# FILED
March 31, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION

STATE OF TENNESSEE, * C.C.A. No. 02C01-9704-CR-00155

Appellee, * SHELBY COU NTY VS. * Hon. James C. Be asley, Jr., Judge CHRISTOPHER CAVNOR, * (Pretrial Diver sion) Appellant. *

For Appellant: For Appellee: Leslie I. Ballin John Knox Walkup Mark A. Mesler Attorney General & Repor ter 200 Jefferson Ave., Suite 1250 Memphis, TN 38103 Elizabeth T. Ryan Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243 Janet Shipman Assistant District A

ttorney General Criminal Justice Comple x, Suite 301 201 Poplar Street Memphis, TN 38103

OPINION FILED:__________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Christopher P. Cavnor, has been ind icted for criminally negligent homicide. Tenn. C ode Ann. § 39-13-212. The distri ct attorney general denied the defendant's application f or pretrial diversion. Thereafter, the trial court denied his petition for a writ of certiorari. In this interlocutory appe al made pursuant to Rule 9 of the Tennessee Rules of Appell ate Procedure, the defendant insist s that the district attorney general abused his discr etion by the denial of pretri al diversion.

We find no error and affirm the judgment of the trial c ourt.

On December 16 , 1995, the de fendant, who had been pract ice-firing a .357 magnum at a local shooting range, stopped at the resid ence of his friend, Jonathan Stone, to show the g un and how it was loaded . A short while later, the defendant handed the gun to the victim, mistakenly believ ing he had disarmed the weapon. It fired accidental ly, a bullet striki ng the victim in the c hest. The defendant immediately went insi de and called 911 for assistance.Although the victim w as rushed via helicopter to a trauma center, the injury proved to be fatal.

The defendant fully cooperated with the police an d accepted full responsibility for the accidental death of the victi m. While the defendant has made no direct apolo gy to the victim's fam ily, he expressed his regret through correspondence by his co unsel requesting pretr ial diversion.

The record includes the distr ict attorney's letter

denying diversi on, a Shelby County pretri al investigation r eport, and a transcript of the hear ing on petition for certiorari. The applic ation for pretrial dive rsion is not included in the appellate record. At the time of the offense, th e eighteen-year-old defendant had recently3 graduated from Houston High School. He resided at home w ith his mother and step-father and had secured full-time employment with Adcar t. The defendant had no criminal record or hi story of criminal behav ior.

The district attorney deni ed pretrial diversi on on the following gr ounds: 1. Victim's family is opposed to defendant being placed on diversion; this shou ld be a major consideration i n a case of this nature. 2. There is a need for deterrence since many crimes in this jurisdiction involve illegal use of handguns. 3. The defendant is a youthful offender; to div ert cases of violence involv

ing injury or death sends the wrong message t o the yout h of our c ommuni ty. 4. Crimes of violence are a serious problem in this community, and it does not ser ve the public interest to treat the se crimes lightly. 5. Defendant does not have a gun permit and apparen tly has no handgun training. 6. No exceptional cir

cumstances shown by defendant.

At the hearing, the distr ict attorney testified w

ithout objection to additional reasons for the denial :

The first thing we look at is basically the circumstances of the crime. An d, of course, in this case, we had a death--a sixteen-year-old boy that is dead as a result of the defendant's actions. Secondly, it is a crime of violence. When a life is taken with the illegal use of a handgun, that is a v iolent crime, whether it's intentional or unintentional. All evidence shows this was an unintentional shooti ng. But there are things ab out this u nintent ional sho oting tha t we look at. And one of them is there w ere no witnesses to this crime. It was a .357 magnum revolver. For that gun to be discharged, it had to be loaded, the safety had to be off, and someone had to pull the trig ger. ... This gun, from all indications, proper ly operated. ... There w as no indication that there was anything wrong

with that weapon. And that is a cir cumstance of this crime that I considered in whether or not to give diver

sion.4 This wasn't somebody out hunting with a rifle where the safety is on and off as you're hunting in a negligent homicide. This was two people, at close quarters. One of them winds up dead. That is something I considered. The other thing I considered is the position of the vi ct im on wh et he r o r n ot we sh ou ldgr

an t d iv er si on . We have victim-impact l egislation now that w e do have to consider mandated by the leg islature. And I think the court should consider that w hen a person in our community looses a six teen-year-old son, they come to the courts for justice. They come to us to represent them. And I represented this famil y, in this case, by denying diversi on. And, thirdly, the case l aw is when there is a death involved, it is up

to the defendant to show exceptional circumstances--not that [h e] just qualif[ies]--not that [he is] a young man--that [ he has] been employed one month somewhere. That's all that I had to look at. I had a young man that hadn't been arr ested. He'd been employed one month somewhere....

