State v. Josephine C. Skidmore , 1999 Tenn. Crim. App. LEXIS 771 ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY SESSION, 1999 July 30, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9804-CR-00159
)
Appe llant, )
)
) DAVIDSON COUNTY
VS. )
) HON . SETH N ORM AN
JOSEPHINE SKIDMORE, ) JUDGE
)
Appellee. ) (Pretrial Diversion)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN KNOX WALKUP CHARLES R. RAY
Attorney General and Reporter JEFFERY S. FRENSLEY
211 T hird Aven ue No rth
DARYL J. BRAND P. O. Box 198288
Associate Solicitor General Nashville, TN 37219-8288
425 Fifth Avenu e North
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
KATRIN MILLER
Assistant District Attorney
222 Se cond A venue N orth
Nashville, TN 37201-1649
OPINION FILED ________________________
REVERSED AND REMANDED
JERRY L. SMITH, JUDGE
OPINION
The appellee, Jose phine S kidmo re, was ind icted by the Sum ner Co unty
grand jury with one (1) count of forgery and one (1) count of making, presenting
or using a false document with the intent that it be taken as a genuine
governmental record. She applied for pretrial diversion, which was denied by the
district attorney. Skidmore subsequently filed a petition for writ of certiorari with
the trial court to review the district attorney’s denial of pretrial diversion. The trial
court found that the assistant district attorney abused her discretion and placed
the appellee on pretrial diversion for a period of one (1) year, which would run
retroa ctively from the date of the indictment. The state appeals, claiming that the
trial court erred in (1) reversing the district attorney’s decision to deny pretrial
diversion, and (2) ordering a retroac tive diversionary period. After a thorough
review of the record before this Court, we conclude that the trial cou rt erred in
finding that the district attorney abused her discretion and, accordingly, reverse
the judgm ent of the tria l court.
I.
The appellee is an alderman for the City of Hendersonville, as well as a
Sumner County commissioner. In June 1996, Karen Martin obtained a petition
from the appe llee in support of Ray Rollins to be appointed to a vacant seat on
the county co mm ission. Skidmore prepared the petition by photocopying seven
(7) pages from an earlier petition which opposed a zoning change. She then
changed the heading of the petition to support Rollins as county com missioner.
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Initials were added in the margins alongside severa l name s, accord ing to
Skidmore, to indic ate tho se ind ividuals who a ssen ted to u se the ir nam es in
support of Rollins’ n omina tion. Martin p resente d this petition to the cou nty
commission on June 17.
Subseq uently, District Attorney General Lawrence Ray Whitley requested
that the Tennessee Bureau of Investigation conduct an investigation into the
matter. TBI Agent Richard Stout conta cted m any of th e individ uals listed on the
Rollins petition to verify whether these individuals agreed to support Rollins in the
petition. Nearly all of the individuals contacted denied signing or initialing the
Rollins petition and could not recall being contacted in regards to the Rollins
petition.
General Whitley recused himself and his office from the matter, and Victor
S. Johnson, III was appointed as special prosecutor in this case. The Sumner
Coun ty grand jury indicted the appellee with one (1) count of forgery and one (1)
count of making, presenting, or using a false document with the intent that it be
taken as a genuine governmental record. The appellee subsequently applied for
pretrial diversion.
At the time of her application, the appellee was sixty-seven (67) ye ars old
with no prior criminal record. She is a widow and has two (2) living children. She
worked in her daughter’s law office and has held positions as an alderman for the
city of Hende rsonville and a Su mner County commissioner. In support of her
application, the appellee submitted approximately fifty (50) letters from neighbors,
colleagues and friends attesting to her good moral character and active
comm unity involvem ent.
The appellee also intim ated tha t her pros ecution w as initiated a s part of a
“political vendetta” against her. In support of this position, defense counsel
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subs eque ntly submitted a letter which detailed other instances of falsification of
governmental documents which were not prosecuted by the District Atto rney’s
Office for th e Eighte enth Ju dicial District.
