# FILED
November 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON APRIL 1997 SESSI ON
STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9610-CC-00367 ) ) Lauderdale County v. ) ) Honorable Joe H. Walker, J udge ) 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 Bld g. Attorney General of Tennessee Ripley, TN 38063 and (AT TRIAL) Deborah A. Tullis Assistant Attorney Gener al of Tennessee D. Michael Dunavant 450 James Robertson Parkwa y Bank of Ripley Bld g. 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 A ttorney 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 Judge2 O P I N I O N
The defendants, Robert Goss and Carl Hale, appe al as of right from their jury convictions

in the Lauderdale County C ircuit Court for first deg ree murder and aggrav ated ass ault, a C lass C f

elony. The defen dants w ere sent enced to life imprisonment for their conv ictions for first degree mur der. The trial court sentenc ed Goss as a Range II, multipl e offender to ten years in the cus tody of the Department of Correction for the aggr avated assault convic

tion. It sentenced Hale as a Range III, persistent offender to fifteen years i n the custody of the Department of Cor rection for the aggravated assault conviction. The trial court ordered the defendant s to serve their respective sentences cons ecutive to each other and con secutive to prior sent ences. On appeal, the defendants conten d that the evidence is insufficient to support their convictions and that the tr ial court erred by admi

tting into evidence a ph otograph 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 conte nds 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 convicti on.

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 W est Tennessee High Security Facility. He stat

ed that Hale and Willis McDonald, the mur der victim, were housed in cells in C pod locate d next to each other but that G oss was not housed in the pod. He said that o n the day of the offenses, he saw Mc Donald in C pod with a towel w rapped around his body. He stated that he did not see McDo nald holding anything. He said that McDonald had his hands to his side holding the towel. He said that Hale then closed McDon ald's cell door and Goss r an up the stairs toward Hale and McDonald who were sta nding nea r their cel ls at the t op of th e stairs. Corporal L ove testified that he looked away to answer the telephone but that when he looked back, he3

saw one of the defendants jab McDonal d with an object, causin g him to grab his side

. He said that another inmate cl imbed up the stairs but turned ar ound when the defendants faced him. He stated that Goss then hit McDonald in the ches t, 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 ap proximately two weeks before the offenses, he saw inmates throw food and o ther items where Goss w as working, causi ng Goss to become upset.

Correctional Corporal

Rudy Cobb testified that he w alked McDonald from the shower on the day of the offenses. He said that he d id not search McDonald. He stated that he later heard Mc Donald calling for help and saw the defendants stabbing McDonald repeatedly as they were at the top of the s tairs. Corporal Cobb s aid that he called for help and that other officers arrived afte r the defendants and McDonald were at the bottom of the stairs. He s aid that he tried to walk toward the defendants but that they came toward him w ith 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 McDona ld in the chest. He stated that the defendants finally laid the kniv

es on the table. Corporal Cobb testified that he was s cared of the defendants and feared for his life. He said that the defend ants appeared calm after the stabbing.

On cross-examination, C orporal Cobb admitted that his logbook states that he was in the show er area when the offenses took plac e, but he explained that he must have mistakenly enter ed the time. He denied telling anyone that he was not scared of Hale. He testified t hat he did not know how G oss got into C pod. Officer Cobb said that Officer Hutchers on and Correctional Corpor als Williams and Freeman were present during the incident.4 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 w

eapon. He testified that he did not see the incident begin and that he did not see Hale stab McDonald . He stated that Hale pulle d a knife out and pointed it at the off icers and said, "Nobody mess with Robert Goss while he's taking care of some busi ness." He said that Goss nev er came toward them with a knife and instead kneeled in front of Mc Donald stabbing him. He c onceded that gang activity exis

ted in the prison, but he said that he did not know if McDonald belonged to a gang.
Correctional Corporal Major Williams testified that he responde d to the call for assist ance. H e said t hat he sa w Hale standin g at the

pod door

with a knife telling the officers to stay back. He said that Hale t old the officers that he had nothing against them and that Goss w as "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 t

