author: TOMLIN, Judge.

text:
    STATE of Tennessee, on Relation of SCA CHEMICAL SERVICES, INC., Plaintiff/Appellant v. Christ T. SANIDAS, Chief Building Official of Shelby County; Shelby County, Tennessee; William N. Morris, Mayor of Shelby County; and County Commissioners: Charles R. Perkins, Chairman; Pete Sisson; Ed Williams; Mike Tooley; Walter Lee Bailey, Jr.; Minerva Johnican; Vasco A. Smith; Jesse H. Turner, Sr.; Clair D. Vander Schaaf; Carolyn H. Gates; and James L. Rout, Jr., and The City of Memphis; Wyeth Chandler, Mayor of the City of Memphis, and City Council Members: Oscar H. Edmonds, Jr., Chairman; Jeff Sanford; A.D. Alissandratos; Barbara Sonnenburg; Thomas H. Todd, Jr.; Patricia Vander Schaaf; Glenn Raines; Billy Hyman; Ed McBrayer; Michael A. Hooks; Robert B. James; Dr. James W. Ford; and J.O. Patterson, Jr., Defendants/Appellees.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Sept. 20, 1984.
    Application for Permission to Appeal Denied by Supreme Court Dec. 17, 1984.

      J. Alan Hanover and William M. Walsh, Hanover, Walsh, Jalenak & Blair, Memphis, for plaintiff, appellant.
    Carroll C. Johnson, J. Minor Tait, Jr., Asst. Shelby County Attys., and McDonald Yawn, Asst. City Atty., Memphis, for defendants, appellees.
   TOMLIN, Judge.

This cause began as a mandamus action and a suit for declaratory judgment against the City of Memphis and Shelby County governments and the Chief Building Official of Shelby County. The relator, SCA Chemical Waste Service, Inc. (hereafter “SCA” or “plaintiff”) sought to void an amendment to the comprehensive Memphis and Shelby County zoning ordinance passed at a public hearing held by the joint legislative bodies of the two governments for the purpose of considering and passing the ordinance, but without the amendment. SCA also sought a writ against the Chief Building Officer of Shelby County to require him to issue a building permit to it for a proposed chemical waste treatment plant. The chancellor found that the amendment submitted and passed at the public hearing, without prior notice of any kind, was not a substantial enough change to require its prior consideration by the Shelby County Land Use Control Board (formerly the Shelby County Planning Commission) and dismissed the complaint. An appeal was taken to the Supreme Court who transferred the case to this Court, stating that the action was one for declaratory judgment rather than mandamus.

Two issues are presented to this Court for our consideration on appeal: (1) whether or not the amendment, submitted for the first time at the public hearing and passed at that time, was a valid and lawful amendment to the comprehensive zoning ordinance inasmuch as it was neither submitted to the Shelby County Land Use Control Board prior to its passage, nor subject to a public hearing by the joint legislative bodies prior to its passage; and (2) whether or not, by simple resolution, the Shelby County Commission (hereafter “County Commission”) can make the granting of a building permit conditional upon the applicant’s submitting written compliance with the U.S. Equal Opportunity of Employment Act of 1972, as codified in 42 U.S.C. § 2000e et seq. (1976). In the opinion of this Court, both of these issues are resolved in favor of the plaintiff.

Most of the essential facts in this case are not in dispute. SCA, a public company listed on the New York Stock Exchange, is in the business of collecting and disposing of garbage and refuse, including the disposal of hazardous wastes generated by government and industry. The handling and disposal of hazardous wastes is regulated by the Federal Resources Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. (1976) and the Tennessee Hazardous Waste Management Act, T.C.A. § 68-46-101, et seq. SCA, after extensive research of the southeastern part of the United States, proposed to acquire a site in Shelby County on which to build an incinerator and chemical waste treatment plant. Various kinds of waste would be brought to this plant in bulk quantities to be unloaded, analyzed and put through an appropriate treatment process. Any material residue would be shipped off to a chemical landfill. Waste water from this process would be analyzed, and if in compliance with the agreement with the Public Works Department of the City of Memphis, it would be discharged into the North Waste Water Treatment Works.

Having selected Shelby County as a location for one of its plants, in August, 1980, SCA began making preparations to obtain appropriate permits and to acquire a site. At that time, through legal counsel, it reviewed the zoning laws in Memphis and Shelby County and determined that the heavy industrial district or zone classification designated M-4, as designed under the zoning ordinances then existing, would permit the building and operation of such a facility.

SCA was also fully cognizant,that at that time a comprehensive new zoning ordinance was being considered by the legislative bodies of the city and county. Plaintiff was advised by its counsel, and correctly so, that the new ordinance as proposed would not affect plaintiffs plans to locate its plant in the heavy industrial district, other than to change the designation of that zone from “M-4” to “I-H.”

What has been designated as the “new comprehensive zoning ordinance,” was initially proposed by the Memphis and Shelby County Office of Planning and Development in 1978. The final draft of the ordinance, as recommended by the Control Board to the legislative bodies of the City of Memphis and Shelby County on July 23, 1980, was likewise identical to both the existing ordinance and the initial draft of 1978 in regard to the land uses permitted in the M-4 or I-H zone. One of the uses permitted in this zone was “garbage or refuse collection service,” which of course was not applicable to the use here intended by SCA. There was also a category for chemical plants, in which category it appears that SCA’s activities would fall.

Pursuant to law, as we will consider in more detail later, the Control Board held a public hearing on July 23, 1980, to consider the comprehensive ordinance recommended to it by staff. At this public hearing no changes were made in the text of the ordinance as recommended to it. The Control Board recommended the adoption of the ordinance in its original form to the joint legislative bodies of the city and county.

On September 25, 1980, there appeared in the “Daily News,” and perhaps other newspapers in Memphis and Shelby County, the full text of the proposed zoning ordinance to be considered by the legislative bodies of the two governments in joint session on October 6, 1980. Inasmuch as plaintiff had concluded that the only change to be made by the proposed ordinance in the zone under consideration was the change in designation, no representatives of plaintiff attended the public hearing.

At the public meeting of the joint legislative bodies on October 6, 1980 representatives of the staff of the Office of Planning and Development submitted almost six pages of changes and modifications to the proposed ordinance. For the most part they were what has been designated and agreed upon as “housekeeping” changes. However, two changes were proposed and adopted that materially affected plaintiff. First, a new category of use in the I-H zone was created and designated as “refuse processing, treatment and storage.” Secondly, it was provided that such use could not be carried on in the I-H zone as a matter of right, but rather it would require the obtaining of a special use permit. Both the zoning ordinance as it existed prior to the consideration and adoption of the comprehensive zoning ordinance and the new comprehensive zoning ordinance itself required a special use pe'rmit before a building permit could be issued for various operations to be carried on in both residential and industrial areas in accordance with specific regulations. We will address this in more detail hereafter.

The parties agree and stipulate that this amendment, along with others not material here, was passed on October 6, 1980; that it was first recommended to the joint legislative bodies by the staff of Planning and Development on that day; was never submitted to the Control Board for approval, disapproval or modification; the Control Board never met either in public or in private to consider same; the Control Board never made any recommendation to the joint legislative bodies regarding this amendment; and this amendment had not previously been noticed to the public by any type of newspaper advertisement or any other type of public notice. The ordinance, as thus amended, passed the joint legislative bodies on October 6, and 7,1980.

Having made a site selection following an extensive study, on October 8, 1980, SCA, unaware of the substantial change in the ordinance, entered into a contract to purchase a 25-acre tract in North Shelby County, zoned heavy industrial, M-4 (or I-H under the new ordinance). The contract was consummated by the taking of title to the property by deed recorded January 8, 1981.

Still oblivious to any changes affecting it, SCA’s attorney was advised by Mr. Christ T. Sanidas, Chief Building Official of Shelby County, on October 8, 1980, that as of that time the proposed use of this property in the M-4 zone by plaintiff was permissible.

The first inkling of any change that would directly affect SCA came to its attention shortly after October 22, 1980, when a resolution passed by the County Commission on that date was made public. In the interim SCA had not only applied for a grading-building permit, but it also met with representatives of the Building Department of Shelby County regarding its grading-building permit application. Inasmuch as it is material to this litigation, this resolution is set forth in its entirety:

RESOLUTION DIRECTING THE COUNTY ADMINISTRATION NOT TO ISSUE ANY PERMITS TO THE SCA CORPORATION UNTIL January 15, 1981
WHEREAS, Great public concern has been shown regarding the location of a chemical hazardous waste treatment plant by the SCA Corporation on Tay-For Drive in Shelby County; and
WHEREAS, The Shelby County Commission by joint ordinance/resolution with the City of Memphis adopted a new zoning code on October 6, 1980 with its effective date being January 1, 1981; and
WHEREAS, This new zoning code allows for legislative review and safeguards to be placed upon any such plant via the special permit route; and
WHEREAS, Additional Federal EPA guidelines and standards will become effective in November, 1980; and
WHEREAS, Pursuant to the health, welfare and safety of the citizens of Shelby County, this Commission deems it necessary for the aforementioned new zoning and EPA guidelines to be in effect when any permits are issued to this new industry;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF SHELBY COUNTY, TENNESSEE, That the County Administration, acting by and through any of the departments, boards, authorities, commissions or any other entity under its jurisdiction pursuant to Chapter 260 of the Private Acts of 1974 or any other applicable State or Federal law, is directed not to issue any permits regarding the proposed site for the SCA Corporation’s hazardous waste treatment plant until January 15, 1981, provided that the SCA Corporation meets all applicable standards, rules and regulations then in effect for the issuance of permits.
BE IT FURTHER RESOLVED, That the aforementioned permits shall not be issued on or after January 15, 1981, until and unless the SCA Corporation submits an equal opportunity compliance statement to the appropriate office of the Shelby County Administration.

