### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE August 2000 Session

STATE OF TENNESSEE v. JOHNNIE BELL, JR.

Appeal from the Criminal Court for Sullivan County No. S41906 Phyllis H. Miller, Judge

No. E1999-00819-CCA-R9-CD November 27, 2000

The defendant, Johnnie Bell, Jr., challenges the trial court’s order upholding the prosecutor’s denial of pretrial diversion for

the charges of

vehicular homici

de and aggra

vated assault.He contends that
t he prosecutor abus

ed his discretion in

failing to consid

er all the releva

nt factors and to l

i st th e factual disputes in the evidence. He argues that the trial court may not rehabilitate the prosecutor’s letter and that this court must order pretrial diversion. We hold that the prosecutor failed to consider all the relevant factors but that the failure does not require

the grant of pretrial diversion absent proof of entitlement. We affirm the trial court’s order denying pretrial diver sion.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the c ourt, i n which R OBERT W. W EDEMEYER , J., joined. D AVID H. W ELLES , J., filed a concurring and dissenting opinion.

George Todd East, Kingsport, Tennessee, attorney for the appellant, Johnnie Bell, Jr.

Paul G. Summers, Attorne y General

and Reporter; Pat

ricia C. Kussmann,

Assist ant Attor ney Gener al; H. Greeley

Wells, Jr., District At

torney Gen

eral; and J. Le

wis Combs, Assistant D

istric t Attorney General, for the appellee, State of Tennesse e.

OPINION

The defendant, Johnnie

Bell, Jr., brings

an interlocutory

appeal, T.R.A.P. 9, from the order of t he Sulliv an County Criminal Court affirming the prosecutor’s denial of his application for pretrial diversion for the charges of vehicular homici

de, a Class C felony

, and aggrav

ated assault, a Cla

ss D felony. The

defendant conte

nds that the prosecutor abused his discretion by failing to consider all th e factors r

elevant to diversion and to list the disputed facts. He challenges the trial court’s determination that the prosecutor’s conclusions are supported by substantial evidence in the record. He argues that

the prosecutor’s abuse of discretion required the trial court to grant pretrial diversion.-2-

The charges arise from the defendant’s tractor trailer striking

the rear of Ms.

Lois Bacon’s mi nivan, which r esulted in Ms. Bacon’s death and injuries to her passenger, Ashley Bacon. The defendant requested pretrial diversion, and pursuant to the parties’ stipulation, the trial court ordered the Tennessee Department of Correct ion (TDOC) to conduct a background investigation of the defendant. In a letter, the prosecutor denied the defendant’s application for pretrial diversion for the following reas

ons:

1. The defendant takes no responsibility for his actions an

d blames the victim i

n this

case. The defendant admits that the victim never entirely left

her lane of travel. The defendant states on page 3 of the Pre-Trial Diversion Report that the “accident was unavoidable

on his behalf” an

d that he “was not n

egligent in

his actions.” The lack of acceptance of

responsibility

on behalf of the defendant shows that he would be a poor candidate for rehabilitation.

2. The defendant admits to having two speeding tickets and on e conviction for following too closely. There is evidence that the defendant was following too closely to the victim

of this fatality. The defendant has violated the motor vehicle rules in the past but chose to drive dangerously again.

3. The defendant had no hesitation in acting reckles sly an d did endanger several motorists other than the victims. Other motorists we re in dang er of serious bodi ly injury. Dive

rsion would depre

ciate the seriou

sness of these cr

imes.

4. The defendant ha

s an unsta

ble work hist

ory as a truck driver. He has been terminatedtwice and all o f his jobs have been of short duration. The defendant would be a poor candidate to complete any probationary period.

5. The driver w as driving a large semi-t ruck. The vi ctim was dr iving a Dodge Caravan. The officer stat es th at the victim was killed in part by the fact that the defendant was fol low ing t oo c los ely. The defendant should have reasonably known of his vehicles [sic] potential for deadly force. Fatalities by large trucks are a growing problem in our comm unity and in ou

r nation. Irr

esponsible driving

of these vehicles must

be deterred nationwide. Truck crashes increased from 383,000 in 1996
to 444,000 in 1997. In 1997 there were 717 fatalities of truck occupants compared with4,638 fatalities of passenger-vehicle oc c upants involved in tr uck-car crash

es. Although large trucks represent only 3% of all registered vehicles on the road, they

were involved in over 25% of passenger vehicle occupant deaths in multiple vehicle crashes.

