State v. Holmes ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MARCH 1998 SESSION July 7, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9707-CR-00243
Appellee, )
) Hamblen County
V. )
) Honorable James E. Beckner, Judge
MICHAEL DURAND HOLMES, )
) (Pretrial Diversion)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
Greg W. Eichelman John Knox Walkup
District Public Defender Attorney General & Reporter
Ethel P. Laws Sandy C. Patrick
Assistant District Public Defender Assistant Attorney General
1609 College Park Drive, Box 11 Criminal Justice Division
Morristown, TN 37813-1618 425 5th Avenue North
2nd Floor, Cordell Hull Building
Nashville, TN 37243-0493
C. Berkeley Bell
District Attorney General
510 Allison Street
Morristown, TN 37813
OPINION FILED: _______________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Michael Durand Holmes, appeals from the judgment of the
Criminal Court of Hamblen County, affirming the district attorney general’s denial
of pretrial diversion. The appellant seeks to divert the offense of delivery of a
controlled substance, crack 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 pretrial diversion. 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 until November 1996. During the time
between the delivery and his arrest, the appellant became a member of the
Praise World Outreach Center and was apparently attempting to change his life.
The appellant requested pretrial diversion, characterizing the delivery as a “one-
time incident.” District Attorney General Berkeley Bell denied his request.
The appellant argues that the trial court erred in finding no abuse of
discretion by the district attorney general. His argument is based upon three
factors used to deny him diversion: the circumstances of the offense, his prior
criminal behavior, and his reputation in the community.
With respect to the circumstances of the offense, the district attorney in
his written denial of pretrial diversion cited the following:
The undercover agent approached 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 vernacular of the trade, responded
in the affirmative and sold the undercover agent seven (7)
rocks of crack. As the agent was concluding the transaction
he obtained the defendant’s beeper number to call for
future transactions.
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First, the appellant asserts that the district attorney abused his discretion by
considering the preceding unsworn allegations. In his brief, the appellant notes
that the district attorney “did not file the transcript of the transaction, he did not
subpoena the officers for the certiorari hearing, [and] he admitted that all the
court could go on was his own say so.” He contends that the district attorney
general “did not establish what actually occurred in his investigation with
witnesses, affidavits, or even letters.” At the certiorari hearing, General Bell,
who had been counsel for the state, became the only witness for the state, and
Assistant District Attorney John Dugger became counsel for the state. The
appellant argues that “the Attorney General became the witness 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 discretion:
The circumstances of the offense. The circumstances of the offense are
not unusual except for the indication that the undercover agent could
get back in touch with the defendant through his beeper 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 transactions. So that would be negative, of
course.
Second, the appellant argues that his criminal record should not be used
to disqualify him from pretrial diversion. First, the charge for theft under $500,
which occurred on the same day as the charge in the instant case, stemmed
from a video. The appellant paid off the video, and the charges were dropped.
Second, because he forfeited a cash bond, the appellant argues that charges of
public intoxication, disorderly conduct, and public profanity on June 11, 1994 do
not disqualify him from pretrial diversion. Therefore, the appellant maintains that
his criminal record is minimal and should not preclude him from pretrial diversion.
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Lastly, the appellant argues that he “presented credible evidence as to his
reputation and that evidence was not refuted.” He presented two letters from
churches, an employer letter, 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. Also, in his written
denial, the district attorney states, “[t]here is no evidence of the defendant’s
social history prior to his criminal conduct in this case.” The appellant argues
that his mother, Barbara Holmes, in her letter describes the appellant’s years
from birth to college. Furthermore, the appellant asserts that the district attorney
abused his discretion by referring to and considering matters outside the record.
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 bicycle and sold cocaine. The appellant maintains that
none of these allegations was in any of the discovery materials given to the
appellant and none was even mentioned before the denial of the request for
pretrial diversion.2 Therefore, the appellant contends that “the District Attorney
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 regarding his reputation in the community. The appellant
also disputes the trial court’s characterization of his criminal record as “some
pretty horrible conduct,” arguing that there is no proof in the record to support
such a characterization.
The state argues that the trial court did not err in concluding that the
district attorney general did not abuse his discretion. On the issue of the
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 district attorney’s written denial of pretrial diversion states: “The Defendant’s reputation
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.”
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circumstances of the offense, the state asserts that the “conversation between
the defendant and the undercover agent clearly indicated that the defendant was
rather knowledgeable in the trade and intended to conduct additional drug sales
in the future.” The state contends that the circumstances surrounding the
offense indicate “a sustained intent to violate the law” and not a “one-time
incident” as the appellant maintains.
Next, the state asserts that the appellant’s prior criminal offenses were
properly relied upon in denying diversion. It argues that the appellant’s failure to
appear on one charge “reflects poorly on the defendant’s rehabilitative qualities.”
Thus, the state maintains that the district attorney did not abuse his discretion.
The state cites the appellant’s reputation among law enforcement officers
as “Little Mike,” a bicycle-riding cocaine dealer, as another reason for denying
pretrial diversion. In its brief, the state contends that “the prosecution had, at the
time of its initial consideration, an affidavit from a Drug Task Force official stating
this defendant’s reputation.”
