# FILED
July 23, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1999 SESSION
STATE OF TENN ESSEE, ) ) NO. 01C01-9810-CR-00413 Appellee, ) ) PUTNAM COUNTY VS. ) ) HON. LEON BURNS, JR ., ) JUDGE JACK R. ROB ERTS, ) ) Appellant. ) (Pretrial Diver sion)

FOR THE APPELLANT : DONALD G. D ICKERSON 310-D East Broad Street Cookeville, TN 38501-3304 FOR THE APPEL LEE : PAUL G. SUMMERS Attorney General and Repor ter KIM R. HELPER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM EDWA

RD GIBSON District Attorney General BENJAMIN W. FANN Assistant

District Attorney

General 145 S. Jefferson Avenue Cookeville, TN 38501-3424

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE1 The Investigat ion Report indicate

s that the defen dant dropped out of high school after the 11th grade. This discrepancy was not considered by the pr osecutorand will be deemed immaterial for purposes of this appeal. 2 O P I N I O N
The defendant, Jack R . Roberts , pursuant to a Tenn. R. App. P. 9 interlocutory appeal, challenges the denial of pretrial diversio n by the District Attorney General and subsequent denial of relief by thetrial court. Defendant was indicted for the Class C felony of aggravated assault and contends the prosecutor abused his discretion in denying pretrial diversi on. After our review of the record,
we AFFIRM the judgment of the trial court

.
BACKGROUND

Defendant was indicted for the offense of aggravated assault as a result of his altercation with John Francisco at a local bar

. As a result of the altercation, Francisco suffered a broken jaw and broken r ibs and incurred expenses in excess of $17,000. Defendant was uninjured.

Defendant submitted a pretrialdiversion applicati on to the prosecutor. The prosecutor

also considered an Investigation Report prepared by the Department of Correction. These documents indicated that the defendant was 42 years ol d, had recently re-married, ha d two adult children by a prev ious marriage, had no pri or criminal record and had a stable employment history. His application indicated that he was a high school

graduate. 1 Also attached to the applicat ion were statements from six individuals vouchi ng for defendant’s character. The Investigation Report indicated that the defendant enlisted in the Air Force in 1975, but was not allowed to enter boot camp since he failed the initial drug test. The report further indicated that defendant stated that “[s]ome body slipped something into my beer.”2 The application for pretrial diversion indicated the defendant was 5'11" and

weighed 205 pounds. The prosecutor at the certiorari hearing stated the victim was “probably about” 5'6" and weighe d 130 pounds.

3 Defendant’s version of the offense in his appl ication indicated that the victim had be en “b aiting me into a confrontation” for some period of time prior to the incident. Defendant indicated that he thought the victim was about to hit him, and he reacted in self-defense.

The def endan t’s version of the offense in the I nvestigation Report a dded other information. Defendant admitted that he referred to th e victim as a “midget. ” 2 The victim asked the defendant if he c alled hi m a “midget, ” and the defendant agreed that he did. The defendant stated th e victim came up to him in a threatening way so defendant knocked him to floor, go t on top of him and hit him a couple more times. Defendant further stated that he was “thinking to myself this ma n is known to carry a gun strapped to his ankle;” therefore, he kicked him a couple of times in the chest.

The Assistant District Attorney General denied the request fordiversion by letter dated October 30, 19 97. The letter indicated that the pr osecutor had considered the application, the attached c haracter witness let

ters and the Investigation Report prepared by the Department of Correction. Based upo n the information provided, the prosecutor conclude d t hat the defendant should not be granted diversion. In doing so the prose cutor not ed the f ollowing ne gative factors: 1. Defendant had exhibited no remors e. 2. Defendant had taken no responsibility for the offense and had blamed others. 3. Defendant was unable to get into the military

