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 homicide and aggravated assault. He contends that

the prosecutor abused his discretion in failing to consider all the relevant factors and to list the

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 diversion. 

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER, J.,

joined. DAVID H. WELLES, J., filed a concurring and dissenting opinion.

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

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney

General; H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Johnnie Bell, Jr., brings an interlocutory appeal, T.R.A.P. 9, from the order

of theSullivan County Criminal Court affirming the prosecutor’s denial of his application for pretrial

diversion for the charges of vehicular homicide, a Class C felony, and aggravated assault, a Class

D felony. The defendant contends that the prosecutor abused his discretion by failing to consider

all the factors relevant 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.
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The charges arise from the defendant’s tractor trailer striking the rear of Ms. Lois Bacon’s

minivan, which resulted 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 Correction (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 reasons:

1. The defendant takes no responsibility for his actions and blames the victim in 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” and that he “was not negligent 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 one 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 recklessly and did endanger several

motorists other than the victims. Other motorists were in danger of serious bodily

injury. Diversion would depreciate the seriousness of these crimes.

4. The defendant has an unstable work history as a truck driver. He has been

terminated twice and all of his jobs have been of short duration. The defendant

would be a poor candidate to complete any probationary period.

5. The driver was driving a large semi-truck. The victim was driving a Dodge

Caravan. The officer states that the victim was killed in part by the fact that the

defendant was following too closely. The defendant should have reasonably known

of his vehicles [sic] potential for deadly force. Fatalities by large trucks are a

growing problem in our community and in our nation. Irresponsible 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

with 4,638 fatalities of passenger-vehicle occupants involved in truck-car crashes.

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 actually states that the defendant said that the accident was “avoidable,” but the context of the

statement rev eals this to be a m isprint.

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The defendant petitioned 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 diversion, consisting of the TDOC’s pretrial diversion report; a statement the defendant

gave the police; a Tennessee Bureau of Investigation (TBI) laboratory report; materials by the

Citizens for Reliable and Safe Highways (CRASH), which contain statistics on wrecks involving

large trucks; and a transcript of the defendant’s telephone conversation with a police officer

regarding the accident.

In his statement to the police, the defendant said that on July 6, 1998, he was traveling north

on Interstate 181 in the right lane when he saw a minivan enter the emergency lane as if to approach

the exit ramp from that lane. He said that he noticed that cars were entering the interstate

northbound and that two tractor trailers and a car were pulling alongside his tractor 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

not know what happened after that because his right front tire deflated, and he tried to maintain

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 unavoidable1 on

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 accident investigation. Officer Mowell said that the defendant showed

extreme remorse for the accident. He said that although he would leave the matter of pretrial

diversion to the district attorney’s office, if anyone 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 defendant stated that the minivan’s left tires reached the solid white

line, but he agreed that the minivan never crossed it. 

According to the diversion report, the thirty-four-year-old defendant graduated from high

school and served seven years in the army before receiving an honorable discharge. After leaving

the army, the defendant 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 was 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 years 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 agent for Auto Rail Services, and a representative of the company characterized him

as a good employee. 
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The pretrial diversion report also reveals that the defendant paid a fine following a conviction

for defective equipment in 1994. Additionally, the defendant reported incurring two speeding tickets

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 the day of the offenses.

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

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

revealed 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, one ticket forfollowing too closely, and one conviction for defective equipment.

It found that the three moving traffic violations were significant in this case because the defendant

allegedly operated his tractor trailer recklessly on the interstate and the facts suggested that he may

have been following too closely. The court found that the defendant’s description of the accident

revealed that several other motorists were in the area and that the defendant’s actions endangered

these motorists. The court noted that if the defendant was convicted, it could enhance his sentence

with Tenn. 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 granting the defendant pretrial diversion when at least two

enhancement factors would apply to his sentence would depreciate the seriousness of the offenses.

The court declined to find that the defendant had an excellent work history because he had been fired

from two jobs and his other jobs were of short duration. Finally, it found that the materials relied

upon by the state provided substantial evidence of the need to deter truck drivers from reckless

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 marriage of

thirteen years, his high school diploma, and his lack of a history of drug or alcohol abuse.

