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