The actions of the defendant must be deterred.1 The report act ually states that t he defendan

t said that the ac cident was “avoidable,” but the context of t he
statement rev eals this to be a m isprint.

-3- The de fendant pet itioned the trial court for a writ of certiorari to review the prosecutor’s denial of pretrial diversion. The state submitted a copy of the record upon which it based the denial of pretrial diversi

on, consisting of

the TDOC’s pretr

ial diversion rep

ort; a statement

the defendant gavethe police; a Tenn

essee Bureau o

f Investiga

ti on (TB I) laboratory report; materials by the Ci tizens for Reliable and S afe Highway s (CRASH), which co

ntain statistics on w

recks involvin

g larg e truck s; and a transcript of the defendant’s telephone conversation with a police officer regarding th

e accident.

In his statement to the police, the defendant said th at on July 6, 1998, he was tra

veling north

on Interstate 181 in the right lane when he saw a minivan enter the emerg ency lane as

if to approach the exit ramp from that lane. He said that he noticed t hat car s were entering

the interstate northbound and that two tract or trailers and a

car were pulling

alongside his tra

ctor trailer. He

said that the minivan reentered

the right lane in front of him. He said that he drove as close to the center line as possible while braking but that he still hit the left rear of the minivan. He stated

that he did
notknow what happened after that be caus e his right front tire deflated, a

nd he tried to mainta

in control of his truck. He parked his truck on the shoulder of the road.

In the pretrial diversion report, the defendant stated that the accident was una voidable 1 o n his part. He stated that no one felt worse than he about the victim’s death but that he was not negligent.Kingsport Police Officer Jerry Mowell reported that the defendant was truthful and cooperative during the acci dent in vestigation. Officer Mowell said that the defendant showed
extreme remo rse for the accident. He said that although he would leave the matter of pretrial diversion to t he dis trict attorney’s office, if any one deserved pretrial diversion, the defendant did. In a recorded telephone conversation, Officer Mowell asked the defendant about the victim’s entry into the emergency lane. The defenda ntstated that the minivan’s left tires reached the solid white line, but he agreed that the minivan never crossed it.

According to the diversion rep or t, the thi rty-four-year-old defendant gr aduated fro m high school and served seven years in the army before receiving an

honorable discharge. After leaving the army, the de

fendan t completed truck driving school in Clarksville, Alabama, and then drove trucks for different employers. He worked for J.B. Hunt Transport for a year and three months and then for M.S. Carriers for three years, leaving both positions to take another job. He next worked

as a truck driver for Watkins Motor Lines but w as discharged after nine months . He worked as a truck driver for Overland Transport for a year and four months before leaving to take another job. He then worked as a truck driver for Active Transportation for two y ears and ten months before he

was fired as a

result of the present offenses. At the time he was interviewed, the defendant worked

as a releasing ag

ent for Auto Rail Se

rvices, and a represen

tative of the comp

any chara cterized him as a good employee.-4-

The pretrial diversion report also reveals that the defendant paid a fine following a conviction for de fective equipment in 1994. Additionally, the defendant reported incurring two spee ding ticke t s in Ohio and having a

following-too-closely offense in Louisiana. The defendant had been married for thirteen years and had three children. He reported that he was in good physical health but had back problems. He said that he was in excellent mental health and had used alcohol once

but did not like the taste. He reported no other drug use. The laboratory

report reveals that the defendant had not used drugs on t

he day of th

e offenses.

The trial court found that substantial eviden ce in the record supported the prosecutor’s

reasons for

denying pretrial diversion. The court found that the defendant’s statement to the police

reve ale d that he blamed the victim for the accident, despite his telephone admission to Officer Mowell that the victim never fully left his lane of travel. The court found that the defendant had two tickets for speeding, o

ne ticket for foll owing too closely , and one convicti

on for defective

equipment. It found that the three moving traffic violations were significant in thi

s case because the defendant allegedly operated his tractor trailer recklessly on the interstate and the facts suggested that he may have been following too cl os ely. The court found that the defendant’s description of the accide nt revealed that several other motorists were in the area and that the defendant’s actions endangered these motorists. The court

noted that if the de

fendant was conv

icted, it could enh

ance hissentence withTenn. Code Ann. § 40-35-114(10), lack of hesitation in committing a crime when the risk to human life is high, and (16), commission of the crime under circumstances creating great potential for bodily injury to a victim. It held that g ranting the defendant

pretrial diversion when at least two enhancement

factors would

apply to his sentence wo

uld depreciate t

he seriousness of

the offenses. The court declined to

find that the defe

ndant had an excel

lent work history

because he had been fired from two jobs and his other jobs were of s hor t du rat ion . Fi nal ly, it found that the materials relied upon by the s tate provided subs tantial evidence

of the need to dete

r truck drivers f

rom reckle s s driving.

