# FILED
January 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE SEPTEMBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. # 01C01-9606-CR- 00231 Appellee, * SUMNER CO UNTY VS. * Hon. Jane W . Wheat craft, Judge BUFFY M. TWADELL, * (Pretrial Diver sion) Appellant. *

For Appellant : For Appellee : Steven F. Glaser Charles W. Burson Assistant Public Defender Attorney General and Repor ter Eighteenth Judicial Di strict 117 East Main Street Karen M. Ya cuzzo Gallatin, TN 37066 Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 Thomas Dean Assistant District A

ttorney General 113 West Main Street Gallatin, TN 37066

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Buffy Mae Twadell, has been i ndicted on two counts of aggravated perjury. Tenn. Code Ann. § 39-16-703. The dis trict attorney gener

al denied the defendant's application f or pretrial diversion. Thereafter, the trial court denied her petition for a wr it of certiorari. In thi s extraordinary appeal made pursuant to Rule 10 of the Tennessee Rul es of Appellate Procedure, the defendant insists that the distri ct attorney general abus ed his discretion by the denial of pretrial diversion. We affirm the judgment of the trial court.
The allegations in the indictment provide, in part, as follows: Count One: [That the defendant] ... on or about the 26th day of September, 1995, ... did, w ith intent to deceive, make a false statement under oath in an offici al proceed ing, to []wit:the tri al of Buffy Ma e Twadell v. Bradley Dayne Twadell in the Chancery Court of Sumner County, Tennessee, and said false statement was material and consisted of [the defendant] testifying that on October 7, 1994, Bradley Dayne Twadell struck her at her residence, pushed her off the porc h and that the police made him leave.... Count Two: [That the defendant] on or about 26th day of September, 1995, ... did, with intent to deceive, make a false statem ent under oath in an officia l proceeding, to[]wit: the tr

ial of Buffy Mae Twadell v. Br adley Dayne Twadell in the Cha ncery Cour t of Sum ner Count y, Tennessee, and said false statement w as material and consisted of [the defendant] testifyin g that during the period of October 28, 1994, throug h July 1, 1995 she endorsed the checks she recei ved from AFDC over to the Tennessee Department of Human Serv ices, Fiscal Services Division, and did not keep the proceeds of said checks....
The defendant made a formal request for pretr ial diversion. In response, the district attorney general, while acknowledging the defendant's eligibility for c

onsideration, rejected the app lication, concluding that perjury was not warranted by her fear of l osing custody of her chi ld. The district attorney general3 observed that the defendant had refused to recant her perjury w

hen given the opportunity by the chanc ellor, who had presided in the divorce case, to do so on the witness stand; he found that the d efendant "stubbornly insisted on the truth of statements which are now known to have been false." H e reasoned that the defendant had steadfastly refused to "set the record straight" and th at her fabrication extended "over a long period of time." The distr ict attorney concluded that the nature and circumstances of the crime of perjury ov errode the fact that the defend ant had n o prior crim inal convi ctions an d had oth erwise bee n a produ ctive member of her community. He observed that the def endant lacked candor in making only a partial

confession and was unrepentant i n attitude.
At the conclusion of the hearing on the petition for certiorar i, the trial court determined that the defendant had del iberately lied to the c hancellor and that the nature and degree of the offense indicat ed a lack of amenability to r ehabilitation. In declining to overr

ule the district attorney general, the trial cour

t specifically reli ed upon a decision by this c ourt in State v. Perry , 882 S.W.2d 357, 360 (Tenn. Crim. App. 1994): Perjury strikes at the very heart of the jud icial system because it "offends the basic princi ples underlying our judicial system" as w

ell as threatens the vitality of the system (citing Wilder v. Wilder , 863 S.W.2d 707, 713 (Tenn. App. 1992)).... The seriousness of th e offense is predicated upon the possibili ty that the perjured testimony may result i n a miscarriage of justic e. A convincing and cunning witness who gi

ves perjured testimony may be deemed more cr edible than a honest, less convincing w

itness.
Whether to grant or deny an application f or pretrial diversion is within the discretion of the distri ct attorney general. Tenn. Code Ann. § 40-15-105; State v. Hammersley , 650 S.W.2d 352, 353 (Tenn. 1983); State v. Carr , 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). On a petition for certiorari

after a refusal by the4 district attorney to grant diversion, the hearing conducted by the trial judge is limi ted to two issues:

