# FILED July 30, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MAY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9804- CR-00159 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON . SETH N ORM AN JOSEPHINE SKIDMORE, ) JUDGE ) Appellee. ) (Pretr ial Di versi on)

FOR THE APPELLANT : FOR THE APPELLEE : JOHN KNOX WALKUP CHARLES R. RAY Attorney Generaland Reporter JEFFERY S. F RENSLEY 211 T hird Aven ue No rth DARYL J. BRAND P. O. Box 198288 Associate Soli citor General Nashvill e, TN 37219-8288 425 Fifth Avenu e North Nashvill e, TN 37243 VICTOR S . JOHN SON Distri ct Attor ney General KATRIN MILLE R Assistant Distri ct Attor ney 222 Se cond A venue N orth Nashvill e, TN 37201-1649

OPINION FILED ________________________ REVERSED AND REMANDED JERRY L . SMI TH, J UDGE-2- 

## OPINION

The appel lee, Jose phine S kidmo re, was ind icted by the Sum ner Co unty grand jury wi th one (1) count of forgery a nd one (1) count of making, presenting
or using a fal se document with t he intent that it be taken as a g enuine governmental record. Sheapplied for pret rial diversion, which was denied by the district attorney . Skidmore subsequent ly fi led a peti tion for writ of certiorari with the trialcourt to r

eview the di strict

attorney ’s denialof pretr ial diversi on. The tri al court found that the assistant distri ct attorney abused her di scretion and placed the app ellee on p retri al diver sion for a period of one (1) year, which would r un retroa ctively from the date of the i ndictment. The state appeals , clai ming thatthe trialcourt erred in (1) re ver sing the di strict attorney ’s decisi on to deny pret rial diversi on, and (2) order ing a r etroac tiv e diversi onary peri od. After a thorough review of the recor

d before thi s Court, we concl ude t hat the trial cou rt erred in finding that thedistri ct attorney abused her di scretion and, accordingly, r everse the judgm ent of the tria l court.

I.

The appellee is an alderman for t he City of Hendersonvill e, as well as a Sumner County commissioner. In June 1996, Karen Martin obtained a petiti on from the appe llee in support of Ray Rollins t

o be appointed to a vacant seat on the county co mm ission. Skidmore prepared t he petiti on by photocopyi ng seven (7) pages from an earli er petit ion which opposed a zoning change. She t hen changed the heading of the petiti on to support Rollins as county com missioner.-3-

Initials were added in t he margins alongs id e severa l name s, accord ing to Skidmor e , to indic ate tho se ind ividuals who a ssen ted to u se the ir nam es in
su ppo rt of Rollins’ n omina tion. Martin p resente d this petition to the cou nty commission on June 17. Subseq uently, District Attorney General Lawrence Ray Whitley requested thatthe Tenn essee Bu r eau of Invest igation conduct an investigati on into th e matter. TBI Agent Richard Stout conta cted m any of th e individ uals list ed on the Rollinspetiti on to verify whether these i ndividual s agreed to suppor t Rolli ns in the petiti on. Nearly all of the indivi duals co ntacted deni ed signing or initi aling th e Rollinsp etitio n and could not r ecall bei ng contacted i n regards to t he Rollins petition. General Whitley recused himself and his off ice from thematter, and Vi ctor S. Johnson, III wa s ap pointed as speci al prosecutor in thi s case. The Sumner Coun ty grand jury

indicted the appell ee with one (1) count of forgery and one (1) count of making, presenting, or using a false document wit h the inte nt that i t be taken as a genuine governmental r ecord. The appell ee subsequently applied for pretri al diver

sion. At the time of

her applicat ion, the a ppellee was si xty-seven (67) ye ars old with no prior criminal record. She i s a widow and has two (2) liv ing chil dren. She worked in her daught er’s law of fice and has hel d positi ons as an alderman for t he city of Hende rsonville and a Su mner Cou nty commissioner . In support of her applicat ion, the appellee submitted approximat ely fif ty (50) let

ters from neighbors, colleaguesand friends attesti ng to her good moral character and active
comm unity involvem ent. The appellee also intim ated tha t her pros ecution w as initiated a s part of a “polit ical vendetta”