o place the k

nives on th e table, and t hey compli ed. Corpora l Williams testified that McDonald died ab out one minute later. Corpora l Williams testified that Goss never said anyth ing to him. Corporal Williams sai d that he did not see the beginning of the incident, nor did he see McDonald wi th a weapon. He acknowl edged 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 w as the pod officer for A pod and that Goss cleaned the pod. He said that there was garbag e in the floor sometimes and that Goss would clean it up. He stated that Goss did not ex press any concerns to hi m, other than a request for a job chang e.5 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 k

nife and that Hale's hand was bloody. He stated that Hal e told the officers not to bother Goss. Officer Hutcherson testified that he w ent in the pod along with Officers Freeman and Williams. He said that he did not remember seei ng 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 M cDonald. He testified that he d id not know whether McDon ald had a knife. He said that he di d 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. H e said that when he arri ved, Goss was standi ng 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 w alked up to Goss and asked him what happened. He stated tha t Goss replied that he had ki lled McDonald, referring to him by a racial epith et. Corporal Wilson testified that he ask ed 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 kill ed 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. H e stated that Goss was then taken to D p od and handcuffed. Corporal Wilson testified that Lieutenant Timothy Bratton then r ead Goss the Miranda

warnings. He stat

ed that during the interview, Goss confessed and explained that he was having tr ouble with6

some inmates in A pod. He testified that Goss refu sed to answer questions about Hale and then asked for a lawyer.

On cross-examination, C orporal Wilson stated that he did not see w hat happened or how it began. H e conceded that he had a prior con viction for writi ng bad checks. He acknowledg ed that gang activit y existed in the pri son, but he said that he did not know if McDo nald belonged t o a gang.

Officer Carlos Hardy testified that he was the captain of the f irst shift. He said that he was in the officer's dining room when he heard and responde d 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 test ified that he ordered a lockdow n of the unit and the investigati on of the incident was conducted by Lieutenant Timothy Bratt on. Officer Hardy said that Officer Boyd gave him tw

o homemade knives that had blood on them. He identified the two k nives for the jury.
Lieutenant Timothy Bratton testified that he investigated the stabbing. He said that although he did not s ee the stabbing take place, he saw McDonald lyi ng on the floor. He described the ar ea 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 w ith inmates in another pod. He testified that Goss said that these other inmates were g ang members and that McDonald w as "trying to take up where they left off." He said that Goss told him that he got McDonald bef ore 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 Hale7

until a couple of days after the incident. He said that Hale had scratch es on his chest and hand.
Lieutenant Bratton identified photog raphs he took of McDonald, the scene, and the defendants. A photograph of the scene showed a sandal w orn by inmates during shower s. 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 scen e. He conceded that gang activ ity existed in the p rison, but he said that he did not know whether McDonald was a gang member.

Dr. Wendy Gunther, a forensic pathologi st, testified that she performed the autopsy of McDonald. She sa id that McDonald suffered inj uries to the hea rt, a lung, and other organs, causing death by internal bleeding . Dr. Gunther testified that McDonald received a to tal of twenty-five st

ab wounds, ten of which w ould have been fatal by themselves. Dr. Gunther described defensive wounds found o n McDonald's hands and arms. She said that Mc Donald was five feet ten inc hes 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 no t been afraid. Johnson conceded that he h ad been convicted of armed robbery, assault with intent to commit murder, fraud, breach of trust, an d writing a bad check.

Inmate Johnny Catron testified that he was not in C pod w hen the crimes took place but that he saw officer s running toward C pod and Officer Cobb standing8

outside the pod door. He said that he did not know McDo nald. 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 hi m that the gang members had threatened to kill him. He testified tha t he saw Goss going into Hale’s cell the day of the offenses. Catr on admitted that he had three or four c onvictions for second degree burglary , two convictions for jail escapes, two c onvictions for armed robbery, and a convic

tion for introduction of contraband into a penal institution.

Inmate David Mansfield testi fied that he lived in C pod for five days but that he had been moved and was not present when the offenses occurr ed. 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 interac ting with other gang members. He sai d that McDonald had similar tattoos and made hand signs similar to the other gangsters.

