State v. Clark ( 1998 )


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  •           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE             FILED
    MARCH 1998 SESSION            July 16, 1998
    Cecil Crowson, Jr.
    Appellate C ourt Clerk
    STATE OF TENNESSEE,         )
    ) C.C.A. No. 03C01-9706-CR-00227
    Appellant,            )
    ) Sevier County
    V.                          )
    ) Honorable Ben W. Hooper, II, Judge
    )
    DEWEY L. CLARK,             ) (Rule 9)
    )
    Appellee.             )
    FOR THE APPELLEE:              FOR THE APPELLANT:
    Jeff D. Rader                  John Knox Walkup
    Ogle, Wynn & Rader             Attorney General & Reporter
    Attorneys at Law
    103 E. Bruce Street            Timothy F. Behan
    P.O. Box 5365                  Assistant Attorney General
    Sevierville, TN 37864          Criminal Justice Division
    Cordell Hull Building, 2nd Floor
    James H. Ripley                425 Fifth Avenue North
    Sharp & Ripley                 Nashville, TN 37243-0493
    Attorneys at Law
    P.O. Box 4630                  Alfred C. Schmutzer, Jr.
    Sevierville, TN 37864          District Attorney General
    Charles E. Atchley, Jr.
    Assistant District Attorney General
    125 Court Avenue, Room 301 E
    Sevierville, TN 37862
    OPINION FILED: ___________________
    AFFIRMED
    PAUL G. SUMMERS,
    Judge
    OPINION
    The Sevier County Grand Jury indicted the appellee, Dewey L. Clark, on
    four counts of illegally dispensing controlled substances while employed as a
    pharmacist and one count of theft of property (controlled substances) over $500.
    The state denied Clark’s application for pretrial diversion. He filed a petition for
    certiorari in the trial court challenging the state’s decision. The trial court found
    that the prosecutor had abused his discretion in denying diversion. This Court
    granted the state’s application for an interlocutory appeal pursuant to Rule 9 of
    the Tennessee Rules of Appellate Procedure. The issue is whether the trial
    court’s decision is supported by a preponderance of the evidence. We affirm.
    Clark filed a request with the district attorney general to suspend
    prosecution and to be placed on diversion pursuant to Tennessee Code
    Annotated § 40-15-105 (Supp. 1994). This statute provides that certain qualified
    offenders may enter into a memorandum of understanding with the state to
    suspend prosecution for a period of time during which a defendant must comply
    with the terms of the agreement. Upon the successful completion of the
    program, all pending charges must be dismissed. In enacting the statute, the
    legislature thought that society would be better off if certain offenders were
    placed on diversion as opposed to imprisonment. State v. Herron, 
    767 S.W.2d 151
    , 156 (Tenn. 1989).
    The parties stipulated to the facts. The appellee was forty-three years old
    when he applied for diversion. He has no prior criminal record. He graduated
    from Hiwassee College in 1972 and the University of Tennessee School of
    Pharmacy in 1975. Before the present allegations, he had worked for Revco as
    a pharmacist since 1975. He has been married for twenty-four years and has
    two teenage children.
    The appellee submitted evidence in support of his application for pretrial
    diversion. Clark has lived in East Tennessee all of his life, as did his parents. In
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    1991, the appellee suffered a back injury while duck hunting. The appellee’s
    physician, Dr. Alan Whiton, stated in a letter that the appellee’s back condition
    was a painful condition that required prescription pain medication. The appellee
    had continuous problems with his back until he underwent surgery to fuse his
    spine in 1995. Clark is a devoted and loving husband and father. He is an
    active member in his church. Many members of the community, including
    persons in the medical and pharmaceutical profession, wrote letters on Clark’s
    behalf. The letters establish that he has been a respected member of his
    community.
    The prosecutor is vested with the discretion to evaluate and decide which
    applications for pretrial diversion should be granted. Id.; See State v. Carr, 
    861 S.W.2d 850
    , 855 (Tenn. Crim. App. 1993). The following factors should be
    considered in determining whether diversion is appropriate: (1) the
    circumstances of the offense; (2) the criminal record, social history and present
    condition of the defendant, including his mental and physical conditions where
    appropriate; (3) the deterrent effect of punishment upon other criminal activity;
    (4) defendant's amenability to correction; (5) the likelihood that pretrial diversion
    will serve the ends of justice and the best interests of both the public and
    defendant; and (6) the applicant's attitude, behavior since arrest, prior record,
    home environment, current drug usage, emotional stability, past employment,
    general reputation, marital stability, family responsibility and attitude of law
    enforcement. State v. Washington, 
    866 S.W.2d 950
    , 951 (Tenn. 1993) (citing
    State v. Markham, 
    755 S.W.2d 850
    , 852-53 (Tenn. Crim. App. 1988)).
