# FILED
June 4, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE APRIL SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9807- CR-00305 ) Appe llant, ) ) ) WILSON COUNTY VS. ) ) HON. BOBBY CAPERS, KENNETH BRYAN HARRIS, ) JUDGE ) Appellee. ) (State Appe al)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF WILSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : FRANK LA NNOM JOHN KNOX WALKUP 102 East Main Stre et Attorney Generaland Reporter Lebanon, TN 37087 KIM R. HELPER Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 TOM P. THOMPSON, JR. Distri ct Attorney General WILLIAM REED District Attorney Ge neral Pro T empore 363 Court Street Maryvil le, TN 37804-5906
OPINION FILED ________________________ REVERSED AND REMANDED DAVID H. WELLES , JUD GE-2- 

# OPINION

The State ap peals fr om thre e decisions of the Wilson County Cri minal Court concerning Defendant Kenneth Bryan Harri s. The State contends thatthe trialcourt erred by (1)dismissing Defendant’s super seding, t wo-countindict ment forattemp ted first deg ree mu rder and aggrava ted assa ult; (2) denyi ng the State’s motion to nolle pros equi the ini tial i ndictment char ging aggravated assault; and (3) revers ing the district a ttorney gene ral pro temp ore’s decision to deny Defen dant pre trial diversion for the initial cha rge of ag gravated assau lt.

The facts we gl ean from the li mited record r eveal that

Defendant and the victim in this case were neighbor s engaged in a dis pute. Short ly befor e the conflict at bar, De fendan t had acc used th e victim of th reatenin g to kill him with a gun, resulti ng i n an indict ment against t he victi m. Later, on J anuary 21, 1996, Defendant saw the victim w alking his do g, stop ped a nd exite d his ca r with his .38 caliber pistol , allege dly thr

eatened to ki ll the victi m, and fired fiv e shots at t he victim.

Defendant claim s that w hile he was drivi ng, the vi ctim began to walk to the center of the stree t toward h is car. De fendan t s t ates th at whe n the vic tim reached behin d his back, as if fora weapon, Defendant f ired a warni ng shot, af ter which the victim b egan to run towa rd the ca r. Defe ndant then fired four more shots, injuring the victim . Defend ant then cal led emergency assi stance for the vi cti m, who has suffered irrevocabl e paralysis fr om the chest down as a result of the shooti ng.-3- The Wilson County Grand Jury i ndicted Defendant on March 18, 1996 for
one count of aggr

avated assaul t; and because of the prior

indict ment pending against the victim, a district attorn ey gene ral pro tempo re was ap pointed to prosec ute thecase . On November 12, 1996, Defendant filed an applicat ion for p retri al diversi on, which i s authoriz ed by law for the offens e of aggravated
assau lt. On December 12, 1996, the State responded by securing a super

seding indict ment from the grand jury for aggravated assault and attempted f irst degr ee murde r, the latter of w hich doe s not qua lify for pretrial divers ion.

The State moved the tri al court on May 8, 1997 to nolle pros equi the ini tial indict ment in favor of the supers eding ind ictmen t. On Ma rch 31, 1 998, the State denied Defendant’s moti on for pret rial diversion on the or iginal indict ment, and Defendant filed a response the same day opposing t he State’s moti on to nolle the original ind ictmen t.

On April 14, 1998, the t rial cour t denied t he State’s moti on to nolle the first indictme nt; d ism issed the super seding, t

wo-count indi ctment; and schedul ed a hearing to review th e State’s denial of p retrial diversio n. Following the hearing, the trial court foun d that th e district a ttorney gene ral pro tempore abus ed his discreti on by denyin g Defe ndant p retrial diversio n and o rdered th at a Memoran dum of Understandi ng be entered for a two-year period. On June 5, 1998, the State filed its notice o f a ppeal under T ennes see Ru le of App ellate Proced ure 3.-4- I. DI SMISSAL

OF SUPERSEDI NG INDIC TMENT AND DENI AL OF MOTI ON TO NOLLE PROSEQUI As a preliminary proceduralmatter, Defendant challenges the t imeliness of the State’ s appeal, contending that the appeal, filed under Tennessee Rule of Criminal Procedure 3, should have been filed within thirty days of Apri l 14, 1998, the date the trial court denied the moti on t o nolle the origi nal indi ctment and dismissed the supersedi ng indict ment. See Tenn. R. App. P. 3( c)(1), (4). The State did not

file its noti ce, however, until June 5, 1998.