Mansfield testified that he had prob lems with McDonald. He testified that McDonald told him that “you play with fire, you wind up getting burned.” Mansfield believed that he was bei ng threatened by McDonal d’s statement. He said that McDonald had also threatened hi m 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 do ing 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. Mansf ield said that he then saw McDonald with a knife, but he conceded th at he did not tell anyone9

about it. He said that it was common for inmates to have knives. On crossexamination, Mansfield concede d that he was serving

concurrent sentences for attempted first degree murder and theft o f 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 perso n in A pod. Englan d said that McDon ald had a reput ation for bein g a member of the Gangster Disciples. He stated that some inma tes in A pod asked Goss to pass things between c ells for them while he w as 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 sa id that McDonald was bi gger than the defendant. He testified that thr eats happen often in prison and that he t akes them seriously. Engl and admitted that he was in pr ison serving sentenc

es for three counts o f aggravat ed burgla ry.

Hale testified that he and Goss w ere lovers. He said

that McDonald was a gang member, and he believ ed that trouble with one member of the gang would be trouble with all members . He said that McDonald t old 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 McDo nald told him that the problem would be dealt with i

f it were not resolv

ed. 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 tes tified 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 M cDonald and the other inmates but that they should not to do anything unless Mc Donald or the other inmates di d something first. Hale tes tified that he and Goss did not plan to k ill McDonald.10 Hale testified that McDonal d jerked open Hale's cell door while Hale w

as 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 McD onald wrestled for the knife and that his hand was cut during the struggl e. Hale stated that McDonal d then fell down the stairs . He testified that he ran down the stair s after McDonald but that he did not touch McDonald again.

Hale testified that he saw Officer Cobb, but he denied wav ing a knife at him and s

aid that he did no

t intend to hurt Officer C

obb. He s

aid that Officer Cobb lef

t the pod before the other officers arri ved. He said that he and Gos s complied when the officers told them to put down their knives. He said that because he be lieved that Goss would be harmed by inmates belonging to a gang w ho were in the hall, he pi cked up both knives and held them in on e hand. He stated that when an officer told him that Goss would not be harmed by a gang member, he laid both k nives down. Hale te

stified 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 s upposed to be in C pod when the offenses occurred.

On cross-e xaminati on, Hale t estifie d that McD onald was we aring 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 show ers. He testified that threat s 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 oc curred as he, Goss, and McDonald were wr

estling for the knife. He co nceded that it was possibl e that he stabbed McDonald a couple of times as they were wrestling at the top of the stairs.11 Goss testified that he was s erving a twenty

-five-year sentence and that he had spent two years i n maximum security for as sault. He testified that he was five feetseven inches tall and w eighed one hundred fifty pounds. G oss said that he lived i n D pod of Unit 5 on the day of the cri mes. He stated that Hale w as his friend and lover. He testified that he worked as a cleanup person in A pod of Uni t 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 Di sciples would be attack ed by eight to twelve gang members . He said that he knew M cDonald was a member of the Gang ster Disciples. He stated that on earlier occasions w hile 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 beca use of the threats. He testified that the threats to kill hi m started about a week before the i ncident.

Goss testified that he wrot e letters to the wardens of two other prisons asking to be transferred to their institutions becaus e 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 acti vity at the prison and that he wanted to be transferr ed to get away from the gangs. Goss testified that he told Hale, Catron, and Unit M anager Jimmy Harrison about hi s problems. He told Harr ison that he wanted to be the cleanup person for D pod. He also tes tified that he tried to get oth er jobs in prison. He s tated 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 th at he was scared when Hale12

told him that McDonald had sai d that if Goss did not start pas sing things, the probl em would be resolved. He stated that Hale told him not to do anything unless absolutely necessary. He testified that Hale pointed out McDonal d as the person making the threats. Goss stated that he l ater saw McDonald st op and talk to three other gan g members before going to the show er. He said that McDonal d and the other inmates whispered and looked at H ale.

