         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 19, 2000

                   STATE OF TENNESSEE v. JAMES E. MATHIS

                    Appeal from the Circuit Court for Williamson County
                       No. II-1098-328-C    Timothy L. Easter, Judge



                   No. M2000-00316-CCA-R3-CD - Filed November 9, 2000


Defendant James E. Mathis was convicted by a Williamson County jury of possession of contraband
in a penal institution and sentenced to eight (8) years incarceration in the Department of Correction.
In this appeal as of right Defendant raises one issue for appellate review: whether the trial court erred
when it refused to suppress incriminating statements made by Defendant to the corrections officers.
Defendant contends that his conviction must be reversed and a new trial ordered. After a review of
the entire record and applicable law we find no reversible error and affirm the judgment of the trial
court.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which DAVID G. HAYES, J., and
NORMA MCGEE OGLE , J., joined.

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, James E. Mathis.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

       Defendant James E. Mathis was convicted by a Williamson County jury of possession of
contraband in a penal institution, Tenn. Code Ann. § 39-16-201, and sentenced to eight (8) years
incarceration in the Department of Correction. In this appeal as of right Defendant raises one issue
for our review: whether the trial court erred when it denied Defendant’s motion to suppress
incriminating statements made by Defendant to the corrections officers. Defendant contends that
his conviction must be reversed and a new trial ordered. After a review of the entire record and
applicable law we find no reversible error and affirm the judgment of the trial court.

       Before turning to Defendant's issue on the merits we address several deficiencies in Defense
counsel's preparation of this matter. There is no motion for new trial filed in the record. The record
of proceedings in this case is on audio-visual tapes and not in written transcripts. In his brief,
Defendant claims that his counsel made an oral motion for a new trial at the conclusion of his trial.
Unfortunately, Defendant’s brief does not include a citation to the video record regarding the motion.
In fact, there are no time-specific citations in Defendant’s entire brief. Although we have viewed
the audio-visual tapes of the motion to suppress, the trial, and the sentencing hearing, we are unable
to locate any hearing on a motion for new trial. Even if Defense counsel did make an oral motion
for a new trial, he did not reduce the oral motion to writing within thirty days as required by
Tennessee Rule of Criminal Procedure 33(b). Hence, there is no record, oral or written, of a motion
for new trial in Defendant’s case.

        Ordinarily, a party’s failure to provide citations to the record in a brief, as required by
Tennessee Rule of Appellate Procedure 27(g), results in waiver of the issue before this Court. Tenn.
Ct. Crim. App. R. 10(b); State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988). Equally
important regarding evidentiary issues, failure to make a motion for a new trial within thirty (30)
days of judgment, as well as failure to reduce an oral motion for a new trial to writing within thirty
(30) days, customarily results in a waiver of the defendant’s right to argue the issue on appeal.
Tenn.R.App.P. 3(e); Tenn.R.Crim.P. 33(b); State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App.
1980). Nevertheless, we elect to address Defendant’s issue on the merits.

                                               FACTS

        Officer Thomas Justus, Captain John Jordan, and Defendant testified at the suppression
hearing. Officer Justus, a corrections officer at the John I. Easley Criminal Justice Center in
Williamson County, testified that he was on duty September 11, 1998 when the incident involving
Defendant occurred. Justus testified that when he entered the “364" dormitory–a large room that
houses several inmates--he observed three inmates quickly exit a freestanding shower located in the
corner of the room. The rapid departure made Justus suspicious, so he investigated. Approaching
the shower he smelled marijuana. When Justus pulled the shower curtain back, approximately eight
or nine marijuana cigarettes fell from the space between the shower curtain and the rod onto the
floor. Justus confiscated the marijuana, then he and another officer found and detained the three
inmates who had run off. Defendant was among them.

        Justus testified that he brought one of the three inmates immediately to the supervisor’s office
for questioning; he does not remember who was first. Shortly thereafter, the remaining two were
also questioned. In addition to Justus, the officers present during questioning were shift supervisor
Sergeant McCullough and Corrections Officer Weathers. The focus of their questions concerned
ownership of the marijuana. Justus testified that, although all three inmates admitted to smoking
marijuana in the shower before Justus arrived, each denied ownership of the marijuana as well as any
knowledge regarding the hidden cigarettes. (At trial, Justus testified that he did not remember
whether Defendant stated that he was “smoking marijuana” or merely “smoking.”) Justus testified
that neither he nor the other officers read the inmates Miranda warnings before they questioned
them, but that all statements were voluntary. Justus testified further that the questioning took place
in a “regular office” with glass windows, and the doors were unlocked.