The trial court expressed concern about the prosecutor’s failure to list and evaluate evidence favorable to the defendant such as his honorable discharge from the army , his stable m arri age of thirteen years, his high school dipl oma, and his lack of a history of drug or alcohol abuse. Neverthel ess, it recognized tha t Tenn. Code Ann. § 4

0-15-105(b)(3)

provides that it may

ord e r pretrial diversion if

the prosecutor abused

his or her discretion. Thus, it determined that it was not required to order pretria

l diversion for the

prosecutor’s fa

ilure to list

and evaluate ev

idence that did
notoutweigh the unfavorable factors listed and supported by the evidence. Noting the defendant’s experience and training as a tractor trailer driver, the co urt found t hat the defendant should have anticipatedthat the car s merging onto the interstate would force the victim to stay in his lane and should have slowed his truck to maintain a safe distance behind the victim. Due to the defendant’s egregious behavior under the circumstances, the court found that to order pretrial diversion would depreciate the

seriousness of the

offenses and wou

ld undermine the ju

dicial syste

m.

The decision to grant or deny an application for pretrial diversion is within the discretion of the prosecuting attorney. Tenn. Code Ann. § 40-15- 105; State v. Curry , 988 S.W.2d 153, 157 (Tenn. 1999). In maki

ng this determina

tion, the prosecut

or should-5-

focus on the defendant’s amenability to correc tion. Any factor

s which tend to accurately

reflect whether a particular defendant will or will not becom e a repe at offender should be considered. Such factorsmust, of course, be clearly articulable and st ated in the record in order that meaningful appellate review may be ha d

. Among the factors to be considered in addition to the circumstances of theoffense

are the defendant’s criminalreco rd, soc ial his tor y, the physical and mental condition of a defendant where appropriate, and the likelihood that pretrial diversionwill serve the ends of justice

and the best inter

est of both the publi

c and the defend

ant.

Curry
, 988 S.W.2 d at 157 (qu oting State v. Pinkham , 955 S.W.2d 956, 959-60 (Tenn. 1997) an d Statev. Hammersley , 650 S.W.2d 352, 355 (Tenn. 1983)). The pros ecutor’s respon se must be in writing, must list the evidence considered, and must point out any factual discrepancies between the evidence upon which the prosecutor relied and that presented

in the defendant’s application. Curry
, 988 S.W. 2d at 157. The response must discuss the factors considered by the prosecutor and the weight given to each factor. Id. “That a defendant, obviously, bears the burden of demonstrating suitability for diversion does not

reli eve the prosecutor’s obligation to examine all of the relevant factors and to set forth the required findings.” Id.

The decision of

the prosecutor to

grant or deny

pretrial diversi

on is presumptively

correct and will not be set aside absent an abuse of discretion. Id. at 158; Hammersley , 650 S.W.2d at 356 . In reviewing the prosecuto

r’s denial of pretrial diversion, the trial court may consider only that evidence considered

by the prosecutor. Curry , 988 S.W.2d at 158. In order to find an abuse of discretion, the trial court must find that the recordlacks substantial evidence supporting the prosecutor’s determination. Id.

This court has stated that on appeal, the trial court’s factual determina t ions will be overturned only if the evidencepreponderates against them. State v. Carr
, 861 S.W.2d 850, 856 (T enn. Crim. App. 1993); State v. Helms , 720 S.W.2d 474, 476 (Tenn. Crim. App. 1986). In Curry , our supreme court applied the preponderance of the evidence stan dard for review of the trial court’s decision regarding the prosecutor’s abuse of discretion, rather than limiting this standard to the trial court’s factual findings. Curry , 988 S.W. 2d at 158 (ci ting Pinkham , 955 S.W.2d at 960). Respectfully, the trial court’s determination that the prosecutor has or has not abus

