FILED

March 31, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MARCH 1998 SESSION

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

Appellee, * SHELBY COUNTY

VS. * Hon. James C. Beasley, Jr., Judge

CHRISTOPHER CAVNOR, * (Pretrial Diversion)

Appellant. *

For Appellant: For Appellee:

Leslie I. Ballin John Knox Walkup

Mark A. Mesler Attorney General & Reporter

200 Jefferson Ave., Suite 1250

Memphis, TN 38103 Elizabeth T. Ryan

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

Janet Shipman

Assistant District Attorney General

Criminal Justice Complex, Suite 301

201 Poplar Street

Memphis, TN 38103

OPINION FILED:__________________

AFFIRMED

GARY R. WADE, JUDGE
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OPINION

The defendant, Christopher P. Cavnor, has been indicted for criminally

negligent homicide. Tenn. Code Ann. § 39-13-212. The district attorney general

denied the defendant's application for pretrial diversion. Thereafter, the trial court

denied his petition for a writ of certiorari. In this interlocutory appeal made pursuant

to Rule 9 of the Tennessee Rules of Appellate Procedure, the defendant insists that

the district attorney general abused his discretion by the denial of pretrial diversion. 

We find no error and affirm the judgment of the trial court.

On December 16, 1995, the defendant, who had been practice-firing a

.357 magnum at a local shooting range, stopped at the residence of his friend,

Jonathan Stone, to show the gun and how it was loaded. A short while later, the

defendant handed the gun to the victim, mistakenly believing he had disarmed the

weapon. It fired accidentally, a bullet striking the victim in the chest. The defendant

immediately went inside and called 911 for assistance. Although the victim was

rushed via helicopter to a trauma center, the injury proved to be fatal. 

The defendant fully cooperated with the police and accepted full

responsibility for the accidental death of the victim. While the defendant has made

no direct apology to the victim's family, he expressed his regret through

correspondence by his counsel requesting pretrial diversion.

The record includes the district attorney's letter denying diversion, a

Shelby County pretrial investigation report, and a transcript of the hearing on petition

for certiorari. The application for pretrial diversion is not included in the appellate

record. At the time of the offense, the eighteen-year-old defendant had recently
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graduated from Houston High School. He resided at home with his mother and

step-father and had secured full-time employment with Adcart. The defendant had

no criminal record or history of criminal behavior. 

The district attorney denied pretrial diversion on the following grounds: 

1. Victim's family is opposed to defendant being placed

on diversion; this should be a major consideration in 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 divert cases

of violence involving injury or death sends the wrong

message to the youth of our community.

4. Crimes of violence are a serious problem in this

community, and it does not serve the public interest to

treat these crimes lightly.

5. Defendant does not have a gun permit and apparently

has no handgun training.

6. No exceptional circumstances shown by defendant.

At the hearing, the district attorney testified without objection to

additional reasons for the denial: 

The first thing we look at is basically the

circumstances of the crime. And, 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 violent

crime, whether it's intentional or unintentional. All

evidence shows this was an unintentional shooting. But

there are things about this unintentional shooting that we

look at. And one of them is there were 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 trigger. ... This gun,

from all indications, properly operated. ... There was no

indication that there was anything wrong with that

weapon. And that is a circumstance of this crime that I

considered in whether or not to give diversion.
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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

victim on whether or not we should grant diversion. We

have victim-impact legislation now that we do have to

consider mandated by the legislature. And I think the

court should consider that when a person in our

community looses a sixteen-year-old son, they come to

the courts for justice. They come to us to represent

them. And I represented this family, in this case, by

denying diversion.

And, thirdly, the case law is when there is a death

involved, it is up to the defendant to show exceptional

circumstances--not that [he] 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 arrested. He'd been

employed one month somewhere....

The trial judge ruled that there was no abuse of discretion by the

district attorney and accredited four of the district attorney's grounds for denial. 

Initially, he found that the district attorney was "justified" in looking for exceptional

circumstances and that none had been provided by the defendant. Secondly, he

recognized that the defendant had not contended that he had any prior handgun

safety training or a permit, thus the district attorney was not "wrong in [relying on this

basis] if nothing else were presented to him to the contrary." Thirdly, the trial judge

found that the "ultimate" reason for denial was the facts and circumstances of the

incident:

[T]his involved a gun--a pistol; that the nature of this

particular pistol was a revolver which means it had to be

loaded, manually; that in order for it to discharge, the

trigger had to be pulled. And there was nothing

presented to the district attorney, 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 witnesses. And that there were no

exceptional circumstances presented ... there was

nothing exceptionally extra presented in this case. 
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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 characterization of the situation as "illegal use" of a handgun and

expressed reservations about the validity of the remaining grounds: 

I'm not sure I agree ... when it comes to the

deterrence factor since many crimes in this jurisdiction

involve illegal use of handguns. ... [O]bviously you have a

handgun in the hands of a nineteen-year old, unlicensed,

unsupervised ... that is an improper and, technically, an

illegal possession ... and I think that should be deterred. 

But ... I don't know that this 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 classify as

a crime of violence, and I don't think this is the type of

crime that the legislature and the courts view as a crime

of violence.

* * *

I'm concerned with this issue of cases involving, again,

violence involving 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 diversion is in the

discretion of the district attorney general. Tenn. Code 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 limited to two issues: 

(1) whether the accused is eligible for diversion; and

(2) whether the attorney general abused his discretion in

refusing to divert the accused.