Nevertheless, it recognized that Tenn. Code Ann. § 40-15-105(b)(3) provides that it may order

pretrial diversion if the prosecutor abused his or her discretion. Thus, it determined that it was not

required to order pretrial diversion for the prosecutor’s failure to list and evaluate evidence that did

not outweigh the unfavorable factors listed and supported by the evidence. Noting the defendant’s

experience and training as a tractor trailer driver, the court found that the defendant should have

anticipated that the cars 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 would undermine the judicial system.

 

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 making this determination, the prosecutor should
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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.

Curry, 988 S.W.2d at 157 (quoting State v. Pinkham, 955 S.W.2d 956, 959-60 (Tenn. 1997) and

State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983)). The prosecutor’s response 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 relieve 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 diversion 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 prosecutor’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 record lacks substantial evidence supporting the prosecutor’s

determination. Id.

This court has stated that on appeal, the trial court’s factual determinations will be overturned

only if the evidence preponderates against them. State v. Carr, 861 S.W.2d 850, 856 (Tenn. 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 standard 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 (citing Pinkham, 955 S.W.2d at 960). Respectfully, the

trial court’s determination that the prosecutor has or has not abused his or her discretion 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 reviewing court to find an abuse of discretion and applying this

standard to hold that the prosecutor’s denial of diversion based solely upon deterrence was 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 (Tenn. 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 determining whether any substantial evidence

supports the prosecutor’s denial of pretrial diversion in light of the relevant factors); State v. Helms,
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720 S.W.2d 474, 476 (Tenn. Crim. App. 1986) (reversing the trial court’s finding of abuse of

discretion because the facts were undisputed and substantial 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 claims

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 not consider the circumstances of the

offense, his lack of a prior criminal record, 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 weight. It argues that the

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

a tractor trailer, the victim was driving a Dodge Caravan, and the officer stated that the victim’s

death was caused in part by the defendant following 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 tickets. It argues that the prosecutor considered the defendant’s work history

and found it to be unstable. The state also contends that no factual disputes are apparent from the

record. However, it does not explain 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 prosecutor “with sufficient background

information and data to enable that officer to make a reasoned decision to grant or deny the relief

sought.” State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989). The applicant should provide the

prosecutor with evidence relating to the relevant factors and may include affidavits and character

letters. State v. Winsett, 882 S.W.2d 806, 810 (Tenn. 1993). The parties may supplement this

information with a 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.2d at 156. In

filing the petition for a writ of certiorari, the defendant should include the record as it stands at that

point, including the completed application for pretrial diversion. Winsett, 882 S.W.2d at 810. We

note that the record before us does not contain an application for diversion. Nevertheless, the pretrial

diversion report provides evidence of the defendant’s graduation from high school, thirteen-year

marriage, work history, criminal record, and lack of a drug or alcohol problem.

“If the attorney general bases his decision on less than the full complement of factors [listed

in Hammersley,] he must, for the record, state why he considers that those he relies on outweigh 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 prosecutor interpreted these

qualities to be unfavorable for the defendant, he was required to state them as evidence relevant to
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the circumstances of the offense, the defendant’s social history, or the defendant’s physical or mental

condition and then to state why the factors upon which he relied outweighed these factors. See

Curry, 988 S.W.2d at 158-59. Thus, the prosecutor abused his discretion in failing to consider all

the relevant factors listed by our supreme court in Hammersley and restated in Curry.

The defendant contends that because the prosecutor has 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 essentially

attempted to rehabilitate the denial letter by relating some favorable evidence and finding it to be

outweighed by the unfavorable evidence. The state contends that the trial court was not required to

order pretrial diversion even if the prosecutor did not list all of the factors in the denial letter 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 enumerate and consider 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. Justice Holder, dissenting, warned that the

majority’s holding would allow defendants to avoid prosecution based solely upon the procedural

omissions of the prosecutor:

I question whether the legislature intended that a criminal committing a series of

serious, sustained, planned, and deceptive crimes over a two-year period of time

automatically be granted diversionmerely because a district attorney failed to employ

a preferred term in the letter denying diversion. The majority’s holding could

effectively allow defendants committing serious offenses . . . to avoid prosecution

merely because a district attorney commits a non-prejudicial omission affecting

neither a constitutional nor a statutory right.