due to a positive drug test, yet blamed anothe r for this occurrence. 4. There were “far too many incidents of this type,” and pretrial di version would provide no deter rence. 5. This w as a viole nt, unprovoked attack upon a v ictim much smaller than the defendant.4 6. The incident was instigated by the defendant calling the victim a “midget.” 7. The victim was attempting to leave the establishment when attacked by the defendant. 8. Defendant administered a severe beat ing to the v ictim, including kicking the victi m while the victim l ay helpless. 9. The severe beatingled to a week’s hospita lization and medical bills and lost wag es totalling over $17 ,000. 10. Defendant’s statement in his application madeno reference to a belief that the victim car ried a gun, whereas

the statement in the Investigation Repor t indicated to the contrary

. Defendant filed his petition for writ of certiorari to the trial court onNovember 21, 1997. Several months later on March 13, 1998, he filed a motion with the trial court to be allo wed to ame nd his app lication for pret rial dive rsion to i nclude three affidavits executed on March 9, 1998. The affidavits i ndicated that the victim was known to carry a pi stol.

At the certiorari

hearing on March 24, 1998, the prosecutor indicated that he had not considered the recent affidavits, that they were not pr esented to him at the time of his original denial, and that the petition for writ of certiorari made no mention of this issue. The trial c ourt indicated the affidavits “ma y be filed, and if they are considered by the state, and they ca n be. If they’re not, they’r e part ofthe record.” The trial court entered a writt en order on June 23, 1998, indicating the affidavits “were in response to the denial, the affidavits were timely presented and should be considered as part of the pre-trial diversion application....”

In spite o

f the controversy concerning the three affidavits, the trial court carefully considered the various factors outlined by the prosecutor in the denial of diversion and c oncluded there was no abuse of discretion in the denial. Accordingly, the peti

tion was denied.5 STANDARD OF REVIEW

The Pretrial Divers ion Act provides a means of av oidi ng the consequencesof a publ ic prosecution fo r those whohave the potential to be rehabilitated and avoid future criminal charges. See Tenn. Code Ann. § 40-15-105. Pretrial diversion is extraordinary relief for which the defendant bears the burden of proof. State v. Baxter , 8 68 S.W.2d 679, 681 (Tenn. Crim. App. 1993); State v. Poplar , 612 S.W.2d 498, 50 1 (Tenn. Crim. App. 1980).

The decision to grant or deny an application for

pretrial diversi on is within the discretion of the district attorney general. Tenn. Code Ann. § 40-15-105(b)(3); see also State v. Pinkham , 955 S.W.2d 956, 959 (Tenn. 1997); State v. Houston , 900 S.W.2d 712, 714 (Tenn. Crim . App. 1995); State v. Carr , 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). Inmaking the determination, the district attorney g eneral must consider the defendant's amenability to correction. Any factors which tend to a ccurately reflect whether a particular defendant will or will no t become a repeat o ffende r should be considered . . . . Among the fact o rs to be considered in addition to the circumstances of the offense are the defendant's criminal record, social his to ry, the physical and menta l condi tion of a defendant where appropriate, and the likelihoo d that pre trial diver sion will se rve the ends of justice and the best interest of both the publi c and the defendant. State v. Hammersley , 650 S.W.2d 352, 355 ( Tenn. 1983 ); see also State v. Washington , 866 S.W.2d 950, 951 (Tenn. 1993); State v. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).

A prosecutor's decision t o deny diversion is

presumptively corr

ect, and the trial court should only rev erse that decision when th e app ellant establishes an abuse of discretion. State v. Curry , 988 S.W.2d 153, 158 (Tenn. 1999); Houston , 90 0 S.W.2d at 714. The record must be lackin g in any substantial e vidence to support the district attorney general’s decision before an abuse of discretion can be found. Pinkham , 955 S.W.2d at 960; Carr , 861 S.W.2d at 856. The hearing court must consider only t he evidence made availabl e to and considered by the6

prosecutor. Curry , 988 S.W.2d at 157. The t rial court may not subs titute its judgmentfor that of the district attorne y general when the decision of the district attorney general is supported by the evidence. State v. Watkins , 607 S.W.2d 486, 488 (Tenn. Crim. App. 1980).