agains t her. In support of t his posit ion, defens e counsel-4-

subs eque ntly submitted a letter which detai led other i nstances of falsifi cation of governmental documents which were not prosecuted by the D istrict Atto rney’s Office for th e Eighte enth Ju dicial District. In her letter de nying pre trial diversion , Assistan t Distr ict Attorn ey Ka trin Novak Miller

recognized t he factors f avorable to the appell ee, incl uding her lack of a criminal record. Mi ller stated, “Ms. Skidm ore appea rs to be a n em otiona lly stable and responsible indivi dual. She has no history of substance abuse. She is a responsibl e and respected member of her community. The likeli hood of her ever becom ing involved in a crim inal matter aga in seems unlikely.” Howeve r, Gene ral Miller den ied diversio n base d upon : (1 ) the circumstancesof the off ense; (2) t he deterrent effect of

pun ishm ent on other crim inal activi ty; and ( 3) the li kelihood t hat pretr ial di version wi ll serv e the bes t intere sts of the publ ic and the appel lee. Mil ler determined that t he reas ons fo r denying diversi on “far out weigh[ed]”

the relev

ant factors i n the appellee’s favor. Specifical ly, she st

ated: This office finds th at her action s in alt ering and causi ng a fraudulent document to be sub mitted to a public off ic e und ermin es the public con fi dence in the governmental process. Petiti ons supporti ng whatever

view submitted to whatever body are the publ ic speaking in its purest form ne xt to t he actu al live voice. If the integrity of a public petiti on is no t maintai ned, what assur ance do any cit izens have in the future of know ing if a signa ture they w illingly give to support one cause won’t be us ed to espouse another cause? What Ms. Skidmore did was to man ufactu re a pe tition wh ich false ly indicat ed a public posi tion. Becaus e she is an elected offic ial, s he is in a po sition of leaders hip and trust. As she i s an example of good works in her comm unity, she must also be an example of the consequences of misco nduct. In reviewi ng cases of pre-trial diversi on denial, the appellate courts have re peate dly held that the deterrent

effect of punishment upon other criminal a ctivity is a factor which the district attorne y should conside r, . . . Cases in which f raud is involved, incl uding forger y cases, seem to compose such a category of offens e whic h by the ir very na ture, ne ed no extrinsic proof to e stablish the deterren t value of pu nishm ent.1 All j udges from the Eighteenth Judici al Distr ict recused themselves from the matter . The Honorable Seth Norman, Cri minal Court Judge, Divisi on Four, for the Twentieth Judicial Di strict was appointed t

o hear the matter

by int erchange. -5- Miller noted that even though theappellee admit ted altering the petition , “she d id not seem to appreciate the wrongful ness of her act ions.” I n a ddition, Miller rejected the appell ee’s all egations t hat the prosec ution was polit icall y motivat ed in light of the fac

t that t he Davidson County District Attorney’s Off ice, rather t han the local d istrict attorney , decided to subm it the matte r to the gra nd jury. The appellee f iled a pet ition f or writ of

certior ari to t he trialcourt 1 to revi ew the distri ct attorney’s denialof pretr ial diversion. At the hearing, Assistant District Attorney Miller testif ied as to her

reasons for denying diver sion. When defense counsel intimate d thatADA Miller wasinfluen ced b y the M ayor o f Hen derso nville in her decisi on to deny div ersion, t he trialcourt interjected, “I wil l tellyou, the C ourt knows Gene ral Miller [well] en ough to know th at nobo dy is going to influence her decisi on. I ful l well understand General Miller . Both as j udge and
as a former tr ial l awyer, I know how General Mil er is about her opinio n i n matters.” The t rial cour

t took thematter under adv isement, but subsequen tl y releas ed an op inion e xpres sing its c once rn that th e pros ecutio n was politic all y motivated. The trialcourt fur ther stated thatit was “awar e of the requirements” of State v. Hammersley , 650 S .W .2d 35 2 (Te nn. 19 83), “h owev er the C ourt is concerned that a c rimina l prose cution mig ht have been motivated by local poli tics. This th e Cou rt cann ot allow . This C ourt be lieves th at this is a n approp riate case for di version. ” In a subsequent order, t he trialcourt found that the prosecutor ha d ab used her discr etion in denying div

ersion and, therefore, ruled that the ap pellee be placed on d iversion for a period of on e (1) year. The trialcourt fur

ther deter mined that “[d]ue to [t he appellant’s] cooperation with law-6-

enforcementand her conduct duri ng the pendency of this matter, . . . the diversi onary period sh all be retroa ctive to the filing of the indictm ent,” appro ximate ly one (1) ye ar prior to the filing of the ord er. The refore, the trial court ordered that the prosecuti on against the appell ee be dismissed, contingent upon h er paym ent of cou rt costs. From the trial c ourt’s o rder, th e State of Ten ness ee brin gs this appe al.