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         Captain John Jordan, supervisor of the Easley Criminal Justice Center, testified at the
suppression hearing that he arrived at the Center in the evening hours of September 11, 1998. At
that time, Jordan learned that marijuana had been confiscated. Jordan was also informed that the
three inmates involved had been questioned and that one of them, Michael Taylor, wanted to speak
with him regarding the incident. Jordan first talked to Taylor. Later, Defendant also came to
Jordan’s office to speak with him. Detective Hagen was present when Defendant arrived. Jordan
testified that before his interview with Defendant, Hagen read Defendant his Miranda rights from
a card provided by Jordan. Defendant understood his rights. Jordan said that Defendant admitted
he had been smoking marijuana with the other inmates but denied ownership of the contraband.
Jordan testified that Defendant did not ask for an attorney or request to leave his office at any time
during their discussion. Furthermore, neither inmate’s presence in the office was mandatory and the
statements were voluntary.

         At the suppression hearing, Defendant testified that he admitted to Officer Justus he had been
smoking marijuana. Defendant said that later that same evening, Defendant was summoned by a
corrections officer to speak with Captain Jordan and Detective Hagen in Jordan’s office. Defendant
stated that he was not Mirandized before he was questioned by them and, in fact, that he had never
been read Miranda warnings during his incarceration at the Center. Defendant testified that Jordan
asked him whether he wanted to “tell them what was going on,” and Defendant responded, “not
really.” Jordan claimed to already possess a statement from Defendant in which Defendant admitted
his guilt. Defendant claimed that he made no statements to Jordan except to confirm Jordan’s
statements to him regarding the identity of the person responsible for bringing contraband into the
Center by responding, “you’re good.” Defendant testified that he denied ownership of the marijuana
at all times but that the statements he did make were voluntary and uncoerced.

       From the facts presented at the suppression hearing, the trial court determined that the
Defendant was read his Miranda warnings by Detective Hagan and in the presence of Captain Jordan
before being questioned by either of them. The trial court further found that Defendant understood
the warnings and subsequently waived them before making any statements. For purposes of
analyzing his first statements to Officer Justus under Miranda, the trial court decided that Defendant
was not “in custody” when he made his statements to Justus immediately following the discovery
of marijuana in the shower: neither the language used by Justus to summon Defendant to the
supervisor’s office, the Defendant’s physical surroundings during interrogation, nor the extent to
which Defendant was confronted with evidence of his guilt rendered Defendant “in custody” for
Miranda purposes. Lastly, the trial court found that there was no additional imposition on
Defendant’s freedom of movement when questioned by Justus.

                                            ANALYSIS

        Defendant contends that the trial court erred when it admitted into evidence his statements
to Officer Justus and Captain Jordan to the effect that he was smoking marijuana. He asserts that
he was “in custody” for Miranda purposes and that the incriminating statements to Justus should
have been suppressed because they were made before Miranda warnings were given. Defendant


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denies making any statement to Jordan but if a statement is nevertheless found to have been made,
Defendant argues that it was tainted and, therefore, inadmissible as a confession subsequent to an
illegally obtained statement.

        The Fifth Amendment to the United States Constitution provides in part that “no person ...
shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.
Similarly, Article I, Section 9 of the Tennessee Constitution states that “in all criminal prosecutions,
the accused . . . shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9.
The Supreme Court has held that the protections afforded by the Fifth Amendment require that
precautions be taken before statements obtained through custodial interrogation are allowed as
evidence against an accused. Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16
L.Ed.2d 694 (1964). Generally, when statements made by an accused are the product of a custodial
interrogation by law enforcement officers, the statements may not be admitted into evidence unless
the accused is

       warned prior to any questioning that he has the right to remain silent, that anything
       he says can be used against him in a court of law, that he has the right to the presence
       of an attorney, and that if he cannot afford an attorney one will be appointed for him
       prior to any questioning if he so desires.

Id. Only when the suspect is informed of his rights via the “Miranda” warnings may a suspect be
deemed to knowingly and intelligently waive the right to remain silent and the right to an attorney.
Id. Moreover, any statement obtained after a waiver of this right must be voluntary, and not be
extracted by “any sort of threats or violence, nor obtained by any direct or implied promises,
however slight, nor by the exertion of any improper influence.” Bram v. United States, 168 U.S.
532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897).

         Miranda warnings are required only when a person is subject to custodial interrogation by
law enforcement. “Custodial” means that the subject of questioning is in “custody or otherwise
deprived of his freedom by the authorities in any significant way.” Miranda, 384 U.S. at 479, 86
S.Ct. at 1630. “Interrogation” has been interpreted to refer to questions that law enforcement officers
should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446
U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). In order for Miranda to apply, the
suspect’s statements must be in response to interrogation by law enforcement personnel. See State
v. Brown, 664 S.W.2d 318, 321 (Tenn. Crim. App. 1983). Moreover, the suspect must also know
that he is being interrogated by an agent of the State. See Illinois v. Perkins, 496 U.S. 292, 296-97,
110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990).