The trial judge ruled that there was no abuse of discre tion by the district attorney and accredited four of the district attorney's grounds for denial. Initially, he found that the di strict attorney w as "justified" in looking for exceptional circumstances and that none had been provided by the defendant. Sec ondly, he recognized that the defendant had not contended that he had any pri or handgun safety training or a permit, thus the district attorney was not "wrong in [relying on this basis] if noth ing else were presen ted to him to th e contrary." Third ly, the trial judge found that the "ultimate" reason for denial was the facts and circumst ances of the incident: [T]his involved a gun--a pistol; that the nature of this

particular pistol w

as a revolver w

hich means it had to be loaded, manually; that in or der for it to discharge, the trigger had to be pull ed. And there was nothing presented to the district at torney, according to the testimony, that indicated that this was a malfunctioning pistol or hair-trigger pistol .... And, also, the district attorney considered the fact that there were no wi

tnesses. And that there wer e no exceptional circumstanc es presented ... there was nothing exceptionally

extra presented in this case.5 Finally, the trial judge found that the district attorney properly considered the victim's family's opposition to diversion. The trial judge did, however, question the district attorney's characteri zation of the situation as "i llegal use" of a handgun and expressed reservati ons about the validity of the remaining grounds: I'm not sure I agree ... w hen it comes to the deterrence factor since many crimes in this juris

diction involve illega l use of handguns. ... [O]bvi ously you have a handgun in the hands of a nineteen-y ear old, unlicensed, unsupervised ... that is

an improper and, technically, an illegal possession .. . and I think that should be deter red. But ... I don't know that th is crime is the result of an illegal use ... other than he shouldn't have had it in his possession .... * * * I don't think that this is the type of crime that I clas sify as a crime of violence, and I don' t think this is the ty

pe of crime that the legisla

ture and the c

ourts vie w as a cri me of violence. * * * I'm concerned with this issue of cases involv

ing, again, violence involv

ing injury or death sends the wrong message to the youth of our community. I'm not sure about that issue.

Whether to grant or deny an application for pretrial divers ion is in the discretion of the district attorney general. Tenn. C ode Ann. § 40-15-105; State v. Hammersley , 650 S.W.2d 352, 353 (Tenn. 1983); State v. Carr , 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). On a petition for certiorari , the hearing conducted by the trial judge is li mited to two issues:

(1) whether the accuse d is eligible for div

ersion; and (2) whether the attorney general abused his discretion in refusing to divert the a

ccused. State v. Watkins , 607 S.W.2d 486, 488-89 (Tenn. Crim. App. 1980).6 In making the initial deter mination, the district attor ney must consider (1) the circumstances of the offense; ( 2) the defendant's criminal rec ord; (3) the defendant's social history ; (4) the defendant's physic al and mental condition; (5) the deterrent effect of punishme nt upon other criminal activity; (6) the defendant's amenability to correcti on; (7) the likelihood that pretrial diversi on will "serve the ends of justice" and the best interest s of the defendant and the public; and (8) the defendant's "attitude, behavior s ince arrest, prior r ecord, home environment, curr ent drug usage, emotional stabi lity, past employment, general reputation, marital stability, family r

esponsibility, and atti

tude of law enforcement." State v. Washington , 866 S.W .2d 950, 951 (T enn. 1993) (citi ng State v. Markham , 755 S.W.2d 850, 852-53 (Tenn. Crim. App. 1988)). The natur e and circumstances of the alleged offenses are not only appropriate factors to be consi dered upon application for diversi on but may alone provide a sufficient basis for denial. Carr , 861 S.W.2d at 855; State v. Sutton , 668 S.W.2d 678, 68 0 (Tenn. Crim. App. 1984).

The circumstances of the case and a generalized need for deterrenc e, however, "cannot be gi ven controllingweight unless they are 'of such overwhel ming significance that they [ necessarily] outw eigh all other factors.'" Washington , 866 S.W.2d at 951 (empha sis in original) (quoti ng Markham , 755 S.W.2d at 853). Where there are no "such exceptional cir cumstances, 'the district attorney general must consider evidence w hich tends to show that the applicant is amenable to correction [by div

ersion] and is not likel

y to commit further crimin al acts.'" Id ; see also State v. Winsett , 882 S.W.2d 806, 81 0 (Tenn. Crim. App. 1993).