Goss testified that McDonald returned and approache d the cell door. He said that when McDonald saw him inside, McDo nald jerked open the cell door and took out a knife that had been wrapped i n a washcloth. He said that he was afraid of being killed or seriously

injured if McDonald came i nto the cell. Goss stated tha t 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 McDonal d. He said that Hale w as able to take the knife away from McDonald. He stated that as the three men were fightin g, McDonald tried to g rab the knife and the defendants. He said that McDona ld 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 w as afraid the other inmates w ould throw him over the railing, he ran dow

n the stairs and continued to s tab McDonald until the officers arrived. Goss testified that when the o fficers arrived, he asked H ale if Hale wanted him to put the knife down. He said that he put his knife down when Hale told him to put it dow n. He stated that Hale then picked up both knives. Goss said that neither he no r Hale pointed the knives at the officers, went toward Officer Cobb with a knife, o r 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 Corpor al Williams told Hale that13

Goss would not be placed i n danger, Hale put down b oth knives. Goss said that he was afraid the gang members would attack him, even though officers were present. He stated that Hale did not hav e a knife before the offenses took place. Goss said that he did not plan to kill McD onald and claimed that he stabbed in self-defense because he believed that McDonald w as coming into the cell t o kill him. He said that the stabbing occurred because no one w ould help hi m.
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 d oor 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 ou t of the cell. He said that he kept stabbing McDonald because McDonald continued to come toward him. He said that he did not r ealize that McDonald w as nude and unarmed when he ran down the stairs and c ontinued to stab him. He denied te lling Corporal Wilson that he killed McDonald. He said that he told Lieutenant Br atton that McDonald had tried to kill him but that he had gott en 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 atta ck him in his cell with the knife, he would not have stabbed him. He conc eded that his lawyer was the only person he told about the gang members, about McDonal d attacking him first, and about McDonald coming into Hale’s cell.

I. SUFFICIENCY OF THE EVIDENCE The defendants argue that the evidence is insuf ficient to support their convictions for first deg ree murder and aggrav ated assault. Our standard of r eview when the sufficiency of the ev idence is questioned on appeal is "whether, after vi ewing the evidence in the lig ht most favorable to the prosecution, any rational trier of fact14

could have found the essential el ements 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 al l reasonable inferences from the ev idence 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 DEG REE MURDER The defendants contend that there is ins ufficient evidence of premeditation and deliberation to support a conviction for first degree murder. They argue that the only proof of premeditation and de liberation is the testimony of Dr. Gunther concerning the multi ple stab wounds, and multipl e stab wounds are not sufficient to establish premeditat ion or deliberation. See State v. B rown , 836 S.W.2d 530, 542-43 (Tenn. 1992) (more than repeat ed blows must be shown to establish first degree murder) . Goss a lso arg ues that the evi dence sh ows tha t he acte d in sel fdefense or, at most, second degree murder. We hold that the evidence establis hes beyond a reasonable doubt the defendants’ guilt for first degree murder.
In the light most favorabl e to the state, the evidence es tablishes that the defendants killed McDonald del iberately and with premeditation. The proof shows that on the day of the offenses, Hale told Goss tha t McDonald had made threats against him and Goss. When McDonald retu rned from the shower wearing only a towel, Hale shut McDonald’s cell do or. Goss, who did not hav e permission to be in the pod, t hen ran up the stairs. Although McDonald was unarmed, the defendan ts stabbed him repeatedly as they str

uggled, and McDonald fell down the stairs. The defendants ran down the steps after McDonald, and Goss kneeled over McDonald and repeat edly stabbed him in the chest as he la y naked on the floor. As Goss was stabbing McDonald, Hale held a knife in his hand and told the off icers to leave Goss alone while15

he was “taking car

e of business.” Afterwards, the defendants appeared calm. Also, Goss told Officer Wilson that he killed Mc Donald, calling McDonald a racial name. Goss also to ld Lieutenant Bratton that

he killed M cDonald befor e McDonald got to him, stating that he would do it again if necessary.Although the defendants claimed that th ey ac te d i n s el f- de fe ns e, th e j ur y w as en ti tl ed to

re je ct th e s el f- de fe ns e c la im . We hold that there is ample evi dence from which the jury could conclude beyond a reasonable doubt that the defendants kil led McDonald intentionall y, deliberately and with premeditation.