On November 30, 1980, the County Commission passed a second resolution similar to the one above quoted for the purpose of amending the prior resolution by deletion of the specific reference to SCA by name. Following the passage of the initial resolution of October 22, 1980, SCA filed suit in the Chancery Court of Shelby County to attack the validity of the resolution which sought to require it to wait until January 15,1981, two weeks after the effective date of the new ordinance, to get its building permit. In State ex rel, SCA Chemical Waste Services, Inc. v. Konigsberg, 636 S.W.2d 430 (Tenn.1982), the Supreme Court upheld the validity of what has been termed a stop-gap ordinance to preserve the status quo. This decision in effect required SCA to wait until the new ordinance became effective to apply for its building permit. Only the validity of the stop-gap resolution was considered there as the court did not rule upon the validity of the amendments now being challenged.

Back to the chronology of events. On November 18, 1980, the Tennessee Department of Public Health issued SCA a permit to construct and operate a chemical waste treatment facility at the Shelby County site. On November 7, 1980, SCA and the Division of Public Works of the City of Memphis reached a preliminary agreement concerning waste water discharge from the proposed facility. SCA was advised that it would not be allowed to discharge waste water until mid-1981, when the Loosahat-chie Interceptor Line was tied into the North Waste Water Treatment Plant. On December 24, 1980, SCA made application to the Shelby County Building Department for a building permit.

On January 15, 1981, a “permit to construct a source of air contamination,” otherwise known as a clean air permit, was issued to SCA by the Memphis-Shelby County Health Department. On January 16, 1981, Mr. Sanidas, the Chief Building Official of Shelby County, wrote a letter to attorneys for SCA returning to them its applications for a site grading permit and a building permit, along with checks tendered with these applications. After explaining that action on these applications had been delayed until after January 15, 1981 by the County Commission resolution above referred to, Sanidas gave as reasons for the applications’ rejection (1) the future completion of the inter-connector sewer into the North Waste Treatment Plant, (2) the absence of a statement by SCA showing compliance with the Equal Employment Opportunity Act, and (3) the failure of SCA to apply for a special use permit from the Control Board as required under the new zoning law. This litigation was initiated less than a month later.

I. THE VALIDITY OF THE AMENDMENT.

In order to reach a decision on this critical issue, we first must examine in more detail the substance of the October 6, 1980 amendment and in what manner, if any, it affected SCA and its plans to construct a chemical waste treatment plant in the M-4 (I-H) zone.

It is uncontradieted that in the zoning ordinance in existence in 1980 prior to the introduction of the “new comprehensive zoning ordinance” and in the new comprehensive zoning ordinance as well, SCA, as a matter of right, could have obtained a building permit for the construction of its chemical waste plant in the I-H district, located within the five-mile zone, by complying with the normal procedure required by the Shelby County Building Department of all applicants, save those necessitating a special use permit. This normal procedure in essence requires the submission of an application with plans and specifications signed by a licensed architect or engineer and the appropriate fee. If the plans and specifications passed muster of the various engineering departments and the land use was proper, a permit would ordinarily be issued.

On the other hand, by virtue of the amendment adopted on October 6, 1980, a new category or use was created that, by its specifications, unquestionably applied to SCA’s intended operations. In addition, rather than being given the privilege as a matter of right to obtain a permit through normal procedures, SCA would now be required to obtain a “special use permit.”

In the Memphis and Shelby County zoning laws special use permits were nothing new. There is an entire section dedicated to this procedure in the new comprehensive zoning ordinance. This section contains general standards that are applicable to all categories that require special use permits, specific standards that apply only to certain categories, and the procedure to be followed in seeking to obtain such a permit. In substance, the applicant for a special use permit must make application to the Land Use Control Board, which is obliged to call a public hearing pertaining to the application within 35 days and not later than 75 days of the date of the application. Following the public hearing, the Control Board is required to make a recommendation to the legislative body involved. The procedural rules proceed to state that in order to obtain a specific use permit a majority vote of the legislative body is required. However, if the land involved is located within the previously described five-mile zone, a two-thirds vote for approval is necessary. The rules further provide that in the event an application for a special use permit is denied, the applicant may not reapply for 18 months.

Additionally, four standards are set out by which the Control Board must review each and every application for a special use permit. The board must consider the effect of the proposed use upon the neighborhood, whether the building sought to be erected will be compatible with the immediate neighborhood, whether the building will be adequately served by essential public facilities and services, and whether the building or use of the land will result in damage or loss of any feature determined by the legislative body involved to be of significant natural, scenic or historic importance.

The above represents the sum and substance of the terms and conditions under which SCA was thus compelled to operate by virtue of the October 6, 1980 amendment.

Although elemental, it bears repeating here that the right of city and county governments to enact zoning ordinances is based upon powers delegated to them by the state legislature either by specific enabling acts or by the granting of charters. Henry v. White, 194 Tenn. 192, 250 S.W.2d 70 (1951); State ex rel Lightman v. City of Nashville, 166 Tenn. 191, 60 S.W.2d 161 (1933). Furthermore, inasmuch 'as zoning laws are in derogation of the common law and operate to deprive a property owner of a use of his land that would otherwise be lawful, they are to be strictly construed by the courts in favor of the property owner. State ex rel Wright v. City of Oak Hill, 204 Tenn. 353, 321 S.W.2d 557 (1959); Red Acres Improvement Club, Inc. v. Burkhalter, 193 Tenn. 79, 241 S.W.2d 921 (1951).

In finding the amendment complained of to be valid, the chancellor did so solely on the basis of a finding that it was “not so substantial as to require any further public notice by or proceedings before or recommendation by the Land Use Control Board or any further public notice before said amendment could be validly passed by either the City Council and/or County Commission .... ” It would appear that the chancellor was attempting to apply the “substantial” test as set out in Wilgus v. City of Murfreesboro, 532 S.W.2d 50 (Tenn.Ct.App.) cert. denied (1975).

While we think the chancellor somewhat missed the point of Wilgus in the “substantial” test, we think it immaterial because in the opinion of this Court there is a more compelling reason for our reversing the action of the chancellor in this regard — the question of due process.

The power of Shelby County to enact zoning legislation within the five-mile zone stems from enabling legislation passed by the state legislature in the form of Chapter 614 of the Private Acts of 1931. This act has been codified as § 7 of §§ 23-44 of the Laws of Shelby County Annotated, and in light of its importance to this issue is set forth herein verbatim.

Section 7. Be it further enacted, That in order to carry out the purposes of this Act, a County Planning Commission is hereby created to be composed of the members of the Planning Commission of any municipality within the population classification herein provided for, and the Board of County Commissioners and Chairman of the Quarterly County Court of counties within the population classification herein provided for, and before any plan for such five mile zone shall be adopted, such County Planning Commission shall recommend boundaries or districts and appropriate regulations to be enforced therein. Such commission shall make a tentative report and hold public hearings thereon, at such times and places and upon such notice as it may fix, before submitting its final report. Said legislative bodies shall not determine the boundaries of any district, nor impose any regulations until after the final report of such County Planning Commission.
After such final report is submitted to both legislative bodies as aforesaid, and final adoption of regulations by each, said legislative bodies may, from time to time, amend, supplement or change the boundaries or regulations so adopted, but not without consent of each. Notice of the adoption of such amendment, supplement or change in the regulations, shall be given by publishing such notice one time in some daily newspaper of general circulation in the city of the population classification hereinabove set forth within such county. Notice shall state the time and place, not earlier than ten days from the date of publication, at which the legislative bodies shall meet in joint session to hear remonstrances or protests against the making of such amendment, supplement or change. At the time and place thus appointed, said legislative bodies shall meet in joint session, and all persons whose property will be affected by such amendment, supplement, or change, may appear in person or by attorney or by petition, and protest against making of such amendment, supplement, or change, and after hearing such protests, if any, such legislative bodies, in the manner hereinbefore provided, may confirm, modify or rescind such regulations in whole or in part. If, however, a protest against such amendment, supplement or change be presented in writing to either legislative body, within ten days from the date of publication, duly signed and acknowledged by the owners of 20% or more of any frontage proposed to be altered, or by the owners of 20% of the frontage immediately in the rear thereof, or by the owners of 20% of the frontage directly opposite the frontage proposed to be altered, such amendment, supplement or change shall not be passed except by a four-fifths vote of each such legislative body.

A reading of the above reveals that Section 7 mandates that any amendment, supplement or change concerning the zoning regulations of Shelby County must be preceded by a published notice in a newspaper of daily circulation at least ten days prior to the hearing in order to hear “remonstrances or protests against the making of such amendment, supplement or change.” It is conceded by defendants that the amendment complained of by SCA was not considered by the Control Board, no public hearing was held by the Control Board, nor was there any published notice that the amendment would be considered at the joint session of the two legislative bodies at the time it was enacted. The importance and significance of notice and a public hearing is set out in 82 Am.Jur.2d Zoning and Planning, §§ 48-50 (1976).