ed his or her discr

etion is a legal conclusion, not binding upon the appellate court. Carr , 861 S.W.2d at 856; see , e.g. , Hammersley
, 650 S. W.2d at 356 (holding that the record must be devoid of any substantial evidence to support the denial of

pretrial diversion for a r

eviewing court

to find an abuse of

discretion and ap

plying this standardto hold that the prosecutor’s denial of diversion based solely upon d

eterrence wa

s an abuse of discretion). When the facts are undisputed, the underlying issue that this court must determine

on appeal remains whether, as a matter of law, the prosecutor abused his or her discretion in denying pretrial diversion. Carr , 861 S.W.2d at 856; State v. Brooks , 943 S.W.2d 411, 413 ( Tenn. Crim. App. 1997); State v. Lutry , 938 S.W.2d 431, 434 (T enn. Crim. App. 1996

); State v. Morgan , 934 S.W.2d 77, 82 (Tenn. Crim. App. 1996); see State v. Houston , 900 S.W.2d 712, 714 (Tenn. Crim. App. 1995) (limiting the appellate court’s role to d etermi ning whether any substantial evidence supports the prosecutor’s denial of pretrial diversion in light of the relevant facto

rs); State v. Helms
,-6-

720 S. W .2d 474, 476 (Tenn. Crim. App. 1986) (reversing the trial court’s finding of abuse of discretion because the fa

cts were undisput

ed and subst

an tial evidence in the record supported the prosecutor’s denial of pretrial diversion).

The defendant contends that the prosecutor abused his discretion in denying the application for pretrial diversion because the prosecutor failed to consider all of the relevant

factors. He cla

ims that the five reasons listed

in the denial letter relate to the seriousness of the offense and the need for deterrence. Specifically, he argues that the prosecutor did n ot conside r the circumstances of the offense, his lack of a prior criminalrecord, his social history, or his physical and mental condition
at the time of the offenses. He also contends that the prosecutor failed to identify the factual disputes between the evidence upon which the prosecutor relied and the defendant’s application.

The state contends that the prosecutor did consider the allegedly omitted factors but that he merely came to a different conclusion than the defendant regarding their we ight. It arguesthat the prosecutor

considered the circumstances of the offense when stating that the defendant was driving

a tractor trailer

, the victim was dri

ving a Dodge Ca

ravan, and the of

ficer stated tha

t the vic ti m’s death was caused in par

t by the defe

ndant follo win g too closely. It claims that the prosecutor considered

the defendant’s prior criminal record by noting his conviction for following too closely and his two speeding t

ickets. It argues that the prosecutor considered the defendant’ s work history and found it to be un

stable. The state

also contends that no factual disputes are apparent from the record. However, it does no t e xplain the prosecutor’s failure to address the defendant’s relevant social history and physical and mental condition.

The defendant bears the burden of providing the pros ecutor “ with sufficient background information and data to enable that officer to make a reasoned deci sion to gr ant or deny the relief sought.” Stat e v. He rron , 767 S.W.2d 151, 156 (Tenn. 1989). The applicant should provide the prosecutor

with evidence re

lating to the rele

vant factors and may include affidavits and character letters. State v. Winsett

, 882 S.W.2d 806, 810 (Tenn. 1993). The parties m ay suppleme

nt this information witha pretrial investigative report, but this report does not detract from the defendant’s responsibility

to show that he is a suitable candidate for diversion. Herron , 767 S .W.2 d at 15 6. In filing the petition for a w

rit of certiorar

i, the defendant sh

ould include the record as it stands at that point, including the completed application for pretrial diversion. Winsett , 882 S.W.2d at 810. We
notethat the record befo

re us does not cont

ain an applicatio

n for diversion. N

evertheless,

the pretrial dive rsi on report provides evidence of the defendant’s graduation from high school, thirteen- year marriage, wor

k history, cr

iminal record, a

nd lack of a drug

or alcohol proble

m.

