FILED

June 4, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

APRIL SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9807-CR-00305

)

Appellant, )

)

) WILSON COUNTY

VS. )

) HON. BOBBY CAPERS,

KENNETH BRYAN HARRIS, ) JUDGE

)

Appellee. ) (State Appeal)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF WILSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

FRANK LANNOM JOHN KNOX WALKUP

102 East Main Street Attorney General and Reporter

Lebanon, TN 37087

KIM R. HELPER

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

TOM P. THOMPSON, JR.

District Attorney General

WILLIAM REED

District Attorney General Pro Tempore

363 Court Street

Maryville, TN 37804-5906

OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
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OPINION

The State appeals from three decisions of the Wilson County Criminal

Court concerning Defendant Kenneth Bryan Harris. The State contends that the

trial court erred by (1) dismissing Defendant’s superseding, two-count indictment

for attempted first degree murder and aggravated assault; (2) denying the State’s

motion to nolle prosequi the initial indictment charging aggravated assault; and

(3) reversing the district attorney general pro tempore’s decision to deny

Defendant pretrial diversion for the initial charge of aggravated assault.

The facts we glean from the limited record reveal that Defendant and the

victim in this case were neighbors engaged in a dispute. Shortly before the

conflict at bar, Defendant had accused the victim of threatening to kill him with a

gun, resulting in an indictment against the victim. Later, on January 21, 1996,

Defendant saw the victim walking his dog, stopped and exited his car with his .38

caliber pistol, allegedly threatened to kill the victim, and fired five shots at the

victim. 

Defendant claims that while he was driving, the victim began to walk to the

center of the street toward his car. Defendant states that when the victim

reached behind his back, as if for a weapon, Defendant fired a warning shot, after

which the victim began to run toward the car. Defendant then fired four more

shots, injuring the victim . Defendant then called emergency assistance for the

victim, who has suffered irrevocable paralysis from the chest down as a result of

the shooting.
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The Wilson County Grand Jury indicted Defendant on March 18, 1996 for

one count of aggravated assault; and because of the prior indictment pending

against the victim, a district attorney general pro tempore was appointed to

prosecute the case. On November 12, 1996, Defendant filed an application for

pretrial diversion, which is authorized by law for the offense of aggravated

assault. On December 12, 1996, the State responded by securing a superseding

indictment from the grand jury for aggravated assault and attempted first degree

murder, the latter of which does not qualify for pretrial diversion. 

The State moved the trial court on May 8, 1997 to nolle prosequi the initial

indictment in favor of the superseding indictment. On March 31, 1998, the State

denied Defendant’s motion for pretrial diversion on the original indictment, and

Defendant filed a response the same day opposing the State’s motion to nolle the

original indictment. 

On April 14, 1998, the trial court denied the State’s motion to nolle the first

indictment; dismissed the superseding, two-count indictment; and scheduled a

hearing to review the State’s denial of pretrial diversion. Following the hearing,

the trial court found that the district attorney general pro tempore abused his

discretion by denying Defendant pretrial diversion and ordered that a

Memorandum of Understanding be entered for a two-year period. On June 5,

1998, the State filed its notice of appeal under Tennessee Rule of Appellate

Procedure 3. 
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I. DISMISSAL OF SUPERSEDING INDICTMENT

AND DENIAL OF MOTION TO NOLLE PROSEQUI 

As a preliminary procedural matter, Defendant challenges the timeliness

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 April 14, 1998,

the date the trial court denied the motion to nolle the original indictment and

dismissed the superseding indictment. See Tenn. R. App. P. 3(c)(1), (4). The

State did not file its notice, however, until June 5, 1998.

The State responds by arguing in the alternative. First, it asserts that

because “the proceeding did not conclude with the dismissal of the superseding

indictment, . . . an appeal at that time under Rule 3 m ay have been premature.”

Second, the State contends that if we find that a notice of appeal should have

been filed within thirty days of April 14, we should waive proper filing in the

interest of justice, pursuant to Tennessee Rule of Appellate Procedure 4(a). 

At the time the trial judge dismissed the superseding indictment, the

original indictment remained pending in the trial court; and prohibiting a nolle of

the original indictment ensured that the indictment would continue to be

prosecuted in that court. The unusual procedural circumstances presented in this

case have convinced us that no benefit would result from an attempt to analyze

the issue of timeliness based upon prior decisions and rules of court. 

Had the State immediately appealed the dismissal of the superseding

indictment, the original indictment would have remained pending in the trial court

during the pendency of the appeal. Had the trial judge not granted the Defendant
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pretrial diversion on the original indictment, the State might have elected to

proceed to trial on the original indictment rather than pursue an appeal of the

dismissal of the superseding indictment, although perhaps the State could have

pursued both options simultaneously. The order of the trial court granting the

Defendant pretrial diversion was not entered until May 6, 1998. The notice of

appeal was filed within thirty days thereafter.

