FILED

August 29, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9612-CR-00465

)

Appellee, )

) CUMBERLAND COUNTY

)

V. )

) HON. LEON C. BURNS, JR., JUDGE

KELLY COLSON, )

)

Appellant. ) (PRE-TRIAL DIVERSION - RULE 9)

FOR THE APPELLANT: FOR THE APPELLEE:

JAMES D. WHITE, JR. JOHN KNOX WALKUP 

101 Green Street Attorney General & Reporter

Celina, TN 38551 

PETER M. COUGHLAN

Assistant Attorney General

425 Fifth Avenue North 

2nd Floor, Cordell Hull Building

Nashville, TN 37243

WILLIAM EDWARD GIBSON 

District Attorney General

DAVID A. PATTERSON

Assistant District Attorney General

74 East Second Street 

Crossville, TN 38555 

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

In an indictment returned by the Cumberland County grand jury, the

Defendant, Kelly Colson, was charged with the offense of vehicular homicide

caused by the reckless killing of the victim as the proximate result of conduct

creating a substantial risk of death or serious bodily injury, in violation of

Tennessee Code Annotated section 39-13-213(a)(1), a Class C felony.

Defendant subsequently filed an Application for Pre-Trial Diversion. The District

Attorney General declined to agree to pre-trial diversion. Subsequently,

Defendant filed a Petition for Writ of Certiorari to the trial court. After a hearing,

the trial court entered an order denying the petition, from which this court granted

Defendant’s Application for Permission to Appeal pursuant to Rule 9, Tennessee

Rules of Appellate Procedure. We affirm the judgment of the trial court.

The District Attorney declined to grant pre-trial diversion to Defendant for

three reasons: (1) Since the offense committed by the Defendant caused the

death to another and was a Class C felony, the granting of pre-trial diversion

would “deprecate the deterrent effect as to this Defendant and others regarding

this serious offense;” (2) the Defendant had been “charged and convicted” of

three other offenses occurring at the same time as the vehicular homicide,

including illegal possession of a radar detector, alteration of a medical certificate,

and “no record of duty status,” which indicated the Defendant was willfully and

consciously violating the law at the time of the offense; and (3) the Defendant had

five (5) speeding violations occurring from February 16, 1993 through May 29,

1995, four (4) of which were issued to Defendant while he was operating a
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commercial vehicle, which demonstrated that the Defendant had previously

operated a motor vehicle on public roads in a manner which was unsafe to

himself and other motorists and did not have the ability or desire to conform his

behavior to the confines of the law.

The Defendant relies upon State v. Hammersley, 650 S.W.2d 352 (Tenn.

1983), and State v. Herron, 767 S.W.2d 151 (Tenn. 1989), in support of his

argument that the prosecutor did not consider all relevant factors in making the

decision to deny pre-trial diversion. The Defendant also argues that the

prosecutor failed to state why the factors he relied upon outweighed the

remaining factors submitted for his consideration. Based upon our review of the

entire record, including the written notice of denial of pre-trial diversion, the

prosecutor’s testimony at the hearing on the Petition for Writ of Certiorari, and the

prosecutor’s statements to the judge, we respectfully disagree with the

Defendant’s assertions. 

We do agree that the first factor relied upon by the prosecutor, that pre-trial

diversion should not be granted in a case of vehicular homicide based upon

conduct creating a substantial risk of death or serious bodily injury, was

inappropriate. In essence, the District Attorney stated that he felt this offense

involving the death of a person should not be considered for pre-trial diversion

because it would deprecate the deterrent effect to the Defendant and others who

might be charged with the same offense. The offense that Defendant is charged

with committing is an offense eligible for consideration of pre-trial diversion. Tenn.

Code Ann. § 40-15-105(a)(1)(A). Therefore, this reason was not proper to deny

pre-trial diversion. See State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983).
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However, as observed by our court in State v. Carr, 861 S.W.2d 850, 857 (Tenn.

Crim. App. 1993), “the fact that one of the reasons given for the denial was

inappropriate, does not foreclose a determination that substantial evidence still

remains to support the prosecutor’s decision.”

The record in this case provides substantial evidence to support the

remaining reasons for the prosecutor to deny Defendant the availability of pretrial diversion. We find that the trial court properly considered the entire record

and arrived at the correct conclusion that the prosecutor had not abused his

discretion. 

The judgment of the trial court is affirmed.

____________________________________

THOMAS T. WOODALL, Judge 

CONCUR:

___________________________________

DAVID H. WELLES, Judge

___________________________________

JOHN K. BYERS, Senior Judge