“If the attorney general bases his decision on less than the full complement of factors [listed in Hammersley ,] he must, fo r the record, state why he con siders tha t those he r elies on ou tweigh the others submitted for his consideration.” Herron , 767 S.W.2d at 156. Furthermore, the prosecutor is required to identify

any disputed facts. Curry , 988 S.W.2d at 157; Winsett , 882 S.W.2d at 810. In this case, the defendant correctly notes that the denial letter does not specify that the prosecutor considered

any of the defendant’s favorable qualities. Even if the prosec utor inter pre ted these qualities to be unfavorabl e for the defend

ant, he was requi

red to state them as evidence relevant to-7-

the circumstances of the offense, the defendant’s social history, or the defendant’s physica l or mental condition and then to state why the factors upon which he relied outweighed the se factors. Se e Curry , 988 S.W.2d at 158-59 . Thus, the prosec utor abused his

discretion in fail

ing toconsider all the relevant factors listed by our supreme court in Hammersley and restated in Curry

.

The defendant conte

nds that because

the prosecutor ha

s abused his

discretion, this court

must

reverse the trial court and order pretrial diversion. He argues that the trial court acknowledged that the prosecutor failed to list and consider evidence favorable to the defendant, but it e ssentially attempted to rehabilitate th e denial l e tter by relating some favorable evidence and f inding it to be outweighed

by the unfa

vorable evidence. The state conten ds that the trial co

urt was not requir

ed to order pretrial diversion even if the prosecutor did not list all of the factors in the denial lette r because the trial court’s review of all the factors revealed that pretrial diversion was not appropriate.

In Curry , our supreme court held that the prosecutor’ s failure to enume rate and conside

r all of the relevant

factors constituted an abuse of discretion, and it reinstated the trial court’s grant of pretrial diversion. Curry , 988 S.W.2d at 159-60 . Justi ce Holder, di ssenting, warned that the majority’s h

olding would

allow defendants to avoid prosecution based solely upon the procedural omissions of the prosecutor:

I question w hether the legislature intended that a criminal committing a series of serious, sustained, planne d, and deceptive

crimes over a two

-year per iod of time automatically

be granted diver sion mer ely because a district attorney failed to employ

a p referre d term in the letter denying di

version. The majo

rity’s holdin

g could ef fectively allow defendants committing serious offenses . . . to avoid pro secutio n merely because a district attorney commits a non-prejudicial omission affecting neither a constitu

tional nor a statuto

ry right.

Id. at 163. In this case, the defen dant arg ues that the prosecutor’s abuse of discretion requires an order granting pretrial diversion. However, we note that in response to Justice

Holder’s dissent,

the majority opinion in Curry

reviewed and approved the merits of the defendant’s

request for diversion. Id. at 159. This indicates that the defendant must show entitlement to diversion even if anabuse of discretion exists.

Als o, we do not believe that Tenn. Code Ann. § 40-15-105 or prior Tennessee decisions support the defendant’s argument. Section 40-15-105(b)(3) provides in pertinent part: “If the trial
court finds that the pros

ecuting attorne

y has committe

d an abuse

of discretion in failing to divert, the tri al court may

order the prosec

uting attorney

to place the defe

ndant in a diversio

n status on su

c h
terms and conditions as the trial court may order.” (Emphasis added). I n interpreting a statute, our roleis to give effect to the legislature’sintent when enacting the statute. Owens v. State , 908 S.W.2d 923, 926 (Tenn. 1995). When a statute is unambiguous, the court sho uld enforc e the statute as written, without resorting to auxiliary rules of construction. Browder v. Morr is , 975 S.W.2d 308, 311 (Tenn. 1998). “Unambiguous statutes must be construed to mean what they say.” Robertson

v. University of Tennessee , 912 S.W.2d 746, 747 (Tenn. 1995) ( citation omit ted). The plain-8-

meaning of t he t erm “ma y” necessarily implies discretion . The use of “may” in § 40-15-105(b)(3) reveals that the trial court

is not required to order pretrial diversion upon finding that the prosecutor has abused his or her discretion.

The legislature has vested the authority to prosecute a case or to divert

it with the prosecutor rather than the court. Carr
, 861 S.W.2d at 858; see Tenn. Code Ann. § 40-15-105. The trial court may not merely substitute its own judgment for that of the prosecutor but, instead, must “defer to the prosecutor’s discretion when the record contains any substantial evidence to support the decision.” Id. In reviewing the pro secutor’s denial of diversion, the trial court must look at all the relevant factors to determine whether the prosecutor considered them, and if he or she did not, to determine whether pretrial diversion is appropriate. Herron , 767 S.W.2d at 156; Carr , 861 S.W.2d at 858. Ess ent ial ly, Herron

provides that in reviewing whether the prosecutor has abused his or her discr etion regarding whether diversion should be granted, the trial court must undertake the sam e processrequired of the prosecutor in considering and weighing the relevant factors. In this respec

t, the trial court may consider only the record

that was before the prosecutor. See Curry , 988 S.W.2d
at 157 (holding that

in reviewing th

e denial of dive rsion, the trial court is limited to the evidence considered

by the prose

cutor). Becau

se the tria l court is limited to the record considered by the prosecutor, the trial court wil l not s ur prise the defendant by basing its determination upon new

reasons not in the record. In turn, this co urt will defer to th

e trial court’s de

termination unless

it is not supported by substantial evidence in the record.