    In his written denial of diversion, the prosecutor states that he has
    “reviewed the materials sent and considered all of the factors.” He states that
    the denial is based on the nature of the offense, an abuse of a position of trust,
    deterrence, and the appellee’s failure to answer certain questions on the
    application for diversion. The prosecutor stated that Clark’s activity was an
    ongoing criminal enterprise and not merely aberrant behavior. He said that
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    1,150 pills were seized when a search warrant was executed at the Clark
    residence; that the appellee was caught on videotape taking controlled
    substances from Revco; that an inventory of the bay in which the appellee
    worked showed a shortage of 11,907 pills; and that the state had a witness who
    had purchased illegal drugs from the appellee. The prosecutor’s second basis
    was that as a professional pharmacist, Clark abused his position of trust with
    Revco and the community. The prosecutor’s third basis was that the illegal sale
    of controlled substances is an escalating problem in Sevier County, and the need
    for general and specific deterrence is great. Finally, the prosecutor said that
    Clark’s failure to respond to two questions on the state’s application for diversion
    reflected adversely on his attitude. The questions were whether Clark was under
    the influence of drugs or alcohol when the offense(s) occurred and a request for
    a recitation of the facts of the offense(s) from his standpoint.
    Clark filed a writ of certiorari with the trial court. The court may overturn a
    denial of an application for diversion upon a finding of an abuse of discretion.
    
    Tenn. Code Ann. § 40-15-105
    (b)(3). The trial court must defer to the
    prosecutor’s discretion when the record contains any substantial evidence to
    support the prosecutor’s decision. Carr, 
    861 S.W.2d at 856
    .
    The record before the court was the appellee’s application for pretrial
    diversion, the state’s response denying diversion, and the appellee’s petition for
    certiorari. Although the appellee disputes the facts relied upon by the state, no
    evidentiary hearing was held to resolve the disputes. See State v. Pinkham, 
    955 S.W.2d 956
     (Tenn. 1997). The court heard arguments of counsel and took the
    matter under advisement. In its very thoughtful and thorough order, the court
    found that the prosecutor failed to consider the appellee’s amenability to
    correction and factors that favored granting diversion. The prosecutor also failed
    to explain why the factors favoring diversion were outweighed by those factors
    relied upon to deny diversion. The court found that the state abused its
    discretion and that there was no substantial evidence to support the denial of
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    diversion. The court found that there are no adverse circumstances relative to
    the appellee’s history, attitude, behavior since arrest, home environment, current
    drug use, current alcohol use, emotional stability, employment history, general
    reputation in the community, marital stability, family responsibility, or attitude
    toward law enforcement. The court found the that appellee’s background and
    character were “absolutely exemplary” and “especially compelling.”
    The court found that the prosecutor had failed to articulate facts or details
    to support general or specific deterrence as a basis for denying diversion. The
    court found that the appellee’s failure to answer the questions on the state’s form
    for pretrial diversion did not reflect adversely on the appellee’s suitability for
    diversion. The court said that the appellee was not required to admit guilt to
    apply for or receive diversion. See State v. King, 
    640 S.W.2d 30
     (Tenn. Crim.
    App. 1982). The court did not address the state’s position that the appellee
    violated a position of trust. The court said that, in this case, the offenses and the
    facts surrounding the offenses were insufficient, standing alone, to deny pretrial
    diversion.
    On appeal, the state argues that the evidence in the record preponderates
    against the trial court’s finding of an abuse of discretion. The state concedes
    that it denied pretrial diversion mainly on the “overwhelming nature and
    circumstances of the offense.” The state argues that the circumstances alone
    may be the sole basis for denying diversion. The state further argues that
    amenability to correction only comes into play if the circumstances of the offense
    are not overwhelming. The appellee argues that the trial court correctly held that
    the prosecutor abused his discretion because (1) he did not articulate the factors
    and particularize the reasons upon which his denial was based and (2) because
    the prosecutor failed to consider evidence which tends to show that the appellee
    is amenable to correction and not likely to commit further acts.