In State v. Herron , 767 S.W.2d 151, 156 (Tenn. 1989),our supreme court expounded upon the duties o f the district attorney general in making the initial assessment:7 This requirement entails mor e than an abstract statement in the record that the distr ict attorney general

has considered these factors. He must articulate why he believes that a defendant in a par ticular case does not meet the test. If the attorney g eneral bases his decision on less than the full complement of factors enumerated in this opinion he must, for the r ecord, state why he considers that those he relies on outweigh the others submitted for his considerati on. "The decision of a district attor ney general granti ng or denying pretr ial diversion to an accused is said to be 'pr esumptively correc

t'; and the decision should not be set aside unless there has been a ' patent or gross abuse of prosec utorial discretion.'" State v. Perry , 882 S.W .2d 357, 360 (T enn. Crim. App. 1994) (quoting Pace v. State , 566 S.W.2d 861, 870 (Tenn. 1978)). See State v. Pinkham , 955 S.W.2d 956, 957 (Tenn. 1997) (holding the di strict attorney must "i nclude in the record the factual basis and rationale for deny ing diversion").

The defendant has the burden of providing the district attorney

with information in his applicati on that supports his elig ibility and suitabil ity for pretrial diversion. Herron , 767 S.W .2d at 15 6. The tri al court d oes not co nduct a d e novo review at the certiorari hearing but lo oks instead only to the i nformation available to and considered by the prosec utor when deciding to d eny diversion. Winsett , 882 S.W.2d at 809; Sutton , 668 S.W.2d at 680. An d, where the record would support the grant or denial of pretrial diversion, the court must defer to the prosecu tor's discretion. Carr , 861 S.W .2d at 856 (citin g State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978)).

Opposition by the vic

tim's family, suggest

ed by the district attor

ney as a "major" reason for denial of diversion, is not expressly included among the f actors presented in Hammersley . This court has previ ously held that such "opposi tion to pre-trial divers ion is not a proper factor for c onsideration." State v. Peter A. Gibson ,1 Opposition by a victi m or mem ber of a vi ctim's famil y should be disti nguished from victim im pact sta teme nts that ref lect the circu msta nces o f the offen se. See State v. Randy Sco tt Mo rrell , C.C.A. No. 03C01-9511-CC-00344, sl ip op. at 4, n.1 (Tenn. Crim. App., at Knoxville, Oct. 21, 1997). 8 C.C.A. No. 1043, slip op. a t 2 (Tenn. Crim. App., at Knox ville, Nov. 7, 1988)

(citing State v. Morton , 639 S.W.2d 666, 669 (Tenn. Crim. App. 1982)); State v. John Howard Alden , C.C.A. No. 01C01-9309-CC-00299, slip op. at 3 (Tenn. C rim. App., at Nashville, May

12, 1995) ("The attitude of the vi ctims toward pre-tr ial diversion was irrelevant and did not constitute a proper reason for denying diversion"). Thus, the district attorney improperly considered this ground. 1

Nor was it proper for the district attorney to require a showing of exceptional circumstanc es by the defendant. It is w ell established that princ iples applied in probation cases al so apply to pretrial d iversion. Hammersley , 650 S.W.2d at 354-55. Th e state argues under Kilgore v. State , 588 S.W.2d 567, 568 (Tenn. Crim. App. 1979), the defendant mus t show exceptional circumstances to receive diversi on because this offense resulted in a death. This court has held that the rule announced in Kilgore is no longer applicabl e in probation eligibil ity cases because the legislature has established statutory el igibility req uirements. State v. Adams , 916 S.W.2d 471, 47 7 (Tenn. Crim. App. 1995). In our view, this rationale applies in determining pretrial diversion eligibility as well. The legislature established eligibil ity requirements for pr etrial diversion and the defendant meets those requirements. Tenn. Code Ann. § 40-15-105(a). The legi slature did not exclude from eligibility persons charged with offenses resulting in loss of life, nor did the legislature conditi on eligibility i n such cases on a showing of exceptional circumstances. Id.

In his application for div ersion, the defendant did fail to demonstr ate that he had a permit or had otherw ise undergone training

in the handling of guns. At9 the hearing, however, the defendant's step-father testified that a law enforcement officer had, some several years earlier, shown the defendant ho w to properly handle and shoot a handgun. The defendant did not hav e a permit for the .357 magnum. That, in our view, w

eighs favorably for the position of the state.

In any event, the remaining grounds adequately support the district attorney's decision. That the defendant lacked adequate firearm t raining and had no permit for the weapon wer e important factors supporting the denial of diversion. Moreover, the nature and circumstances of this incident are particularly serious in that a de ath resul ted from the unsu pervised, unlicens ed use of a handgun by a young adult. The trial judge found as fact that this ty pe of gun would not fire without someone pulling the trigger. The gun was in proper working condition. Those findings are binding on thi s court because the evidenc e does not preponderate otherwise. State v. O'Guinn , 709 S.W.2d 561, 565-66 (Tenn. 1986); see State v. Houston , 900 S.W.2d 712, 715 (Tenn. Crim. App. 1995). In cons equence, the district attorney general's rejection of the defendant's application for pretrial diversion was not an abuse of discretion.

Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wad e, Judge CONCUR:

______________________________ Joe B. Jones, Pre siding Judge

______________________________ Jerry L. Smith, Jud ge