Without deciding whether the State should have filed its notice of appeal

within thirty days of April 14, we conclude that even if it should have, the interests

of justice nevertheless merit this Court’s consideration of the substantive

issues—whether the trial court erred by denying the State’s motion to nolle the

original indictment and by dismissing the superseding, two-count indictment. See

State v. Burrow, 769 S.W.2d 510, 511 (Tenn. Crim. App. 1989) (“The notice of

appeal can be waived by this Court ‘in the interest of justice’ . . . without regard

to whether it is the defendant or the state seeking waiver.”).

A. Dismissal of Superseding Indictment

Following our review of the record, we conclude that the trial court did err

by dismissing the superseding indictment for aggravated assault and attempted

first degree murder. In Tennessee, the district attorney general possesses “the

power and authority to make charging decisions without veto,” subject to

constitutional constraints. Quillen v. Crockett, 928 S.W.2d 47, 51 (Tenn. Crim.

App. 1995). This significant authority is also granted to a district attorney general

pro tempore by appointment pursuant to Tennessee Code Annotated § 8-7-

106(b)(1).
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The United States Supreme Court stated in Bordenkircher v. Hayes, 434

U.S. 357 (1978), “[S]o long as the prosecutor has probable cause to believe that

the accused committed an offense, the decision whether to prosecute, and what

charge to bring before a grand jury generally rests entirely within the discretion

of the prosecution . . . .” Id. at 364; State v. Superior Oil, Inc., 875 S.W.2d 658,

660 (Tenn. 1994) (quoting Bordenkircher, 434 U.S. at 364). Furthermore, the

Supreme Court also held that “[a]n indictment . . . , if valid on its face, is enough

to call for a trial of the charge on the merits.” Costello v. United States, 350 U.S.

359, 363 (1956); see United States v. Calandra, 414 U.S. 338, 345 (1974).

In this case, the State attested in its motion (1) that the district attorney

general, prior to his recusal, sought and obtained the original indictment for

aggravated assault from the Wilson County Grand Jury, and (2) that “[a]fter an

independent evaluation by the district attorney general pro tempore of the facts,

circumstances, evidence and the law the district attorney general pro tempore

resubmitted the case to the Wilson County Grand Jury,” resulting in the elevated

charge.

In its order dismissing the subsequent indictment, the trial court made no

findings of fact and offered no reasons for dismissing the superseding indictment.

When moved by the State to “issue a written order setting forth the basis for its

ruling,” the trial court did not comply. Because the second indictment was duly

obtained from the Wilson County Grand Jury by the district attorney general pro

tempore, within the appropriate exercise of his discretion following his

appointment to the case and his detailed review of the facts and circumstances,
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we conclude that the trial court exceeded its authority by dismissing the

indictments, and we reverse this dismissal. 

B. Denial of Motion to Nolle Prosequi

The district attorney general is “‘answerable to no superior and has virtually

unbridled discretion in determining whether to prosecute and for what offense.

No court may interfere with [that] discretion to prosecute, and in the formulation

of this decision he or she is answerable to no one.’” Dearborne v. State, 575

S.W.2d 259, 262 (Tenn. 1978) (quoting Pace v. State, 566 S.W.2d 861, 867

(Tenn. 1978) (Henry, C.J., concurring)); see also Bordenkircher, 434 U.S. at 364

(holding that “the decision whether or not to prosecute, and what charge to file

or bring before a grand jury, generally rests entirely in [the prosecutor’s]

discretion”). 

In State v. Gilliam, this Court stated, “Neither the appellant nor this court

has the right to elect which applicable statute shall be the basis of [the

defendant’s] indictment, subject to procedural bars and the constitutional

restraints of equal protection and double jeopardy.” 901 S.W.2d 385, 389 (Tenn.

Crim. App. 1995). In addition, “the courts are not to interfere with the free

exercise of this discretionary authority in [the district attorney general’s] control

over criminal prosecution.” Id. 

Tennessee Rule of Criminal Procedure 48 states, “The state may by leave

of court file a dismissal of an indictment, presentment, information or complaint

and the prosecution shall thereupon terminate.” Tenn. R. Crim. P. 48 (a)

(emphasis added). However, the trial court may not in essence compel the State
1

 Because we have determined that Defendant’s indictment for attempted first degree

murder, a class A felony, is valid and pending, Defendant is no longer eligible for pretrial

diversion.

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to prosecute a case that the State does not desire or intend to prosecute.