§ 48. Preliminary planning and report by zoning commission.
Under most enabling acts, including the Standard State Zoning Enabling Act, it is required that a zoning commission be appointed and its report be received by the legislative body before the adoption of a comprehensive zoning ordinance. Where this requirement prevails, a local legislative body cannot enact a valid zoning ordinance until it has received the final report of the zoning commission. That report is not conclusive on the local legislature, however; it is merely advisory, and the local legislature has the right to make the final decision as to what the zoning ordinance shall contain and provide.
§ 49. Notice and hearing, generally.
Zoning enabling acts ... commonly require notice and hearing before the local legislative body before the enactment of a zoning ordinance or amendment. Such a requirement is mandatory, and the failure of the legislative body to conduct an appropriate hearing, after proper notice thereof, will invalidate the zoning ordinance ....
§ 50. Statutory requirements of notice prior to adoption.
Regardless of the type of notice called for by the statute, the basic requirement that notice be given is uniformly held to impose upon the zoning authority a mandatory duty to give it, in default of which jurisdiction to pass valid zoning measures is lacking. The rule that compliance with the statute is mandatory and jurisdictional has been announced in scores of cases and appears to prevail in every jurisdiction where the question has been presented. It is founded on the premise that local government, having no residual power to zone, is absolutely incapable of doing so except in the manner specified in the statute. The rule is applicable to measures passed upon a notice which was defective in some respect as well as to those passed upon no notice at all. Except where the language of the statute suggests that it was intended to apply only to new or originally adopted zoning ordinances, it is of no consequence that the ordinance under attack merely reclassified certain specific property or amended or revised an earlier measure on the one hand, or was a new or original enactment on the other.

Other authorities on the subject of zoning are in accord with these general principles. In 1 Anderson, American Law of Zoning § 4.03 (1976), we find:

Mandatory requirements
Procedural requirements are considered by the courts to be safeguards against arbitrary exercise of power. Failure to comply with such procedural requirements has been regarded not only as an ultra vires act on the part of municipal legislators, but also as a denial of due process of law. Indeed, a statute or ordinance which fails to require legislative notice and a hearing prior to the enactment of a zoning ordinance may be regarded as invalid for failure to require procedure which comports with due process of law.

In Section 4.13 it is stated:

As is true of procedural requirements generally, the requirements for publication, service and posting are mandatory; failure substantially to comply with them results in an invalid ordinance. Commenting on a statutory requirement that notice be given in a specific manner, an Arizona court said: “Such a rule is no mere legal technicality,” rather it is a fundamental safeguard assuring each citizen that he will be afforded due process of law.
Section 415 more closely addresses the issue presented before us:
§ 4.15. Necessity for second hearing.
After the notice has been published, but before the hearing has been held, a proposal for amending the zoning regulations may be changed. If the change is so fundamental that it is no longer within reach of the notice of hearing, it will be necessary to publish a new notice. Failing that, substantial compliance with the enabling act may require that a second hearing, preceded by proper notice, be conducted. If, however, the change is not substantial, a second hearing will be unnecessary, (emphasis added)

See also Annot. 96 A.L.R.2d 449 (1964).

Our Supreme Court has, in essence, embraced the position stated by the writers of the text referred to above. In Clapp v. Knox County, 197 Tenn. 422, 273 S.W.2d 694 (1954), while the notice therein was approved as valid, the Court said:

The requirements as to the giving of such notices of a hearing upon a petition for an amendment or a change in the zoning regulations must be substantially complied with, [citing authorities from other jurisdictions] .... We think that the notice of the time and place, etc., given in the instant case, substantially complies with the statute requiring such a notice. Clearly this notice was not misleading and it gave the necessary information to the interested parties. (emphasis added)

Id., 273 S.W.2d at 698.

The case of Barrie v. Kitsap, 84 Wash.2d 579, 527 P.2d 1377 (1974) reh’g denied, 93 Wash.2d 843, 613 P.2d 1148 (1975) most succinctly expresses the purpose of notice in a zoning statute and the effects of deficient or no notice:

The purpose of the notice required by this statute is to fairly and sufficiently apprise those who may be affected by the proposed action of the nature and character of the amendment so that they may intelligently prepare for the hearing.

Id., 527 P.2d at 1380.

The Washington court continued by observing that,

Our holding that the notice in this case is deficient is mandated by the constitutional requirement calling for procedural due process of law. One of the basic touchstones of due process in any proceeding is notice reasonably calculated under all the circumstances that apprise affected parties of the pending action and afford them an opportunity to present their objections. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).

Id., 527 P.2d at 1381.

It is clear to us from this record that at the October 6,1980 meeting the two legislative bodies were attempting to do nothing more than, as they say in Western parlance, “head ’em off at the pass,” referring specifically to SCA.

We make this observation for more than one reason. First, a transcript of the public hearing at which the amendment complained of was adopted contains the following:

RITZ [Director of Office of Planning and Development]: ... it says on page 142 on * * * chart 1 we’re making a change, we’re adding refuse processing treatment and storage and inserting an “s” under the IH district. Now specially, this came to our attention because of the proposed refuse disposal plant in North Memphis and we found that under the present ordinance, you can put that kind of business in any M3 district in the City of (sic) the County.
PERKINS: In that regard, if they decide to move that out into the County somewhere who has the authority to approve that?
RITZ: Depending of whether it fell within five miles of the city of (sic) not, it would either be jointly yours or all yours. And it would require a special permit.
GATES: Do we have ground rules that we have to allow special permits?
RITZ: You do not have to. You can deny them.
GATES: On any grounds?
RITZ: That’s right.
GATES: Under present regulations, you say if they don’t get a building permit prior to January 1st, Now (sic), under what rules will they be traveling under?
RITZ: Until then?
GATES: Yes.
RITZ: They will be able to get a building permit in the City if they are zoned M3 and what is it in the County — heavy industrial in the County.
RITZ: Yes sir, they also need a permit from the Health Department with respect to Air (sic) pollution probably and they also may need a permit from the State of Tennessee on the fact that they come under a waste disposal. But, the zoning thing is what give (sic) the governing bodies an opportunity to exercise some decisions and that’s why we stuck it in. SCA has to get at least two permits from City/County agencies.

The second reason for this Court’s conclusion that this precipitous action was aimed specifically at SCA in an attempt to gain more control over its operations without due process of law, is based on the resolution passed by the county commission on October 22, 1980 and litigated in State of Tennessee, ex rel SCA Chemical Waste Services, Inc. v. Konigsberg, 636 S.W.2d 430 (Tenn.1982), which ordered all departments, boards, etc. of Shelby County not to issue any permits to SCA until it met all applicable standards, etc.

The manager of the zoning staff in the Memphis-Shelby County Office of Planning and Development testified that this amendment was added because it was a mere “oversight,” that it had been omitted from the original draft, notwithstanding the fact that the staff had prepared the comprehensive zoning plan in 1978 and had it under advisement and study from that time. We find this explanation unacceptable. This witness did not attend the October 6th hearing. Thus he did not hear the testimony of his boss, Mr. Ritz, quoted above. In light of this testimony it is difficult to consider this action was a result of an “oversight.”

In our opinion, SCA was denied due process on several counts. First, the alteration of its rights by this amendment was substantial. Instead of having the broad, general privilege of getting a permit by complying with simple requirements, a category created specifically for plaintiff was added, so as to give two governmental agencies, over and above the building department, control. It granted these governmental agencies broad standards by which to judge SCA that are totally different than those applied to land use privileges of a non-special use character. Furthermore, in the event the application was denied, SCA was prevented from reapplying for a period of eighteen months.

In addition, by not having publication and notice, SCA was denied the right of preparing its case in opposition to the amendment and was likewise denied the opportunity of marshaling the troops, so to speak, to develop neighborhood opposition, which, if accomplished, would have required a different vote of the legislative bodies for passage than otherwise. We therefore hold that the amendment of October 6, 1980, as adopted by the joint legislative bodies, creating the category of “refuse process, treatment and storage” in the I-H zone and requiring a special use permit for such a category, is invalid.

II. THE MATTER OF EQUAL EMPLOYMENT OPPORTUNITY.

SCA likewise complains of a condition sought to be imposed upon it by the stopgap resolution of the county commission of October 22, 1980, which stated in essence that plaintiff could not obtain building permits for the chemical waste treatment plant until it submitted a statement showing “equal opportunity compliance.” Although not well stated, it is clear to us that the commission was attempting to require SCA to show compliance with the federal law dealing with equal opportunity and employment, codified as 42 U.S.C. §§ 2000e, et seq. (1976). We can in no way determine the motives of the commission in inserting this paragraph in this stop-gap resolution, but it is apparent that it was another attempt to place a road block in the path of SCA.

In his deposition, Mr. Sanidas, the chief official of the Shelby County Building Department, testified that it was not part of his regulations to require that an applicant for a building permit prove compliance with the Federal Equal Opportunity Act, stating: “No, sir, that is not in my codes.” He also confirmed that proof of compliance with the Act had nothing to do with getting a building permit in Shelby County.

Furthermore, this Court would observe that the enforcement of the Equal Employment Opportunity Act is not the direct responsibility of the Shelby County Commission. The Act is well written and clearly sets forth the machinery for its enforcement. The Shelby County Commission is not included, nor is its building department. This portion of the October 22, 1980 resolution is ultra vires, invalid and is hereby declared null and void.

This Court is without authority to issue a writ of mandamus. T.C.A. § 16-4-108. However, having declared the amendment of October 6, 1980 to the zoning ordinance invalid and the subsequent provision of the October 22, 1980 resolution pertaining to equal employment opportunity null and void, it is the opinion of this Court that SCA is entitled to proceed to obtain a building permit for its proposed plant in accordance with the provisions of the Shelby County Comprehensive Plan adopted October 6, and 7, 1980, but in the substance and form as advertised on September 25, 1980, without the abortive last-minute amendment and restriction sought by resolution.

The decree of the chancery court is reversed, and the October 6,1980 amendment is declared void and invalid. The equal opportunity compliance statement in the October 22, 1980 resolution is declared null and void. We thus declare that upon compliance with the provisions of the Shelby County Comprehensive Zoning Plan adopted October 6-7, 1980, but without the voided amendments, and upon compliance with the standard requirements of the Shelby County Building Department, SCA is entitled to obtain its building permit. This case is remanded for further proceedings, if necessary, in accordance with this opinion. Costs in this cause are taxed one-half to Shelby County and one-half to the City of Memphis, for which execution may issue, if necessary.