Our r evi ew focuse s on wheth er the tria l court’s d ecision is supporte d by a preponderance of the evidence. Curry , 988 S.W.2d at 158. The underlying i ssue fordetermination on appeal is w hether or no t, as a matter of law, the prosec utor abused his or her discretion in de nying pretrial di version. State v. Brooks , 943 S.W.2d 411, 413 (Tenn. Crim. App. 1997).

DETERRENCE

Defendant contends the prosecutor impro perly reliedupo n general deterrence. Although general deterr ence is a proper consideration in pretrial diversion cases, see Hammersley , 650 S.W.2d at 354 , the record should support the need for general deterrence. State v. Kirk , 868 S.W.2d 739, 743 (Tenn . Crim. App. 1993). Although the pros ecutor stated there were “far too many incidents of this type,” it is unclear whe ther he meant aggr avated assaults generally or aggravated assaults in local bars. Althoug h the District Attorney General is certainly in a position to be informed about cr iminal activity i n t he dis trict, see State v. Holland , 661 S.W.2d 91, 93 (Tenn. Crim. App. 1983), the record before this Court is insufficient to justify r eliance upon general deterr ence.

FAILURE TO I NTERVIEW DEFENDA NT AND CH ARAC

TER WITNESSES

Defendant contends the prosecutor unjus tifiably refused to interv iew the defendant and his character witnesses in spite of defense counsel’s request to do
so. We have been cit ed no a uthority, nor are we aware of any authority, which requires the prosecutor to conduct an intervie w of the defendant and/or other7

character

witnesses suggested by defense counsel. The prosecutor did not abuse his discretion in faili ng to do so.

RECENT AFFIDAVITS

Defendant argues the prosecut or ab used his discretion in r efusing to consider the aff idavi ts filed w ith the trial court sev eral days prior to th e certiorari hearing. In a certiorari hearing the trial cour

t should consider o nly the evidence considered by the prosecutor. Curry , 988 S.W.2d at 157; State v. Winsett , 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993). Defendan t co ntends the instant case is distinguishable since this information was submitted to the prosecutor prior to the hearing

. The reason for its submission was the prosecutor’s s tatements in hi s denial letter relating

to the victim’s alleged reputation for carry ing a gun.
Rega rdless, it is apparent the prosecut or would have denied di version i n spite of these three affidavits. The affidavits are arguably releva nt to the defendant’s state of mind at the time of the incident and would relate t o selfd efense. It is further apparent this factual issue would not be r esolved to th e prosecutor’s satisfaction by the three affidavits. F urther, this disputed factual issue relating to self-defense would not be resolved by the trial court in a certiorari hearing. Thus, the failure of the prosecutor to consider the se affid avits does not merit relief.

CONCLUSION
Although we have concluded the prosecutor improperly relied upon general deterrence, this does not foreclose a de termination that substantial evidence still remains to support the denial. Carr , 861 S.W .2d at 8 57. The prosecutor considered the fa

vorab le information contained in the appl ication for pretrial diversion and the InvestigationReport; however, the prosecutor found other factors8

outweighed this favorable information. I n addition to other factors, the prosecutor relied p rimarily upon the nature and circumstances of the offense. From th e prosecutor’s perspective, the offense was violent, instigated by the defendant and involved a victim much smaller than the defendant. Most significant ly, the beating
was severe and included kicking th e victim while he lay on the floor helpless.The beating resulted in serious inj uries, hospitalizati on for a week, and expen ses in excess of $17,000.

The only issue is w

hether the prosecutor abused hi s discretion in denyi ng pretrial diversion. Neither the trial court nor

this Court may

substitute its judgment forthat of the prosecutor if his decision is supported by the evidenc e. We conclude there was no abuse of discretion by the prosecutor in the denial of pr etrial diversion.
The judgment of the trial court is AFFIRMED

.

_________

______________

____ _ JOE G. RILEY, JUDGE

CONCUR:

____________________________ JOSEPH M. TIPTON, JUDG E

____________________________ ALAN E. GLENN, JUDGE