Although Rule 48 requires “leave” of the trial court to remove the case from its

docket, the trial court does not possess the authority or the power to exercise its

own discretion to determine whether a case should or should not be prosecuted.

We reverse the trial court’s decision denying the State’s motion to nolle the

original indictment. 

 

II. REVERSAL OF DENIAL OF PRETRIAL DIVERSION

Although disposition of the preceding issues pretermit any decision by this

Court on the issue of whether the trial court erred by reversing the district

attorney general pro tempore’s denial of pretrial diversion,1

 we address the issue

solely for the purpose of facilitating future appellate review in this case.

As a preliminary procedural matter, Defendant challenges the propriety of

the State’s appeal of this issue under Tennessee Rule of Appellate Procedure 3,

contending that the appeal should have been filed under Rule 9 or Rule 10. He

argues that under State v. Montgomery, 623 S.W.2d 116 (Tenn. Crim. App.

1981), and its successors, an appeal of pretrial diversion under Rule 3 is

impermissible. In Montgom ery, this Court stated that “an appeal by either side

questioning diversion decisions, either granted or denied, must be brought under

Rule 9 or Rule 10, T.R.A.P., and cannot come by Rule 3.” Id. at 118.
2

 Even had the appeal under Rule 3 been improper, Tennessee courts have long

recognized that we may “transform an appeal improperly filed under Rule 3 of the Tennessee

Rules of Appellate Procedure into a proper appeal under Rule 10 of the Tennessee Rules of

Appellate Procedure.” State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998); State v.

Gallaher, 730 S.W.2d 622, 623 (Tenn. 1987); State v. David C. Doyal, No. 03C01-9712-CR00552, 1998 WL 597081, at *1 (Tenn. Crim. App., Knoxville, Sept. 10, 1998).

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We agree with the State that the rule as stated in Montgom ery has been

effectively abrogated by Tennessee Rule of Criminal Procedure 38. Effective

July 1, 1997, Rule 38 provides, 

A defendant who seeks and is denied pre-trial diversion

pursuant to T.C.A. § 40-15-105 shall have the right to petition for a

writ of certiorari to the trial court for an abuse of prosecutorial

discretion. If the trial court finds that the prosecuting attorney has

not committed an abuse of discretion in failing to grant pre-trial

diversion, the defendant may pursue an interlocutory appeal

pursuant to either Rule 9 or Rule 10 of the Tennessee Rules of

Appellate Procedure. In the event that the defendant does not

pursue an interlocutory appeal, the defendant shall have the right to

appeal the decision of the trial court denying the petition for writ of

certiorari pursuant to Tennessee Rule of Appellate Procedure 3(b)

following the entry of the final judgment in the trial court. 

Tenn. R. Crim. P. 38. Furthermore, the Advisory Commission Comments state,

“This rule changes prior case law and practice regarding appeal of the denial of

pre-trial diversion from the trial court.” Id. (advisory commission com ments).

Rule 38, as Defendant suggests, does not on its face apply to appeals by

the State of diversion decisions, nor are we aware of any decisions construing

this rule to apply to appeals by the State. We need not decide whether the

drafters of Rule 38 intended to perm it Rule 3 appeals by the State on pretrial

diversion decisions by the trial court. When the trial court reversed the State’s

decision to deny pretrial diversion, this order effectively terminated prosecution

of the case. We conclude that the State thereby had an appeal as of right from

the judgment under Rule 3. Therefore, we evaluate the substantive issue

appealed.2
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The supreme court has set forth the factors for consideration by a district

attorney general when determining the propriety of pretrial diversion: 

When deciding whether to enter into a memorandum of

understanding under the pretrial diversion statute a prosecutor

should focus on the defendant’s amenability to correction. Any

factors which tend to accurately reflect whether a particular

defendant will or will not become a repeat offender should be

considered. Such factors must, of course, be clearly articulable and

stated in the record in order that meaningful appellate review may

be had. Among the factors to be considered in addition to the

circumstances of the offense are the defendant’s criminal record,

social history, the physical and mental condition of a defendant

where appropriate, and the likelihood that pretrial diversion will serve

the ends of justice and the best interest of both the public and the

defendant. 

State v. Hammersley, 650 S.W .2d 352, 355 (Tenn. 1983); State v. Carolyn L.

Curry, No. 02S01-9709-CC-00079, 1999 WL 115113, at *3 (Tenn., Jackson, Mar.

8, 1999) (for publication); State v. Pinkham, 955 S.W .2d 956, 959-60 (Tenn.

1997) (both quoting same from Hammersley). 