Id. at 163. In this case, the defendant argues 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 an abuse of

discretion exists.

Also, 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 prosecuting attorney has committed an abuse of discretion in failing to divert, the

trial court may order the prosecuting attorney to place the defendant in a diversion status on such

terms and conditions as the trial court may order.” (Emphasis added). In interpreting a statute, our

role is to give effect to the legislature’s intent when enacting the statute. Owens v. State, 908 S.W.2d

923, 926 (Tenn. 1995). When a statute is unambiguous, the court should enforce the statute as

written, without resorting to auxiliary rules of construction. Browder v. Morris, 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 omitted). The plain
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meaning of the term “may” 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 prosecutor’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.

Essentially, Herron provides that in reviewing whether the prosecutor has abused his or her

discretion regarding whether diversion should be granted, the trial court must undertake the same

process required of the prosecutor in considering and weighing the relevant factors. In this respect,

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 the denial of diversion, the trial court is limited to the evidence

considered by the prosecutor). Because the trial court is limited to the record considered by the

prosecutor, the trial court will not surprise the defendant by basing its determination upon new

reasons not in the record. In turn, this court will defer to the trial court’s determination unless it is

not supported by substantial evidence in the record.

 To the extent that this procedure gives some measure of discretion over the decision of

whether to divert to the trial court, it is the legislature that gave the trial court that discretion by

employing the term “may” in section 40-15-105(b)(3) as discussed above. Furthermore, the grant

of discretion to the trial court is wholly appropriate:

Diversion may not be regarded as a mere extension of the charging process.

It does not come into play until after the indictment. The plan of diversion, or the

denial thereof, follows indictment and comes after the prosecutor has fully

discharged all discretionary functions and after the prosecutorial die has been cast.

Once committed to prosecution, the case is before the court for disposition. The

process, at this stage, becomes fundamentally judicial and must end in a verdict, a

nolle [prosequi] or pretrial diversion.

. . . . [T]he jurisdiction of the court has been invoked by indictment and

disposition becomes a judicial responsibility.

Pace v. State, 566 S.W.2d 861, 870 (Tenn. 1978) (Henry, C.J., concurring) (footnote omitted).

Finally, 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 of pretrial diversion for a wholly

undeserving, 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 offenses such as manslaughter, kidnapping,

and vehicular homicide”). Such a reflexive award of pretrial diversion belies the fact that pretrial
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diversion is a legislative largess granted 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 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”).

In the present case, although it erroneously found that the prosecutor had not abused 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 prosecutor’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 poor candidate for rehabilitation. The trial

court found that despite his admitting that the 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 revealed that the defendant blamed 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 the defendant’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 occurred continue to be greatly disputed and are the

subject of a tort suit in federal court. Furthermore, he argues that Officer Mowell stated in the

pretrial diversion report that the defendant was truthful and cooperative during the investigation and

showed extreme remorse for what happened. A prosecutor may not deny diversion based purely

upon a defendant’s failure to admit guilt. 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 denying

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 completely into the emergency lane, traveled in the

emergency lane for some distance, and then reentered the right lane in front of him. It determined

that this implication contradicted 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 record

supports the denial of diversion based upon the defendant’s failure to take responsibility for his

actions based upon his lack of candor regarding the manner in which the accident occurred.

The prosecutor also denied pretrial diversion based upon the defendant’s continuing to drive

dangerously despite previously incurring two speeding tickets and a conviction for following too

closely. The trial court found that the diversion report 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 carry little significance, the defendant’s

three moving traffic violations take on greater importance in this case in which the defendant
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allegedly operated a tractor trailer recklessly and the evidence suggests that the defendant may have

been following too closely at the time. The defendant contends that any weight attributed to his

traffic citations is wholly misplaced. He argues that these citations became known solely through

his own disclosure and that the record contains no evidence regarding their disposition or

surrounding circumstances. 

