive wounds found on McDonald's

hands and arms. She said that McDonald was five feet ten inches tall and weighed one

hundred seventy-four pounds. She stated that McDonald had a tattoo, "GD," on his

chest.



             Inmate Jeffrey Johnson testified that he was not in C pod on the day of

the crimes. He testified that he asked Officer Cobb a couple of months after the crimes

if he had been afraid of Hale. He said that Officer Cobb responded that he had not

been afraid. Johnson conceded that he had been convicted of armed robbery, assault

with intent to commit murder, fraud, breach of trust, and writing a bad check.



             Inmate Johnny Catron testified that he was not in C pod when the crimes

took place but that he saw officers running toward C pod and Officer Cobb standing



                                            7
outside the pod door. He said that he did not know McDonald. He said that Goss had

told him that he was having problems with gang members. He stated that Goss said

that he had argued with them about throwing trash on the floor while he was cleaning in

A pod. He said that Goss acted scared and that Goss had told him that the gang

members had threatened to kill him. He testified that he saw Goss going into Hale’s

cell the day of the offenses. Catron admitted that he had three or four convictions for

second degree burglary, two convictions for jail escapes, two convictions for armed

robbery, and a conviction for introduction of contraband into a penal institution.



              Inmate David Mansfield testified that he lived in C pod for five days but

that he had been moved and was not present when the offenses occurred. He said that

he knew McDonald and had worked with him for three or four months. Mansfield said

that McDonald was a member of a gang called the Gangster Disciples, and that this

gang had a reputation for being bullies. He said that he saw McDonald interacting with

other gang members. He said that McDonald had similar tattoos and made hand signs

similar to the other gangsters.



              Mansfield testified that he had problems with McDonald. He testified that

McDonald told him that “you play with fire, you wind up getting burned.” Mansfield

believed that he was being threatened by McDonald’s statement. He said that

McDonald had also threatened him in the past regarding money he owed another

person. Mansfield said that a few days before the crimes took place, he heard

McDonald talking about an unidentified Caucasian man who cleaned A pod to some of

his friends. He testified that McDonald said that the man was not doing what he should

be doing. He said that McDonald stated that they would have to do something to take

care of him and to let him know who was running the place. He testified that McDonald

described the man as a “punk,” meaning that he was a homosexual. Mansfield said

that he then saw McDonald with a knife, but he conceded that he did not tell anyone



                                             8
about it. He said that it was common for inmates to have knives. On cross-

examination, Mansfield conceded that he was serving concurrent sentences for

attempted first degree murder and theft of property valued over one thousand dollars.



             Inmate Doug England testified that fifteen days before the crimes, he

moved into A pod and lived there on the day of the crimes. He said that Goss was the

cleanup person in A pod. England said that McDonald had a reputation for being a

member of the Gangster Disciples. He stated that some inmates in A pod asked Goss

to pass things between cells for them while he was cleaning. He testified that when

Goss refused, the inmates threw milk, urine, feces, and other items at Goss. He stated

that other inmates threatened to beat or kill Goss. He said that McDonald was bigger

than the defendant. He testified that threats happen often in prison and that he takes

them seriously. England admitted that he was in prison serving sentences for three

counts of aggravated burglary.



             Hale testified that he and Goss were lovers. He said that McDonald was

a gang member, and he believed that trouble with one member of the gang would be

trouble with all members. He said that McDonald told him that he knew about the

defendants' relationship and told him that he was having problems with Goss not

passing notes for his friends. Hale testified that McDonald told him that the problem

would be dealt with if it were not resolved. Hale believed McDonald's statements to be

a threat to his own safety as well as to Goss' safety because McDonald stated that all

whites and homosexuals needed to be killed. Hale testified that on the day of the

offenses, he told Goss what McDonald had said. He said that he told Goss that they

should keep their eyes on McDonald and the other inmates but that they should not to

do anything unless McDonald or the other inmates did something first. Hale testified

that he and Goss did not plan to kill McDonald.




