# FILED
July 7, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1998 SESS ION

STATE OF TENN ESSEE, ) ) C.C.A. No. 03C01-9707- CR-00243 Appellee, ) ) Hamblen County V. ) ) Honorable Jam es E. Beckner, Ju dge MICHAEL DU RAND HOLM ES, ) ) (Pretrial Div

ersion) Appellant. ) )

FOR THE APPE LLANT: FOR THE APPELLEE: Greg W. Eichelman John Knox Walkup District Public Defender Attorney General & Repor ter Ethel P. L aws Sandy C. Patrick Assistant District P ublic Defender Assistant Attorney Gener al 1609 College Park Dri

ve, Box 11 Criminal Justice Div ision Morristown, TN 37813- 1618 425 5th Avenue North 2nd Floor, Cordell Hul l Building Nashville, TN 37243-0493 C. Berkeley Bell District Attorney General 510 Allison Street Morristown, TN 37813

OPINION FILED: _______________________
AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, Michael Durand Holmes, appeals from the judgment of the Criminal Court of Hamblen C ounty, affirming the distri ct attorney general’ s denial of pretr ial div ersion.The appel lant see ks to divert th e offense o f deliv ery of a controlled substance, crac k cocaine.
The appellant’s sole issue on appeal is whether the trial court erred in finding that the district attorney general did not abuse his discretion in denying the appellant

’s application for pretr

ial diver sion. We affirm.
The appellant admitted to delivering 0.3 grams of crack cocaine in April 1996 to an undercover buyer at the Ebony Outdoorsman Club in Morristown, Tennessee. He

was not arrested unti l November 1996. Duri ng the time between the delivery

and his arrest, the appella nt became a member of the Praise World Outreach Center and was apparently attempting to change his life. The appellant requested pretri al diversion, charac terizing the deliv

ery as a “onetime incident.” Distr

ict Attorney General Ber keley Bell denied his r

equest.
The appellant argues that the tr ial court erred in finding no abuse of discretion by the dist rict attorney gener al. His argument is bas ed upon three factors used to deny him div ersion: the circumstances of the offense, his prior criminal behavior, and his reputation in the community

.
With respect to the circumstance s of the offense, the district attorney in his written denial o f pretrial diversio n cited the fo llowing: The undercover agent app roached the defendant on the outside of the Ebony club and asked him, in the vernacular of the drug trade, if he had any crack cocaine. The defendant, also in the vernacul ar of the trade, responded in the affirmative and sold the unde rcover agent seven (7) rocks of crack. As the ag ent was concluding the transaction he obtained the defendant’s beeper number to call for future transactions.-3- First, the appellant asser ts that the district attor

ney abused his discreti on by considering the precedin g unsworn allegati ons. In his brief, the appellant notes that the district attorney “did not file the transcri pt of the transaction, he did not subpoena the officers for the certior ari hearing, [and] he admitt ed that all the court could go on was his own say so.” He contends that the distric t attorney general “did not establi sh what actually occ urred in his investi gation with witnesses, affidavits, or even letters.” At the certiorari hearing, General Bell, who had been counsel for the stat e, became the only witnes s for the state, and Assistant District A

ttorney John Dugger

became counsel for the state. The appellant argues that “the A ttorney General became the w itness in an attempt to present evidence he could not otherwise present.” Thus, the appellant argues that he was not given an opportunity to cross-examine the officers regarding his reputation. Furthermore, the appellant notes that the trial judge relied upon the district attorney’s in-court statements in reaching his decision that the district attorney had not abused his di scretion: The circumstances of the offen se. The circumstances of the offen se are not unusual except for the indication that the unde rcover agent could get bac k in tou ch wit h the defe ndant th rough h is beepe r to ... and, of course, I’m relying

upon the State’s answer and the allegations therein . . . could get back in touch with the defendant through his beeper for future drug transacti ons. So that would be negative, of course.
Second, the appellant argues that his criminal recor d should not be used to disqualify him from pretr ial diversion. F irst, the charge for theft under $500, which occurred on the s ame day as the charge in the instant case, stemmed from a video. The appellant paid off the v ideo, and the charges wer e dropped. Second, because he forfeited a cash bond, th e appellant argues that char ges of public intoxication, d isorderly conduct, and public profanity on June 11, 1994 do not disqualify him from pret rial diversion. Ther efore, the appellant maintains that his criminal record i s minimal and should not precl ude him from pretrial diver sion.1 The tr ansc ript spe lls the n ame Sea ls, but th e letter in the te chnic al reco rd spe lls the n ame Sills. W e will u se the spellin g in the hear ing tra nscrip t.