The State r

esponds by a rguing i n the al ternat ive. Fi rst, it asserts t hat because “the proc eeding did not co nclude with the dismissalof the supersedi ng indictme nt,
. . . an appealat that t ime underRule 3 m ay have b een pre mature .” Second, the State con tends that if we find that a notice of appe al should have been filed within t hirty days of Apri l 14, we shoul d waive pr oper fil ing in t he interest of jus tice, pursu ant to Te nness ee Ru le of App ellate Pro cedure 4(a).

At the time t he trialjudge dism is sed the supersedi ng indict ment, the originalindict ment remained pending in the t rial cour t; and prohi bitinga nolle of the originalindict ment ensured that the indict men t would cont inue to be prosecuted in that cou rt. T he unusual proc edura l circum stanc es pre sente d in this
case have convinced us that no benefit would result fr

om an attempt to analyze the issue of timeline ss base d upon prior decis ions and rules of co urt.

Had the Sta te imm ediate ly appe aled th e dism issal of th e sup ersed in g indictme nt, the original indictme nt would have remained pending in the trial court during the pende ncy of the appea l. Had the tri al judge not granted the Defendant-5-

pretri al diversio n on t he origina l indictme nt, the Sta te migh t have ele cted to proceed to t rial on t he originalindict ment rather t han pursue an appeal of the dismissal of the super seding indi ctment, al though perhaps t he State could have pursued both options s imulta neously. The or der of the t rial cour

t granti ng the Defendant pretrial divers ion was not enter ed until M ay 6, 199 8. The n oti ce o f appeal wa s filed within thirty days thereafter.

Without deciding whethe r the State should have f iled i ts notice of appeal within thirty days of A pril 14, we c onclud e that eve n if it should h ave, the inte rests of justi ce never theless me rit this Court’s considera tion of the substan tive issues—whether

the t ria l court erred by denyi ng the State’ s motion to nolle the origina l indict ment and by dismissi ng the supersedi ng, two-count indi ctmen t. Se e State v. Burrow , 769 S.W.2d 510, 511 (Tenn. Cri m. App. 1989) (“The notice of appeal can be waived by this Court ‘in the interes t of justice’ . . . without regard to whether it is the defe ndant or the sta te seeking wa iver.”).

A. Dismissal

of Superseding I

ndictment Following our review of the rec ord, we conc lude that the trial court did err by dismissing t he superseding indict ment for aggravated assault and attempted first degree murder. I n Tennessee, the distri ct attorney general possesses

“the power and autho rity to make cha rg ing decision s without ve to,” subjec t to constit utional constrain ts. Quillen v. Crocke tt , 928 S.W.2 d 47, 51 (Tenn . Cr im. App. 1995). This signi ficant a uthorit y is als o granted to a distri ct attorney general pro tempore by appointment p ursuant to Tennessee Code Annotated § 8-7 - 106(b)(1).-6- The United States Supr eme Cour t stated in Bordenkircher v. Hayes , 434 U.S. 357 (1978), “ [S]o long as the pros ecutor h as prob able cau se to believe t hat the accused committed an offense, the decisi on whether to pr osecute, and what charge to bring before a grand jury gener ally r ests enti rely wi thin the d iscreti on of the prosecu tion . . . .” Id. at 364; State v. Superior Oil , Inc. , 875 S.W.2d 658, 660 (Tenn. 1994) (quoting Bordenkircher , 434 U.S. at 364). Furt hermore, the Supr eme Court also hel d that “[a]n indi ctment . . . , if valid on its face, is enough to call for a tri al of the charge on the me rits.” Costello v . United States , 350 U. S. 359, 36 3 (1956 ); see United States v. Calandra , 414 U.S. 33 8, 345 (1974 ).

In this case, the State at tested i n its moti on (1) that the d i strict

attorney gene ral, prior to his re cusal, sought and obtained t he originalindict ment for aggravated assault f rom the W ilson County Grand Jury, and (2) that “[a]f ter an independentevaluati on by the dis trict attor ney ge neral pro tempo re of the facts, circumstances, evidenc e and th e law the d istrict att orney gene ral pro tempore resubmittedthe case to t he Wilson County Grand Jury, ” result ing in t he elevated charge.