                                           9
             Hale testified that McDonald jerked open Hale's cell door while Hale was

in the hallway and Goss was in Hale's cell. He said that McDonald had a knife in his

hand. He said that he hit McDonald with his fist and took the knife away from him. He

testified that he, Goss, and McDonald wrestled for the knife and that his hand was cut

during the struggle. Hale stated that McDonald then fell down the stairs. He testified

that he ran down the stairs after McDonald but that he did not touch McDonald again.



             Hale testified that he saw Officer Cobb, but he denied waving a knife at

him and said that he did not intend to hurt Officer Cobb. He said that Officer Cobb left

the pod before the other officers arrived. He said that he and Goss complied when the

officers told them to put down their knives. He said that because he believed that Goss

would be harmed by inmates belonging to a gang who were in the hall, he picked up

both knives and held them in one hand. He stated that when an officer told him that

Goss would not be harmed by a gang member, he laid both knives down. Hale testified

that he heard Officer Cobb state that he was not afraid of him on that day. He said that

he became involved in the incident because he did not want Goss to be hurt. He

conceded that Goss was not supposed to be in C pod when the offenses occurred.



              On cross-examination, Hale testified that McDonald was wearing only a

towel. He said that it was not uncommon to take a knife to the shower. He said that

when the offenses occurred, there were three other gang members in the pod and

possibly more in the showers. He testified that threats and intimidation were common

in prison. He said that he did not say anything to the officers, denying that he told the

officers to leave Goss alone. Hale could not explain how McDonald had been stabbed

so many times, and he stated that the stabbing could have occurred as he, Goss, and

McDonald were wrestling for the knife. He conceded that it was possible that he

stabbed McDonald a couple of times as they were wrestling at the top of the stairs.




                                            10
              Goss testified that he was serving a twenty-five-year sentence and that he

had spent two years in maximum security for assault. He testified that he was five feet-

seven inches tall and weighed one hundred fifty pounds. Goss said that he lived in D

pod of Unit 5 on the day of the crimes. He stated that Hale was his friend and lover.

He testified that he worked as a cleanup person in A pod of Unit 5. He stated that no

one wanted to work in that pod because of the gang members. He testified that anyone

who offended one member of the Gangster Disciples would be attacked by eight to

twelve gang members. He said that he knew McDonald was a member of the Gangster

Disciples. He stated that on earlier occasions while he was cleaning, some of the gang

members in A pod asked him to pass things between cells for them. He stated that

when he refused, they cursed him and threw spoiled milk, urine, and feces at him. He

said that they also threatened to kill him and told him their fellow gang members would

do it if they could not. He said that he was afraid because of the threats. He testified

that the threats to kill him started about a week before the incident.



              Goss testified that he wrote letters to the wardens of two other prisons

asking to be transferred to their institutions because he wanted to get away from the

gang members. He conceded that he did not mention the death threats in the letters.

He identified the two letters, and they were introduced as exhibits. In the letters, Goss

stated that he feared gang activity at the prison and that he wanted to be transferred to

get away from the gangs. Goss testified that he told Hale, Catron, and Unit Manager

Jimmy Harrison about his problems. He told Harrison that he wanted to be the cleanup

person for D pod. He also testified that he tried to get other jobs in prison. He stated

that his requests for a job transfer were denied.



              Goss testified that he went to Hale’s cell on the day of the crimes. He

testified that he was there from around 8:45 a.m. until the crimes occurred. He said

that he had a knife with him for protection. He testified that he was scared when Hale



                                            11
told him that McDonald had said that if Goss did not start passing things, the problem

would be resolved. He stated that Hale told him not to do anything unless absolutely

necessary. He testified that Hale pointed out McDonald as the person making the

threats. Goss stated that he later saw McDonald stop and talk to three other gang

members before going to the shower. He said that McDonald and the other inmates

whispered and looked at Hale.



