author: COOPER, Chief Justice.

text:
    NATIONAL HEALTH CORPORATION et al., Appellants, v. William R. SNODGRASS et al., Appellees.
    Supreme Court of Tennessee.
    Aug. 1, 1977.
    Rehearing Denied Sept. 17, 1977.

      Richard F. LaRoche, Jr., Murfreesboro, for appellants.
    Frank J. Scanlon, Asst. Atty. Gen., Brooks MeLemore, Jr., Atty. Gen., Nashville, for appellees.
   OPINION

COOPER, Chief Justice.

The National Health Corporation (NHC) and its Tennessee subsidiaries have appealed from decrees entered in the Chancery Court of Davidson County dismissing two actions in which appellants sought a review of audits made by the Comptroller of the State of Tennessee. One action challenged the comptroller’s audit report on the NHC Home Office for the period of October 1, 1973, through March 31, 1975. The second action challenged the comptroller’s audit report covering the operation of the Oakwood Hall Nursing Home, Inc., a subsidiary of NHC, for the fiscal year ending September 30, 1974, and the conclusion that Oakwood should refund $2,771.29 to the State of Tennessee and $9,026.11 to individual program patients and their families. In both actions, appellants sought to have the chancery court review the audit reports under the Tennessee Uniform Administrative Procedures Act, T.C.A. § 4-502 et seq., or, in the alternative, by common law or statutory writ of certiorari. On considering motions to dismiss filed by appellees, Comptroller of the Treasury and the Department of Public Health, the chancellor concluded that the actions of the state officials that were the bases of the complaints were administrative and not subject to judicial review by writ of certiorari. The chancellor also concluded that the audit reports were not “contested” cases and, consequently, were not reviewable under the Administrative Procedures Act. The chancellor then dismissed both actions.

This appeal presents the primary question: Is an audit of an intermediate care facility by the comptroller under the Tennessee Medical Assistance Act of 1968 subject to judicial review either under the Tennessee Administrative Procedures Act or by common law or statutory writ of certiorari. We agree with the chancellor that it is not.

The National Health Corporation (NHC) is the owner of the other nineteen plaintiff corporations, each of which owns and operates nursing homes (intermediate care facilities or ICF) in Tennessee. Each of the nursing homes contracted with the Tennessee Department of Public Health to participate in a program of health care under the Tennessee Medical Assistance Act of 1968, Title 14, Chapters 19 and 20 of the Tennessee Code Annotated. The Medical Assistance Act, among other things, provides for payments to health care providers who render medical services, including nursing home services, to indigent Tennessee citizens.

Under the Act, the comptroller annually determines the rate at which each intermediate care facility will be reimbursed by the Tennessee Department of Public Health. T.C.A. § 14 — 2006. The reimbursement rate is based upon cost information submitted by the ICF from the preceding fiscal year and is calculated by the comptroller on the basis of the actual per diem cost to an ICF in rendering care to an individual patient. T.C.A. § 14-2005. Cost reports submitted to the comptroller by the ICF’s are required to be prepared “in accordance with the Medicare-Medicaid principles of cost reimbursement as stipulated in the Medicare Provider Reimbursement Manual, as updated. . . Rules and Regulations of the State of Tennessee, Rule 0380-1-10-.07.

In making its cost report, each of the plaintiff subsidiary corporations included in its cost of operation a “management fee” paid to the parent corporation, National Health Corporation. The comptroller audited NHC for the period September 30, 1973, through March 31, 1975, to determine what services were rendered by NHC to its subsidiaries in exchange for the payment of the management fee. The comptroller also audited the Oakwood Hall Nursing Home, Inc., a subsidiary of NHC.

Following his usual practice, on completion of the audits the comptroller sent preliminary drafts of the audits to the corporations being audited, asked for comments, and had an “exit” conference for discussion of the preliminary audit with representatives of the corporations audited.

In the final audit of NHC the comptroller, among other things, reported that the management fees NHC charged its subsidiary health care facilities, which were included in patient cost, exceeded the actual cost of services NHC rendered the subsidiaries. The comptroller also indicated that he would audit each subsidiary ICF corporation to obtain further patient cost information.

NHC asked for a rehearing of the “audit report,” stating it did so under the Tennessee Uniform Administrative Procedures Act (T.C.A. § 4-502 et seq.). The comptroller, being of the opinion the Tennessee Uniform Administrative Procedures Act did not cover an audit review, declined to have a “rehearing.”

The final audit of Oakwood Hall Nursing Home, following on the heels of the NHC audit, reported that Oakwood Hall had overcharged patients and had overcollected funds from the State of Tennessee. On receipt of the audit, the Tennessee Department of Public Health notified Oakwood Hall that the Department would withhold from the next regularly scheduled payment the amount indicated in the audit report to be due the State of Tennessee.

The plaintiffs filed two actions seeking a judicial review of the “entire record of the proceedings before the Comptroller,” under the Tennessee Administrative Procedures Act or, in the alternative, by common law or statutory writ of certiorari. Specifically, the plaintiffs asked that the chancellor hold the audit findings “to be arbitrary, capricious, illegal and in violation of plaintiffs’ statutory and constitutional rights, as well as being a finding arrived at upon unlawful procedure, and also that said finding of the Comptroller is unsupported by evidence.”