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    On appeal, we review the record to determine whether the trial court’s
    decision is supported by a preponderance of the evidence.1 State v. Pinkham,
    
    955 S.W.2d 956
    , 960 (Tenn. 1997). First, the prosecutor should have stated in
    his written denial all factors that he considered in denying diversion. “If the
    district attorney denies pretrial diversion, the denial must include both an
    enumeration of the evidence that was considered and a discussion of the factors
    considered and weight accorded to each.” 
    Id. at 960
    . Although this may seem
    unnecessary and time consuming to the prosecutor, it is necessary for trial court
    and appellate review. In this case, the prosecutor was allowed to address the
    court. However, the record still does not establish that the prosecutor
    considered the factors favoring amenability to rehabilitation. At the hearing, the
    prosecutor said that there was no need to discuss the factors which were not the
    basis of the denial in his letter to the appellee. Indeed on appeal, the state
    argues that the prosecutor does not have to consider such factors if the nature of
    the offense is particularly significant or flagrant. We disagree. While the nature
    of the offense alone can support a denial of diversion in certain cases, the
    prosecutor must consider all relevant factors in making his or her decision to
    grant or deny diversion. 
    Id. at 959-60
    ; Carr, 
    861 S.W.2d at 855
    . Amenability to
    correction is definitely an important and relevant factor. See Carr, 
    861 S.W.2d at 855
    . Therefore, the evidence does not preponderate against the trial court’s
    finding of an abuse of discretion based on the failure to consider the appropriate
    factors.
    The evidence supports the trial court’s finding that there is no evidence of
    a need for general or specific deterrence. The prosecutor offers no specific fact
    or detail to support his conclusion that the illegal sale of controlled substances is
    an escalating problem in Sevier County. We agree that the appellee’s failure to
    “tell his side of the story” and admit whether or not he was on drugs at the time of
    1
    In State v. Carr, 
    861 S.W.2d 850
    , 856 (Tenn. Crim. App. 1993), the Court stated that the
    presumption of correctness applies to the trial court’s f actual findings; and , that when the record calls
    for no factual findings, then the issue on appeal is whether, as a matter of law, the prosecutor abused
    his discretion in denying diversion. There were no factual findings in either Pinkham or Carr so there
    seems to be a conflict in the appropriate standard of review in such cases.
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    the offense, as requested by the state, is not indicative of a failure to cooperate.
    Both questions can be read to ask for admissions of guilt. Refusing to answer
    these types of questions should not reflect poorly on the appellee’s attitude or
    amenability to correction especially when he was instructed by his attorney not to
    answer. The trial court did not address the abuse of a position of trust. “‘The
    determination of the existence of a position of trust does not depend on the
    length or formality of the relationship, but upon the nature of the relationship.
    Thus, the court should look to see whether the offender formally or informally
    stood in a relationship to the victim that promoted confidence, reliability, or faith.
    If the evidence supports that finding, then the court must determine whether the
    position occupied was abused by the commission of the offense.‘” State v.
    Leggs, 
    955 S.W.2d 845
    , 849 (Tenn. Crim. App. 1997) (quoting State v.
    Kissinger, 
    922 S.W.2d 482
    , 488 (Tenn.1996)). This factor is not applicable to
    the appellant’s position as a pharmacist on the facts of this case. Finally, the
    evidence does not preponderate against the trial court’s finding that the nature
    of the offense alone is insufficient in this case to support a denial of diversion.
    The state notes that during oral argument, the court said that the evidence
    could support either a denial or a grant of diversion. When the evidence will
    support either a grant or denial, then the prosecutor has not abused his or her
    discretion. Carr, 
    861 S.W.2d at 855
    . However, the court took the matter under
    advisement and wrote a thorough explanation of the law and findings of fact.
    We believe that the trial court’s order controls.
    The judgment of the trial court is affirmed.
    _______________________
    PAUL G. SUMMERS, Judge
    CONCUR:
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    _______________________________
    JOHN H. PEAY, Judge
    _______________________________
    CORNELIA A. CLARK, Special Judge
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