             Goss testified that McDonald returned and approached the cell door. He

said that when McDonald saw him inside, McDonald jerked open the cell door and took

out a knife that had been wrapped in a washcloth. He said that he was afraid of being

killed or seriously injured if McDonald came into the cell. Goss stated that he then took

the knife that he had with him and hit McDonald in the chest and pushed him out of the

cell. He said that Hale then grabbed McDonald’s arm and pulled McDonald around. He

stated that while Hale attempted to take the knife away from McDonald, Goss

repeatedly stabbed McDonald. He said that Hale was able to take the knife away from

McDonald. He stated that as the three men were fighting, McDonald tried to grab the

knife and the defendants. He said that McDonald hit a telephone and fell down. Goss

testified that he then stabbed McDonald again, and McDonald fell down the stairs.

Goss said that because he was afraid the other inmates would throw him over the

railing, he ran down the stairs and continued to stab McDonald until the officers arrived.

Goss testified that when the officers arrived, he asked Hale if Hale wanted him to put

the knife down. He said that he put his knife down when Hale told him to put it down.

He stated that Hale then picked up both knives. Goss said that neither he nor Hale

pointed the knives at the officers, went toward Officer Cobb with a knife, or said

anything to Officer Cobb.



             Goss testified that Hale then said that he did not want Goss to go where

gang members could harm him. He said that when Corporal Williams told Hale that



                                            12
Goss would not be placed in danger, Hale put down both knives. Goss said that he

was afraid the gang members would attack him, even though officers were present. He

stated that Hale did not have a knife before the offenses took place. Goss said that he

did not plan to kill McDonald and claimed that he stabbed in self-defense because he

believed that McDonald was coming into the cell to kill him. He said that the stabbing

occurred because no one would help him.



              On cross-examination, Goss conceded that he was not supposed to be in

C pod. He said that when he saw McDonald pull out the knife, Hale’s cell door was

open only three to three-and-one-half inches. He testified that he stabbed McDonald

first. He said that Hale appeared as soon as he pushed McDonald out of the cell. He

said that he kept stabbing McDonald because McDonald continued to come toward

him. He said that he did not realize that McDonald was nude and unarmed when he

ran down the stairs and continued to stab him. He denied telling Corporal Wilson that

he killed McDonald. He said that he told Lieutenant Bratton that McDonald had tried to

kill him but that he had gotten McDonald first.



              Goss testified that he had been stabbed before in prison and that he took

threats seriously. He said that if McDonald had not attempted to attack him in his cell

with the knife, he would not have stabbed him. He conceded that his lawyer was the

only person he told about the gang members, about McDonald attacking him first, and

about McDonald coming into Hale’s cell.



                          I. SUFFICIENCY OF THE EVIDENCE

              The defendants argue that the evidence is insufficient to support their

convictions for first degree murder and aggravated assault. Our standard of review

when the sufficiency of the evidence is questioned on appeal is "whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact



                                             13
could have found the essential elements of the crime beyond a reasonable doubt."

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that

we do not reweigh the evidence, but presume that the jury has resolved all conflicts in

the testimony and drawn all reasonable inferences from the evidence in favor of the

state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978).



                             A. FIRST DEGREE MURDER

             The defendants contend that there is insufficient evidence of

premeditation and deliberation to support a conviction for first degree murder. They

argue that the only proof of premeditation and deliberation is the testimony of Dr.

Gunther concerning the multiple stab wounds, and multiple stab wounds are not

sufficient to establish premeditation or deliberation. See State v. Brown, 836 S.W.2d

530, 542-43 (Tenn. 1992) (more than repeated blows must be shown to establish first

degree murder). Goss also argues that the evidence shows that he acted in self-

defense or, at most, second degree murder. We hold that the evidence establishes

beyond a reasonable doubt the defendants’ guilt for first degree murder.



             In the light most favorable to the state, the evidence establishes that the

defendants killed McDonald deliberately and with premeditation. The proof shows that

on the day of the offenses, Hale told Goss that McDonald had made threats against

him and Goss. When McDonald returned from the shower wearing only a towel, Hale

shut McDonald’s cell door. Goss, who did not have permission to be in the pod, then

ran up the stairs. Although McDonald was unarmed, the defendants stabbed him

repeatedly as they struggled, and McDonald fell down the stairs. The defendants ran

down the steps after McDonald, and Goss kneeled over McDonald and repeatedly

stabbed him in the chest as he lay naked on the floor. As Goss was stabbing

McDonald, Hale held a knife in his hand and told the officers to leave Goss alone while



                                           14
he was “taking care of business.” Afterwards, the defendants appeared calm. Also,

Goss told Officer Wilson that he killed McDonald, calling McDonald a racial name.