In her letter de nying pre trial diversion , Assistan t District Attorn ey Ka trin
Novak Miller recognized the factors favorable to the appellee, including her lack
of a criminal record. Miller stated, “Ms. Skidm ore appea rs to be a n em otiona lly
stable and responsible individual. She has no history of substance abuse. She
is a responsible and respected member of her community. The likelihood of her
ever becom ing involved in a crim inal matter aga in seems unlikely.”
Howeve r, Gene ral Miller den ied diversio n base d upon : (1) the
circumstances of the offense; (2) the deterrent effect of punishment on other
crim inal activity; and (3) the likelihood that pretrial diversion will serve the best
interests of the public and the appellee. Miller determined that the reasons fo r
denying diversion “far outweigh[ed]” the relevant factors in the appellee’s favor.
Specifically, she stated:
This office finds that her actions in altering and causing a fraudulent
document to be sub mitted to a public office und ermin es the public
confidence in the governmental process. Petitions supporting
whatever view submitted to whatever body are the public speaking
in its purest form next to the actu al live voice. If the integrity of a
public petition is not maintained, what assurance do any citizens
have in the future of know ing if a signa ture they w illingly give to
support one cause won’t be used to espouse another cause? What
Ms. Skidmore did was to man ufactu re a pe tition wh ich false ly
indicated a public position. Because she is an elected official, she
is in a position of leadership and trust. As she is an example of
good works in her comm unity, she must also be an example of the
consequences of misco nduct. In reviewing cases of pre-trial
diversion denial, the appellate courts have re peate dly held that the
deterrent effect of punishment upon other criminal a ctivity is a factor
which the district attorne y should conside r, . . . Cases in which fraud
is involved, including forgery cases, seem to compose such a
category of offens e whic h by the ir very na ture, ne ed no extrinsic
proof to e stablish the deterren t value of pu nishm ent.
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Miller noted that even though the appellee admitted altering the petition , “she d id
not seem to appreciate the wrongfulness of her actions.” In addition, Miller
rejected the appellee’s allegations that the prosecution was politically motivated
in light of the fact that the Davidson County District Attorney’s Office, rather than
the local d istrict attorney , decided to subm it the matte r to the gra nd jury.
The appellee filed a petition for writ of certiorari to the trial court 1 to review
the district attorney’s denial of pretrial diversion. At the hearing, Assistant District
Attorney Miller testified as to her reasons for denying diversion. When defense
counsel intimated that ADA Miller was influen ced b y the M ayor o f Hen derso nville
in her decision to deny diversion, the trial court interjected, “I will tell you, the
Court knows Gene ral Miller [well] en ough to know th at nobo dy is going to
influence her decision. I full well understand General Miller. Both as judge and
as a former trial lawyer, I know how General Miler is about her opinion in
matters.”
The trial court took the matter under advisement, but subsequently
released an op inion e xpres sing its c once rn that th e pros ecutio n was politically
motivated. The trial court further stated that it was “aware of the requirements”
of State v. Hammersley, 650 S .W .2d 35 2 (Te nn. 19 83), “h owev er the C ourt is
concerned that a c rimina l prose cution might have been motivated by local
politics. This th e Cou rt cann ot allow . This C ourt be lieves th at this is an
approp riate case for diversion.” In a subsequent order, the trial court found that
the prosecutor had abused her discretion in denying diversion and, therefore,
ruled that the appellee be placed on d iversion for a period of one (1) year. The
trial court further determined that “[d]ue to [the appellant’s] cooperation with law
1
All judges from the Eighteenth Judicial District recused themselves from the matter. The
Honorable Seth Norman, Criminal Court Judge, Division Four, for the Twentieth Judicial District was
appointed to hear the matter by interchange.
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enforcement and her conduct during the pendency of this matter, . . . the
diversionary period sh all be retroa ctive to the filing of the indictm ent,”
appro ximate ly one (1) ye ar prior to the filing of the ord er. The refore, the trial
court ordered that the prosecution against the appellee be dismissed, contingent
upon h er paym ent of cou rt costs.