The Tennessee Uniform Administrative Procedures Act provides in T.C.A. § 4-523(a) that “a person who is aggrieved by a final decision in a contested case is entitled to judicial review . . . ” (emphasis supplied). “Contested case” is defined in T.C.A. § 4-508(b) as:

a proceeding, including a declaratory proceeding in which the legal rights, duties or privileges of a party are required by any statute or constitutional provision to be determined by an agency after an opportunity for a hearing. Such proceeding shall include, but not be restricted to rate making; price fixing; granting of certificates of convenience and necessity; the making, review or equalization of tax assessments; the grant or denial of licenses, permits or franchises where the licensing board is not required to grant the license, permit or franchise upon the payment of a fee or the finding of certain clearly defined criteria; and suspensions of, revocations of, and refusals to renew licenses.

An audit, as the term is commonly used, is not a “contested case,” but is the methodical examination of records with intent to verify their accuracy. The audit of costs for patient care in an intermediate care facility, provided for in T.C.A. § 14-2004, is the methodical examination of records of the facility to verify the accuracy of the patient cost data reported to the comptroller by the intermediate care facility, and to verify that the data was reported “in accordance with the Medicare-Medicaid principles of cost reimbursement as stipulated in the Medicare Provider Reimbursement Manual.” An audit by the comptroller under § 14-2005, in and of itself, does not determine any legal rights, duties or privileges of any party to the audit. It is merely a report of factual material, with recommendations of the auditor. If some action is taken or decision is made by a state official based on the audit report, the decision made or action taken may constitute a “contested case,” but not the audit or the report based on the audit, which at most would be only “evidence” to support the decision made or action taken.

Plaintiffs have suggested that the audits are a part of a “rate making” process by the comptroller and, as such, fit within the statutory definition of a “contested case.” Results of audits may be used, and in some instances probably are, by the comptroller in determining the daily reimbursable rate of an intermediate care facility. But there is no allegation or suggestion that the daily reimbursable rate was set or changed by the comptroller for any of the nineteen plaintiffs as a result of the audits. The audit findings, under the circumstances described in the pleadings, would only be evidence of plaintiffs’ failure to accurately report its patient cost data.

Plaintiffs also insist that the complaints set forth a cause of action under T.C.A. § 4-512 of the Tennessee Uniform Administrative Procedures Act, which authorized declaratory judgment actions with respect to the validity of rules enforced by administrative agencies, and that the chancellor erred in not so holding. As was pointed out by the chancellor in denying the petition to rehear in which this position was advanced, the thrust of the two actions was directed to securing a judicial review of the comptroller’s audits. The attempted conversion of the complaints into actions for declaratory judgments did not occur until after the chancellor had dismissed the complaints. The chancellor could find no basis in the complaints for “rehearing” the actions and treating the actions as declaratory judgment actions, and neither can we.

Alternatively, plaintiffs insist the comptroller’s audits were “judicial determinations” and thus subject to review by the chancery court under common law or statutory writs of certiorari. We see no merit in this position. The audit is in no manner a judicial function, nor a judicial determination. As heretofore noted; an audit is nothing more than an investigation and report of the findings of the investigation. The fact that the procedure used by the comptroller provides for a draft audit and a conference between those involved in the audit does not take the audit out of the administrative field and convert it to a “judicial determination” so as to make it subject to review by writ of certiorari.

Plaintiffs further insist that the allegations of the complaints indicate a violation of the due process and equal protection clauses of the Constitution of the United States and of the Constitution of Tennessee, and that the chancellor was in error in dismissing the complaints. Plaintiffs argue that the Tennessee Medical Assistance Act of 1968 denies the equal protection of the law to them in that there is no definite procedure for a “fair hearing” before an administrative body for providers of medical services such as the plaintiffs. As noted by defendants in their brief, “plaintiffs’ right to such a hearing was never mentioned in plaintiffs’ complaint, . . was not decided by the Chancellor and is not ... at issue before this Court.” The only issue before this court is whether plaintiffs’ complaints state a cause of action in the chancery court, where plaintiffs sought a review of the audit reports of the comptroller. We agree with the chancellor that they do not.

Decrees affirmed. Costs of the appeals are adjudged against National Health Corporation and its Tennessee subsidiaries that are parties to the actions.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.

ORDER

The petition for rehearing filed by National Health Corporation, et al., is denied, with costs to be paid by petitioners.


source: Caselaw Access Project

author: CARNEY, Presiding Judge.

license: Public Domain

text:
    Frank M. CAMPBELL and Jere L. Crook, III, Plaintiffs-Appellants, v. W. A. NANCE et al., Members of the Board of Mayor and Aldermen of Germantown, Tennessee, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    Aug. 3, 1976.
    Certiorari Denied by Supreme Court Oct. 18, 1976.
    Everett B. Gibson, Laughlin, Halle, Re-gan, Clark & Gibson, Memphis, for plaintiffs-appellants.
    Henry M. Beaty, Jr., Asst. City Atty., for City of Germantown, Memphis, for defendants-appellees.
   CARNEY, Presiding Judge.