(1) whether the accuse d is eligible for div

ersion; and (2) whether the attorney general abused his discretion in refusing to divert the a

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

In making the initial deter mination, the district attor ney must consider (1) the circumstances of the offense; ( 2) the defendant's criminal rec ord; (3) the defendant's social history ; (4) the defendant's physic al and mental condition; (5) the deterrent effect of punishme nt upon other criminal activity; (6) the defendant's amenability to correcti on; (7) the likelihood that pretrial diversi on will "serve the ends of justice" and the best interest s of the defendant and the public; and (8) the defendant's "attitude, behavior s ince arrest, prior r ecord, home environment, curr ent drug usage, emotional stabi lity, past employment, g eneral reputation, marital stability, family r

esponsibility, and atti

tude of law enforcement." State v. Washington , 866 S.W.2d 950, 95 1 (Tenn. 1993) ( quoting State v. Markham , 755 S.W.2d 850, 852-53 (Tenn. Crim. App. 1988)). The natur e and circumstances of the alleged offenses are not only appropriate factors to be consi dered upon application for diversi on but may alone provide a sufficient basis for denial. Carr , 861 S.W.2d at 855; State v. Sutton , 668 S.W.2d 678, 68 0 (Tenn. Crim. App. 1984).

The circumstances of the case and a g eneralized need for deterrenc e, however, "cannot be gi ven controllingweight unless they are 'of such overwhel ming significance that they [ necessarily] outw eigh all other factors.'" Washington , 866 S.W.2d at 951 (empha sis and alteratio n in original) (quotin g Markham , 755 S.W.2d at 853). Where there are no "such exceptio nal circumstances, 'the di strict attorney general must consider evidence which tends to show that the applicant is amenable5 to correction [by div

ersion] and is not likel

y to commit further crimin al acts.'" Id. (alteration in origi nal); see also State v. Winsett , 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993).

In State v. Herron , 767 S.W.2d 151, 156 (Tenn. 1989), our supreme court expounded upon the duties o f the district attorney g eneral in making the init ial assessment: This requirement entails mor e than an abstract statement in the record that the distr ict attorney general

has considered these factors. He must articulate why he believes that a defendant in a par ticular case does not meet the test. If the attorney g eneral bases his decision on less than the full complement of factors enumerated in this opinion he must, for the r ecord, state why he considers that those he relies on outweigh the others submitted for his considerati on. "The decision of a district attorney g eneral granting or denying pretria l diversion to an accused is said to be 'presumptiv ely correct'; and the d ecision should not be set aside unless there has been a 'patent or gross abuse of prosecutorial discr etion.'" Perry , 882 S.W.2d at 360 ( quoting Pace v. State , 566 S.W.2d 861, 870 (Tenn. 1978)). See State
v. Charles A. Pinkham, Jr. , ____ S.W.2d ____, No. 02S01-9611-CR-00096, slip op. at 2 (Tenn., at Jackson, November 17, 1997)(holding the distri ct attorney must state "the factual basis and rationale for deny ing diversion").

In our view, the tri al cour t's de cision to uphold the denial of diversion is supported by a preponderance of the evi dence. See State v. Hou s ton , 900 S.W.2d 712, 715 (Tenn. Crim. App. 1995). W e hold that the district attorney general's rejection of the defendant's application for pretrial diversion was for th e most part warranted by the particular nature and ci rcumstanc es of the alleged crimes. The denial of pretrial diver sion in a perjury case sen ds an important message to those who may becalle d to testify in a court of law. The integrity of the judici al system is at issue. While6 amenability

to correction remains

paramount in theconsideration of pretrial diversion, general deterrence is also import ant in this particular i nstance. See Hammersley , 650 S.W.2d at 354. So is an aversion to contr ition.

While the defendant has no prior crimi nal record, supports her child, has family support, and otherwise ha s a good social history, this court cannot hold, under these circumstances, that t here was an abuse of discretion on the part of the district attorney general.

Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ Thomas T. W oodall, Judge

_____________________________ Curwood Witt, Judge