In State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989), the supreme court

described the necessary detail by which the district attorney general must state

reasons for denying an application for pretrial diversion:

If the application is denied, the factors upon which the denial

is based must be clearly articulable and stated in the record in order

that meaningful appellate review may be had. This requirement

entails more than an abstract statement in the record that the district

attorney general has considered these factors. He must articulate

why he believes a defendant in a particular case does not meet the

test. If the attorney general bases his decision on less than the full

complement of factors enumerated in this opinion he must, for the

record, state why he considers that those he relies on outweigh the

others submitted for his consideration.

Id. at 156 (citation omitted). 
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In his letter denying Defendant pretrial diversion on the original indictment

for aggravated assault, the district attorney general pro tempore stated,

In making a decision as to the application for pre-trial diversion on

the charge of aggravated assault, I have considered the following

material and information: (1) The defendant’s biographical

background and family relationships; (2) The defendant’s lack of

prior criminal convictions; (3) The letters of support from the

defendant’s friends, employer, and political acquaintances; [and] (4)

The pre-sentence investigation report prepared by the probation

officer. 

After consideration of all the material and information it is my

decision to deny Mr. Harris’ application for pre-trial diversion on the

charge of aggravated assault. While Mr. Harris does appear to

enjoy a very favorable reputation among his friends, neighbors,

employers, and political contacts, the fact remains that the

gentleman with whom he had an altercation on January 21, 1996

was paralyzed from the chest down as a result of being shot by Mr.

Harris. Apparently the events of January 21, 1996 were precipitated

in whole, or at least in part, because of prior conflicts between the

victim and the defendant, who were neighbors. It is certainly not

unusual for neighbors and adjoining property owners to have

disputes and conflicts as they have had from the beginning of time;

however, thankfully, it is fairly infrequent that these conflicts turn into

armed violence. In my estimation, others in any given com munity

need to feel assured that these types of conflicts will not be ignored

by law enforcem ent and the criminal justice system. A granting of

pre-trial diversion under the circumstances of this case would only

serve to further erode public confidence in the criminal justice

system and would promote an atmosphere of lawlessness. 

 

Notwithstanding, Mr. Harris’ good standing in the com munity as well

as the apparent likelihood that he will not become a repeat offender,

it is my considered judgment that pre-trial diversion would not serve

the ends of justice and the best interest of the public and the

defendant. I primarily base this opinion upon the great weight I

accord to the circumstances of this case wherein a previously

healthy individual has been rendered permanently and irrevocably

paralyzed by the actions of the defendant. Moreover, it is equally

my opinion that the citizens in this and other communities should

have confidence that the criminal justice system will intervene when

neighborhood and comm unity disputes escalate into armed conflict.

 When making pretrial diversion decisions, a district attorney general may

properly give nearly exclusive weight to the circumstances of the offense. See

State v. Carolyn L. Curry, No. 02S01-9709-CC-00079, 1999 WL 115113, at *5
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(Tenn. Mar. 8, 1999) (for publication); State v. Stephen Freeman, No. 03C01-

9712-CC-00523, 1999 WL 96272, at *3 (Tenn. Crim. App., Knoxville, Feb. 22,

1999). At the time the District Attorney General pro tempore denied the

Defendant’s application for pre-trial diversion for the charge of aggravated

assault, an indictment against the Defendant for attempted first degree murder

was pending.

The Tennessee Supreme Court stated in Curry that “the circumstances of

the offense and the need for deterrence may alone justify a denial of diversion,

but only if all of the relevant factors have been considered as well.” Curry, 1999

WL 115113, at *5 (emphasis added). In addition, the court declared, “The facts

and circumstances of nearly all criminal offenses are by definition serious; only

by analyzing all of the relevant factors, including those favorable to the defendant,

can appropriate candidates for this legislative largess be identified in a manner

consistent with the purpose of the pretrial diversion act.” Id. Furthermore, in

Freeman, this Court held, 

Although the appellant may appear to be an excellent

candidate for pretrial diversion, the focus of diversion does not rest

solely upon the alleged offender. In appropriate cases, the

circumstances of the offense and the need for deterrence may

outweigh all other relevant factors and justify a denial of pretrial

diversion.

Id. 

We find that the district attorney general pro tempore followed the

requirem ents of Hammersley, Herron, and Curry when both making and reporting

his decision to deny pretrial diversion. We conclude that the trial court erred by

finding that the district attorney general abused his discretion.
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We reverse the order of the trial court denying the State’s motion to nolle

prosequi the original indictment for aggravated assault and dismissing the second

indictment for aggravated assault and attempted first degree murder. We also

reverse the judgment of the trial court granting the Defendant pretrial diversion.

This case is remanded for further proceedings. 

__________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

JAMES CURWOOD WITT, JR., JUDGE