Plaintiffs landowners, Campbell and Crook, brought this suit by petition for writ of certiorari contending that the Defendants as Mayor and members of the Board of Aldermen of the City of Germantown, Tennessee, had acted arbitrarily, illegally, and capriciously in refusing to grant Plaintiffs’ petition for change of zoning from residential to commercial of Plaintiffs’ property located on Poplar Avenue in Germantown. His Honor the Trial Judge found that the Defendants “had a reasonable basis for denying the application for a change of zoning” and dismissed the petition. The Plaintiffs have appealed and assigned errors.

The jointly owned lot is .954 acre located on the north side of Poplar Avenue and the east side of Exeter Road in Germantown. The .954-acre tract is the southeast corner of a larger tract traversed by Exeter Road. That portion of the larger tract west of Exeter Road was rezoned by Plaintiffs’ predecessors in title to SC-1 and is now being developed as Germantown Village Square. The .954-acre lot east of Exeter Road has remained zoned residential. At the time the Plaintiffs bought the .954-acre tract the lots lying north and east of the .954-acre tract were all zoned SC-1. The .954 acre has never had a home on it and is not suitable for residential purposes in its present condition.

The .954-acre Campbell lot fronts 114.7 feet on Poplar Avenue. The lands of Winchester, et al, lying immediately east of the Plaintiffs’ .954-acre lot and west of Pete Mitchell Road front 202.03 feet on Poplar Avenue. Immediately east of Pete Mitchell Road on the north side of Poplar there is another shopping center area known as the Farmington Group zoned SC-1 fronting 477 feet on Poplar. After the Farmington Group was granted SC-1 zoning, Winchester, Millar, et al, the homeowners, whose land was situated between Pete Mitchell Road on the east and Exeter Road on the west and north of the .954-acre lot, joined together and applied to the City of German-town for an SC-1 or shopping center zoning. They asked Mr. Jere Crook, predecessor in title to Plaintiffs Campbell and Crook, to join in the application. Mr. Crook refused to join. The application of Winchester, Millar, et al, was approved as SC-1 zoning but no immediate steps have been taken to develop the property as SC-1.

The .954-acre Campbell property is not eligible for SC-1 zoning under the ordinances of the City of Germantown because it does not contain a minimum of two acres. The joint ownership of the other homeowners in the area of Winchester, Millar, etc. exceeds two acres and thus qualified as SC-1.

The landowners, Winchester, Millar, etc., opposed the granting of C-l zoning to the Plaintiffs in the hearings before the Ger-mantown Planning Commission and before the Board of Mayor and Aldermen because Plaintiffs might build a building on the .954-acre lot which would not be in keeping architecturally with the design of the shopping center which the homeowners will ultimately develop on their property. They insist that Plaintiffs should join them in their SC-1 zoning permit.

The City of Germantown has a Design Review Commission and every developer of property zoned for uses other than residential must obtain approval of the design of the development before a building permit will issue. The principal difference between an SC-1 zoning and C-l zoning is that SC-1 zoning requires much longer setbacks of the buildings from the street line. The Plaintiffs suggested they might build a branch bank building or similar structure if granted C-l zoning.

All of the property for several hundred feet east and west of the .954-acre tract along Poplar Avenue as well as property north of the .954-acre tract are now zoned commercial. The owners of property on the south side of Poplar across from the .954 acre agree that the entire area has become commercially oriented and agree that the Plaintiffs are entitled to have their lot zoned commercial. Only Millar, Winchester, etc. object to rezoning Plaintiffs’ property C-l. They say it ought to be SC-1. The City Ordinances do not permit Plaintiffs’ property to be zoned SC-1.

To leave the Plaintiffs’ lot zoned residential is to deprive them of the beneficial use of their lot. Bayside Warehouse Co. v. Memphis, (W.S.1971), 63 Tenn.App. 268, 470 S.W.2d 375. To require the Plaintiffs to join with Millar, Winchester, et al, and receive a joint SC-1 zoning would be to coerce the Plaintiffs into a joint venture against their will. It would also be against public policy because a partnership is always created by a voluntary agreement of the parties and not by operation of law. Pritchett v. Thomas Plater & Co. (1920), 144 Tenn. 406, 232 S.W. 961; Hackney Co. v. Robert E. Lee Hotel (1927), 156 Tenn. 243, 300 S.W. 1; Garner v. Maxwell (1962), 50 Tenn.App. 157, 360 S.W.2d 64.

Plaintiffs are entitled to a commercial zoning for their lot. The assignments of error are sustained.

A decree will be entered requiring the Defendants Mayor and Board of Aldermen of Germantown to hold a new hearing on Plaintiffs’ application for rezoning and to grant Plaintiffs such commercial zoning as seems reasonable and proper under circumstances then obtaining. Upon the rehearing Plaintiffs or Defendants may, but are not required to; introduce additional proof.

The costs of these proceedings are taxed to the Defendants-Appellees.

MATHERNE and NEARN, JJ., concur.


author: NEARN, Judge.

text:
    Mrs. Nancy G. ROGERS et al., Appellants, v. Robert J. WARE et al., Appellees.
    Court of Appeals of Tennessee, Western Section.
    May 3, 1977.
    Certiorari Denied by Supreme Court Aug. 22, 1977.
    W. G. McDonough, McMinnville, for Nancy G. Rogers, John R. Moffitt and George Allen Moffitt.
    R. E. Bonner, Jr., McMinnville, for Robert J. Ware and Mickey Ware.
    Larry B. Stanley, McMinnville, for Harold P. Womack and other Moffitt heirs.
   NEARN, Judge.