NEARN, P.J. (W.S.) and CRAWFORD, J., concur.


source: Caselaw Access Project

author: LEWIS, Judge.

license: Public Domain

text:
    Jimmy Dale SMITH, Plaintiff-Appellant, v. Arnold PEEBLES, Jr., Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Oct. 11, 1984.
    Application for Permission to Appeal Denied by Supreme Court Dec. 10, 1984.

      Jimmy Dale Smith, pro se.
    James H. Porter, Nashville, for defendant-appellee.
   OPINION

LEWIS, Judge.

Plaintiff Jimmy Dale Smith, an inmate in the Tennessee Penal System, filed his complaint pro se in the Chancery Court for Davidson County, Tennessee, against the defendant Arnold Peebles, Jr. Mr. Peebles represented plaintiff in a criminal proceeding which resulted in plaintiff’s conviction. Plaintiff, in his complaint, alleges, inter alia, that Mr. Peebles was guilty of malpractice in handling plaintiff’s defense which resulted in plaintiff’s conviction. Among other things, plaintiff prayed for (a) $1,000,000 compensatory damages, (b) $2,000,000 punitive damages, and (d) $5,000 actual damages, the amount allegedly paid to the defendant as a fee in the criminal case.

Subsequent to the filing of defendant’s answer, plaintiff filed a motion to set the case for a jury trial. Thereafter, plaintiff filed a “Motion to Compel Production of Prisoner” in which he sought to have the Trial Judge order the Warden to have him present for trial on November 2nd. The “Motion to Compel Production of Prisoner” was denied. Plaintiff then filed his “Motion for Continuance” in which he set forth that he could not “effectively and successfully litigate and present my meritorious complaints without my actual presence during the trial proceedings.” On October 26, 1983, the Trial Judge entered an order denying “plaintiff’s motion for continuance.”

The Trial Judge entered the following order on November 3, 1983.

This cause came on for trial November 2, 1983. No one appeared on behalf of the plaintiff and the court announced the action would be dismissed.
IT IS, THEREFORE, ORDERED that this case is dismissed because of failure to prosecute and costs are assessed against the plaintiff for which execution will issue.

Plaintiff appeals the Trial Judge’s dismissal of his suit for failure to appear and prosecute.

In Whisnant v. Byrd, 525 S.W.2d 152 (Tenn.1975), plaintiff, a prisoner confined in the Tennessee State Prison, filed a pro se complaint seeking to recover a five by seven photograph of a young lady and also sought $10,000 damages “for intense worry, grief and mental pain, caused by the defendant’s false dealing.” The trial judge entered an order reciting “that in view of the fact that the plaintiff is presently incarcerated in the state penitentiary, that this case should be continued from term to term until the release of the plaintiff from prison.” The plaintiff appealed, contending that he had a right to have his case heard immediately and that he had a right to be present for trial.

Justice Henry, writing for the Court, stated:

These constitutional provisions [Art. 1, § 12 and Art. 1, § 17, Const, of Tenn.] constitute clear and unequivocal declarations of the public policy of this State to the effect that no forfeiture of property rights shall follow conviction for a crime, and that every man shall have a remedy by due course of law for an injury sustained by him.
That the public policy of this State opposes forfeitures for conviction of crime is well established. [Citation omitted.]
We, therefore, hold that a prisoner has a constitutional right to institute and prosecute a civil action seeking redress for injury or damage to his person or property, or for the vindication of any other legal right; however, this is a qualified and restricted right.

Id. at 153, Further:

We hold that, absent unusual circumstances, prisoners who have filed their civil complaints, unrelated to the legality of their convictions and who have thus protected themselves against the running of any statute of limitations, will not be afforded the opportunity to appear in court to present their cases during their prison terms. Instead such matters will be held in abeyance until the prisoner shall have been released from prison and is in a position to prepare and present his case. We hold that in a proper case, and upon a proper showing of particularized need, the trial judge, in his discretion, may issue an appropriate directive requiring the attendance of the prisoner.
In the case at bar plaintiffs complaint has been filed and the statute of limitations has been tolled. His right of action is protected. In our opinion the record does not disclose any need for immediate attention and certainly the trial judge would have been remiss had he disposed of the case in the absence of the plaintiff, and even more so had he attempted to order his presence at trial with the accompanying expense, hazard to the public, and interference with prison officials.

Id. at 154.

In the instant ease plaintiff prisoner’s “constitutional right to institute and prosecute a civil action” was effectively denied when the Trial Judge refused a continuance and dismissed plaintiff’s complaint for “failure to prosecute.”

The judgment of the Trial Judge is reversed and the cause remanded to the Trial Court. On remand, the cause shall be placed on the docket and continued from time to time unless the Trial Judge should find “upon a proper showing [a] particularized need” to bring the case on for trial. In that event, he may issue “an appropriate directive requiring the attendance of the [plaintiff] prisoner.”

Costs of the appeal are taxed to defendant.

CANTRELL and KOCH, JJ., concur.


author: BYERS, Judge.

text:
    STATE of Tennessee, Appellee, v. Barbara A. SMITH, Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Jan. 16, 1984.

      Jim W. Stambaugh, Morristown, for appellant.
    William M. Leech, Jr., State’s Atty. Gen., Wayne E. Uhl, Asst. State’s Atty. Gen., Thomas H. Potter, Research Asst., Nashville, Berkeley Bell, Dist. Atty. Gen., Edward Sempkowski, Asst. Dist. Atty. Gen., Morristown, for appellee.
   OPINION

BYERS, Judge.

The defendant was found guilty of DUI and, as a second offender, was fined five hundred dollars and sentenced to serve eleven months and twenty-nine days.

The defendant says the state w.as erroneously allowed to show she refused to take a breathalyzer test and says when she asked to take the test the officer refused to give the test. She contends these actions violated her constitutional rights. The defendant does not attack the sufficiency of the evidence, which is more than sufficient to show her guilt.

The judgment is affirmed.

The evidence touching upon the issues raised in this appeal shows, according to the state’s evidence, that the officers on three occasions requested the defendant to submit to a breathalyzer test, but she refused. The last request made by the officers was approximately one and one-half hours after she came into police custody. The defendant did not express any desire to take the test until she had talked with her attorney. This request came at least two hours after she had come into custody.

The defendant says the evidence of her refusal to take the test violated her constitutional right not to give evidence against herself. The contention is without merit. In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed. 748 (1983), the United States Supreme Court held that introduction of evidence which shows an accused refused to take a sobriety test does not violate the fifth amendment prohibition against self-incrimination. This Court has held that a refusal to take a sobriety test is admissible as being probative on the issue of guilt. State v. Earl S. Daniel, No. 82-177—III (Tenn.Cr.App., Nashville, March 7, 1983).

The defendant asserts the refusal of the state to give her a breathalyzer test after she requested it denied her the constitutional right to show her innocence.

Under the facts of this case, we do not see a constitutional deprivation of due process in the refusal of the officer to administer the breathalyzer test. The officer had on three occasions asked the defendant to take the test. The defendant refused. The officer had substantially completed all thé paper work and was going back on patrol. The defendant, who had just conferred with counsel, then asked that the test be given.

We do not think the officer was compelled at that time to administer the test to avoid a due process infringement. See State v. Neitzel, 95 Wis.2d 191, 289 N.W.2d 828 (1980).

There is no showing in this record that the officers would have restrained the defendant from procuring, at her own ex-' pense, a separate test to determine the blood alcohol content. If the defendant wished this she could have made a request to be allowed to do so. In fact, the defendant was released from custody immediately after her request for a breathalyzer test was refused. See generally Annot., 78 A.L.R.2d 905 (1961).

CORNELIUS and SCOTT, JJ., concur.


author: TATUM, Judge.

text:
    STATE of Tennessee, Appellee, v. Jackie Lee ATKINS, Appellant.
    Court of Criminal Appeals of Tennessee, at Jackson.
    July 26, 1984.
    Certiorari Denied March 4, 1985.
    See 105 S.Ct. 1395.

      James D. Causey, Memphis, A. Wilson Wages, Millington, for appellant.
    William M. Leech, Jr., Atty. Gen., Ann Lacy Johns, Asst. Atty. Gen., Nashville, Paul G. Summers, Dist. Atty., J. Kerry Blackwood, Asst. Dist. Atty., Somerville, for appellee.
   OPINION

TATUM, Judge.

The defendant, Jackie Lee Atkins, was convicted of first degree murder and sentenced to a life term in the State penitentiary. After considering the several issues presented, we conclude that the judgment of conviction must be affirmed.

We first address the issue attacking the sufficiency of the evidence. The defendant was convicted of the shooting death of his 28-year-old wife, Kimberley Dianne Atkins, on October 5,1982. The defendant and the victim had been separated since June, 1982. The victim was a Petty Officer in the United States Navy stationed at the Naval facility at Millington. The defendant ran a Corvette repair shop in Millington. According to the victim’s brother, Craig Knox, the defendant did not know the address or telephone number of the victim and telephoned him two times one day in September, 1982. On both occasions, he informed Craig Knox that he was going to kill the victim.

The victim’s supervisor at the Naval Station was Janine Morgan. Between 2:15 and 2:20 P.M. on October 5, Ms. Morgan answered the telephone and recognized a voice that she had learned to be that of the defendant. The victim came to the telephone and after a conversation, the victim held the telephone so that Ms. Morgan could hear the defendant threaten to kill the victim. Ms. Morgan testified that she left the victim at the Naval station at about 2:50 P.M. on October 5. When Ms. Morgan left, the victim was in a “great mood.” She was “jolly and frolicking and she was going to get drunk.” The victim was going to have her gun checked because it was jammed.