The decision to grant pretrial diversion rests 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 should consider the following factors: circumstances of the
offense; the criminal record, social history, and present condition of the
defendant, including his mental and physical conditions where appropriate; the
deterrent effect of punishment upon other criminal activity; the defendant’s
amenability to correction; the likelihood that pretrial diversion will serve the ends
of justice and the best interests of both the public and the defendant; and the
applicant’s attitude, behavior since arrest, prior record, home environment,
3
Neither side disputes the appellant’s eligibility for pretrial diversion.
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current drug usage, emotional stability, past employment, general reputation,
marital stability, family responsibility, and attitude toward law enforcement. State
v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983).
The district attorney general’s decision regarding pretrial diversion is
presumptively correct, and the trial court will only reverse the decision when the
appellant establishes that there has been a patent or gross abuse of
prosecutorial discretion. State v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim.
App. 1995). To establish abuse of discretion, “‘the record must show an
absence of any substantial evidence to support the district attorney general’s
refusal to grant pretrial diversion.” Id. The trial court may only consider evidence
considered by the district attorney general in the decision denying pretrial
diversion. State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993).
The findings of the trial court are binding on this Court unless the
evidence preponderates against such findings. Houston, 900 S.W.2d at 715.
We review the case to determine if the evidence preponderates against the
finding of the trial judge who holds that the district attorney general has or has
not abused his discretion, not to determine if the trial judge has abused his or her
discretion. State v. Watkins, 607 S.W.2d 486, 489 (Tenn. Crim. App. 1980).
First, we are troubled by the filing of the affidavit of Mike Long and the
transcript of the drug transaction between the appellant and the undercover
agent. As the appellant notes in his brief, the affidavit of Mike Long of the Third
Judicial District’s Drug Task Force was filed on March 21, 1997, which was two
days after the certiorari hearing on March 19, 1997; and it was filed without a
certificate of service, which the appellant argues is a violation of Rule 49(a) of
the Tennessee Rules of Criminal Procedure. Also, the transcript of the drug
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transaction between the appellant and the undercover agent was not filed until
July 11, 1997, some four months after the hearing, although the district attorney
and appellant’s counsel referred to the transcript during the hearing. We are
troubled that when the transcript was filed, it was not signed as being received by
anyone in the clerk’s office. 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.
However, the record does not contain such material as a second exhibit. We
note the timing of the filings and their inadequacies, as well as the failure to file
materials, to emphasize the importance of maintaining a correct and complete
record and of following procedural rules. We have only the record upon which to
base our decision, so the importance of maintaining an accurate record cannot
be overstated.
Although we find the instant record troubling, we do have enough
information upon which to adjudicate this appeal. Appellant argues that he is not
a drug dealer, and this sale was an isolated incident. The conversation between
the appellant and his buyer indicates trade knowledge and appellant’s
willingness to sell drugs again in the future. The trial court found in his order that
the appellant’s actions “were not a casual flirtation with criminal conduct. . . .”
The appellant’s “apparent repetitive drug dealing [is] strongly indicative, 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 counsel’s persuasive arguments about the
prosecution’s method of handling this case, we are cognizant of the other side of
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the coin. A district attorney general cannot personally know everything about
every crime and defendant when a diversion request is filed. He or she must rely
on the collective knowledge of law enforcement, including hearsay; investigative
reports; witness statements; memoranda; and staff. Reliance on hearsay is
proper and reasonable. The prosecutor should know all he or she can when the
diversion decision is made. They should follow the guidance of State v.
Pinkham, 955 S.W.2d 956 (Tenn. 1997) so that factual disputes are minimal.
The trial judge should confine consideration to the evidence considered by
the prosecutor at the time he or she considered the application. State v. Brown,
700 S.W.2d 568, 570 (Tenn. Crim. App. 1985). The appellant argues that the
trial judge considered evidence not available to the district attorney at the time of
the decision in making his determination that there was no abuse of discretion.
Appellant cites the drug transaction transcript; Mike Long’s affidavit; the
appellant’s reputation; the Department of Correction Specific Data Report; and
other information. This may be true, but this Court must apply reason to see if
the prosecutor did his job.
We conclude that some information not available to 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 application for pretrial diversion, a written denial of
diversion, and the procedure for conducting a certiorari review hearing. We
concluded in Winsett “that the only evidence the trial court may consider at the
certiorari hearing is that evidence considered by the prosecutor in the 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 would be the same. Although the
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certiorari hearing contained evidence that went beyond Winsett, we believe that
General Bell did have enough information, although he could have had much
more, to warrant a diversion denial. The appellant apparently had prior drug
dealing experience and was willing to continue. He had a reputation as a drug
dealer. He had prior criminal behavior and a modest record. These were
enough factors to allow General Bell to make a cognizant decision.
The record does not preponderate against the trial court’s findings. The
judgment is affirmed.
__________________________
PAUL G. SUMMERS, Judge
CONCUR:
______________________________
JOHN H. PEAY, Judge
______________________________
CORNELIA A. CLARK, Special Judge
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