To the extent that this procedure give s some measure of discretion over the decision of whether to divert to the tria

l court, it is the legisla

ture that gave the trial court that discretion by employing the term “may” in se ction 40-15-105(b)(3) as discussedabove. Furthermore, the grant of discretion to the trial court is wholly appropriate:

Diversion may not

be regarded as a mere extension of the chargin

g process. It does not come into playuntil after the indictment. The plan of diversion, or the denial thereof, follows indictment a nd com es after the prosecutor has fully dis c harged

all discretionar

y functions a

nd after the pros

ecutorial die ha

s been cast. Once committed to prosec ution, the case is before the court for disposition. The process, at this stage, b ecome s fundamentally judicial and must end in a verdict, a nolle [ prosequi ] or pretrial diversion.

. . . . [T]he jurisd

ict ion of the court has been invoked by indictment and dis pos iti on b ecom es a j udi cia l re spo nsi bil ity.

Pace v. State , 566 S.W.2d 861, 870 (Tenn. 1978) (Henry, C.J., concurring) (footnote omitted). Fin all y, the alternative–the automatic grant of pretrial diversion upon a finding that the prosecutor has abused his or her

discretion–could

result in the award o f pretrial diver sion for a wholly undeservin g, yet “eligible,” applicant. Curry
, 988 S.W.2d at 163 (Holder, J., dissenting) (warning that an automatic grant of pretrial diversion based upon a procedural error by the prosecutor could result in diversion for “defendants committing serious offensessuch as mans laughter, ki dnapping, and vehicular homicide”). Such a reflexive award of pretrial diversion belies the fact that pretrial-9-

diversion is a legislative l argess gran

ted only to those who can show their entitlement. Cf. Curry
, 988 S.W.2d at 158 (holding that the “facts and circumstances of nearly all criminal offenses are by definition serious; only by analy zing all of the relev ant factors, including those favorable to the defendant,

can appropriate

candidates for t

his legislative la

rgess be identified in

a manner consistent with the purpose of the pretrial diversion act”).

In the present case

, although it err

oneously fo

und that the prosec

utor had not abuse

d his discretion, the trial court

undertook this weighing process. It reviewed the five reasons given by the prosecutor

and found them to be supported by substantial evidence in the record. The prosec utor’s first basis denying pretrial diversion is the defendant’ s failure to take responsibility for his actions and his blame of the victim, which show him to be a po or candidate for rehabilitation. The trial
court found that despite

his admitting that t

he victim never fully left his lane of travel, the defendant told the police that the accident was unavoidable and that he was not negligent. The trial court found that these statements r

evealed that the

defendant blame

d the victim for the

accident. The trial court also found that the defendant was not completely

truthful in his statement because he implied that the victim traveled completely in the emergency lane for a distance and then reentered the right lane in front of him. The trial court found thedefendant’s lack of candor to be probative of his potential for rehabilitation.

The defendant

contends that the evidence does not support the prosecutor’s basis for denial because the facts relating to how the accident occur

red continue to

be greatly disputed and are the subject of a tort suit in federal court. Furthe rmor e, he argues that Officer Mowell stated in the pretrial diversion report that the defendant was truthful and cooperative during the investigation and show ed extreme remorse for wha t happened. A prosecutor may not deny dive

rsion based pure

ly upon a defendant’s f

ailure to admit gu

ilt. State v. James M. Lane , No. E1999-00615-CCA-R9-CD, Hamilton County, slip op. at 8 (Tenn. Crim. App. June 1, 2000). On the other hand, if the failure
to admit the offense