II.

The PretrialDiversion Actprovides a means of avoiding t he consequences of a public pr

osecution for those who have t he po t ential t o be rehabil itated and avoid future criminal char ges. Tenn. Code Ann. § 4 0-15-10 5. Pretrialdiversi on i s extraordin ary relief for wh ich the de fendan t bears the burden of proof. State v. Baxter , 868 S.W .2d 679, 681 (Tenn. Crim . App. 1993 ). The decision to grant pr etrial diversio n rests w ithin th e discreti on of the distr ict attorney. T enn. C ode An n. § 40-1 5-105(b )(3); see State v. Curry , 988 S.W.2d 153, 157 (Tenn. 1999 ) . In exer cising t hat discretion, t he Tennessee Supre me C ourt has offered this guidan ce:

When deciding whet her to enter into a memor andu m of understanding under the pret rial diversion statute a prosec utor shou ld focus on the defendant’s amenabi lity to correcti on. Any factors which tend to acc ura tely r eflect whet her a parti cular defendantwill or will not be come a repeat offender should be conside red. . . . Among the factors to be con sidered in addition to the circumstances of the offens e are the defenda nt’s cri minal record, social hi story, the p hysica l and m ental con dition of a defendantwhere appropri ate, and the likel ihood that pretri al diversi on will serve the ends of justi ce and the best interest of both the pub lic and the defend ant. State v. Hammersley , 650 S.W.2d 352, 355 (Tenn. 19 83). However, “the focus
on amena bility to correction is not an exclus ive one.” State v. Carr , 861 S.W.2d-7-

850, 855 (Ten n. Crim. App . 1993). Deterre nce of the defe ndant and others i s a lso a prope r factor to co nsider. Hammersley , 650 S.W.2d at 354. I n fact, t he circumstancesof the cri me and the need for deterrence may outwei gh o th er applic able factors an d justi fy the deni al of pret rial diversion. State v. Lutry , 938 S.W .2d 431, 434 (Tenn. Crim . App. 1996 ). When deciding whet her to grant pretri al diver

sion, th e di strict

attorney shou ld consider t he following factor s: (1) the circ umstances of the of fense; (2) the defend ant’ s criminal record, soc ial hi story, and present condi tion, i ncluding mental and physical conditi ons if appr opr iat e; (3) t he deterrent effect of punishment on othe r criminal a ctivity; (4) the de fendan t’s amen ability to correcti on; and (5 ) the like lihood that pre trial diver sion w ill ser ve the ends of justice and the best i nterests o f both the p ublic and the defen dant. State v. Washington , 866 S.W .2d 950, 951 (Tenn. 199 3). When denying an applica tio n for pret rial diversion, the Distr ict Attorney mus t clearly

ar ticulate the specific rea sons for d enial in the record in o rder to provide for mea ningful ap pellate revie w. State v. Hammersley , 650 S. W.2d at 355. As stated by the T ennes see Su preme Court, t he req uirement that the district attorney consider al l relevant f actors: entails more than an abstract state ment in the rec ord that thedistrict attorney g eneral h as con sidered these fac tors. He must a rticulate why he believes a defendant i n a particu lar case does not meet the test. If the at

torney gener

al base s his de cision on les s than the full complement of factor s enumerated in t his opini on he m ust, for the record, state why he considers that t hose he relies on outweigh th e other submitted for his considerati on. State v. Herron , 767 S.W.2d 151, 156 (Tenn. 1989). T he failure o f the record to reflect that the Di strict

Attorney considered al l of the a pplica ble fac tors wo uld allowa review in g co urt to find an abuse of discretion