Goss also told Lieutenant Bratton that he killed McDonald before McDonald got to him,

stating that he would do it again if necessary. Although the defendants claimed that

they acted in self-defense, the jury was entitled to reject the self-defense claim. We

hold that there is ample evidence from which the jury could conclude beyond a

reasonable doubt that the defendants killed McDonald intentionally, deliberately and

with premeditation.



                             B. AGGRAVATED ASSAULT

              Next, the defendants assert that the evidence is insufficient to support

their convictions for aggravated assault. They argue that Officer Cobb’s testimony is

not adequate proof to show that the defendants assaulted Officer Cobb, given the fact

that his testimony was contradicted by other proof. However, we presume on appeal

that the jury has resolved all conflicts in the testimony and drawn all reasonable

inferences from the evidence in favor of the state. See Sheffield, 676 S.W.2d at 547;

Cabbage, 571 S.W.2d at 835.



              The defendants also argue that the evidence does not show that Officer

Cobb suffered bodily injury or was reasonably in fear of imminent bodily injury. In the

light most favorable to the state, the evidence shows that the defendants came toward

Officer Cobb with knives in their hands and that Hale stood in front of Officer Cobb with

the knife while Goss stabbed McDonald. Officer Cobb testified that he was scared of

the defendants and that he feared for his life. The jury was entitled to accredit Officer

Cobb’s testimony. We hold that the evidence is sufficient to establish beyond a

reasonable doubt that the defendants were guilty of aggravated assault.



           II. ADMISSION OF A PHOTOGRAPH OF THE MURDER VICTIM



                                            15
              The defendants contend that the trial court erred by admitting into

evidence a photograph of the murder victim. They argue that the photograph should

have been excluded because it had no probative value, and any probative value was

substantially outweighed by the danger of unfair prejudice, confusion of the issues, and

misleading the jury or the needless presentation of cumulative evidence. See Tenn. R.

Evid. 401 and 403. The defendants assert that the photograph should not have been

admitted because they did not dispute the cause of death and because the autopsy

report and Dr. Gunther’s testimony sufficiently explained the type of wounds, the extent

of the victim’s injuries and the cause of death. The state responds that the photograph

of the victim was relevant to establish premeditation and to rebut the defendants’ claim

of self-defense. It argues that the photograph was not overly prejudicial because it was

taken from a distance and was not in focus.



              The leading case in Tennessee regarding the admissibility of photographs

of murder victims is State v. Banks, 564 S.W.2d 947 (Tenn. 1978), in which the

supreme court held that the determination of admissibility is within the discretion of the

trial court after considering the relevance, probative value and potential unfair

prejudicial effect of such evidence. See Tenn. R. Evid. 403. The general rule, as

stated in Banks, is that “photographs of the corpse are admissible in murder

prosecutions if they are relevant to the issues on trial, notwithstanding their gruesome

and horrifying character.” Id. at 950-51. On the other hand, “if they are not relevant to

prove some part of the prosecution’s case, they may not be admitted solely to inflame

the jury and prejudice them against the defendant.” Id. at 951.



              Thus, even relevant evidence should be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice to the defendant. Id.; see

also Tenn. R. Evid. 403. In Banks, the court stated, “The more gruesome the




                                            16
photographs, the more difficult it is to establish that their probative value and relevance

outweigh their prejudicial effect.” 564 S.W.2d at 951.



              The photograph of the murder victim introduced by the state in this case is

from a Polaroid instant camera and is approximately three inches by three inches in

size. It shows the victim from the knees up lying naked on his back on the concrete

floor. The victim’s arms are lying by his side. Blood is on the victim’s upper body, and

a pool of blood surrounds the victim’s upper body. It is not a closeup shot. The

photograph has a dull quality, without vivid or clear colors. The photograph also has a

yellow piece of paper taped over the victim’s groin area.