reveals a lack of candor or remorse, such could be a proper basis for deny ing pretrial diversion. Id. ; see State v. Nease , 713 S.W.2d 90, 92 (Tenn. Crim. App. 1989) (holding the defendant to be a poor candidate for diversion because he was not completely truthful about what occurred and did not accept full responsibility). In this case, the trial court found that the defendant’s
statement implied that the victim pulled completel y into theemergency lane, traveled in the emergency lane for some distance, and then reentered

the right lane in

front of him. It determined that this implication cont rad icted the defendant’s telephone admission to Officer Mowell that the victim never completely left his lane of travel. We agree that substantial evidence in the recor d supports the d enial of dive rsion based upon th e defendant’s f

ailure to take re

sponsibility f

or his actions based upon his lack of candor regarding the manner in which the acc ident occurred.

The prosecutor also denied pretrial diversion based upon the defendant’s co

ntinuing to

drive dangerously

despite prev iously incurring two speeding tickets and a conviction for following too clo sel y. The trial court found that the diversionreport revealed that the defendant had two speeding tickets, one ticket

for following too closely, and one conviction for defective equipment. The trial
court observed that although such traffic offenses normally ca rry little significance,the defendant’s three moving traffic

violations take on g

reate r imp ortance in this case in which the defendant-10-

allegedly operated a tractor trailer recklessly and the evidencesuggests that the defendant may have been following too closely at the time. The defendant contends th at any weig

ht attributed to his traffic citations is wholly misplaced. He argues that these citations became know n solely throu gh his own disclosure and that the record contains no evidence regarding their disposition or surrounding circumstances.

The prosecutor may properly c onsider evidence of criminal behavior to deny diversion. See Stat e v. Beverly , 894 S.W.2d 292, 293 (Tenn. Crim. App. 1994) (noting that the trial court’s discretion regarding judicial diversion is subject to the same constraints as that o f prosecutors’ discretion regarding pr

etrial diversion a

nd affirming th

e t rial court’s denial of judicial diversion basedupon the defenda

nt’s prior crimina

l behavio r of m arijuana use); see , e.g. , State v. Michael DurandHolmes
, No. 03C 01- 970 7-C R-0 024 3, H amb len Cou nty, slip op. at 9 (Tenn. Crim. App. July 7, 1998), app. denied(Tenn. Feb. 16, 1 999) (affirming the denia l of pretrial diversion based upon the defendant’s expe

rience and rep

utation as a drug

dealer, his prior

criminal behavio

r, and his modest criminal record). The pretrial diversion report reveals that the defendant had a conviction for defective equipment, resulting in a $67.50 fine. The report also r eveals that the “defendant stated that he has two (2) speeding ticket[s] in Ohio and a following too close[ly] offens e in Louisiana.” Although the defendant a

ppears to question

whether these in

cidents actually

resulted in convic

tions, he admitted in the report that the se moving v iolations occurred. These violations constituted relevant criminal behavior that the prosecutor properly considered as a basis for denying diversion.

The defendant a

lso challenges the prosecutor’s fourth basis for d enial, which rela

tes to his work history. The prosecutor concluded that the defendant’s unstable work history revealed that he would be unlikely to complete a probationary pe riod. In reviewing this reason, the trial court found:

According to the pretrial diversion report, the Defendant hasworkedfor six different companies since April 1989. Heworked approximately three year s eachon two of those six jobs; he worked only about a year on the other four. H e was terminatedfrom two of the jobs , once because o f the incident invo

lved in the present

case.

The trial court decli

ned to find that the

defendant h ad an “excellent work history” because he had been fired from two jobs and his other jobs w ere of short dura

tion. It determin ed that the record containedsubstantial evidence to support the prosecutor’s con tention that the defendant had an unstable work history.

The defendant argues that the record d oes not support the c

onclusion that his

work history is unstable. He contends that the record shows that he has been employed from 1989, when he was honorably

discharged from the army, until he was termi nated as a result of these offenses. He maintains that he changed jobs for increased wages and better hours, allowing him to spend more time with his family. He acknowledges that the record reflects that he wasdischarged fr om two jobs. He contends that one discharge resulted from the present accident and the other came about when the job ceased to exist. Neither party presented evidence at the certiorari hearing. The defendant’s-11-

attorney argued that the defendan t cha nged job s to gain bet ter pay an d mo re t ime wit h hi s fa mil y. The trial court no

ted: “It is not in here why you left those jobs that I could find, why you

said that you . . . changed jobs so often. I don’t believe that’s in any materials that the State considered.”