. See State v. Carr , 861 S.W.2d at 858.-8- The district a ttorney ’s decis ion to g rant or deny p retrial div ersion is presu mptive ly correc t and s hall be revers ed on ly when the appell ant establi shes thatthere has been an abuse of prosecutorial discre tion. State v. Curry , 988 S.W.2d at 158. I n orderto establish such an abuse of discretion, the record must show an absence of any substantialevidence to support the di strict attor ney’ s refusal to grant pr etrial diversio n. Id. T herefore , i n a close case where the District Attorne y could have l egitimately granted or denied the appl icatio n, the trialjudge must defer

to the judgment of

the District A ttorney. State v. Carr , 861 S.W.2d at 856. On appellat e review of the judgment of

the tri al court i n diversi on cases the trialcourt’s finding s of fact are bindin g on an appellate court unless t he evidence preponderatesagainst th ose findin gs. Stat e v. Lutry , 938 S.W.2d at 434. Therefore, we review to determine whether the tri al court’s decision i s supported by a prepo nderan ce of the e vidence

. State v. Curry , 988 S.W .2d at 158 ; State
v. Pinkham , 955 S.W.2d 956, 960 (Tenn. 19 97). When reviewing a denial of pretri al diversion, this Court may no t substitute its judgment for t hat of the district attorney’ s even if we woul d have prefer red a different res ult. State v. Houston , 900 S.W .2d 712, 714 (Tenn. Crim . App. 1995 ).

III.

In her letter denying dive rsion, the assistant d istrict attorney re cogn iz ed thatthe ap pellee was “a n em otiona lly stable and re spon sible ind ividual. She has
no history of sub stanc e abu se. Sh e is a re spon sible and respected member of her community. The likelihoo d of he r ever b ecom ing invo lved in a criminal matter again seems unlikely.” However, t he assistant district attorney determined that2 This Cou rt doe s not find th at su ch alle gatio ns w ere e stab lished in this r eco rd. T he on ly “evidence” that this prosecutionwas polit ically motivated consists of a letter submitted by defense counsel allegi ng various i nstances of unprosecut ed fraudulent

conduct committed by o ther indi viduals wi

thin t he Eighteen th Judicial D istrict. -9- pretri al diversi on should be de nie d based upon (1) t he circumstances of the offense, (2) the deterr ent effect

of punishment on other criminal activi ty, and ( 3) the likelihood that pretrial diversion w ill serve the best i nterests of the public and the appellee. Miller

determined that

the reasons for den ying diversi on “far outweig h[e d]” the relevant factors in the appell ee’s favor. She expressed co ncer n overthe fact that t he appellee is a public of ficial, and he r actions s erved to “unde rmine [] the pu blic con fidenc e in the governmental pr ocess.” Furt her, the assistant

district attorney found tha t because this c ase invo lved frau d, the deterrent

effect of punishment upon other criminal activi ty was a sig nifica nt factor weighing against pretrial diversion. M oreover, she o bserve d that e ven though the appellee admitted al tering t he petiti on, “she did n ot seem to appreci ate the wrongfu lness of h er actions .” In its wr itten opi nion and subsequent or der, the t rial cour

t found that

the assistant

distri ct attorney abuse d her disc retion in de nying pre trial diversion

. The trialcourt based i ts decisi on solely on its determin ation that the subj ect prosecution “might have been mot ivated by local pol itics .” We believe t hat the evidence in the record preponderates agai nst the trialcourt’s fi ndings. First, even if th e reco rd fully su pporte d the a ppelle e’s alleg atio ns t hat District Attorn ey Ge neral L awren ce Ra y W hit l ey was “politica lly motiv ated” in initi ating the investigation and subsequ ent charg e s against t he appellee, 2 the subjective motiva tions o f the pro secu tion are irreleva nt if, in fact, there is proba ble ca use to beli eve that t he appellee committed the crimi nal acts as charge d.-10- Second ly, once the TBI had concluded its invest igation into these matters, the entire cas e was transfer red to the Davi dson County District At torney’s Offi ce who decided to su bmit the case to the Sum ner Coun ty grand jury. The g rand jury then retur ned an indict ment charging t he appellee with one (1) coun t of forgery and one (1) count of