In its order dis missing the subs equen t indictme nt, the tri al court madeno findings of fact and offered noreasons for d ismissing t he superseding indictme nt. Wh en mo ved by the State to “iss ue a written order se tting forth the basis for its ruling,” the tri al court did not comply. Because the second indi ctment was duly obtained from the W ilson County G rand Jury by the d istrict atto rney g enera l pro tempore , within th e app ropria te exer cise of his disc retio n f ollowin g his appointmentto the case and h is detailed revi ew of the facts and circumstances,-7-

we conclude that

the tri al court ex

ceeded its aut hority

by dismissi ng the indictme nts, and w e reverse this dism issal.

B. Denial of

Motion to Nolle Prosequi The district attorney genera l is “‘answerable to no superior and has virt ual ly unbridled d iscreti on in determi ning whether to prosecute and for what offense. No court may interfere with [that] discreti on to prosecute, and in t he formulati on of this decision he o r she is answe ra bl e to no one.’” Dearb orne v. Sta te , 575 S.W.2d 25 9, 262 (Tenn. 1978) (quot ing Pace v. S tate , 566 S.W.2d 861, 867 (Tenn. 1978) (H enry, C.J ., concurrin g)); see also Bordenkircher , 434 U.S. at 364 (holding that “the decisio n whe ther or not to p rosec ute, an d wha t charg e to file
or bring befor

e a grand jury , generally rests ent irely in [the pr osecutor’ s] discretion ”).

In State v. Gilli am , this Court stated, “Neit her the appellant nor this co urt h as the right to elect whi ch applicabl e statute shall be t he basis of [ the defendant’s] indict ment, subject to proceduralbars and the const ituti onal restraints of equa l protection and do uble jeop ardy.” 901 S.W.2d 385, 389 (Tenn. Cri m. App. 19 95). In add ition, “th e courts are not to i nterfere with the f ree exercise of this

discreti onary author ity i n [the district attorney

general’s ] control over criminal pros ecution.” Id.

Tennessee Rule of Criminal Proc edure 48 s tates, “The state may by leave of court file a dismis sal of an in dictme nt, presentment, i nformation or complaint and the prosecu tion shall thereupo n terminate.” T enn. R. Crim. P. 48 ( a) (emp hasis added). Ho wever, the trialcourt may not in essence comp el the Sta te1 Because we have determined that Defendant’s i ndictmentfor attempted first degree murder, a class A felony, is valid and pending, D efendant is no longer

e ligible for pretrial diversion. -8- to prosecute a case that the S tate does no t desire or i nten d to prosecute. Although Rule 48 requires “leave” of the trialco urt to rem ove the c ase from its docke t, the tri al court does not possess the autho rity or the pow er to exerc ise its
own discretion to determ ine whether a case shou ld or sh ould not be prosecuted. We revers e the tria l court’s decisio n denying t he State’s moti on to nolle the original ind ictmen t.

II . REVE RSAL OF D ENIAL OF PRETRI AL DI VERSI ON Although disposit ion of thepreceding i ssues pretermit any decisio n by this Court on the issue of whether the t rial cour t erred by reversing the di strict attorney gene ral pro tempo re ’s denialof pretri al diversi on, 1 we address the i ssue solely f or the purpose of

facil itati ng future appel late rev iew in thi s case.

As a prelimi nary procedur al matter, Defendantchallenges t he propriet y of the State’s appealof this issue under Tennessee Rul e of Appella te Procedure 3, contending thatthe appeal shoul d have been fil ed under Rule 9 or Rule 1 0. He argues that under State v. Montgo mery , 623S.W.2d 1 16 (Te nn. Crim. App
. 1981), and its succes sors, an app eal of pretrial dive rsion u nder R ule 3 is impermissibl e. In Montgom ery , t his Court stated that “an appeal by ei ther side questioni ng diversi on decisions, either granted or deni ed, must be brought under Rule 9 or R ule 10, T.R.A .P., and cann ot come b y Rule 3.” Id. at 118.2 Even had the appeal und er Rule 3 been impro per, Tenness ee courts have lon g

recognizedthat we may “transform an appeal improperly filed under Rule 3 of the Tennessee Rules of Appellate Proce dure into a proper appeal under Rule 10 of the

Tennessee Rules of Appellate

Procedure.” State v. Le ath , 977 S.W.2d 132, 135 (Tenn. Crim. A pp. 1998); State v. Gallaher , 730 S.W.2d 622, 623(Tenn. 1987); State v. David C. D oyal , No. 03C01-9712-CR00552, 1998

WL 597081, at *1 (

Tenn. Crim. A

pp., Knoxv

ille, Sep t. 10, 1998). -9- We agree with t he State that the rule as stated in Montgom ery has been effective ly abrog ated by T ennesse e Rule of Crim inal Procedu re 38. Effective July 1, 199 7, Rule 3 8 provide s,