B. AGGRAVA TED ASSAULT Next, the defendants assert that the evidence is insuff icient to support their convictions for aggravated assault. They argue that Officer Cobb’s testimony is not adequate proof to show that the defend ants assaulted Officer Cobb, given the fact that his testimony was

contradicted by other pr oof. However, we pr

esume on appeal that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in fav or of the state. See Sheffield , 676 S.W.2d at 547; Cabbage , 571 S.W.2d at 835.

The defendants also argue that the ev idence does not show that Officer Cobb suffered bodily injury or was reasonably in fear of imminent bodily inju ry. In the light most favorable to the state, the evidence shows that the defen dants came toward Officer Cobb with kniv

es in their hands and that Hal e stood in front of Officer Cobb with the knife while Goss stabbed McDonald. Officer Cobb testi fied that he was scared of the defendants and that he feared for his life. The jury was entitl ed to accredit Officer Cobb’s testimony. We hold that the evi dence is sufficient to establish beyond a reasonable doubt that the defendants w ere guilty of aggr

avated assault.

II. ADMISSION

OF A PHOTOGR

APH OF THE M URDER VICTIM16 The defendants contend that the trial cour t erred by admitting i nto evidence a photograph of the murder victim. They argue that the photograph should have been excluded because i t had no probative value, and any probative v alue was substantially outwei ghed by the danger of unfair pr ejudice, confusion of the issues, an d misleading the jury or the needless presentation of cu mulative evidence. See Tenn. R. Evid. 401 and 403. The defendants asser t 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 ex plained the type of wounds, the extent of the victim’s injuri es and the cause of death. The state resp onds that the photograph of the victim was relevant to establish premeditation and to rebut the def endants’ claim of self-defense. It argues that the pho tograph was not over

ly prejudicial becaus

e 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 deter mination of admissibility is within the discr etion of the trial court after considering the relevance, probative value and potential unfair prejudicial effect of such evid ence. See Tenn. R. Evid. 403. The gener al rule, as stated in Banks , is that “photographs of the c orpse are admissible in mur der prosecution s if they ar

e relevant

to the issue

s on trial, notwithst

anding thei r gruesome and horrifying character.” Id . at 950-51. On the other hand, “ if they are not relevant to prove some p

art of the pro

secution’s

case, they

may not be ad mitted solel y 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 outwei ghed by the danger of unfair pr ejudice to the defendant. Id .; see also Tenn. R. Evid. 403. In Banks , the court stated, “The more g ruesome the17

photographs, the more difficult it is to establish that the ir probative value and relevance outweigh their prej udicial effect.” 564 S.W.2d at 951.

The photograph of the murder victim introduced by the state in th is 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 ly ing naked on his back on the c oncrete floor. The victim’s arms are lying by hi s side. Blood is on the v ictim’s upper body, and a pool of blood surrounds the v ictim’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 t aped over the victim’ s groin area.

The reco rd reflec ts that th e prosecu tor sough t to intro duce two photographs of the victim, o ne taken close up and the other tak en at a distance. The prosecutor conceded that the photographs could be co nstrued to be gruesome because they showed the vic

tim nude lying in a pool of blood. He argued that they were not seeking to introduce the phot ographs of the victim to i nflame the jury but rather to show the crime scene and the manner in which the victim w as killed. The prosecutor argued that the photographs were relevant to show pre meditation in that they show the ruthlessness of the attack on the defenseless victim. The tri al court sustained the defend ants’ obj ection as to the clo seup pho tograph b ut overrul ed the ob jection r elative to the photograph taken at a dis tance. The court placed the y ellow piece of paper over the victim’s genital ia, stating that it did not want to offend any of the jurors

.