making, present ing or usi ng a false document wi th the intent that it be taken as a genui ne governmental r ecord. Finally and, m ost im portan tly, there is no evid ence in the record to su pport the allegation that the de cision to deny p retrial div ersion was p olitically motivated. During his exam ination of A ssista nt Distr ict Attorney Mill er, defense counsel questioned her ab out phone call s she had received from the Mayor of Hen derso nville in connecti on with thi s matter
. W hen d efens e cou nsel im plied thatMiller m ight ha ve bee n influe nced by the m ayor in her decision to deny diversi on, the trial court interj ected, “I will tell y ou, the Court knows GeneralMiller [well] enough to kno w that n obod y is goin g to influ ence her de cision . I full well understand General Mill er. Both as j udge and as a former t rial l awyer, I know how Gen eral M iler is ab out he r opinio n in matters.” Thus, the trialcourt made a spec ific finding of fact tha t the de cision to den y divers ion wa s not p olitically motivated. Allegati ons of prosecutori al vindi ctiveness or selecti ve prosecuti on in the instit ution of a

prosecuti on, have consti tutionalimplicat ions that, i f proven, may warrantdismiss al of the ind ictmen t. See Blackledg e v. Perry , 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 ( 1974) (due p roces s ma y be im plicate d if
a prosecutor vind ictively increases a cha rg e t o a felony af ter a misdemeanant has invoked an app ellate rem edy); Wa yte v. UnitedStates , 470 U. S. 598, 608, 105 S.Ct. 1524, 1531, 84 L. Ed.2d 547 (1985) ( equal protec tion sta n dards prevent selective prose cution on the basis o f race, re lig ion, o r other arbitrary-11-

classification). However, as l ong as the prosecutor ha s pr obable cause to believe that an accuse d com mitted an offense, th e determ ination wh ether to pr osecu te rests entirel y within the pr osecutor’s discret ion, subject to these constit utional limitations. State v. Superior Oil, Inc. , 875 S.W.2d 658, 660 (Tenn. 1994); Quillen v. C rockett , 928 S.W .2d 47, 51 (Tenn . Crim. A pp. 199 5). I n any event, the tri al court’ s review under Tenn. Code Ann. § 40-15
- 105(b)(3) is li mited to th e question of abuse of discr

etion concer ning the pret rial diversi on decision, not subject ive motives concerning t he ins tituti on of the prosecution

. The trialcourt must f ind an abuse of di scretion w ith regar d to the denial of diver

sion . On th is poin t the trial court sp ecifically found that pol itical motivati ons played no part in Assistant Distr ict Attorney Mill er’s deci sion to deny diversi on. The trialcourt found thatthis case was “an appropr iate case for diver sion” and g ranted diversio n on th is basis . The tr ial cou rt is not at liberty to s ubstitute i ts own judgment for that of t he distri ct attorney in it s review for an a buse o f discreti on. See State v. Houston , 900 S.W .2d at 714 . In this case, the assistant district attorney

outline d her reasons for denying di version i n a detail ed, four (4) page letter. She recognized t he appellee’ s lack of criminal record , her fav orable social and work history and her amenabil ity to rehabi lit ation. Howeve r, she determined thatthe un favora ble factors outweigh ed the favorab le ones and gave a detailed explana tion as to why the u nfavorable factors were given m ore weig ht. See State v. Curry , 988 S.W.2d at 158. Although we believe t he question of the ap pellan t’s suitabi lity for diversion is a close c all, we con clude tha t the trial court s houl d have deferr ed to the discreti on of the prose cutor in he r r efusa l to divert. As sta ted by th is Cou rt in State v. Carr ,3 Because this Court m ust reverse the trial court’s decision, the issue regarding the propriety of a retroacti ve diversi onary peri od is pretermitted. -12- It is not the trial court’s funct ion to di sapprove the deni al whenever it disagrees wi th the prosec utor. I t is obl igated to defe r to the prose cutor’s discreti on when the record contains any s ubstant ia l evidence to support the decision. Thus, if the record would s upport either a grant or a den ial of pretrial diversion, the tri al court must d eferto t he pr

osec uto r’ s di screti onar y de cis ion . Asour

Supr eme Cou rt has previously stated regarding a discreti onary decisi on i n another conte xt, if “the evidence would support eit her conclusi on .

. . it cannot

be an abuse ofdiscretion to decide the case either wa y.”
861 S.W.2d at 856 (quoting State v. Grear , 568 S.W.2d 285, 286 (Tenn. 197 8)).

IV.

The evidence in the record preponderates against t he trialcourt’s findings thatthe dist rict atto rney abused her di scretion in denying pr etrialdiversi on. 3 According ly, the judgment of the trial court

is reversed, and the caseis remanded for fur ther proceedi ngs consistent with thi s opinion.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ NORMA MCGEE OGLE, JUDGE