Although the evidence does not preponderate ag ainst the trial court’s finding that the defendant’s work history was not excellent, we do not believe that substantial evidence in the record supports the prosecutor’s determination that the defendant’s work history was unstable. The r ecord reflects that the defendant was continuously employed from the ti me he graduat ed from high school. While in the army, he

received an ac

hievement medal,

a commendation me

dal, and an air a

ssault badge. The defendant reported that he was “discharged” from Watkins Motor Lines in April 1994 and that he began dr

iving a tr uck for Overla

nd Transport that same month. The record does not reflect the reason for hi

s discharge. Th

e record reve

als that Active Transport fired the defendant on July 6, 1998, because of the present offensesand that the defendant started work as a releasing agent for Auto Rail Services on December 1, 1998, earn ing just over nineteen dollars an hour. A representative of Auto Rail Services characterized the defendant as a good employ ee.

The trial court noted that the prosecutor failed to list and evaluate evidence favorable to the defendant such as his honora

ble discharge

from the army

, his stable marria

ge of thirteen y

ears, his high school diploma, and his lack of a history of drug or alcohol abuse. This evidence re lates to the defendant’s social history and his physic

al and mental cond

ition, and it

reflects favor

ably upon his amenability

to correction. The trial court considered this evidence and found it to be c

ommendable butnot significant enough t o outw eigh the unfavo rable evidence

relied upon by

the prosecutor to deny diversion. The trial court placed great weight on the seriousness of the crimes with which the defendant was char ged, the fact that the d efendant had pr

eviously ope

rated a tractor

trailer in violation of the law, and

the fact that his a

ctions endange

red others in addi

tion to the victims. The trial court emphasized i

ts conclusion that th

e defendant, a t

rained and exper

ienced tr actor tra iler driver, should have antic

ipated that the ca

rs merging onto

the interstate wo

uld force the vic

tim to remain in his lane and should have slowed his truck to maintain a safe d

istance behind the

victim. Based upon this evidence and the reasons listed by the prosecutor, the court refused to order pretrial diversion to avoid depreciating the seriousness of the offenses, emphasizing the need to deter tractor trailer drivers fro m dangerous d riving. It concluded that pretrial diversion would not serve the ends of justice nor be in the best interest of the public and the defendant.

We review the trial court’s weighing of the favorable evidence and ultimate denial of diversion to determine whether substantial evidence in the rec ord sup ports the trial court’s determination. The record reflects that the defendant

had completed truck driving school and had driven trucks for nine years at the time of the off

enses. The circ

umstances of the c

ollision indicate that the defendant could have avoi ded the accident. In his statement, the defendant said that he noticed cars merging onto the interstate. In his telep hone conversa

tion with Officer Mowell, the defendant agreed that the

victim never completel

y left his lane of travel. Also, the defendant stated that other motorists we

re traveling in

the left lane and

entering the int

e rstate. Thus,the record reflects that the defendant’s actions endangered others in addition to the victims.-12-

Fina lly, th e defendant admitted to three prior moving violations, including a previous instance of following too closely. The defendant lives in Kentucky and is a tractor-trailer driver. His violations occurred in Ohio and Louisiana, ostensibly while he was on t he j ob. Ess ent ial ly, the trial court believed that the defendant had a disregard for the

rules of the road while driving a tractor trailer, which increase

d the risk of harm to

others above tha

t present for othe

r mo tor vehicles and culminated in the death and injuries in the present case.

With the trial court’s view of the defendant’s lack of candor and

failure to appreciate the risks of harm that his traffic violations posed when driving a tractor trailer, i t was justif

ied in seriously questioning the defendant’s amenability to rehabilitating his conduc t in similar situ ations. Likewise, under the circumstances in this case and given the defendant’s background, the re cord supports the trial court’s conclusion that granting diversion would depreciate the seriousness of the offenses for the defend ant. We hold t hat substantial evidence in the record supports the trial court’s denial of pretrial diversion.

Although the prosecutor im properly f ailed to consider all the r

elevant factor

s and tolist the evidence favorable to the defendant, substantial evidence supports the trial court’s conclusion that pretrial diversion is not warranted in this case. In support of the foregoing and the record as a whole, we affirm the trial court’s order denying the def endant pretrial diversion.

___________________________________ JOSEPH M. TIPTON, JUDGE