John Short testified that he knew both the defendant and the victim. Approximately two weeks before he heard of Kimberley Atkins’ death, and while Mr. and Mrs. Atkins were separated, the witness was at the defendant’s house trailer drinking beer with him. During a conversation, Mr. Short recalled the defendant stating with respect to his wife, “If the son of a bitch comes up here, I’ll kill her.”

Robert Curtis Rosenbush testified that he ran a gun shop in Millington and sold the victim a Walther PPKS pistol and ammunition. On October 5, 1982, at around 3:30 or 3:45 P.M., she brought the pistol to the store for repairs. The pistol had jammed. The victim waited about 35 minutes while the gun was repaired. While in the store, she bought a case for the pistol. He identified the gun case and box of 380 Winchester ammunition taken from victim’s Corvette as items that he sold to the victim. When the victim left the gun store, she was very happy.

Randy Reed testified that he lived across the street from the defendant, with approximately 100 yards separating their houses. On October 5, Mr. Reed drove into his yard at 4:50 P.M. and got out of his truck. The defendant was standing at a blue Corvette in his yard and yelled for Mr. Reed to help him, saying that his wife had shot herself. Reed went into his house and told his wife to telephone the police and an ambulance. Reed looked out a window and saw the defendant at a red Corvette that he used for parts, located about 20 yards from the blue Corvette. The defendant had “something in his hand.” At that point, Mr. Reed was distracted by his wife’s telephone conversation and didn’t see what the defendant did with the object in his hand.

Mr. Reed further testified that as he started out of his house, the defendant was at the door. They went together to view the victim in the blue Corvette and at the witness’s suggestion, they went to the truck and waited for the ambulance to arrive. The ambulance arrived in 7 to 10 minutes. The defendant was not excited and appeared to be sober.

Howard Jerry and Gail Morgan, emergency medical technicians, testified that they arrived at the defendant’s residence at approximately 5:52 P.M., responding to a call. As the witnesses and another technician drove into the driveway at the defendant’s residence, they observed two men standing beside a truck, calmly conversing. The two men ignored the ambulance until the witnesses asked where they could locate the patient, then they were told “over there.” When asked if they meant in the trailer, the men indicated that the “patient” was in a blue Corvette convertible parked at the trailer.

Howard Jerry was the first to examine the victim. When he first observed her in the driver’s seat of the Corvette, she was slumped down. He observed an automatic pistol wedged between the driver’s seat and the console. The barrel was pointing upward. Keys were on the console of the Corvette and a wine glass was between the victim’s legs. The automatic pistol appeared to be jammed. The technicians removed the victim from the automobile to check her vital signs. It was immediately determined that the victim was dead and they observed an injury to her upper left chest. No spectators came to the scene.

Dr. Charles Warren Harlan, a forensic pathologist, testified that he conducted an autopsy on Kimberley Dianne Atkins. She died as a result of a near gunshot wound to the chest. The bullet entered at a point above the left nipple below the collarbone and exited at the rear of the right armpit. The bullet reentered the rear of the upper right arm and exited again above the right elbow. The entry wound was one-half inch higher than the exit wound in the back. There was stippling (flesh burned by hot lead and burning powder coming from the muzzle of the gun) around the entry to the chest wound. Dr. Harlan also testified that the autopsy revealed blue bruises to the right side of her neck, the back of her left hand, the right thigh, and middle of the left shin. He found a brown bruise on her right shoulder and multiple brown bruises on the inside of both thighs. There was an abrasion on her right wrist and a pink contusion on the front of her right thigh.

There was stippling also found on the back of the left hand which was similar to that found at the entrance wound in the chest. The stippling on the hand was concentrated around the knuckles of the ring and little fingers.

Dr. Harlan was of the opinion that the muzzle of the pistol was between 0 and 9 inches, and probably between 3 and 5 inches, from the skin surface when the fatal shot was fired. The wound produced extensive bleeding in the chest. Blood was inhaled into the lungs. One would live less than 5 minutes with the wound inflicted.

Dr. Harlan was of the opinion that the wound was not self-inflicted. The straight line from the entry of the bullet at the left upper chest, exiting at the rear of the right arm pit with reentry into the upper arm and an exit above the right elbow, precludes the possibility that the pistol could be fired with the right hand. The stippling on the back of the left hand indicated that it was in front of the muzzle of the gun at the time of discharge, precluding the possibility that the gun was held in the left hand when discharged.

None of the officers or medical personnel were able to find either a shell casing or a spent bullet in the vicinity of the blue Corvette convertible. Nor was the victim’s Walther PPKS automatic pistol ever found. Deputy Sheriff Jimmy Anderson, who arrived at the scene at 4:52 P.M., testified that he observed a glass on the floorboard, a green Navy pouch on the seat, a paper sack containing a bottle of wine, and a pistol wedged between the bucket seat and the console. Car keys were on the console. The green pouch from the seat of the car contained overnight clothes, dirty clothes, a box of 380 cartridges, a new gun pouch, and other items. There was another bottle of wine in the car which had not been opened. A cash register receipt indicated that the wine had been purchased at 3:09 P.M. The green gun pouch or case was empty but had the fresh smell of machine oil or WD-40.

TBI Agent Tony Bowers interviewed the defendant at approximately 7:30 P.M. The defendant had alcohol on his breath but appeared calm and rational. After waiving his Miranda rights, the defendant gave a written statement, saying:

“My wife’s name is Kimberly (sic) Diane (sic) Atkins. We have been separated since the end of June. She is in the Navy at Millington. She has been living somewhere else in a house trailer. Last night, she came to my trailer and spent the night with me. She left this morning going to the base at ten minutes till 7:00. I worked on her car until 11:00 a.m. She came to my garage until about twenty minutes till 12:00. About 3:00 p.m., she called me from our trailer. I went on home after she called. When I got home, she was sitting inside drinking some Jack Daniels whiskey. I fixed myself a couple of drinks and she had a couple of drinks. We went outside and she shot her gun at a can. She started talking about killing herself. She walked outside and carried the 9 millimeter pistol, automatic, with her. I was sitting in my big green chair. I heard a shot. I jumped up and went to the window. I ran out the door and reached over in the car, it’s a convertible and I grabbed her and tried to get her out. I ran across the street and tried to get Randy to get some help. He called the ambulance. I stayed over by the truck until the ambulance got there.”

Agent Bowers testified that in the initial interview, the defendant said he had never before seen the pistol found in the victim’s car. The defendant first said that he had not fired a gun within the 24 hours preceding the shooting, but after he was told a gun powder residue test would be taken, the defendant changed his story. He then said he and the victim had been target shooting. He also changed his story by saying that he recognized the pistol as that belonging to his wife. The defendant then gave the aforesaid written statement. Agent Bowers was unable to locate the PPKS Walther 380 automatic pistol. The defendant denied any knowledge of it.

The pistol wedged between the driver’s seat and console of the victim’s automobile was a Smith & Wesson Model 39-2 nine millimeter semi-automatic pistol. It was examined by TBI Agent Tommy M. Heflin, an expert firearms examiner. When the pistol was received by Agent Heflin, there was a Remington Peters nine millimeter cartridge partially jammed in the chamber, holding the bolt open approximately one-half inch. The cartridge was tilted so that it could not feed into the chamber. After removing the jammed cartridge, the pistol was fired repeatedly without malfunction. When the gun is fired, the spent cartridge is ejected.

Agent Heflin examined the victim’s T-shirt. Partially burned and burned gunpowder was heavily concentrated around the hole in the front upper left panel. No residue was found in a hole at the lower right armpit section. By test firing the gun at various distances for comparison of the gunpowder residue with that on the front of the T-shirt, Agent Heflin concluded that the fatal shot was not fired in direct contact with the T-shirt but was fired from less than 18 inches from it.

Dianne Conkoly, a TBI criminologist, testified that she analyzed gunshot residue kits with respect to both the victim and the defendant. One of the tests obtained from the defendant and both obtained from the victim revealed a significant concentration of elements indicative of gunshot residue, indicating that both the defendant and the victim could have fired or handled a gun.

The defendant did not testify but introduced two witnesses. Jerald Orman, a neighbor who lived one or two blocks away from the defendant’s trailer, testified that he heard one gunshot. He subsequently saw the defendant running up the road hollering for Randy Reed to help him, saying, “My wife’s been shot; come over here and help me.” The defendant sounded upset and excited. Mr. Orman heard no screams, argument, or loud talking proceeding the gunshot.

Mr. Orman’s wife, Lois Orman, testified that she had just left her mailbox when she heard a shot. She heard the defendant yell for Randy Reed to help, and thought she heard him say, “My wife’s been shot.” She could not hear Reed’s response, but heard the defendant say, “Man, don’t be that way.” She heard nothing prior to hearing the gunshot.

In attacking the sufficiency of the evidence, the defendant insists that the circumstantial evidence does not exclude every reasonable hypothesis other than his guilt. He argues that the shooting could have been self-inflicted or inflicted by a third party. We think that the fatal wound could not have been self-inflicted for the reasons stated by Dr. Harlan. The evidence strongly infers that only the defendant and the victim were on the premises when the shooting occurred. This fact precludes a reasonable hypothesis that the fatal wound was inflicted by a third party.

The defendant also insists that there was no evidence of deliberation, premeditation, and malice and that the shooting could have been accidental. There was evidence that the defendant told the victim, her brother, and his friend that he intended to kill his wife. Immediately after the shooting, the defendant was cool and composed. He immediately represented to his neighbor and later to an investigating officer that his wife shot herself after threatening to do so. The Walther automatic pistol, which the victim had in her possession less than one hour before her death, was never found; nor were the shell casings and spent bullets ever found, even though no spectators tampered with the scene and the victim’s newly purchased pouch for the missing pistol was still in her belongings. -Immediately after the fatal shot was fired, the defendant was seen in the vicinity of a red junked Corvette with something in his hand. There was no one to remove these items other than the defendant.