A defendant who seeks andis denied pr e-tri al diver

sion pursuantto T.C.A . § 40-15-1 05 sha ll have the rig ht to petition for a writ of c ertiora ri to the trial court for an abuse of

prosecutori al discreti on. If the t rial cour t finds that the pr

osecuting at

torney ha s not com mitted an ab use o f discre tion in fa ili ng to gr ant pre-t rial diversi on, the defenda nt may p ursue an interl ocutory appeal pursuantto either

Ru le 9 or Rule 10 of t he Tennessee Rules of Appe llate Proced ure. In t he event that the defendant

does not pursue an inte rlocuto ry app eal, the defenda nt shall have the right to appeal the decision of the tri al court denyi ng the peti tion for writ of certiorari pursu ant to T enne ssee Rule of Appellate Pr ocedure 3(b) following th e entry of th e final judg ment in the trial cour t. Tenn. R. Cri m. P. 38. Furthermore, the Advi sory Commission Comments state, “This rule changes prior case l aw and practice regarding appeal of t he denial of pre-trial diversion from the trial court.” Id. (advisory com mission com ments).

Rule 38, as D efenda nt sugg ests, doe s not on its face app ly to appe als by the State of diversion de cisions, n or are we aware of any decisi ons construi ng this rule to app ly to appe als by the S tate. We nee d not decide whet her the drafters of Rule 38 inte nded to perm it Rule 3 appe als by t he State on pret rial diversi on decision s by the trial co urt. W hen the trial court r eversed the State’s decision to deny pretr ial diversio n, this o rder ef fectively terminated pr osecution of the case. We conclude that t he State ther eby had an appeal asof right from the judgm ent under Rule 3. Therefor e, we evaluate the substant ive issu e appealed. 2-10- The suprem e court h as set forth the factors for cons ideration by a district attorney g eneral w hen de terminin g the pro priety of pre trial diversion : When deciding whet her to enter into a memoran du m of understandingunder the pret rial diversion statute a prosec utor shou ld focus on the defendant’s ame nabil ity to correcti on. Any factors which ten d to accurately ref lect whether a particul ar defendantwill o r will not become a repeat offender should be considered. Such factors must, of cour

se, be clearly

articul able and stated in the record in order that meaningf ul appellate review may be had. Among the factors to be consi dered in addi tion to t he circumstancesof the off ense a re the defendant’s cri minal record, social history, t he physi cal and mental cond ition of a defendant where a ppropriate, and the l ikeli hood that pret rial diversion will serv e the ends of j ustice and t he best interest of bot h the publi c and the defend ant. State v. Hammersley , 650 S.W .2d 352 , 355 (T enn. 19 83); State v. Car olyn L
. Curry , No. 02S 01-970 9-CC -00079 , 1999 WL 11 5113, at *3 (T enn., Jackso n, Mar. 8, 1999) (fo r publicatio n); State v. Pinkham , 955 S.W

. 2d 956 , 959-60 (Tenn. 1997 ) ( bot h quoti ng s ame f rom Hammersley ).

In State v. Herron , 767 S.W .2d 151, 156 (Tenn. 198 9), the suprem e court described the ne cess ary de tail by which thedistrict attorne y genera l must sta te reasons for deny ing an appli cation for pretri al diver sion: If the appli cation is denied, the facto rs upon which the deni al is based must be clearl y arti culable and stated i n the record i n order thatmeaningful appel la te revi ew may be had. This requi rement entails more than an abstract statementin the record that the distri ct attorney general has considered t hese factors. He m ust articula te why he believes

a defe ndan t in a particul ar case does not meet t he test. If the attorney general bases hi s decision on less than t he full complement of facto rs enu mera ted in th is opin io n he must, for the record, state why he considers t hat those he relies on outweigh the others submit

ted for hi s considerat ion. Id. at 156 (cita tion om itted).-11- In his letter

denying Defendant

pretri al diversi on on the ori ginal i ndictment for agg ravate d ass ault, the district a ttorney gene ral pro tempo re stated, In mak in g a decision as to the appl icatio n for pre-trialdiversi on on t he charge of aggrav ated assault , I have cons idered the f ollowing mat erial and informati on: (1) The defendant’s bi ographi ca l background and family relationsh ips; (2) Th e defendant’ s lack of prior criminal c onvictions ; (3) The letter s of support

from the defen dant’s friends, employer, and pol iticalacquaintances; [and] (4) The pre-sen tence inve sti gation report pr epared by the pr