The prosecutor may properly consider evidence of criminal behavior to deny diversion. See

State 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 of prosecutors’

discretion regarding pretrial diversion and affirming the trial court’s denial of judicial diversion

based upon the defendant’s prior criminal behavior of marijuana use); see, e.g., State v. Michael

Durand Holmes, No. 03C01-9707-CR-00243, Hamblen County, slip op. at 9 (Tenn. Crim. App. July

7, 1998), app. denied (Tenn. Feb. 16, 1999) (affirming the denial of pretrial diversion based upon

the defendant’s experience and reputation as a drug dealer, his prior criminal behavior, 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 reveals that the “defendant stated

that he has two (2) speeding ticket[s] in Ohio and a following too close[ly] offense in Louisiana.”

Although the defendant appears to question whether these incidents actually resulted in convictions,

he admitted in the report that these moving violations occurred. These violations constituted

relevant criminal behavior that the prosecutor properly considered as a basis for denying diversion.

 

The defendant also challenges the prosecutor’s fourth basis for denial, which relates to his

work history. The prosecutor concluded that the defendant’s unstable work history revealed that he

would be unlikely to complete a probationary period. In reviewing this reason, the trial court found:

According to the pretrial diversion report, the Defendant has worked for six

different companies since April 1989. He worked approximately three years each on

two of those six jobs; he worked only about a year on the other four. He was

terminated from two of the jobs, once because of the incident involved in the present

case.

The trial court declined to find that the defendant had an “excellent work history” because he had

been fired from two jobs and his other jobs were of short duration. It determined that the record

contained substantial evidence to support the prosecutor’s contention that the defendant had an

unstable work history. 

The defendant argues that the record does not support the conclusion 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 terminated 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 was discharged from 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
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attorney argued that the defendant changed jobs to gain better pay and more time with his family.

The trial court noted: “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 against 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 record

reflects that the defendant was continuously employed from the time he graduated from high school.

While in the army, he received an achievement medal, a commendation medal, and an air assault

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

and that he began driving a truck for Overland Transport that same month. The record does not

reflect the reason for his discharge. The record reveals that Active Transport fired the defendant on

July 6, 1998, because of the present offenses and that the defendant started work as a releasing agent

for Auto Rail Services on December 1, 1998, earning just over nineteen dollars an hour. A

representative of Auto Rail Services characterized the defendant as a good employee. 

The trial court noted that the prosecutor failed to list and evaluate evidence favorable to the

defendant such as his honorable discharge from the army, his stable marriage of thirteen years, his

high school diploma, and his lack of a history of drug or alcohol abuse. This evidence relates to the

defendant’s social history and his physical and mental condition, and it reflects favorably upon his

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

but not significant enough to outweigh the unfavorable 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 charged, the fact that the defendant had previously operated a tractor trailer in

violation of the law, and the fact that his actions endangered others in addition to the victims. The

trial court emphasized its conclusion that the defendant, a trained and experienced tractor trailer

driver, should have anticipated that the cars merging onto the interstate would force the victim to

remain in his lane and should have slowed his truck to maintain a safe distance 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 from dangerous driving. 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 record supports 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 offenses. The circumstances of the collision indicate

that the defendant could have avoided the accident. In his statement, the defendant said that he

noticed cars merging onto the interstate. In his telephone conversation with Officer Mowell, the

defendant agreed that the victim never completely left his lane of travel. Also, the defendant stated

that other motorists were traveling in the left lane and entering the interstate. Thus, the record

reflects that the defendant’s actions endangered others in addition to the victims. 
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Finally, the 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 the job. Essentially, the

trial court believed that the defendant had a disregard for the rules of the road while driving a tractor

trailer, which increased the risk of harm to others above that present for other motor 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, it was justified in seriously

questioning the defendant’s amenability to rehabilitating his conduct in similarsituations. Likewise,

under the circumstances in this case and given the defendant’s background, the record supports the

trial court’s conclusion that granting diversion would depreciate the seriousness of the offenses for

the defendant. We hold that substantial evidence in the record supports the trial court’s denial of

pretrial diversion. 

Although the prosecutor improperly failed to consider all the relevant factors and to list 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 defendant pretrial diversion.

___________________________________ 

JOSEPH M. TIPTON, JUDGE