FILED

May 3, 1996

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

 AT KN OXVILLE

 MARCH 1996 SESSION

STATE OF TENNESSEE, ) 

) C.C.A. No. 03C01-9410-CR-00454 

Appellee, )

) Bradley County

V. )

) Honorable R. Steven Bebb, Judge

)

BARRY HUGHES, ) (Rule 10 - Denial of Pretrial Diversion) 

) 

Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

Leonard "Mike" Caputo Charles W. Burson

Phillips & Caputo Attorney General & Reporter 

Attorneys at Law

312 Vine Street Hunt S. Brown

Chattanooga, TN 37403 Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

Jerry N. Estes

District Attorney General

G. Scott Kanavos

Assistant District Attorney General

203 E. Madison Avenue

P.O. Box 647

Athens, TN 37371

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS,

Judge
-2-

O P I N I O N

The appellant, Barry Hughes, challenges, by extraordinary appeal, the trial

court's judgment affirming the district attorney general's denial of his application

for pretrial diversion. The appellant sought to divert two counts of official

oppression, one count of official misconduct, and one count of fabricating

evidence. The charges stem from allegations that, while performing his duties as

a police officer, he planted cocaine in a civilian's car. We affirm.

An assistant district attorney, and later the district attorney general, denied

pretrial diversion based upon the following findings:

1. That the offense was not impulsive but planned and executed in both a

conscientious and repetitious manner over a significant period of time,

2. That the conduct substantially deprived two or more citizens of their 

rights to due process,

3. That appellant's actions substantially undermined the integrity of law 

enforcement officials,

4. That the offense caused review of nearly 200 criminal cases in which 

the appellant was involved,

5. That granting diversion would undermine deterrence of other criminal 

activities, and

6. That the actions constituted violations of public and private trust.

A district attorney's grant or denial of pretrial diversion is "presumptively

correct" and the decision shall only be reversed upon a showing of a "patent or

gross abuse of prosecutorial discretion." State v. Perry, 882 S.W.2d 357, 359

(Tenn. Crim. App. 1994). To find an abuse of discretion, the record must be

devoid of "any substantial evidence" supporting the district attorney general's

decision. Id.; State v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim. App. 1995). 

We may not supplant the district attorney's judgment with that of our own. Id.
-3-

In assessing whether a defendant is entitled to pretrial diversion, the

district attorney general must consider: (1) the circumstances of the offense, (2) 

the defendant's criminal record, (3) the defendant's social history, (4) the

defendant's physical and mental condition, (5) the deterrent effect of

punishment upon other criminal activity, (6) the defendant's amenability to

correction, and (7) the likelihood that pretrial diversion will serve the ends of

justice and the best interest of both the public and the defendant. Id. The

circumstances of the offense and the need for deterrence may, in an appropriate

case, outweigh all other relevant factors. Id. at 715.

We agree with the district attorney's assessment that the planting of or

fabrication of evidence calls into doubt the integrity of law enforcement. 

Fabricating evidence not only strikes at the core of law enforcement and police

integrity, it also strikes at the "very heart" of the judicial process. See Perry, 882

S.W.2d at 360 (affirming denial of diversion noting that perjury strikes at "very

heart of judicial system"). Acts threatening the vitality of our judicial system

should neither be countenanced nor rewarded with remedial measures such as

pretrial diversion. We, therefore, conclude that the circumstances of the

offenses, the need to deter similar acts affecting the integrity of both the courts

and law enforcement, and the need to protect the public's interests outweigh all

factors in favor of pretrial diversion. The trial court's judgment in finding that the

prosecutor did not abuse his discretion is affirmed.
-4-

______________________________

PAUL G. SUMMERS, Judge

CONCUR:

________________________________

JOSEPH M. TIPTON, Judge

________________________________

CHARLES LEE, Special Judge