2 The dist rict

attor ney’s wr

itt en denial of

pretr ial diversion s

tates: “The Defendant’s reput ation with the Morr istown Police Dep artme nt’s N arcotic s Un it is that o f a dru g dea ler, kno wn a s “Little M ike.” -4- Lastly, the appellant argues that he “presented credible evidence as to his reputation and that evidence w as not refuted.” He presented tw o letters from churches, an employer let ter, and a letter from his mother, which indicate that he has a good reputation in the community. Pastor Ronald Seals 1 , who had written one of the letters for the appellant, testified at the hearing. Al so, in his written denial, the district attorney states, “[t]here is no evidence of the def endant’s social history pri or to his criminal conduc t in this case.” The appell ant argues that his mother, Barbara Holmes, in her letter describes the appellan t’s years from birth to college. Fur thermore, the appellant assert s that the district attor

ney abused his discretion by referring to and consider ing matters outside the rec ord. Specifically, the district attorney repeatedly referred to the appellant as “Little Mike” and stated that “Little Mike” was known as a drug dealer to police officers because he rode his bicyc le and sold cocaine. The appella nt maintains that none of these allegations wa s in any of the discover y materials giv

en to the appellant and none was even mentioned before the denial of the reques t for pretrial diversio n. 2 Therefore, the appellant contends that “the District Attor

ney abused his discretion by not reading and carefully considering the statements made by the defendant’s mother,” and by not providing any evidence to refute the appellant’s proof regardi ng his reputation in the c ommunity. The appellant also disput

es the trial

court’s ch aracteriz

ation of his c riminal record as “so me pretty horrible conduct,” arguing that there is no proof in the record to support such a characterizati on.
The state argues that the tri al court did not err in c oncluding that the district attorney g eneral did not abuse his discretion. On the issue of the3 Neither s ide disput es the appel lant’ s eligi bility f or pret rial diversion. -5- circumstances of the offense, the state as serts that the “convers

ation between the defendant and the undercover ag ent clearly indicated that the defendant was rather knowledgeable i n the trade and intended to conduct add itional drug sales in the future.” The state contends that the circumstances surr ounding the offense indica

te “a sustai ned intent to violate t he law” and

not a “one-t ime incident” as the appellant mai ntains.
Next, the state asserts that the appellant’s prior criminal offense s were properly relied upon i n denying diversi on. It argues that the appell ant’s failure to appear on one charge “reflects poorly on the defendan t’s rehabilitative qualities.” Thus, the state maintains that the di strict attorney did no t abuse his discretion.
The state cites the appellant’s reputation amon g law enforcement officers as “Little Mike,” a bi cycle-riding c ocaine dealer, as another reas on for denying pretrial diversio n. In its brief, the state cont ends that “the prosecution had, at the time of its initial conside ration, an affidavit from a Drug Task Force official stating this defendant’s reputation.”
The decision to grant pretr ial diversion rest

s within the discretion of the district attorney general. 3 Pace v. State , 566 S.W.2d 861, 864 (Tenn. 1978). When deciding whether to grant an application for pretrial diversion, the district attorney general shoul d consider the following factors: circumstances of the offense; the criminal record, soc ial history, and pres

ent condition of the defendant, including his mental a nd physical conditions where appropriate; the deterrent effect of punishme nt upon other criminal activity; the defendant’s amenability to correcti on; the likelihood that pretr ial diversion will serve the ends of justice and the best interest s of both the public and the defendant; and the applicant’s attitude, behav ior since arrest, pri or record, home environment,-6- current drug usage, emoti onal stability, past empl oyment, general reputatio n, marital stability, famil

y responsibility , and attitude toward law enforcement. State v. Hammersley , 650 S.W.2d 352, 35 5 (Tenn. 1983).
The district attorney general’s decision regarding pretrial diversion is presumptively corr

ect, and the trial court w ill only rever

se the decision when the appellant establishes that ther e has been a patent or gross abuse of prosecutorial discreti on. State v. Houston , 900 S.W.2d 712, 714 (Tenn. Crim. App. 1995). To establish abuse of dis cretion, “‘the record mus t show an absence of any substantial evidence to support the district attorne y general’s refusal to grant pretrial diversion.” Id. The trial court may only consider evidence considered by the distr ict attorney general

in the decision denying pretrial diversion. State v. Winsett , 882 S.W.2d 806, 81 0 (Tenn. Crim. App. 1993).
The findings of the trial court are binding on this Cour t unless the evidence preponderates aga inst such findings. Houston , 900 S.W.2d at 715. We review the case to determine if the ev idence preponderates against the finding of the trial judge w ho holds that the district attorney general has or has not abused his discretion, no t to determine if the trial j udge has abused his or her discretion. State v. Watkins , 607 S.W.2d 486, 489 (Tenn. Crim. App. 1980).