State v. Watkins, 607 S.W.2d 486, 488-89 (Tenn. Crim. App. 1980). 
6

In making the initial determination, the district attorney 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; (7) the likelihood that pretrial diversion will "serve the ends

of justice" and the best interests of the defendant and the public; and (8) the

defendant's "attitude, behavior since arrest, prior record, home environment, current

drug usage, emotional stability, past employment, general reputation, marital

stability, family responsibility, and attitude of law enforcement." State v.

Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (citing State v. Markham, 755

S.W.2d 850, 852-53 (Tenn. Crim. App. 1988)). The nature and circumstances of

the alleged offenses are not only appropriate factors to be considered upon

application for diversion but may alone provide a sufficient basis for denial. Carr,

861 S.W.2d at 855; State v. Sutton, 668 S.W.2d 678, 680 (Tenn. Crim. App. 1984).

The circumstances of the case and a generalized need for deterrence,

however, "cannot be given controlling weight unless they are 'of such overwhelming

significance that they [necessarily] outweigh all other factors.'" Washington, 866

S.W.2d at 951 (emphasis in original) (quoting Markham, 755 S.W.2d at 853). 

Where there are no "such exceptional circumstances, 'the district attorney general

must consider evidence which tends to show that the applicant is amenable to

correction [by diversion] and is not likely to commit further criminal acts.'" Id; see

also State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993).

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

court expounded upon the duties of the district attorney general in making the initial

assessment: 
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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 that 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. 

"The decision of a district attorney general granting or denying pretrial diversion to

an accused is said to be 'presumptively correct'; and the decision should not be set

aside unless there has been a 'patent or gross abuse of prosecutorial discretion.'" 

State v. Perry, 882 S.W.2d 357, 360 (Tenn. 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 district attorney must "include in the record the factual

basis and rationale for denying diversion"). 

The defendant has the burden of providing the district attorney with

information in his application that supports his eligibility and suitability for pretrial

diversion. Herron, 767 S.W.2d at 156. The trial court does not conduct a de novo

review at the certiorari hearing but looks instead only to the information available to

and considered by the prosecutor when deciding to deny diversion. Winsett, 882

S.W.2d at 809; Sutton, 668 S.W.2d at 680. And, where the record would support

the grant or denial of pretrial diversion, the court must defer to the prosecutor's

discretion. Carr, 861 S.W.2d at 856 (citing State v. Grear, 568 S.W.2d 285, 286

(Tenn. 1978)). 

Opposition by the victim's family, suggested by the district attorney as

a "major" reason for denial of diversion, is not expressly included among the factors

presented in Hammersley. This court has previously held that such "opposition to

pre-trial diversion is not a proper factor for consideration." State v. Peter A. Gibson,
1Opposition by a victim or mem ber of a victim's family should be distinguished 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 Morrell, C.C.A. No. 03C01-9511-CC-00344, slip op. at 4, n.1 (Tenn. Crim. App., at

Knoxville, Oct. 21, 1997).

8

C.C.A. No. 1043, slip op. at 2 (Tenn. Crim. App., at Knoxville, 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. Crim. App.,

at Nashville, May 12, 1995) ("The attitude of the victims toward pre-trial 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 circumstances by the defendant. It is well established that principles

applied in probation cases also apply to pretrial diversion. Hammersley, 650

S.W.2d at 354-55. The state argues under Kilgore v. State, 588 S.W.2d 567, 568

(Tenn. Crim. App. 1979), the defendant must show exceptional circumstances to

receive diversion because this offense resulted in a death. This court has held that

the rule announced in Kilgore is no longer applicable in probation eligibility cases

because the legislature has established statutory eligibility requirements. State v.

Adams, 916 S.W.2d 471, 477 (Tenn. Crim. App. 1995). In our view, this rationale

applies in determining pretrial diversion eligibility as well. The legislature

established eligibility requirements for pretrial diversion and the defendant meets

those requirements. Tenn. Code Ann. § 40-15-105(a). The legislature did not

exclude from eligibility persons charged with offenses resulting in loss of life, nor did

the legislature condition eligibility in such cases on a showing of exceptional

circumstances. Id.

In his application for diversion, the defendant did fail to demonstrate

that he had a permit or had otherwise undergone training in the handling of guns. At
9

the hearing, however, the defendant's step-father testified that a law enforcement

officer had, some several years earlier, shown the defendant how to properly handle

and shoot a handgun. The defendant did not have a permit for the .357 magnum. 

That, in our view, weighs 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 training and had

no permit for the weapon were important factors supporting the denial of diversion. 

Moreover, the nature and circumstances of this incident are particularly serious in

that a death resulted from the unsupervised, unlicensed use of a handgun by a

young adult. The trial judge found as fact that this type of gun would not fire without

someone pulling the trigger. The gun was in proper working condition. Those

findings are binding on this court because the evidence 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 consequence, the

district attorney general's rejection of the defendant's application for pretrial

diversion was not an abuse of discretion. 

Accordingly, the judgment is affirmed. 

________________________________

Gary R. Wade, Judge

CONCUR:

______________________________

Joe B. Jones, Presiding Judge

______________________________

Jerry L. Smith, Judge