This ease has reached the Court of Appeals for the second time.

Nancy G. Rogers, John R. Moffitt and George Allen Moffitt, heirs of Maggie Mof-fitt, who are the original plaintiffs, original appellants and appellants herein, filed their complaint in the Chancery Court for Warren County in 1973, and alleged that a certain deed from Womack successor trustee, to Robert J. Ware and Mickey Ware was void. The bill alleged that the land conveyed by the mentioned deed had been devised in trust by the will of Maggie Mof-fitt to V. C. Moffitt as trustee for the benefit of Fate Moffitt for his life and then to the heirs of Maggie Moffitt in fee; that Fate Moffitt had died in 1972 and that Harold P. Womack, a purported successor trustee, sold the land at public auction to the Wares. The deed to Ware recited that the conveyance was subject to a life estate in one Blanche Stubblefield. Named as defendants were Robert J. Ware, Mickey Ware, Womack, Stubblefield and the other heirs of Maggie Moffitt.

The principal relief sought was to have declared void the deed from Womack to the Wares and to have the land re-sold (presumably for a better price) and the proceeds therefrom distributed among the heirs.

At the first trial the Chancellor held, inter alia, that (a) Womack was a legally appointed successor trustee and (b) in any event, plaintiffs were estopped to attack the deed from Womack to the Wares.

On the first appeal, the Court of Appeals held that Womack acted without authority as a substitute trustee, but the Court refused to declare the deed void and concurred in the Chancellor’s statement that, under the proof, the plaintiffs were estopped to deny the validity of the deed. However, the Court of Appeals was not satisfied that all parties of interest were properly before the Court and remanded to the end that all parties be before the Court and that the rights of Blanche Stubblefield be settled.

No petition for certiorari was sought from the judgment of the Court of Appeals.

On the remand the Chancellor was satisfied that all parties were before the Court and ratified the deed to the Wares subject to the life estate in Stubblefield and ordered the proceeds of the Womack-Ware sale distributed to the Moffitt heirs.

The original plaintiffs have again appealed.

Rule 12(2) of the rules of this Court as found in Volume 1, T.C.A. provides:

“A statement of the errors of fact or law relied upon to reverse or modify the same, showing specifically where the action complained of is erroneous, and how it prejudiced the rights of the appellant, with references to the pages of the record where the ruling of the court on matters constituting errors of law appeared; and, in case it is an error of fact, to the pages of the record where the testimony relied upon to sustain the same is to be found.”

(Emphasis supplied)

This appeal is proof of the necessity of the rule. The Assignments of Error contain no citation to any pages of the record wherein we are to find the complained-of rulings of the Court. Some might suggest that it would be no great task for the Court to simply examine the final decree. The problem with that suggestion is that we have two final decrees. One for the first appeal and one for the second. The Assignments of Error seem to be primarily directed to alleged errors in the first decree, especially the holding that the plaintiffs were estopped to deny the validity of the Womack-Ware deed. This complaint was considered by this Court on the first appeal and the Trial Court was affirmed on the issue of estoppel. Our previous holding has become final and is now the law of the case and may not now be reargued and relitigat-ed. D. M. Rose & Co. v. Snyder (1947) 185 Tenn. 499, 206 S.W.2d 897; Phelps v. Magnavox Company of Tenn. (1972 Tenn.App., W.S.) 497 S.W.2d 898.

In the previous Opinion of this Court it was held that the Womack-Ware deed was an effective conveyance and that plaintiffs were estopped to deny same, but all parties of interest ought be before the Court so that the conveyance would be unquestioned. This Court was not satisfied that all interests were in fact before the Court and remanded to ascertain that fact. The Trial Court, on remand, determined that all parties were before the Court and this finding is not objected to on this appeal and is in fact stipulated.

However, a portion of the Assignments of Error complain of the life estate in Blanche Stubblefield.

The necessary result of this Court’s previous holding that plaintiffs were estopped to deny the validity of the deed to the Wares is that plaintiffs were estopped to deny a life estate in Blanche Stubblefield. The deed itself recites that the conveyance is subject to the life estate. As before stated, that holding became the law of the case and cannot now be complained of.

The result is that all Assignments of Error are overruled and costs of appeal are adjudged against appellant and surety.

Done at Nashville in the two hundred and first year of our Independence and in the one hundred and eighty-second year of our Statehood.

CARNEY, P. J., and MATHERNE, J., concur.


author: O’BRIEN, Judge.

text:
    Charles I. McCOOK and Jimmy Richardson, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 22, 1977.
    Certiorari Denied by Supreme Court June 6, 1977. (Richardson).
    Certiorari Denied by Supreme Court Aug. 1, 1977. (McCook).
    Thomas E. Stamper, Clarksville, for McCook.
    Collier Goodlett, Jr., Clarksville, for Richardson.
    Brooks McLemore, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, John J. Hestle, Dist. Atty. Gen., Clarksville, for appellee.
   O’BRIEN, Judge.