              The record reflects that the prosecutor sought to introduce two

photographs of the victim, one taken close up and the other taken at a distance. The

prosecutor conceded that the photographs could be construed to be gruesome because

they showed the victim nude lying in a pool of blood. He argued that they were not

seeking to introduce the photographs of the victim to inflame the jury but rather to show

the crime scene and the manner in which the victim was killed. The prosecutor argued

that the photographs were relevant to show premeditation in that they show the

ruthlessness of the attack on the defenseless victim. The trial court sustained the

defendants’ objection as to the closeup photograph but overruled the objection relative

to the photograph taken at a distance. The court placed the yellow piece of paper over

the victim’s genitalia, stating that it did not want to offend any of the jurors.



              We note that our supreme court has held that the fact that repeated blows

or shots were inflicted on the victim is not sufficient, by itself, to establish premeditation

and deliberation for a first degree murder conviction. Brown , 836 S.W.2d at 542. The

court reasoned that repeated blows can also be delivered in the heat of passion without

any design or reflection, and thus, only when the multiple “blows are inflicted as a result



                                              17
of premeditation and deliberation can they be said to prove first-degree murder.” Id.

Therefore, the probative value of the picture relative to premeditation and deliberation is

questionable.



              However, our supreme court also stated that photographs of the victim

may be admitted “as evidence of the brutality of the attack and the extent of force used

against the victim, from which the jury could infer malice, either express or implied.”

Brown, 836 S.W.2d at 551; see also State v. Smith, 868 S.W.2d 561, 576 (Tenn. 1993)

(Trial court did not abuse its discretion by admitting a photograph of the victim when the

trial court stated that the photograph was relevant to show “‘premeditation, malice and

intent because of the multiplicity of these wounds and an obvious intent of whoever was

inflicting these wounds.’”). In this case, the state was required to prove that the killing

was intentional. See T.C.A. § 39-13-202(a)(1). The defendants claimed that they acted

in self-defense and thus, were not guilty of first degree murder. The picture of the

victim demonstrates that the stabbing was a brutal one and thus is probative to the

issue of the defendants’ intent.



              We note that the picture’s probative value is somewhat diminished given

the other evidence in the case. The officers testified that they found the victim nude

lying on his back in a pool of blood and without a weapon. Dr. Gunther provided a

detailed description of the victim’s injuries. The autopsy report introduced as an exhibit

also detailed the nature of the victim’s injuries and the cause of death. The defendants

did not contest the cause of the victim’s death. Goss did not deny that he stabbed the

victim, and Hale conceded that it was possible that he stabbed the victim a couple of

times as they were wrestling at the top of the stairs. Because this evidence was

presented, the admission of the photograph could be viewed as cumulative evidence,

and the need for it on the issue of the defendants’ intent was minimized.




                                             18
              In weighing the probative value of the photograph against its risk of unfair

prejudice, though, we do not believe that the single photograph is particularly gruesome

or graphic. In our review, we are unable to conclude that the photograph’s probative

value was substantially outweighed by the risk of unfair prejudice. See Tenn. R. Evid.

403. Therefore, the trial court properly admitted the photograph of the victim into

evidence.




                   III. INTRODUCTION OF STATEMENT BY GOSS

              Goss contends that the trial court erred by admitting into evidence his

statement to Corporal Wilson to the effect that he killed McDonald. He asserts that he

was in custody for Miranda purposes and that his statement should have been

suppressed because it was made before Miranda warnings were given. The state

responds that the statement was properly admitted because it was made before the

defendant was taken into custody for the killing.



              Initially, we note that the trial court did not conduct a hearing out of the

presence of the jury as to the admissibility of Goss’ confession. Goss asserts that this

failure did not comply with the “orthodox rule” relative to the determination of the

admissibility of a confession. See State v. Pursley, 550 S.W.2d 949, 950 (Tenn. 1977)

(When objection made to admissibility of confession, proper procedure is to conduct

hearing outside presence of jury to determine admissibility.) However, Goss relies

upon procedures that were used before the adoption of the Tennessee Rules of

Criminal Procedure.