obation officer. After consideration o f all the materi al and in formati on i t i s my decision to denyMr. Harri s’ appli cation for pre-trial diversi on on the charge of aggravated ass ault. W hile Mr. Ha rris does a ppear to enjoya very favor able reputation among his fri ends, neighbors, employers, and polit ical contacts, th e fact remai ns th at the gentleman with whom he had an alterc ation o n January 21, 1996 was paraly zed fro m the ches t down as a re sult of being shot by Mr. Harris. Apparently the events of January 21, 1996 wer e precipi tated in whol e, or at leas t in part, bec ause o f prior conflicts betwee n th e victim and the defen dant, who were nei ghbors. It is certainly not unusual for neighbors a nd adjoining p ropert y owner s to have disputesand confli cts as they have had from the begi nning oftime; however, thankfully, it is fairl y infr

equent that these conflicts turn into armed vi ole nce. In m y esti ma tion, oth ers in any given com munity need to feel assured that these types of co nflict s will not be ignored by law en forcem ent an d the c rimin al j ustice system. A granti ng of pre-tri al diver

sion under t he circumstancesof this case would only serve to furt her ero de public confidence in t he criminal justi ce system and would promote an at mosphere o f l awless ness. Notwithstanding, Mr. Harris’ good s tanding in the com munity as we ll as the apparent l ikeli hood that he wil l notbecom e a repeat offen der, it is my considered j udgment that pre-trialdiversi on would notserve the ends of justice and th e bes t in terest of the publ ic and the defe nda nt. I primarily ba se this op inion upo n the gre at weigh t I accord to the c irc ums tance s of this case where in a pre viously healthy i ndividualhas been rendered per manently and irrevoc ably paralyzed by the acti ons of the defen dant. M oreov er, it is eq ually my opinion t hat the ci tizens i n this and ot he r co mmu nities sh ould have confidence that the cri minal justicesystem will intervene when neighborhood and comm unity dispu tes esca late into arm ed con flict. When making pretrial diversion deci sions, a di strict attorney

general may prope rly give nea rly exclusive w eight to the circums tances of the offen se. See State v. Carolyn L. Curry , N o. 02S01 -9709-CC-000 79, 1999 W L 115113, at *5-12-

(Ten n. Mar. 8, 19 99) (for pu blication); State v. Stephen Freeman , No. 03C 01 - 9712- CC -0 0523, 1999 WL 96272, at *3 (Tenn. Cri m. App., Knoxvi lle, Feb. 22, 1999). At the time the District A ttorney Gen eral pro tempore denied the Defe ndan t’s applicat ion for pr e-tri al diver

sion for t he c harge of aggravated
assau lt, an indict ment against t he Defendant for attempted fi rst degree m ur der was pending.

The Tennessee Supreme Court stated in Curry that“the circumstances of the offense and the need for d eterrence may al one justi fy a denialof diversi on, but only if all of the relevant factors h ave been cons idered as we ll .” Curry , 1999 WL 115113, at *5 (emphasis added). In ad dition, the court de clared, “T he facts and circumstancesof nea rly all crimin al offen ses a re by de finition s erious ; only by analyzing all of the relev ant factor

s, incl uding those favorable to the de fe ndant, can appropriate candidatesforthis l egislat ive lar gess be identi fied in a manner consistent

with the purpos e of the pretrial diversion ac t.” Id. Furthe rmor e, in Freeman , this Cou rt held,

Although the appell ant may appear to be an excell ent candid ate forpretri al diver sion, the focus of diversi on does not rest solely upon th e alleged offende r. In appro priate cas es, t he c i rcumstances of the off ense and the need for deterrence may outweigh all other rele vant f actor s and justi fy a denialof pretrial diversi on. Id.

We find that the district att orn ey gen eral pro tempo re followed the requirem ents of Hammersley , H erron , and Curry when both making and repor ting his decision to deny pretrial divers ion. W e conclude that the tri al court erred by finding that the di strict attorney

general abused hi s discret ion.-13- We reverse t he order of the trial c ourt de nying th e State ’s motion to nolle prosequi the orig in al indict ment for aggravat ed assault and di smissing the s econd in dictm ent for aggravated assault and at tempted first degree murder. We also
reverse the judgment of the trial court

granting t he Defendant pret rial diversion. This ca se is rem anded for further pr oceed ings.

__________________________ DAVID H. WELLES , JUD GE
CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JAMES CU RWOOD WITT, JR. , JUD GE