# FILED
June 26, 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. 03C 01-9708-CR-00320 Appellee, ) ) SCOTT COUNTY VS. ) ) HON. LEE ASBURY, VERONICA L. P HILLIPS, ) JUDGE ) Appellant. ) (Pretrial Diver sion)

FOR THE APPE LLANT: FOR THE APPELLEE:
CHARLES A

LLEN JOHN KNOX WALKUP P.O. Box 5027 Attorney General & Repor ter Oneida, TN 37841 MICHAEL J. F AHEY, II Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 WILLIAM PA

UL PHILLIPS District Attorney General CLIFTON H. SEXTON Asst. District Attor

ney General P.O. Box 10 Huntsville, TN 37756

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The defendant was charged in the indictment with one count of reckless homicide and one count of reckless agg ravated assault. The de fendant fil ed an application for pretrial diversio n with the district attorney general, who denied the defendant’s application by written response. The defendant then filed a p etition for writ of certiorari with the trial court, which was denied. Pursuant to R ule 9 of the Tennessee Rules of Appellate Procedure , the defendant sought and was gr anted permission to appeal the trial court’s decision to thi s Court. The sole issue presented in this appeal is whether the trial court erred in determining that the district attorney general did not abuse his discretion by denying the defendant’s application for pretrial div ersion . After our review of the record,we affirm the trial court’ s decision.

The record indicates that on M ay 10, 1996, at 6:30 p.m., the defendant, who
was twenty years ol d at the time, and a friend wer e traveling east at a high rate of speed
on State Highway 63. This stretch of highway was dry and flat. As the def endant d rove east, she passed a vehicle in front of her, c ausing a driver tr

aveling in the

westbound lane to p ull t o his right in order to avoid colliding head-on with the defendant’s v ehicle. At a point ap proximat ely two miles further, the defendant again a ttempted to pass a vehicle in front of her. This vehicle w as driven by Gayl on Gibson. As the defendan t pulle d
across the double yellow line into the westbound lane of traffic to pass Mr. Gibson’s car, she collided head-on with a vehic le driven by Timothy Bowling . The defendant’s car
came to rest

on the r

oof of Mr. Gibson’ s car. Apparently, nothi ng obstructed the defendant’s view of

the Bowlings’ car

prior to impact. Nonetheless, no skid marks were found on the road, indicating th at nei therthe defendant nor Mr. Bowling applied their brakes prior to impact, pos sibly because neither had time to do so.3 None of the people involved in the accident were wea ring their seat belts. Mr. Bowling, who w

as thirty-four

years old at the time of the accident, died as a result of the head-on collision, and his wife, who was travel ing with him, sustai ned serious injuries. Mr. Gibson and his passenger wer e also injured, although not as grav ely injured as the Bowlings. Both the defendant a nd her passenger were also seriously inj ured, and according to the accident report, neither remember the e vents leading up to the

accident
or the accident

itself. Following

the accident, the defendant was i ssued two citations, one forimproper passing and one for r eckless driving. Two months later, a grand jury indicted the defendant with the reckless homicide of Mr. Timothy Bowling and the reckless aggravated assault of M s. Alice Bowling,his wife.

Several month s later, the defendant applied for pr etrial diversion. The defendant’s application attested that she w as diagnosed with cy

stic fibrosis when she
was t wo y ears old, and as a result, s he has always liv ed with her parents. The defendant’s home life is stable, lovin g, and supportive. When the defendant graduated from high school in 1995, she began working at the Scot t County Food Court and chaperoning on a volunteer basis for th e local high school band. Bec au se of the extensive nature of her injuries from the ac cident, she was

unable to resume her employment

at the food court, but she has conti nued to volunt eer as a ch aperone and she began babysitting on a part-time basis.

The defendant’s application emphasiz ed that the accident was not caused byalcohol or drug use and that the defendant did not ha ve a history of drug or alcohol
use. The application attested that the de fendant had no criminal record, ha d no previous drivingoffenses, and had never been granted pretrial diversion. The defendant also detailed the injuries she receiv ed from the accident. She represent ed that various

plates4

and pins w

ere inserted i nto sev

eral par ts of he r body, but that due to compli cations caused by her cystic fibrosis , her body rejected the plates and pins,and she was scheduled for surger

y to reme dythis and other problems. The defendant also represented that she has been visiti ng a counselor on a regular basis in order to deal with the emotional problems she has suffered as a result of the accident.

In support of her application, the defendant submitt ed letters from friends and authorit y figures in her life. These le tters sho we d that the defendant had a good general reputat ion and h as shown both family and social res ponsibility in her life.In sum, these letters v ouc hed that the defendant was a trustw orthy, honest, considerat e, and responsible young woman who could rise above the tragedy she experienced if given the opp ortu nity. The letters asked for leniency, mercy, and a “second chanc e” for the defendant.