        These standards are modified, however, when the suspect subjected to questioning is already
in custody because he is incarcerated. In Tennessee, the standard to determine whether Miranda
warnings must precede questioning in a prison setting were set out in State v. Goss, 995 S.W.2d 617,
629 (Tenn. Crim. App. 1998). In Goss, this Court held that a prisoner is not automatically “in
custody” within the meaning of Miranda; there must be an additional imposition on the inmate’s


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freedom of movement. Id. 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 the inmate is
confronted with evidence of his guilt, and (4) the additional pressure exerted to detain the inmate.
 Id.

       This Court must uphold a 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). In
evaluating the correctness of a trial court's ruling on a pretrial motion to suppress, appellate courts
may consider the proof adduced both at the suppression hearing and at trial. State v. Henning, 975
S.W.2d 290, 299 (Tenn. 1998). The burden is on the defendant to demonstrate that the evidence
preponderates against the trial court’s findings. State v. Harts, 7 S.W.3d 78, 84 (Tenn. Crim. App.
1999). Questions of credibility of the witnesses, the weight and value of the evidence, and resolution
of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact. Odom, 928
S.W.2d at 23. The application of the law to the facts, however, is a question of law which is
reviewed de novo on appeal. Harts, 7 S.W.3d at 84.

         The testimony that Officer Justus and Captain Jordan gave at trial was essentially the same
as the testimony that they gave at Defendant’s suppression hearing. The only difference is found in
the testimony of Justus: at trial he testified that he did not remember whether Defendant stated that
he was “smoking marijuana” or merely that he was “smoking.” At the suppression hearing, however,
Justus testified that Defendant admitted to smoking marijuana. This discrepancy does not affect the
admissibility of Defendant’s statement, however.

        After a review of both the trial and suppression hearing records, we believe that the
circumstances of the questioning in this case did not require Miranda warnings before Defendant
made his statement to Officer Justus. Defendant relies, in part, on our Supreme Court’s decision in
State v. Anderson, 937 S.W.2d 851 (Tenn. 1996), to support the argument that Defendant was “in
custody” for purposes of Miranda warnings when he spoke to Officer Justus. This reliance is
misplaced. The defendant in Anderson was not incarcerated at the time the statements were made.
The objective assessment factors that the Court considered relevant to determine whether the
defendant in Anderson was “in custody” are thus not analogous to Defendant’s circumstances.
Defendant’s brief cites numerous conditions of prison life to bolster his contention that he was “in
custody” (i.e., Defendant was told what to do on a daily basis, he was instructed regarding what time
to arise and to sleep, he had no choice regarding what he would eat or wear, etc.). There is no
dispute regarding the fact that Defendant was in custody in the literal sense of the word. As we
discussed above, however, an inmate is not in custody for Miranda purposes unless there is an added
imposition on the inmate’s freedom of movement. Goss, 995 S.W.2d at 629 (emphasis added).
Mere prisoner status is not sufficient. Id.

        In Goss, our Court held that factors relevant to deciding whether there was additional
imposition on an inmate’s freedom of movement were (1) the language used to summon the inmate,
(2) the physical surroundings of the interrogation, (3) the extent to which the inmate is confronted
with evidence of his guilt, and (4) the additional pressure, if any, exerted to detain the inmate. Id.


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The trial court found, specifically, that neither the language used by Justus to summon Defendant
to the supervisor’s office, the Defendant’s physical surroundings during interrogation, nor the extent
to which Defendant was confronted with evidence of his guilt rendered Defendant “in custody” for
Miranda purposes. In addition, the trial court found that Justus exerted no additional pressure on
Defendant when he detained him for questioning. Under our holding in Goss, the trial court’s
findings are sufficient to conclude that Defendant was not “in custody” for Miranda purposes at the
time he was questioned by Officer Justus. Consequently, Defendant’s constitutional rights as
defined in Miranda were not violated, and his statements were properly admitted.

         The evidence does not preponderate against the trial court’s findings that Defendant was
Mirandized before the questioning by Captain Jordan and Detective Hagen began. Also, the proof
supports the trial court’s findings that Defendant understood the warnings given him and that he
waived them before making his statements. Defendant’s brief cites State v. Smith, 834 S.W.2d 915
(Tenn. 1992), for the proposition that Defendant’s statements to Jordan were tainted by the fact that
his earlier statements were unconstitutionally extracted in violation of Miranda. But we have already
decided that Defendant’s previous statements were indeed admissible. Defendant is not entitled to
relief on this issue.

                                          CONCLUSION

       In conclusion, we find that Defendant has failed to satisfy his burden of showing that the
evidence preponderates against the trial court’s findings. Accordingly, we find that the trial court
did not err when it denied Defendant’s motion to suppress. The judgment of the trial court is
AFFIRMED.



                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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