OPINION

Charles McCook and Jimmy Richardson were indicted for kidnapping, rape, armed robbery, assault and battery with intent to murder and grand larceny. McCook was convicted of kidnapping and sentenced to serve four (4) to ten (10) years; on rape he was convicted and sentenced to serve ninety-nine (99) years; he was convicted of simple robbery and sentenced to serve from five (5) to ten (10) years; on grand larceny he was convicted and sentenced for six (6) to ten (10) years. He was acquitted of the charge of assault and battery with intent to commit murder. Richardson was sentenced to four (4) to ten (10) years for kidnapping; ninety-nine years (99) for rape; life imprisonment for armed robbery; and six (6) to twenty-one (21) years for assault and battery with intent to commit murder; and six (6) to ten (10) years for grand larceny. All of the sentences for both defendants were set to run consecutively.

By his first assignments McCook contends it was error to consolidate all the cases for trial, and that the verdicts were contrary to the law.

It is his contention that the minds of the jury were inflamed resulting in the imposition of excessive sentences because of the submission of five felony charges at one trial. Consolidation of separate indictments for trial is a procedural matter which is discretionary with the trial court. Bruce v. State, 213 Tenn. 666, 378 S.W.2d 758; Withers v. State, 523 S.W.2d 364 (Tenn.Cr.App. 1975). All of the charges alleged in each indictment grew out of the same incident. Each of the offenses involved the same victim and were so involved with each other it was a relative impossibility to avoid introduction of evidence of one or more of the occurrences in any offer of proof of the others. The reasoning involved in consolidation of separate indictments for trial is fully set forth in Bruce v. State, supra, and that reasoning is applicable to the facts of this case. The jury acquitted McCook on the assault charge, and refused to find him guilty of armed robbery, returning a considerably lesser sentence against him than for his co-defendant. There is no evidence that the jury were inflamed or impassioned in any manner in returning their verdicts which were clearly within the ambit of the law of the case. Assignments of error 1 and 2 for McCook are overruled.

Each of the defendants charge error to the action of the trial judge in directing the sentences imposed by the jury to be served consecutively.

It is McCook’s contention that his participation in the offenses was of a lesser degree than that of his co-defendant and therefor the trial judge abused his discretion in ordering consecutive sentences. Richardson merely generalizes that the imposition of consecutive sentences virtually removes him from consideration for parole.

The criteria to be followed by a trial judge in determining whether adjudicated sentences should be served consecutively or concurrently are set out in Gray v. State, 538 S.W.2d 391 (Tenn.1976).

There was a hearing in the trial court regarding the sentencing of defendants. In his order ruling that defendants serve consecutive terms the trial judge held, “that the defendants were dangerous to society in that the acts were done suddenly and that two human beings had another human being under their control and violently abused her and raped her and stole from her and left her for dead.” This was a heinous, violent, premeditated and brutal crime engaged upon fully by each of the defendants without any indication of mercy for their victim. It is true that McCook did not actively participate in the armed robbery phase of the encounter, but the jury exonerated him of that charge, as well as the assault to murder. The evidence is plain that he participated or aided and abetted in all of the acts of which the jury found him guilty. We do not find any abuse of discretion on this issue and the assignments are overruled.

Both defendants claim error because they say the trial judge refused to excuse a juror for cause after the juror stated on voir dire examination that he thought maximum punishment should be given in every case and would expect to do so because he had previously been the victim of criminal offenses.

The assignment of error does not accurately state the facts insofar as the attitude of the challenged juror is concerned. His actual statement was that he felt a maximum sentence should be imposed if the evidence indicated a defendant was actually guilty. The juror was interrogated by both counsel and the court and said he could render a fair and impartial verdict, as well as follow the instructions of the court on the penalty for various offenses. He said he could be objective in determining the guilt or innocence of a defendant. There is no doubt he was a competent juror. Moreover, a defendant cannot complain of failure to excuse a juror for cause when he has not exhausted all of his peremptory challenges. Hale v. State, 198 Tenn. 461, 281 S.W.2d 51; Prince v. State, 529 S.W.2d 729 (Tenn.Cr.App.1975); Harris v. State, 534 S.W.2d 868 (Tenn.Cr.App.1975). The assignment cannot be sustained.

Defendant Richardson says it was reversible error to allow the admission in evidence over his objection of a taped interview with his co-defendant.

The statement of defendant, McCook, referred to, was quite comprehensive. It was redacted to expunge any reference to his co-defendant. Richardson’s principal complaint is that the statement contained numerous references to “he”, “his”, “him”, and “another man”; as well as various references to “we”.