                                             19
              Pursuant to Rule 12(b)(3) and (e), Tenn. R. Crim. P., a motion to suppress

evidence must be filed and determined before trial. The rule is applicable when a claim

of a constitutional right is involved whose violation would lead to suppression of

evidence. State v. Foote, 631 S.W. 2d 470, 472-73 (Tenn. Crim. App. 1982).

Moreover, the failure to raise the suppression issue pretrial constitutes a waiver of such

issue, absent good cause that merits relief from the waiver. Tenn. R. Crim. P. 12(f).



              On the other hand, we note that the state did not object to Goss raising

the issue during the trial and did not raise the issue of waiver until oral argument before

this court. Needless to say, Goss was not provided an adequate forum to establish

good cause, if any exists, for not raising the issue pretrial.



              In any event, we note that a brief bench conference was held relative to

Goss’ objection, but Goss did not request that a separate hearing be conducted.

Rather, he argued at the conference that the statement was inadmissible because it

was given before Miranda warnings were provided. The trial court overruled Goss’

objection. Given all of the circumstances, we do not fault the trial court for the summary

procedure it invoked.



              Finally, we believe that the circumstances of the questioning in this case

did not require the warnings to be given pursuant to Miranda v. Arizona, 384 U.S. 436,

444, 86 S. Ct. 1602, 1612 (1966), before Goss made his admission to Corporal Wilson.

Pursuant to Miranda, custodial interrogation entails “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived

of his freedom of action in any significant way.” Id. In State v. Anderson, 937 S.W.2d

851 (Tenn. 1996), our supreme court held that:

              the appropriate inquiry in determining whether an individual is
              “in custody” and entitled to Miranda warnings is whether, under
              the totality of the circumstances, a reasonable person in the
              suspect’s position would consider himself or herself deprived


                                              20
              of movement to a degree associated with a formal arrest.” The
              test is objective from the viewpoint of the suspect, and the
              unarticulated subjective view of law enforcement officials that
              the individual being questioned is or is not a suspect does not
              bear upon the question.

Id. at 855.



              Miranda must be strictly enforced, but only in those situations in which the

concerns that motivated the decision are implicated. Illinois v. Perkins, 496 U.S. 294,

296, 110 S. Ct. 2394, 2397 (1990). On-the-scene questioning does not implicate

Miranda concerns, and thus, Miranda warnings are not required. Miranda, 384 U.S. at

477, 86 S. Ct. at 1629. Also, Miranda warnings are not required merely based on a

defendant’s prisoner status. See United States v. Conley, 779 F.2d 970, 972-73 (4th

Cir. 1985); Cervantes v. Walker, 589 F.2d 424, 427 (9th Cir. 1978). The United States

Supreme Court stated in Perkins, 496 U.S. at 299, 110 S. Ct. at 2398, that the “bare

fact of custody may not in every instance require a warning even when the suspect is

aware that he is speaking to an official . . . .”



              Goss argues that he was in custody and thus Miranda warnings were

necessary because he was incarcerated and was not free to leave. The state responds

that an inmate is not in custody for Miranda purposes unless an added restriction is

placed on the inmate’s freedom of movement. In support of its position, the state relies

upon United States v. Cooper, 800 F.2d 412, 414-15 (4th Cir. 1986); Conley, 779 F.2d

at 972-73; Cervantes, 589 F.2d at 427. Under Cooper, Conley and Cervantes, an

inmate is not in custody for Miranda purposes unless there is an added imposition on

the inmate’s freedom of movement. Relevant to this determination is (1) the language

used to summon the inmate, (2) the physical surroundings of the interrogation, (3) the

extent to which he is confronted with evidence of his guilt, and (4) the additional

pressure exerted to detain the inmate. We agree that this standard is best suited to

determine whether Miranda warnings must precede questioning in a prison setting,



                                               21
given the fact that a prisoner would always believe that he was not free to leave the

prison.