Also significant is the defendant’s theories or inconsistent statements regarding his and the victim’s handling of guns on the afternoon of her death and the positive result of the gunpowder residue test conducted on the defendant. Another factor is that the victim was shot under the wheel of her car, under circumstances indicating that she was in the process of leaving the scene. Stipplings found on her left hand indicated an effort on her part to shield herself from the fatal bullet.

We think that the facts support the jury’s finding that the defendant was guilty of first degree murder. Whether premeditation, deliberation, and malice are present in a given homicide case are questions of fact to be determined by the jury from all circumstances in evidence. State v. Garland, 617 S.W.2d 176 (Tenn.Crim.App.1981) and the cases therein cited. We find sufficient evidence upon which a rational trier of fact could be convinced beyond a reasonable doubt of the defendant’s guilt of first degree murder. The evidence of guilt meets the standard required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Rule 13(e), T.R.A.P. This issue is without merit.

In another issue, the defendant says that the trial court erred in permitting Dr. Harlan to give expert testimony that the gunshot wound was not self-inflicted. The defendant cites State v. McCrary, 133 Tenn. 358, 181 S.W. 165 (1915) and Moon v. State, 146 Tenn. 319, 242 S.W. 39 (1922) for the proposition that expert opinion testimony is not admissible to establish the ultimate fact to be reached by the jury. Both of these cases dealt with the question of whether gunshot wounds could have been self-inflicted.

In Bryant v. State, 539 S.W.2d 816 (Tenn.Crim.App.1976), this court held that expert testimony of this nature did not invade the province of the jury, although the expert witness could not say whether the gunshot wound was self-inflicted. We think any question on this proposition has been resolved contrary to the holdings of the McCravy and Moon cases by the Tennessee Supreme Court in City of Columbia v. C.F.W. Const. Co., 557 S.W.2d 734, 741, 742 (Tenn.1977). The court stated:

“In National Life & Accident Insurance Co. v. Follett, 168 Tenn. 647, 80 S.W.2d 92 (1935), this Court determined that where expert information is necessary for intelligent decision of an ultimate issue it does not matter that the opinion and one solution to the ultimate issue coincide. It is only when the trier of fact is as competent as the expert to determine an issue that the opinion of an expert has been held to be inadmissible, because unnecessary. See D. Paine, Tennessee Law of Evidence § 177 (1974). Moreover, in our view the better rule is that an expert’s opinion is not objectionable merely because it embraces an ultimate issue to be decided by the trier of facts, so long as it is helpful to the court. See Federal Rules of Evidence, Rule 704. Accordingly, we conclude that it was error for the Chancellor to exclude the testimony of the expert in this instance.”

Dr. Harlan was shown to be an experienced forensic pathologist and a medical examiner for Shelby County and the State of Tennessee. He actually performed the autopsy on the victim. When Dr. Harlan was asked his opinion as to whether the gunshot could have been self-inflicted, a jury-out hearing was held. Dr. Harlan testified that he had made between 400 and 500 determinations on whether a given wound was self-inflicted. His expertise included the effect of gunshot wounds on the human body as well as the mechanical limitations of the arms and hands. He described in detail how his determination was made, explaining the locations of the entrance and exit wounds, the path of the bullet, the location of stippling on the left hand and the entry wound to the chest, and all other pertinent details. Using the pistol, the doctor demonstrated' that it was physically impossible for the deceased to have shot herself. The doctor’s reasons for his opinion were clearly shown to the jury-

The allowance of expert testimony is within the discretion of the court. Bryant v. State, supra. It appeared to the trial judge, and we agree, that the evidence was helpful to the court. We think that the admission of this evidence was a sound exercise of the trial court’s discretion.

In another issue, the defendant says that the court erred in restricting him to eight peremptory challenges. He insists that since he was indicted and tried for first degree murder, he was entitled to 15 peremptory challenges. Rule 24(d) of the Tennessee Rules of Criminal Procedure provides that if an offense is punishable by death, each defendant is entitled to 15 peremptory challenges. If the offense charged is punishable by imprisonment for more than 1 year, each defendant is entitled to 8 peremptory challenges. The trial judge granted the defendant only 8 challenges. We point out that the State did not ask for the death penalty in this case, nor was the death penalty issue submitted to the jury.

Our court, in dealing with this issue, has held that where the death penalty question is not to be submitted for the jury’s consideration, then a defendant is entitled to only 8 peremptory challenges. State v. John L. Bates, No. 818, filed at Knoxville July 13, 1983 (unreported); State v. David Carney, No. 81-25A-III, filed at Nashville August 19, 1982 (unreported); State v. Joseph Maurice Walker, No. 80-225-III, filed at Nashville June 18,1981 (unreported). Also see Cheairs v. State, 543 S.W.2d 70 (Tenn.Crim.App.1976); Jenkins v. State, 509 S.W.2d 240 (Tenn.Crim.App.1974). We adhere to these holdings.

The defendant next states that the trial court erred in failing to charge the jury on the lesser included offenses to murder in the first degree. The trial court charged the jury on first degree murder and second degree murder but did not instruct the jury on voluntary and involuntary manslaughter.

If there is any evidence reasonable minds could accept as to any such lesser offenses, the accused is entitled to appropriate instructions regarding the lesser offenses. Johnson v. State, 531 S.W.2d 558 (Tenn.1975); T.C.A. § 40-18-110(a). However, the practice of charging lesser included offenses where there is no evidence to support them, is not favored. State v. Mellons, 557 S.W.2d 497 (Tenn.1977); Whitwell v. State, 520 S.W.2d 338 (Tenn.1975).

In this case, there was no evidence introduced by the defendant contradicting the State’s evidence. Defendant did not testify but prior to trial told others that the victim committed suicide. It would have been pure speculation for the jury to have found that the defendant committed the offense upon a sudden heat produced by adequate provocation or that the defendant did not intend death nor bodily harm when he shot the victim, and that death was accidentally caused by some unlawful act or an act not unlawful in itself but done in an unlawful manner and without due caution. Since there was no evidence to support a finding of either degree of manslaughter, the trial judge did not err in failing to charge these offenses.

Moreover, the jury found the defendant to be guilty of “willful, deliberate, malicious, and premeditated killing,” by finding him guilty of first degree murder instead of second degree murder. Having declined to convict the defendant of second degree murder, it would be folly to speculate that the jury might have found him guilty of manslaughter. If there was error, it was harmless.

Finally, the defendant complains that the trial judge erred in permitting TBI Agent Bowers to read from a report that the defendant refused to take a polygraph test and in declining to instruct the jury to disregard this evidence.

On direct examination, Agent Bowers testified that he interviewed the defendant at 7:30 P.M. on October 5,1982, after advising him of his Miranda rights. The agent again interviewed the defendant at 8:30 P.M. when the previously quoted written statement was obtained. The witness then described discrepancies between the two initial oral statements and the written statement given by the defendant.

On cross examination, defense counsel questioned the witness at length regarding the oral and written statements he obtained from the defendant. Defense counsel questioned the witness in detail concerning notes the witness made relating to the oral statements made by the defendant. The agent noted that defense counsel had been given a copy of his notes. Defense counsel obtained a typed copy of the notes which was passed to the witness and identified as a report submitted by the agent to the District Attorney General’s office. Counsel was then shown a handwritten copy of the same notes which was made immediately after the witness talked with the defendant.

On redirect examination, the prosecutor sought to have the notes made an exhibit and admitted into evidence. Defense counsel made a general objection but failed to relate to the court that the notes contained a reference that the defendant refused to take a polygraph test until he talked with his lawyer.

After the note was read to the jury, defense counsel moved for a mistrial or for an admonition to the jury that the information contained in the report concerning the polygraph test not be considered. The trial judge ruled:

“Mr. Causey (defense counsel), the Court allowed you to see the notes and to extract them from him with some trouble and see them and the question of the polygraph was not brought up before the Court prior to the reading and the Court allowed them because they had been brought out in cross-examination, so your motion for a mistrial and the motion to instruct the jury, will be overruled.”

In making the original objection, defense counsel owed a duty to inform the court that the notes contained the reference to the polygraph test. This fact was not known to the court when he originally ruled upon the objection. See Patterson v. State, 184 Tenn. 39, 195 S.W.2d 26 (1946); Cooper v. State, 123 Tenn. 37, 138 S.W. 826 (Tenn.1911). Under these circumstances, the trial judge did not err in originally overruling the objection. Although the objection was not in proper form when contemporaneously made, we think that it would have been the better practice to admonish the jury to disregard this evidence. It is well settled that evidence is not admissible that a defendant declined to take a polygraph test. Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (1958). But, we do not find that the error, considering the whole record, more probably than not affected the judgment or resulted in prejudice to the judicial process. The agent’s testimony that the defendant gave conflicting information is undisputed. As stated, the other substantial evidence of the defendant’s guilt is undisputed. We find the evidence harmless beyond a reasonable doubt. See Rule 36(b), T.R.A.P.

It results that the judgment of the trial court is affirmed.

DAUGHTREY and SCOTT, JJ., concur.


text:
    STATE of Tennessee, Appellee, v. Gregory McDOUGLE, Appellant.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Aug. 9, 1984.

      Brett B. Stein, Jerry A. Schatz, Memphis, for appellant.
    William M. Leech, Jr., Atty. Gen., Raymond S. Leathers, Asst. Atty. Gen., Nashville, Phillip G. Harris, Asst. Dist. Atty., Memphis, for appellee.
   OPINION

TATUM, Judge.