We no te that o ur suprem e court ha s held tha t the fac t that rep eated bl ows or shots were inflicte

d on the victim is not sufficient, by itself, to establi sh premeditation and deliberation for a first deg ree murder conviction. Brown , 836 S.W.2d at 542. The court reasoned that repeated blow s 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 result18

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

. Therefore, the probative value of the picture relative to premed itation and deliberation is questionable.
However, our supreme court also stated that photographs of the victim may be admitted “as evidenc e 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 i ts discretion by admitt ing a photograph of the vi ctim when the trial court stated that the photograph was relev ant to show “‘premeditati on, malice and intent because of the multiplicity of these wounds and an obv ious intent of whoever w as inflicting these wounds .’”). In this case, the state was required to prove that the killi ng was intentional. See T.C.A. § 39-13-202(a)(1). The defendants claimed that they act ed in self-defense and thus, were n ot guilty of first degr ee murder. The picture of the victim demonstrates that th e stabbing was a brutal one and thus is probative to the issue of the defendants’ intent.

We note that the picture’s probative v alue is somewhat diminis hed given the other evidence in the c ase. The officers testified that they found the victim nude lying on his back i n a pool of blood and without a w eapon. Dr. Gunther provi ded a detailed description of the victim’s injuries. The autopsy report introduced as an exhibit also detailed the nature of the v ictim’s injuries and the cause of death. The defendants did not contest the cause of the v ictim’s death. Goss did not deny that he stabbed the victim, and Hale conceded that it was possible t hat he stabbed the victim a c ouple of times as they were w

restling at the top of the stai rs. Because this evid ence was presented, the admission of the photog raph could be viewed as cumulative evidence, and the need for it on the issue of the defendants ’ intent was minimiz ed.19 In weighing the probative value of the photograph against its risk of unfair prejudice, though, w

e do not belie

ve that the s ingle photo graph is pa rticularl

y gruesome or graphic . In our revi ew, we are un able to co nclude th at the ph otograph ’s probat ive value was substantial ly outweighed by the risk of unfair prejudice. See Tenn. R. Evid. 403. Therefore, the trial court properly admitted the photog raph 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 ki lled McDonald. He asser ts that he was in custody for Miranda purposes and that his statement s hould 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 tha t this failure did not comply w ith the “orthodox rule”

relative to the determin ation of the admissibility of a confessi on. 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 j ury to determine admissibi lity.) Howev er, Goss relies upon procedures that were u sed before the adoption of the Tennessee Rules of Criminal Procedure.20 Pursuant to Rule 12(b)(3) and (e), Tenn. R. Crim. P., a motion to suppress evidence must be filed and determined bef ore trial. The rule is applicable when a claim of a constitutional right i s involved whose violation would l ead 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 waiv er. 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 di d not request that a separate hearing be conducted. Rather, he argued at the conference that the state ment 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 fo r the summary procedure it invoked.

Finally, we believe that the circumstances of the questioning in this case did not require the w

arnings to be given

pursuant to Miranda v. Arizo na , 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966), befor e Goss made his admission to C orporal Wilson. Pursuant to Miranda , custodial interrogat ion entails “questioni ng initiated by law enforcement officers after a person has been t aken into custody or other wise 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 Mirandawarnings is w hether, under the totality of the circumsta nces, a reas on able person in the suspect’s position would consider himself or herself deprived21 of movement to a degree associ ated with a formal arrest.” The test is objective from the v iewpoi nt 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.

Mirandamust be strictly enforce d, but only in those situa tions in which the concerns that motivated the decision are implicated. Illinois v. Perki ns , 496 U.S. 294, 296, 110 S. Ct. 2394, 2397 (1990). On-the-scene questioning does not implicate Miranda concerns, and thus, Mirandawarnings are not r equired. Miranda , 384 U.S. at 477, 86 S. Ct. at 1629. Also, Mirandawarnings are not r equired 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 w as incarcerated and was not free to leave. The state res ponds that an inmate is not in custody for Mirandapurposes unless an added restriction is placed on the inmate’s freedom of movement. In support of its position, th e 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 Mirandapurposes unless there is an added imposition on the inmate’s f reedom of mo vement. Relevant to this determin ation is (1) the lan guage used to summon the inmate, (2) the phy sical surroundings of the interrogation, (3) the extent to which he is