             Applying this standard, we hold that Goss was not in custody, and thus,

Miranda warnings were not necessary. Corporal Wilson did not summon the defendant

nor did he restrict Goss’ manner of movement by the nature of his questioning. The

questioning occurred as the officers entered the pod. The officers had not confronted

Goss with evidence of his guilt. Also, Goss was not handcuffed and moved from the

crime scene until after the questioning by Corporal Wilson. We do not believe that an

additional restriction was placed on Goss’ freedom of movement at the time that he

made the statement to Corporal W ilson. Therefore, he was not in custody for Miranda

purposes.



             Moreover, the questioning in this case amounted to on-the-scene,

investigatory questioning. When Corporal Wilson arrived at Unit 5, he saw Goss

standing by the door with blood on his hands. He then asked Goss what happened,

and Goss replied that he had killed McDonald. Under these circumstances, Miranda

warnings were not required. “Responses to general on-the-scene questioning by an

officer during the fact finding process as to facts surrounding the crime are admissible

in evidence.” State v. Johnson, 685 S.W.2d 301, 306 (Tenn. Crim. App. 1984). We

note, also, that after Goss was taken to D pod and handcuffed and after receiving

Miranda warnings, Goss told Lieutenant Bratton that he had killed McDonald and that

he would do it again if necessary. We hold that the statement was properly admitted.



                      IV. DENIAL OF PRELIMINARY HEARING

             Hale contends that the trial court erred by denying his motion for a

preliminary hearing or, in the alternative, to dismiss the indictments. He acknowledges

that a preliminary hearing is not constitutionally required. See Moore v. State, 578



                                           22
S.W.2d 78, 80 (Tenn. 1979). He also acknowledges that it was within the prosecutor’s

discretion to seek an indictment through the grand jury process. See Vaughn v. State,

557 S.W.2d 64, 64-65 (Tenn. 1977). However, Hale asserts that Rule 5, Tenn. R. Crim.

P., required that a preliminary hearing be conducted. He argues that he was arrested

for Rule 5 purposes when he was removed from Unit 5 and placed in a lock-down unit

pending trial. The state responds that the restricted nature of Hale’s confinement after

the killing was part of an internal disciplinary action by the prison authorities and did not

constitute an arrest for Rule 5 purposes, and thus, Hale was not entitled to a

preliminary hearing to reweigh the probable cause determination made by the grand

jury. We agree.



              Rule 5(e), Tenn. R. Crim. P., provides:

                     Any defendant arrested prior to indictment or
              presentment for any offense, whether misdemeanor or felony,
              except small offenses, shall be entitled to a preliminary hearing
              upon the defendant’s request therefor, whether the grand jury
              of the county be in session or not.

                     If the defendant is indicted during the period of time in
              which the preliminary hearing is being continued, or at any time
              before accused has been afforded a preliminary hearing on a
              warrant, whether at the defendant’s own request or that of the
              prosecutor, the defendant may dismiss the indictment upon
              motion to the court. Provided, however, that no such Motion
              to Dismiss shall be granted after the expiration of thirty days
              from the date of the defendant’s arrest.

The primary purpose of a preliminary hearing is to determine whether there is probable

cause to believe that the accused committed the crime charged. State v. D’Anna, 506

S.W.2d 200, 203 (Tenn. Crim. App. 1973).



              The trial court denied the motion, concluding that a preliminary hearing

was not constitutionally required under the circumstances. It held that a preliminary

hearing is mandated only when the defendant is arrested, not when the prosecution

begins with an indictment, because a post-indictment determination of probable cause

is not required. The trial court’s order stated that the defendants were not entitled to a


                                             23
preliminary hearing under Rule 5, Tenn. R. Crim. P., because the defendants were in

prison, already in custody and not arrested upon these charges. The order further

stated that the state had the right to omit the arrest procedure and take the case directly

to the grand jury.



               We agree that Hale is not entitled to a post-indictment determination of

probable cause, a determination already made by the grand jury. It was within the

prosecutor’s discretion to begin the prosecution by seeking and obtaining an indictment.

Therefore, the trial court properly denied Hale’s request for a preliminary hearing or, in

the alternative, to dismiss the indictment.



               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.




                                          Joseph M. Tipton, Judge



CONCUR:




David G. Hayes, Judge




William M. Barker, Special Judge




                                              24