The defendant, Gregory McDougle, was convicted of aggravated rape, possession of a firearm with altered or defaced serial number, and carrying a pistol with intent to go armed. He was sentenced to serve 20 years in the State penitentiary for aggravated rape and to six months in the County Workhouse for each of the other two offenses. On this appeal, he does not attack the sufficiency of the evidence but presents several issues on other grounds. After considering the issues, we conclude that the judgments of the trial court must be affirmed.

The defendant first says that the trial court erred in not suppressing the identification evidence of the victim. The trial judge conducted a pretrial hearing on the defendant’s motion to suppress. The victim, Dorothy Spearman, testified that on June 26, 1982, she left her home in Memphis at approximately 5:30 A.M. to walk one mile to her employment at a doctor’s office. As she walked across the grounds of a school, she was accosted by the defendant. He was approximately 5 feet 2 or 3 inches tall, weighed 135 to 140 pounds, was wearing blue work pants, a tank top and had a pair of white mesh panties on his face. He was black, had nappy hair and an extremely dark complexion.

The witness described the lighting conditions as being good. It was dawn, the sun was coming up and it was between daylight and dark. It was light enough for her to identify a pistol that the man pointed at her. The pistol was a nickle-plated automatic with red paint on the side. The defendant ordered the victim into a utility building and directed her to remove her clothes. She had a lengthy conversation with the defendant and kept addressing him as “son” and reminding him that she was old enough to be his mother. The defendant forced the victim to perform oral sex while on her knees. The defendant told her that he knew where she worked and would “get her” if she notified the police. Notwithstanding these threats, the victim telephoned the police and also told her son, Frederick Spearman, of the outrage.

On July 2, 1982, Frederick Spearman came to the doctor’s office where the victim was employed and told her that he had seen a man who fit the description of the rapist put a gun on a young girl in the park or schoolground where the victim was raped. They drove to the area. Frederick went between two buildings, leaving the victim in their car. As Frederick came from behind the building, the defendant and a young girl also came out. The young girl’s face was bloody and she was adjusting her clothes. Mrs. Spearman attempted to convince her to get in the car but the girl walked away.

Mrs. Spearman immediately recognized the defendant as the rapist. He was wearing a tank top and gray jogging pants. She recognized his hair and the texture and color of his skin.

The victim telephoned the police while Frederick remained in the car watching the defendant. Later, she saw that officers were gathered at Church’s Fried Chicken establishment and went there. She observed the defendant in a police car approximately three car lengths away. The police did not direct her attention to the defendant or ask for an identification but she informed the police “that’s him.” This occurred about 15 or 20 minutes after she telephoned the police. The police did not instruct her to go to Church’s Fried Chicken.

She recognized the defendant’s voice as being one that she had heard before in her office. She checked her office records and found that the defendant had been a patient there.

Frederick Spearman’s testimony corroborated that of his mother as to the events that took place on July 2, 1982. When he went between the two buildings and observed the defendant raping the young girl, the defendant looked surprised and jumped up. The girl was lying under the defendant looking “scared.” Frederick observed the defendant walk across the park into Church’s Chicken. The defendant left there with a cold drink and disappeared behind a hardware store. When the police arrived, he described the defendant to them and waited at Church’s.

The officers • observed the defendant on the street wearing clothes that had been described to them by Frederick Spearman. He was carrying a drink cup in his hand. He was searched and a small caliber chrome-plated pistol with red paint on the side was found. The victim positively identified this pistol as the one used by the man who raped her. None of the officers asked anyone to identify the defendant. When the officers returned to Church’s Fried Chicken, they went there to receive instructions from their lieutenant. They did not know that Mrs. Spearman would be there. When the defendant was searched at the jail, a pair of mesh panties was found “balled” up in his underwear.

In his attack on the identification evidence, the defendant says:

“The first issue that this court must consider is whether or not the officer’s conduct of bringing the appellant back to the scene of the crime was unduly suggestive; secondly, if such procedure was so unduly suggestive, whether or not under the totality of circumstances, the identification was reliable even though the confrontation procedure was unreliable.

The officers did not return the defendant to the scene of the crime after his arrest. He was taken to Church’s Chicken establishment where the arresting officers were to meet their lieutenant for instructions on what charges to bring. The victim’s son was also known by the officers to be there.

We do not find that the identification procedure was unduly suggestive. In Rippy v. State, 550 S.W.2d 636 (Tenn.1977), our Supreme Court, citing cases of the United States Supreme Court, observed that the federal cases spoke in terms of “the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” No police officer nor anyone connected with the prosecution presented the defendant to the victim for pretrial identification. While at Church’s Fried Chicken, she observed the defendant and identified him spontaneously of her own volition. The officers did not ask for an identification nor did they know that the victim would be at the establishment when they brought the defendant there. See Marsh v. State, 561 S.W.2d 767 (Tenn.Crim.App.1977); Kelley v. State, 478 S.W.2d 73 (Tenn.Crim.App.1972).

Even if the officers had planned the confrontation, it would not have been unconstitutionally suggestive. The victim had observed the defendant 15 or 20 minutes before he was returned to Church’s Fried Chicken. Although the victim was raped a few days before, the rationale is the same in this case as in those cases holding that an “on the scene investigatory procedure, instituted shortly after the offense occurred” is not an unconstitutional identification. See State v. Foote, 631 S.W.2d 470 (Tenn.Crim.App.1982); Johnson v. State, 596 S.W.2d 97 (Tenn.Crim.App.1979). Moreover, the record is clear that the victim’s in-court identification of the defendant was based upon her observations made when the crime was committed and not upon observations made July 2, 1982. This issue is without merit.

In the next issue, the defendant says:

“The court committed prejudicial error in repeatedly refusing defendant’s request made during cross examination of State’s witnesses, Dorothy Spearman and Frederick Spearman, that the official court reporter be allowed to read back specific questions asked of and answers given by said State’s witnesses during earlier testimony for purpose of impeachment.”

In cross examination of the victim in the presence of the jury, defense counsel wanted to interrupt the cross examination of Mrs. Spearman while the court reporter searched for and read previous testimony of Mrs. Spearman. The previous testimony, which was alleged to have been inconsistent, was given by the witness in the presence of the jury. The trial judge committed no error in refusing to permit the court reporter to read testimony of the witness which had already been heard by the jury.

In other instances the defendant desired to interrupt his cross examination of the victim and her son while the court reporter read to the jury alleged inconsistent testimony of the witnesses given at a jury-out hearing.

There is no precedent for the interruption of the examination of a witness to enable the court reporter, or any other witness, to testify as to inconsistent statements by a witness on the stand. The proper procedure is discussed in James v. State, 506 S.W.2d 797 (Tenn.Crim.App.1973). If the witnesses gave testimony at a jury-out hearing which was inconsistent with their testimony before the jury, the proper procedure was for the defendant to introduce the court reporter as a witness as part of the defense proof. Only chaos could result from a practice of permitting the testimony of one witness to be repeatedly interrupted to permit another witness to testify concerning prior statements of the witness being examined. We refuse to adopt such procedure.

In the next issue, the defendant says that the court erred by refusing to allow testimony of Officer Douglas “concerning the affidavit of complaint filed in this cause.” The affidavit was signed and sworn to by Officer J.R. Hudson. It stated in pertinent part:

“She (Dorothy Spearman) and her son were walking by this park on 7/2/82 and observed Gregory McDougle in the process of raping a female black.”

The victim and her son both testified that the son was driving to the victim’s place of employment on June 2, 1982 when he observed the defendant struggling with an unknown black female. He went to the doctor’s office, got his mother and drove back to the school ground. Defense counsel announced to the court that Officer J.R. Hudson, who made the affidavit, would testify that Officer J.D. Douglas actually wrote the affidavit although it was signed by him (Hudson).

Officer Douglas testified out of the presence of the jury. It is apparent that his memory as to the source of the facts placed in the affidavit is very vague. He testified that he was temporarily assigned to the case after the defendant’s arrest for the purpose of locating the young girl whom the defendant allegedly raped on July 2. In connection with this investigation, he talked with the victim about three times over the telephone. He obtained the information placed in the affidavit from statements previously taken by other officers at the time the victim was raped, from offense reports and the telephone conversations that he had with the victim. He made no notes of the telephone conversations with the victim but he “believed” that she told him that her son walked by the school grounds on his way to get his mother at her place of employment on July 2. After the son walked to his mother’s place of employment, he and his mother walked back to the park on their way home, he “believed.”

The affidavit itself was useless for impeachment purposes. It was based upon information obtained by Officer Douglas from offense reports made by other officers and statements given to other officers, as well as his recollection of the telephone conversations. The affidavit was never shown to either the victim or her son and was not adopted by them. According to Officer Douglas’s testimony, the victim did not tell him that she and her son were walking by the park and observed the defendant in the process of raping a female black. According to his testimony, he “believed” that the victim told him that the son walked by the park on his way to get his mother when he observed the struggle. He “believed” that after the son had gotten the mother at her place of employment, they walked back to the park. The affidavit does not conform to what the officer testified the victim told him.

Defendant says that the evidence of the officer that the victim and her son were walking on July 2 instead of riding in a car was exculpatory. We disagree. Whether the victim and her son were riding or walking on July 2 has no bearing on the defendant’s guilt.

The defendant argues that the testimony of the officer was admissible as showing a prior inconsistent statement. The evidence from the officer that he believed the victim told him that they were walking and not riding is not admissible as a prior inconsistent statement. No foundation was laid by asking either the victim or her son whether they told Officer Douglas that they were walking and not riding. This foundation is essential before evidence of an impeaching statement can be admitted. James v. State, supra. Moreover, whether the victim and her son were riding or walking on July 2, 1982, is a collateral matter; hence, Officer Douglas’s testimony was not admissible for this reason. See State v. Hill, 598 S.W.2d 815 (Tenn.Crim.App.1980); Honeycutt v. State, 544 S.W.2d 912 (Tenn.Crim.App.1976).