The assistant district attorney general replied to the defendant’s applic ation forpretrial diversi on by letter. In his l etter, the assistant district att orney general stated that he had considered all of the factors discussed in the d efendant’s letter and he did not take issue with any of the facts the defendant enumerated in her application. Even so, he denied the defendant’s application for diversion, citing the following reasons:

1. The nature and circumstances o f the offense. 2. The offense in

volved mor

e than one vi ctim. 3. The personal injuries inflict ed upon and th e amount of property damage sustained by the victims was particularl y great. 4. The offense in volve d a victim and was co mmitted to gratify the defendant’s desire for pleasure or excitement. 5. The defendant had no hesitation about committing a crime when the risk to human life was high. 6. Deterrent effect upon the defe ndant and others.5 7. Denial of diversion is necessary to avoid depreciating the seriousness of the offense. 8. The ends of justice requir e denial of diversion.

The defendant sought the trial court’s re vi ew of the denial. The parties scheduled a hearing at which the assistant district atto rney general reiterated that he did not dispute any of the facts presented by the defendant. Moreover, the assistant district attorney general represented

that he had considered all of the factors the defendant discussed, but what particularl y influenced his decision to deny diversion w

as the impact diversio n wou ld have had on the ends of justic e and the public interest. The as sistant district attorney general also stated that in his opinion, considering tha t the defendant was drivingwell in excess of the speed limit and passin g on a double yellow lin e, and considering that these intentional acts k illed one person and caused grave injuri es to three others, diversi on was not warranted.

The trial cour

t det ermined that the district attorney general did not abuse his discretion and that the denial of diversionwas based upon sufficient facts. The trial court stated that a reckless act resulti ng in th e death of an individual w ho has done no wrong is of the nature and circumstanc e to wa rrant close scruti ny when considering a pret ri al diversion applicati on. The trial court further ag reed with the distri ct attorney general that under the circumstances, denial of diversion w as necessary to uphold th e ends of justice and avoid depr eciating the seriousness of the offense.

On appeal, the defendant argues several reasons why the tri al court erred in upholding the district attorney general’s denial of diversion. Pri marily, she contends that the district attorney gener al relied u pon insufficient proof, failed to look at all applicable factors, and instead relied t oo heavily on the

nature and circumstances of the6

offense, which was improper without some explanati on of why these fac tors s hould outweigh the other factors . We disagree.

Upon application for diver sion, the district attorney general must consider the relevant factors carefully in making a decision. The district attorney general “must consider all the evidence whi ch tends to show that the applicant i s amenable to correction and is not likely to commit additional crimes.” State v. Winsett , 882 S.W.2d 806, 81 0 (Tenn. Crim. App. 1993). To that end, th e district attorney g eneral should consider, in addition to the circumstances of the offense, the defendant’ s criminal rec ord, socia l history, present physical and mental condition where approp riate, a menability to correction, behavio r since arrest, home environment, current drug usage, emoti onal stabilit y, past employment, general reputation, marital stability, family responsibility, and attitude. See State v. Washington , 866 S.W.2d 950 (Ten n. 1993); State v. Hammersley , 650 S.W.2d 352 (Tenn. 1983). In addition, the district at torney general should consider the deterrent effect of punishment and thelikelihood that pretria l diversion wil l serve the ends of j ustice and the best interests of both the pub lic and the defendant. See Washington , 866 S.W.2d at 951; Hammersley , 650 S.W.2d at 355.

If the district attorney

general denies diver

sion, he or shemust inform the defendant through a formal, writ ten res pon se to the application. See Winsett , 882 S.W.2d at 810. This response should i nclude a recitation of all evidence considered; the
reason for the deni al, incl uding which factors were considered, how some factors controlled the decision, and why certain factors outweig hed others; and an identification of any disputed issue of fact. Id. “If the [district] attor ney general bases his decision on less than the full co mplement o f factors . . . he must, for the recor d, state why he considers that those he relies on outw eigh the others submitted for hi s consideration.”7

State v. Herron , 767 S.W.2d 151, 15 6 (Tenn. 1989).

Review of the district attorney

general’s decision to deny diversion is vi a a petition for writ of certiorar i filed with the

trial court. See T.C.A. § 40-15-105(b)(3).The district attorney general’s decision denying diversio n is presumptively correct, and the trial court must affirm his or her decisi o n absent a finding of abuse of discreti on. See id .; State v. Lutry , 938 S.W.2d 431, 434 (Tenn. Crim. App. 1996). In its review of the district attorney general’s decision, the trial court is li mited to the evidence originally considered bythe district attorney general. Winsett , 882 S.W.2d at 810. However, where the district attorney general’s letter deny

ing diversion is insufficient for thetr ial court to determine whatevidence the district attorney generalconsidered, his or her r easons for

denying the petition, and whether there are disputed issues of fact, the trial c ourt should hold an evidentiaryhearing in order to allow the di strict attorney gene ral to place this information
on the record. State v. Carolyn L. Curry , No. 02C01- 9601 -CC-00005, Carroll C ounty (Tenn. Crim. App. filed January 2, 1997, at Jackson). Only in this way can the trial court be assured it is consider ing the same

evidence considered by the district attorney general and ultimately determine whether the district attorney general abused his or her discretion in denying divers ion. Id.