confronted with evidence of his guilt, and (4) the additional pressure exerted to detai n the inmate. We agree that this standard is best suited to determine whether Miranda warnings must prece de questioning in a prison setting,22

given the fact that a pris oner would alway

s believe that he was not free to leave the prison.
Applying this standard, we hold that Goss was not in custody, and thus, Mirandawarnings were not necessary. Corpor al 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 o

f his guilt. Also, Goss

was not handcuffed and moved from the crime scene until after the q uestioning by Corpor al Wilson. We do not believe that an additional restriction was placed on Goss’ freedom of mov ement at the time that he made the statement to Corporal W ilson. Therefore, he was not in custody for Miranda purposes.
Moreover, the questi oning in this case amounted to on-the-scene, investigatory questioning. When Corporal W ilson arrived at Unit 5, he saw Goss standing by the door w ith blood on his hands. He then asked Goss what happened, and Goss replied that he had ki lled McDonald. Under th ese circumstances, Miranda warnings were not required. “Respons es to general on-the-scen e questioning by an officer during the fact finding process as to facts su rrounding the crime are admissible in evidence.” State v. Johnson , 6 85S. W.2 d 3 01 , 3 06 (Ten n. Cr im . A pp . 1 98 4) . We note, also, that after Goss w as taken to D pod and handcuffed and after recei ving Mirandawarnings, Goss tol d Lieutenant Bratton that he had kil led McDonald and that he would do it again if necessary. We hold that the statement was properly admitted.

IV. DENIAL OF PRELIMINARY HEA RING Hale contends that the trial court erred by denying his motion for a preliminary hearing

or, in the alternativ

e, to dismiss the indictments . He acknowledges that a preliminary heari ng is not constitutional ly required. See Moore v. State , 57823

S.W.2d 78, 80 (Ten n. 1979). He also acknowledges that it was within the prosecutor’s discretion to seek an indi ctment through the grand ju ry process. See Vaughn v. State , 557 S.W.2d 64, 64-65 (Tenn. 1977). However, Hale asser ts that Rule

5, Tenn. R. C rim. P., required that a prel iminary hearing be co nducted. He argues that he w as arrested for Rule 5 purposes when he was removed from Unit 5 and placed in a lock-down unit pending trial. The state r esponds that the restricted na ture of Hale’s confinement after the killing was pa rt of an internal discipli nary action by the pr ison authorities and did not constitute an arrest for Rul e 5 purposes, and thus, Hale w as not entitled to a preliminary hearing

to reweigh the probabl e cause determination made by the grand jury. We agree.

Rule 5(e), Tenn. R. Crim. P., provides: Any defendant arre sted prior to indictment or presentmentforany offense, whether misdemeanor or felony, exceptsmall offenses, shall be entitled to a preliminary hearing upon the defendant’s request therefor, whether thegrand jury of the county be in session or not. If the defendant is indicted du ring the pe riod 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 ow n request or that

of the prosecutor, the def endan t may dismiss the indictment upon motion to the cou rt. Provide d, howeve r, that no such Motion to Dismiss sh all be gran ted aft er the expi ration 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 ac cused committed the crime charg ed. State v. D’Anna , 506 S.W.2d 200, 203 (Tenn. Crim. App. 1973).

The trial court denied the motio n, concluding that a preli minary 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 determina tion of probable cause is not required. The tri al court’s order stated that the defendants were not entitl ed to a24

preliminary hearing under Rule 5, Tenn. R. Crim. P., because the defen dants were in prison, already in cus

tody and not arrested upon thes e charges. The order further stated that the state had the right to omit the arrest procedure a nd take the case directly to the gra nd jury.

We agree that Hale is not entitled to a pos t-indictment determination of probable cause, a determination a lready made by the gr and jury. It was w

ithin the prosecutor’s discreti on 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 dismi ss 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, Ju dge

William M. Barker, Special Judge