From the trial c ourt’s o rder, th e State of Ten ness ee brin gs this appe al.
II.
The Pretrial Diversion Act provides a means of avoiding the consequences
of a public prosecution for those who have the potential to be rehabilitated and
avoid future criminal charges. Tenn. Code Ann. § 4 0-15-10 5. Pretrial diversion
is extraordin ary relief for wh ich the de fendan t bears the burden of proof. State
v. Baxter, 868 S.W .2d 679, 681 (Tenn. Crim . App. 1993 ).
The decision to grant pr etrial diversio n rests w ithin the discretion of the
district attorney. T enn. C ode An n. § 40-1 5-105(b )(3); see State v. Curry, 988
S.W.2d 153, 157 (Tenn. 1999). In exercising that discretion, the Tennessee
Supre me C ourt has offered this guidan ce:
When deciding whether to enter into a memorandum of
understanding under the pretrial diversion statute a prosecutor
shou ld focus on the defendant’s amenability to correction. Any
factors which tend to accurately reflect whether a particular
defendant will or will not become a repeat offender should be
conside red. . . . Among the factors to be con sidered in addition to
the circumstances of the offense are the defendant’s criminal
record, social history, the physica l and m ental con dition of a
defendant where appropriate, and the likelihood that pretrial
diversion will serve the ends of justice and the best interest of both
the pub lic and the defend ant.
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983). However, “the focus
on amena bility to correction is not an exclus ive one.” State v. Carr, 861 S.W.2d
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850, 855 (Ten n. Crim. App . 1993). Deterre nce of the defe ndant and others is
also a prope r factor to co nsider. Hammersley, 650 S.W.2d at 354. In fact, the
circumstances of the crime and the need for deterrence may outweigh other
applic able factors and justify the denial of pretrial diversion. State v. Lutry, 938
S.W .2d 431, 434 (Tenn. Crim . App. 1996 ).
When deciding whether to grant pretrial diversion, the district attorney
shou ld consider the following factors: (1) the circumstances of the offense; (2) the
defend ant’s criminal record, social history, and present condition, including
mental and physical conditions if appropriate; (3) the deterrent effect of
punishment on othe r criminal a ctivity; (4) the de fendan t’s amen ability to
correction; and (5 ) the like lihood that pre trial diver sion w ill serve the ends of
justice and the best interests o f both the p ublic and the defen dant. State v.
Washington, 866 S.W .2d 950, 951 (Tenn. 199 3).
When denying an application for pretrial diversion, the District Attorney
must clearly articulate the specific rea sons for d enial in the record in o rder to
provide for mea ningful ap pellate revie w. State v. Hammersley, 650 S.W.2d at
355. As stated by the T ennes see Su preme Court, the requirement that the
district attorney consider all relevant factors:
entails more than an abstract state ment in the rec ord that the district
attorney g eneral h as con sidered these fac tors. He must a rticulate
why he believes a defendant in a particular case does not meet the
test. If the attorney general base s his de cision on les s than the full
complement of factors enumerated in this opinion he must, for the
record, state why he considers that those he relies on outweigh the
other submitted for his consideration.
State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989). T he failure o f the record to
reflect that the District Attorney considered all of the applica ble fac tors wo uld
allow a review ing court to find an abuse of discretion . See State v. Carr, 861
S.W.2d at 858.
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The district a ttorney ’s decis ion to g rant or deny p retrial div ersion is
presu mptive ly correc t and s hall be revers ed on ly when the appellant establishes
that there has been an abuse of prosecutorial discretion. State v. Curry, 988
S.W.2d at 158. In order to establish such an abuse of discretion, the record must
show an absence of any substantial evidence to support the district attorney’s
refusal to grant pr etrial diversio n. Id. Therefore , in a close case where the
District Attorney could have legitimately granted or denied the application, the
trial judge must defer to the judgment of the District A ttorney. State v. Carr, 861
S.W.2d at 856.