Under the rulings of this court in Taylor v. State, 493 S.W.2d 477 (Tenn.Cr.App.1972), and White v. State, 497 S.W.2d 751, 754 (Tenn.Cr.App.1973), the statement of McCook was improperly admitted in this case. As we stated in White, supra, citing from Commonwealth v. Scott, 355 Mass. 471, 245 N.E.2d 415, 419, 420:

“If the State possesses a confession made by one of the co-defendants out of the presence of the other it:
‘. . . should consider whether to introduce statements of individual defendants in joint trials or rather to refrain from doing so or to consent to severance of the trials. Any other course involves serious risk that the trials will have been futile.’ ”

This is a problem frequently encountered in joint trials and we can render no greater service to the trial courts than to emphasize the admonishment just heretofore quoted from the White case. However, as we noted in Taylor, supra, under the authority of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, not all trial errors which violate the Constitution automatically call for reversal. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. In the Taylor case we found that the statement of the co-defendant, compared to other factual information available to the jury in the proof, unfairly connected the defendant Taylor to the events which were recounted in the statement. In the White case we held that the evidence as to the co-defendant was insufficient to warrant his conviction except for the statement of White which, although redacted, implicated him in the crime. In the case before us there is no reference to Richardson in the statement made by McCook. There is no indication that they were of different racial origin. The independent evidence did not in any way connect Richardson with the statement made by McCook, it did, point with great force and impact to Richardson as the principle perpetrator of the offenses for which he was convicted.

The victim testified that as she prepared to leave her place of employment on the night of January 7th, 1976, she was endeavoring to remove ice from her automobile windshield. A vehicle pulled up beside her, someone put his hands over her mouth, a gun to her head, and forced her into her own car. She positively identified defendant, Richardson, as this individual who then drove her to an isolated area, followed by McCook. Both men raped her, robbed her, and Richardson stabbed her, leaving her for dead. Richardson was apprehended several days later driving the victim’s automobile. A license plate on the vehicle was registered in his name. Two credit cards taken from her purse were discovered in his billfold. A soil sample taken from his shoes matched a soil sample taken from the victim’s shoe, and also a soil sample taken from the scene where the offenses took place. Richardson had been seen driving an automobile of similar description at least two days before his arrest. He endeavored to establish an alibi for the night of the offenses. This was contradicted by witnesses. He was seen on the day after the crime driving an automobile similar in description to the victims’ which he said belonged to his sister. He testified he had borrowed the automobile on the 9th or 10th of January from a person at Ft. Campbell. This person could not be located at the time of trial. After his arrest Richardson gave a written statement in which he said he borrowed the car on January 12th, 1976.

Having reviewed the evidence we find that we cannot impute reversible weight to the admission of McCook’s statement in this case. See Harrington v. California, supra; Hester v. State, 450 S.W.2d 609, 2 Tenn.Cr. App. 11. We do not find that this error effected the results of the trial. T.C.A. Sec. 27-117.

We affirm the judgment of the trial court.

BYERS and DUNCAN, JJ., concur.


author: TATUM, Judge.

text:
    Kenneth Lee CLAIBORNE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 10, 1977.
    Certiorari Denied by Supreme Court Sept. 6, 1977.

      John R. Conkin, Jefferson City, for appellant.
    Brooks McLemore, Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Cleveland, Steve Bebb, Asst. Dist. Atty., Sweetwater, Herman Gregory, Special Prosecutor, Athens, for appellee.
   TATUM, Judge.

OPINION

A McMinn County Grand Jury returned a two-count indictment against Kenneth Lee Claiborne. The indictment charged him with murder in the first degree in violation of T.C.A. § 39-2402(2)(e) [killing of a peace officer] and violation of T.C.A. § 39-2402(4) [committing murder in the perpetration of robbery]. Venue was changed to Monroe County upon the defendant’s application. The Monroe County jury found the defendant guilty under the first count (murder of a peace officer); punishment was fixed at death by electrocution. The jury had been instructed not to consider the second count of the indictment if it found the defendant guilty under the first count.

The defendant has questioned the sufficiency of the evidence, the constitutionality of the death penalty statutes (T.C.A. §§ 39-2405 and 39-2406), competency of the evidence, and the sufficiency of the Trial Judge’s jury instructions. We approve the Criminal Court’s judgment on all issues except the constitutional question.

In his first assignment of error, the defendant contends “[t]hat the evidence in the case preponderates against the verdict of the jury and in favor of the innocence of the defendant of the crime of murder in the first degree . . . .” We will summarize the facts as established by the accredited evidence.

On the night of 19 August 1975, the defendant and Gary Wolfe went by the home of Joyce McIntosh in Morristown, Tennessee, and asked her to go for a ride with them in a pick-up truck. She noticed “a pistol and then a longer gun” in the truck. They drove around and eventually stopped at an Exxon service station in Knox County. The defendant suggested “hitting a place” because he needed money. When they reached the Exxon station in Knox County, Joyce McIntosh and the defendant went inside the station and “got some things out the machines,” and then went to the restroom. The defendant came out of the restroom and asked the operator of the station if he had “change for a ten.” The station operator told him, “No.” The defendant dropped a gun on the floor, picked it up and aimed it at the operator’s head, demanding all of his money. The operator gave him the money but the defendant was not satisfied with the amount and threatened to kill the operator if he did not “come up with a hundred dollars right away.” Gary Wolfe then came into the station with a shotgun.

As customers drove into the station, Claiborne followed the operator out to the islands and waited while the operator served the customers, holding the gun out of sight.

The defendant suspected that the service station operator told a customer to call the police. He told the operator, “I am going to stick around and if a cop does pull in I am going to kill you and him.” The service station operator testified that “the full time he was there he was saying things, like you know, T hope a cop does pull in here right now because I want to kill him.’ ”

The defendant and Gary Wolfe then locked the operator in the restroom. The defendant wanted to kill the service station operator, but Wolfe convinced him not to do it. Claiborne told the operator that if the operator came out of the restroom in less than one-half hour, Claiborne would kill him. About five or ten minutes later, the defendant reentered the restroom and told the operator that if he had left the restroom, then he would have been killed. After this occurred, the operator remained in the restroom for a “pretty long length of time because I was really scared.”