Finally, due to the obvious vagueness of Officer Douglas’s memory of his conversations with the victim, we are convinced that the exclusion of his testimony did not affect the result of the trial. The officer’s testimony was weak and uncertain.

The defendant next complains of the following argument by the State:

“The nude girl. I am glad to hear now that this was a voluntary sex act. That doesn’t make any sense. If it had been, Mr. Stein and Mr. Schatz would have subpoenaed her to court...”

The above argument was made in response to argument by defense counsel that the defendant and the young girl were voluntarily having sex on the school grounds on July 2, 1982. He argued that the blood on the girl’s face was the product of “the power of suggestion.” Defense counsel also observed that the State did not subpoena the girl.

Defendant cites Delk v. State, 590 S.W.2d 435 (Tenn.1979) for the proposition that before the missing witness argument can be made, the evidence must show, among other things, that a relationship exists between the witness and the party that would naturally incline the witness to favor the party. If the defendant and the missing witness were voluntarily engaged in the sex act and the missing witness gave the defendant her panties, as argued by the defendant, this would evince a relationship that would naturally incline the girl to favor the defendant. This issue is without merit.

The defendant complains in two other issues of the following final argument by the Assistant District Attorney:

“I want you to go back there and think about punishment. I want you to think about a person in our community who subjects a woman to this sort of dehumanization. I submit to you that no punishment is too great. Is that harsh? I submit to you it’s not because the gravamen of this offense, the fact that this is a dehumanization of her self-concept, how she feels about herself, to know that she’s been made to sit there and do that. That puts a load on her.
My point is simply this; the gravamen of this offense is the psychological rend that has been taken upon her, her psyche has been rent or torn apart, however you would like to say it. I told you we didn’t want any sympathy for her and we don’t. Save your postage on your sympathy cards. She doesn’t need it. But you’d better be thinking about what you’re going to do with somebody who would do this. You’d better be thinking about it.
What he has done is desensitized sex to her.”

The defendant first states that it was reversible error for the Assistant District Attorney to say, “I want you to go back there to think about punishment.” The defendant says that he did not argue punishment and therefore this statement should not have been made in closing argument. The State did not recommend any specific punishment. The statement complained of was ¡nocuous and without effect.

With respect to the portion of the argument that rape is dehumanizing and affects one’s self-esteem, the defendant says that this is not supported by the evidence. We disagree. We think that the act of forcing a woman to get on her knees and perform oral sex on a man is inherently dehumanizing and lowers her self-concept. We think that this is generally known by common experience and understanding. It is not error for the prosecuting attorney to argue that which is warranted by reasonable inferences from the evidence adduced at trial. State v. Sutton, 562 S.W.2d 820 (Tenn.1978).

Our courts give wide latitude to counsel in arguing their position in a ease to the jury and the control of final argument is a matter left to the sound discretion of the trial judge. An appellate court will not reverse absent an abuse of discretion. State v. Sutton, supra; Smith v. State, 527 S.W.2d 737 (Tenn.1975). We find no abuse of discretion in the controlling of final argument in this case.

The defendant next complains that the mesh panties found on him immediately before he was placed in jail was unlawfully admitted into evidence. He says that a warrant was necessary to search the defendant after he was arrested and transported to jail. We think that this question was correctly disposed of in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 1237, 39 L.Ed.2d 771 (1974). The court said:

“It is also plain that searched and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.”

We find no reversible error and affirm the judgments of conviction.

DAUGHTREY and SCOTT, JJ„ concur.


text:
    STATE of Tennessee, Appellee, v. Robert SUAREZ, Appellant.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Aug. 29, 1984.

      Thomas D. Hembree, Altamont, for appellant.
    William M. Leech, Jr., Atty. Gen., Jerry L. Smith, Asst. Atty. Gen., Nashville, J. William Pope, Dist. Atty. Gen., Pikeville, L. Mike Caputo, Asst. Dist. Atty., Jasper, for appellee.
   OPINION

TATUM, Judge.

The defendant, Robert Suarez, was indicted by the Grundy County Grand Jury for armed robbery on March 2, 1982. At the time of this indictment, the defendant was incarcerated in Oklahoma. The State of Tennessee requested temporary custody of the defendant from the State of Oklahoma pursuant to the Interstate Compact on Detainers. T.C.A. § 40-31-101. The jury found the defendant guilty of armed robbery, and the trial judge sentenced him to 10 years in the State penitentiary. On appeal, the defendant asks that the trial court be reversed and that the indictment be dismissed with prejudice. Alternatively, he seeks a new trial. We find no reversible error and affirm the judgment of conviction.

The defendant complains for the first time on appeal that he is entitled to dismissal of the indictment due to the State’s failure to comply with the 180-day time limit of Article 111(a) of the Interstate Compact on Detainers. That section provides that following a prisoner’s request for disposition of a retainer the prosecution has 180 days to bring the inmate to trial or the case is subject to dismissal. This 180-day “statute of limitations” is triggered when the inmate delivers his request for final disposition of untried charges to his captors. In the instant case, the defendant made his request for trial on the Tennessee charge on September 23, 1982, and the trial was held 187 days later on March 29, 1983. Although this trial was held beyond the time limits of the Detainer Compact, we hold that the defendant’s failure to object to the trial date at the time it was set or during the remainder of the 180-day period resulted in waiver of his rights under Article III of the Interstate Compact on Detain-ers.

The United States Supreme Court in Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), held that federal law governs the interpretation of the Interstate Compact on Detainers Act. Although the detainer compact does not expressly address waiver, the Sixth Circuit has held that rights under this compact are nonjurisdictional and can be waived. Kowalak v. United States, 645 F.2d 534, 537 (6th Cir.1981).

In order to discourage piecemeal litigation and to promote the finality of judgments, the Sixth Circuit has repeatedly held that failure to raise any claims for relief created by the detainer compact “pri- or to or during trial” results in waiver of those claims by forfeiture or default. Kowalak v. United States, supra; Mars v. United States, 615 F.2d 704, 707 (6th Cir. 1980), cert. denied, 449 U.S. 849, 101 S.Ct. 138, 66 L.Ed.2d 60 (1980); United States v. Eaddy, 595 F.2d 341, 346 (1979).

This court has recognized that prisoner rights under the detainer compact are not constitutionally based. Mosley v. State, 8 T.A.M. 18-28 (Tenn.Crim.App. No. 891, March 17, 1983) (citing United States v. Palmer, 574 F.2d 164, 167 (3rd Cir.1978), cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (1978)). Moreover, although waiver of those rights must be voluntary, it need not be knowingly and intelligently made. United States v. Black, 609 F.2d 1330 (9th Cir.1979), cert. denied, 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980); People v. Moody, 676 P.2d 691, 695 (Colo.1984). In Scrivner v. State, 441 N.E.2d 954, 956 (Ind.1982), a trial date was set beyond the 180-day period proscribed by the detainer compact. The court held that the defendant’s failure to object to the date for trial set beyond the 180-day period at the time it was set or during the remainder of the time limit precluded his application for discharge under the Interstate Compact on Detainers. We find the holding of the Scrivner court to be sound and correct.

Defendant, presenting other issues, alternatively insists that he be granted a new trial. We have examined these issues, and find no grounds for granting a new trial in this case.

Defendant contends that the trial judge abused his discretion in denying the defendant’s motion to continue. This motion was based on the fact that a large majority of the jury panel, and three-fourths of the jurors finally selected, had read an article in the local newspaper revealing that the defendant was an Oklahoma convict.

The law is well-settled that a motion for a continuance is a matter addressed to the sound discretion of the trial judge, whose decision to deny the motion will not be reversed absent a clear showing of abuse and prejudice to the defendant. State v. Goodman, 643 S.W.2d 375 (Tenn.Crim.App.1982); State v. Green, 613 S.W.2d 229 (Tenn.Crim.App.1980); Burns v. State, 591 S.W.2d 780 (Tenn.Crim.App.1979). Though some of the jurors read the article, the defendant has failed to show that any were prejudiced or influenced by it or that he was denied a fair and impartial trial. See O’Brien v. State, 326 S.W.2d 759, 766 (Tenn.1959). The trial judge did not abuse his discretion in refusing a continuance.

The defendant also claims that the trial court erred in not requiring the State to produce a photographic line-up from which the victim of the crime made a pretrial identification of the defendant on the ground that the photographs were so suggestive as to violate due process. We find the defendant’s claim on this point to be meritless for two reasons.

First, although a defendant is entitled to inspect on request photographs material to the preparation of the defense pursuant to T.R.Cr.P. 16(c), any request for discovery under Rule 16 must be made prior to trial or the issue of the State’s alleged failure to produce is waived. T.R.Cr.P. 12(b)(4) and (f). Secondly, the defendant failed to make any pre-trial motion to suppress allegedly tainted identification. T.R.Cr.P. 12(b)(3) and (f) require such motion to be made prior to trial or it is likewise waived. See State v. Davidson, 606 S.W.2d 293 (Tenn.Crim.App.1980) (holding motions to suppress in-court identifications are motions to suppress under T.R.Cr.P. 12 which should be raised prior to trial).

The defendant’s final contention on appeal is that the evidence was insufficient to support the verdict. We disagree. The victim’s pre-trial and in-court identification and description of the defendant were sufficient to convince a rational trier of fact of the defendant’s guilt of armed robbery beyond a reasonable doubt. This evidence satisfies the standard of Rule 13(e), T.R.A.P. and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The defendant also questions the credibility of the State witnesses; however, the guilty verdict, approved by the trial judge, accredited the testimony of these witnesses. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978).

The judgment of the trial court is affirmed.

DUNCAN and CORNELIUS, JJ., concur.