First, we are troubl ed by the filing of the affidavit of Mike Long and the transcript of the drug tr ansaction between the appellant and the undercover agent. As the appellant notes in his brief, the aff idavit of Mike Long of the Third Judicial District’s Drug Task F orce was fi led on Mar ch 21, 19 97, which wa s two days after the certiorar i hearing on March 19, 1997; and it was filed wi thout a certificate of service, w hich the appellant argues i s a violation of Rule 49( a) of the Tennessee Rules of Criminal P rocedure. Also, the transcript of the drug-7- transaction between the appellant and the undercover agent was not filed until July 11, 1997, some four months after the hearing, although the di strict attorney and appellant’s counsel referred to the transcript during the hea ring. We are troubled that when the trans cript was filed, it w

as not signed as being r eceived by anyone in the clerk’s o

ffice. Also, the transcript, which was included as an exhibit, was attached with the transcript of the certiorari hearing , and was authenticated by the trial judge on June 16, 1997, although it was not filed until July 11, 1997. We also note that appellant’s counsel asked at the close of the certiorari hearing to file as an exhibit a copy of the discoverable material

. Howe ve r, th e r ecor d d oe s n ot

co nt ai n s uc h m at er ia l as a se co nd ex hi bi t. We note the timing of the filings and their inadequacies, as well as the failure to f ile materials, to emphasize the importance of maintaining a cor rect and complete record and of following pr ocedural rules. We have only the r ecord upon which to base our decision, so the impor tance of maintaining an accurate record cannot be overstated.
Although we find the instant reco rd troubling, we do h ave enough information upon which to adjudi cate this appeal. Appellant ar gues that he is not a drug dealer, and this sa le was an isolated incident. The conversation betw een the appellant and his buyer indicates trade knowledge and appellant’s willingness to s

ell drugs again in the future. The trial court found in h is order that the appellant’s actions “were not a casual flirtation with criminal conduct. . . .” The appellant’s “apparent repeti tive drug dealing [is] strongly ind icative, even conclusive -- that the defendant is not amenable to correction .” We agree that it appears the appellant knew what he was doing and was ready and willing to do it again.
Despite the appellant’s couns el’s persuasive arg uments about the prosecution’s method of handling this case, we are cog nizant of the other side of-8- the coin. A district att

orney general cannot per sonally know eve rything about every crime and defendant when a diversion request is filed. He or she must rely on the co llective kn owledge of law enfor cement, includin g hearsay; investigat ive reports; witness statements; memoranda; and staf f. Reliance on hearsay is proper and reasonable. The prosec utor should know all he or she can when the divers ion deci sion is

made. The

y shoul d follow

the gui dance of State v. Pinkham , 955 S.W.2d 956 (Tenn. 1997) so that factual disputes ar e minimal.
The trial judge should confine consideration to the evid ence considered by the prosecutor at the time he or she considered the applicati on. State v. B rown , 700 S.W.2d 568, 570 (Tenn. Crim. App. 1985). The appellant argues that the trial judge considered

evidence not availabl e to the district attorney at the time of the decision in making hi s determination that there w as no abuse of discretion. Appellant cites the drug t ransaction transcript; Mike Long’s affidavit; th e appellant’s reputation; the Department of Correction Specific Data Report; and other information. This may be true, but this Court must app ly reason to see if the prosecutor did his job.

We conclude that some information not available t o the district attorney

at the time of his decision was introduced during the certiorari hearing. This Court delineated in State v. Winsett , 882 S.W.2d 806, 809-10 (Tenn. Crim. App. 1993) the requirements for an applic ation for pretrial dive rsion, a written deni al of di ve rs io n, an d t he

pr oced ur e f or co nd uc ti nga cer

ti or ar i r ev iew h ea ri ng . We concluded in Winsett “that the only evidenc e the trial court may c

onsider at the certiorari hearing is that evidence consider ed by the prosecutor in th e decision denying pretrial diversion.” Id. at 810

.
This case is very close. We could remand for a new hearing consistent with Winsett . However, we believe the answer w ould be the same. Although the-9- certiorari hearing contained evidence that w ent beyond Winsett , we believe that General Bell did have enough information, although he could ha ve had much more, to warrant a div

ersion denial. The appellant appa rently had prior drug dealing experience and w as willing to continue. He had a reputation as a d rug dealer. He had prior criminal behavior and a modest record. These were enough factors to allow G eneral Bell to make a cogni zant decision.
The record does not preponderate ag ainst the trial court’s findings. The judgment is affirmed.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

______________________________ JOHN H. PEAY, Judge

______________________________ CORNELIA A. CLARK , Special Judge-10-