Joyce McIntosh remained in the restroom during the entire episode at the service station. Claiborne, Wolfe, and McIntosh arrived at the service station about 1:00 o’clock A.M. on August 20 and remained there for about one hour.

These parties then went to Crazy Ed’s Truck Stop in McMinn County, arriving there about 3:00 o’clock A.M., on August 20. Wolfe and McIntosh remained in the truck when the defendant entered the truck stop and asked the cashier for a dollar’s worth of change. She gave him the change and he then asked for an additional dollar in change. The defendant walked to a table where McMinn County Deputy Sheriff Dan Mull was sitting and, standing behind Deputy Mull, put his gun to the back of Deputy Mull’s neck and told him “not to move.” The defendant used his left hand to disarm Deputy Mull, then fired a fatal shot into Mull’s neck. The defendant pointed the gun at an eleven-year-old girl, so Don Lawson shouted at him. The defendant shot at Mr. Lawson and left the building. Mr. Lawson and Marvin Reece pursued the pick-up truck of defendant and his companions in Deputy Mull’s patrol car. Mr. Reece was a dispatcher for McMinn County, but was not a police officer. He had been riding with Deputy Mull before they stopped for coffee.

• The evidence is conflicting as to whether the defendant was intoxicated at the time the crime was committed. There is evidence that the defendant was addicted to alcohol and drugs.

In the first assignment, the defendant argues that there is no evidence of “a willful, deliberate, and malicious killing” of the peace officer as required under T.C.A. § 39-2402(2)(c). We do not agree. There was evidence that while at the service station in Knox County, the defendant expressed a desire to kill a police officer. He took the pistol in the restaurant with him and after seeing the deputy sheriff, walked behind him, purposely pointed the pistol to the back of his neck and fired. The use of a deadly weapon in itself is sufficient to support a finding of malice. Everett v. State, 528 S.W.2d 25 (Tenn.1975); Sikes v. State, 524 S.W.2d 483 (Tenn.1975).

The defendant also argues that there was no evidence of premeditation. While premeditation is not an essential element of first degree murder as defined under this Code section, there was abundant evidence to support a finding of premeditation.

T.C.A. § 33-2402(2)(c) provides, in part: “Murder in the first degree.—An individual commits murder in the first degree if:
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(2) he commits a willfull [sic], deliberate, and malicious killing or murder, and:
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(c) the victim is known to the actor to be a peace officer or fireman acting in the course of his employment . . . ”

The defendant argues that the evidence will not support a finding that the defendant knew that the victim was a peace officer acting in the course of his employment. The police officer was acting in the course of his employment if he was performing a duty for which he was employed. See, Travelers Insurance Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368 (1965); Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940 (1964).

The police officer was in the restaurant at 3:00 o’clock A.M., dressed in the full uniform of a deputy sheriff, wearing a badge and armed with a pistol. The restaurant was “full of people” at this hour. These facts are sufficient to have given the defendant unequivocal evidence that the peace officer was on duty and “acting in the course of his employment.” It is common knowledge that a peace officer, in checking businesses and doing general patrol work, often enters restaurants where people (including publicly drunk persons and other law violators) congregate in early morning hours. The fact that this officer was drinking coffee while carrying out his duties is of no assistance to the defendant. The Sheriff of McMinn County testified that the deceased was working the night shift and that his duties were “routine patrol work, checking businesses and patrol.” The evidence was sufficient to support the finding of the jury that the defendant knew Deputy Mull was a peace officer acting in the course of his employment.

The Trial Judge having approved a verdict of guilty rendered by the jury, the defendant stands before this court presumed to be guilty of first degree murder. The burden of proof is upon the defendant to show that the evidence preponderates against the jury’s verdict. In the absence of such showing, we will not disturb the verdict or the judgment thereon. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963); Briggs v. State, 501 S.W.2d 831 (Tenn.Crim.App.1973). We find the evidence supporting the conviction to be overwhelming; it does not preponderate against the jury verdict and in favor of the innocence of the defendant. Assignment I is overruled.

In Assignments IV, V and VI, the defendant complains of the action of the Trial Judge in admitting testimony of Joyce McIntosh and David E. Quinn concerning the robbery of the service station in Knox County, and in admitting the testimony of Quinn about the defendant’s statements concerning a desire to kill a policeman.

In Ellison v. State, 549 S.W.2d 691 (Tenn.Crim.App.1976), this Court discussed at length many exceptions to the rule that evidence of crimes other than that charged in the indictment is not admissible. Evidence of other crimes is admissible if it tends to prove the defendant’s guilt of the crime charged; or if it is relevant to any material issue on trial, including (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan for commission of two or more crimes so related to each other that proof of one tends to establish the others, and (5) the identity of defendant on trial.