For the purpo ses of ou r review, the trial court’s factual findings are binding
on this Court unless the evidence preponderates against such findings. See Lutry , 938 S.W.2d at 43 4 ; State v. Houston , 9 00 S. W.2 d 7 12 , 7 14

(Ten n. Crim . A pp . 1 99 5) . We review the case not to ascertain if the trial court has abused its discretion, but to ascertain if the evidence preponderates against the f actual find ings of the trial court, which determines whether

the district attorney

general abused his or her discretion. See Lutry , 938 S.W.2d at 434; State v. Watkins , 607 S. W. 2d 486, 489 (Tenn. Crim. App. 1980).8

Thus, the underlying iss ue for our determination remains w hether, as a matter of law, the district attorney general abused his or her discretion i n denying pretrial d iversion. See Lutry , 938 S.W.2d at 434; State v. Carr , 861 S.W.2d 850, 857 (Tenn. Crim. App. 1993).

Here, our review of the enti re record reveals th at th e district attorney general considered all of the relev ant factors he was requi red to conside r and that h is decision to deny diversion w as based up on sufficient proof in the record. We further conclude that the dis trict att orney general did not ab use his discretion in deny ing diversion under the totality of the ci rcumstancesof this case. While the record reveals information favorable to the defendant’s charac ter and sympathetic to her situation, the record also re

veals the prema

ture dea th of a young man and horrible injuries to several young people, all cause d by t h e defen dant’s in tention al decisio n to drive a t excessive speeds and illegally pass a slower vehicle on a double yellow line. Although the accident occurred in daylight on a flat r oad with no apparent

obstructions, the

defendant failed to applyher brake s prior to h itting the Bowlings’ ca r, wh ich sup ports the notion that the defendant failed to even look for oncoming traffic befo re pulling across the double yellow line to illegally

pass Mr. Gibson <

s car. It is also quite telling of the defendant’s behav ior that just prior to the accident, she had passed another car under similar circumstan ces, narrowly avoiding another care less accident andforcing another driver to pull out of

her way. Under these circumstances, we cannot find an abuse of dis cretion in t he district attorney general’s decision to provide a deterrent, uphol d the ends of justice, protect th e public inter est and not d epreciate this offense by denying diversion. Based upon this
same evidence in the record,we also reject the defendant’s suggestion that Mr. Bowling’s death and the others’ injuri es were not the result o f an intentional act or acts.
Moreover, we conclude that the decision to deny div ersion is sound even9

though the assistant

district attorney general may not have fully elaborated why he relied
more heavily on some factors than on others. We emphasize that the decision to rely on
some factors more hea vi ly than o thers should be fully ex plained in writing

in order to create a clearer record on rev iew. See Winsett , 882 S.W.2d at 810; Herron , 767 S.W.2d at 1 56. Here, even though the assistant district attorney general may not have fully explained in writing hi s decisio n to give cer tain fac tors prior ity over oth ers, he did state in writing that he r

eviewed each and ever y factor presented by the defendant but elected to deny the defendant’s request based upon c ertain enumerated reasons. The assistant district attorney

general offered further explanation at the hea ring, where he again stated he considered all relev ant factors and did not dispute any of the information submitted byth e defendant, but that even so, he must deny the defendant’s application becaus e he believed the public interest and the ends of justice would be better served by a denial. Contr ary to the defendant’s assertions, then, the assista nt district attorney general did state for the record that he was givi ng some factors priority o ver others and, to an ex tent, he did explain his decis ion to do so. While, as we have previous ly stated, he could have been more exp licit and unambiguous in hi s explanation, we cannot find an abuse of discretion on this basis in the record.

We address one last point rai sed by the defendant. Throughout the defendant’s argument, she reiterates that she met all technical eligibility r

equirementsfor diversion and that there is favorable e vidence for each factor the dis trict attorney gener

al should have consi dered. This argument wi ll not afford the defendant relief. While the defendant bears the initial burden t o demonstrate to the district attorney general both eligibility for and entitlement to pretrial diversion, see Herron , 767 S.W.2d at 156; Winsett , 882 S.W.2 d at 809- 10, mere statutory elig ibility under T.C.A. § 40-15-105(a) does not, standing alone, entitle a defendant to pretr ial diversion. Instead, statutory elig ibility sets10

the stage for the d istrict atto rney general to rev iew the information prov ided by the defendant on the diversion applic ation or gathered t hro ugh a pretrial inves tigation pursuantto T.C.A. § 40-15-104 and to deter mine i f th e defendant is entitled to pretri al diversion. Here, the fact th at t he defendant has favorable evidence relating to each relevant consideration does not mean she is automatically entitled to diversion. Neither does it discount the factors the di strict attorney general determined should have prior ity. Quite simply, the

district attorney general’s failure to grant diversion to a defendant w ho is merely technicall

y eligible does not i

tself amount to an abuse of discretion.

In sum, none of the defendant’s arguments show how the district attorney general abused his discretion in denying her appl i cation for pretrial div ersion. According ly, we affi rm.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ PAUL G. SUMMERS, Ju dge

______________________________ CORNELIA A. CLARK , Special Judge