Where the previously committed crime is so closely related to the crime under investigation at trial, in point of time and place, and so intimately associated with it that they both form one continuous transaction, the whole transaction may be shown. The reason is that all such acts are admissible as necessary parts of the proof of the entire deed. There is no set test to determine the relevancy of evidence of another crime. The question must be resolved in each case by logic and general experience. See generally, Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963); Ellison v. State, supra; Bivens v. State, 4 Tenn.Cr.App. 580, 474 S.W.2d 431 (1971); Coffman v. State, 3 Tenn.Cr.App. 634, 466 S.W.2d 241 (1970).

Bearing in mind that the defendant was being tried for both the killing of the police officer and murder in the commission of robbery, we must consider the fact that only one hour elapsed from the time the defendant left the service station in Knox County and the time he entered the restaurant in McMinn County. He was armed when he entered both places and in both instances, he asked for change. He left the Knox County service station after having expressed a desire and intent to kill a police officer.

With these and the other facts in mind, we hold that the evidence of the robbery of the service station and the statements made by the defendant were admissible for several reasons. The occurrences at the first robbery indicated a common scheme or plan for commission of other crimes so related that proof of the first robbery and the circumstances thereof tended to establish the defendant’s intent to rob the restaurant in McMinn County and to murder the police officer. The evidence of the first robbery also indicated motive of the defendant, and evidences the absence of mistake or accident, as was asserted by the defendant in his brief. Finally, the evidence corroborated the identity of the defendant. These assignments are overruled.

In the defendant’s seventh assignment of error, he states that the Court erred in refusing to grant his requested instruction to the jury:

“Voluntary intoxication may be looked to for the purpose of determining whether the mind of the accused was capable of the deliberation required in order to convict for murder in the first degree.”

The Trial Judge gave the following instruction to the jury, regarding voluntary intoxication:

“ . . . Voluntary drunkenness is generally no defense to a criminal charge. If a person voluntarily drinks or takes drugs and becomes intoxicated and while in that condition commits an act which would be a crime if he were sober, he is fully responsible for his conduct. This is so unless his drunkenness had continued for such a long period of time so as to result in settled insanity by the time of the offense. It is the duty of men to refrain from placing themselves voluntarily in a condition which poses a danger to other people.
However, as an exception to this rule voluntary drunkenness is a defense where a specific intent is an essential element of the crime and the defendant was intoxicated to the extent that he could not have possessed this specific intent.”

We think that voluntary intoxication of the defendant could not reduce a homicide to second degree murder or a lesser offense when “the victim is known to the actor to be a police officer or fireman acting in the course of his employment.”

It is well settled that in a prosecution for murder in the first degree in violation of T.C.A. § 39-2402(1), when an accused is rendered totally incapable of premeditation and deliberation through intoxication, the grade of homicide may be reduced to second degree murder. State v. Bullington, 532 S.W.2d 556 (Tenn.1976). No degree of voluntary intoxication will excuse or mitigate second degree murder or lesser included offenses. State v. Bullington, supra; Bostick v. State, 210 Tenn. 620, 360 S.W.2d 472 (1962); Harper v. State, 206 Tenn. 509, 334 S.W.2d 933 (1960).

The acts denounced under subsections (2), (3), and (4) of T.C.A. § 39-2402 constitute first degree murder, even when actual deliberation and premeditation are absent. If the State proves murder of a police officer as defined by T.C.A. § 39-2402(2)(c), then deliberation is implied, regardless of the extent of the accused’s intoxication. See generally, Tosh v. State, 527 S.W.2d 146 (Tenn.Crim.App.1975). In drafting subsection (1) of T.C.A. § 39-2402, the Legislature required “premeditation” to constitute first degree murder. In subsection (2) the word “premeditated” is omitted. The distinction in the definition of first degree murder in subsections (1) and (2) evinces a legislative intent to declare all intentional murders described in subsection (2) to be murder in the first degree even when the homicide would have been only murder in the second degree if the victim were not one of the class described in subsection (2). The defendant’s voluntary intoxication could not reduce the degree of homicide from murder in the first degree in the prosecution under T.C.A. § 39-2402(2). The elements of deliberation and premeditation are inferred in a subsection (2) prosecution. There was no error in refusing the special request for jury instructions submitted by the defendant.

The remaining assignments of error attack the mandatory death penalty provisions of T.C.A. §§ 39-2404 and 39-2406 as being unconstitutional. Since the filing of the briefs and oral argument in this case, the Supreme Court of Tennessee has declared the statutory provisions for mandatory death sentences to be unconstitutional. The State has since filed a Supplemental Brief making it known to us that on 8 February 1977, Honorable Ray Blan-ton, Governor of Tennessee, has commuted-the defendant’s sentence of death by electrocution to a sentence of life imprisonment in the State Penitentiary. The Supreme Court, in Opinion on Petitions to Rehear in Collins v. State, 550 S.W.2d 643 (Tenn.1977) held that executive commutation of a death sentence to life imprisonment cured the constitutional infirmity of our statute.

The judgment of the Criminal Court of Monroe County is affirmed, as commuted to life imprisonment.

WALKER, P. J., and DUNCAN, J., concur.

      . In Tosh v. State, supra, this Court held that it was not necessary for the State to prove that the killing was “willful, deliberate and malicious” to convict for first degree murder in a felony-murder prosecution under T.C.A. § 39-2402(4), even though these words are used in the statute defining this crime.