On appellate review of the judgment of the trial court in diversion cases the
trial court’s findings of fact are binding on an appellate court unless the evidence
preponderates against th ose findin gs. State v. Lutry, 938 S.W.2d at 434.
Therefore, we review to determine whether the trial court’s decision is supported
by a prepo nderan ce of the e vidence . State v. Curry, 988 S.W .2d at 158 ; State
v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997). When reviewing a denial of
pretrial diversion, this Court may no t substitute its judgment for that of the district
attorney’s even if we would have preferred a different res ult. State v. Houston,
900 S.W .2d 712, 714 (Tenn. Crim . App. 1995 ).
III.
In her letter denying dive rsion, the assistant d istrict attorney recogn ized
that the ap pellee was “a n em otiona lly stable and re spon sible ind ividual. She has
no history of sub stanc e abu se. Sh e is a re spon sible and respected member of
her community. The likelihoo d of he r ever b ecom ing invo lved in a criminal matter
again seems unlikely.” However, the assistant district attorney determined that
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pretrial diversion should be de nied based upon (1) the circumstances of the
offense, (2) the deterrent effect of punishment on other criminal activity, and (3)
the likelihood that pretrial diversion w ill serve the best interests of the public and
the appellee. Miller determined that the reasons for denying diversion “far
outweig h[ed]” the relevant factors in the appellee’s favor. She expressed concern
over the fact that the appellee is a public official, and he r actions s erved to
“unde rmine [] the pu blic con fidenc e in the governmental process.” Further, the
assistant district attorney found tha t because this c ase involved fraud, the
deterrent effect of punishment upon other criminal activity was a significant factor
weighing against pretrial diversion. M oreover, she o bserved that even though the
appellee admitted altering the petition, “she did not seem to appreciate the
wrongfu lness of h er actions .”
In its written opinion and subsequent order, the trial court found that the
assistant district attorney abuse d her disc retion in de nying pre trial diversion . The
trial court based its decision solely on its determin ation that the subject
prosecution “might have been motivated by local politics.” We believe that the
evidence in the record preponderates against the trial court’s findings.
First, even if th e reco rd fully su pporte d the a ppelle e’s alleg ations that
District Attorn ey Ge neral L awren ce Ra y W hitley was “politica lly motiv ated” in
initiating the investigation and subsequ ent charges against the appellee,2 the
subjective motiva tions o f the pro secu tion are irreleva nt if, in fact, there is
proba ble cause to believe that the appellee committed the criminal acts as
charge d.
2
This Cou rt doe s not find th at su ch alle gatio ns w ere e stab lished in this r eco rd. T he on ly
“evidence” that this prosecution was politically motivated consists of a letter submitted by defense counsel
alleging various instances of unprosecuted fraudulent conduct committed by other individuals within the
Eighteen th Judicial D istrict.
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Second ly, once the TBI had concluded its investigation into these matters,
the entire case was transferred to the Davidson County District Attorney’s Office
who decided to su bmit the case to the Sum ner Coun ty grand jury. The g rand jury
then returned an indictment charging the appellee with one (1) coun t of forgery
and one (1) count of making, presenting or using a false document with the intent
that it be taken as a genuine governmental record.
Finally and, m ost im portan tly, there is no evid ence in the record to su pport
the allegation that the de cision to deny p retrial div ersion was p olitically motivated.
During his exam ination of A ssistant District Attorney Miller, defense counsel
questioned her about phone calls she had received from the Mayor of
Hen derso nville in connection with this matter. W hen d efens e cou nsel im plied
that Miller m ight ha ve bee n influe nced by the m ayor in her decision to deny
diversion, the trial court interjected, “I will tell you, the Court knows General Miller
[well] enough to know that n obod y is goin g to influ ence her de cision . I full well
understand General Miller. Both as judge and as a former trial lawyer, I know
how Gen eral M iler is ab out he r opinio n in matters.” Thus, the trial court made a
spec ific finding of fact tha t the de cision to den y divers ion wa s not p olitically
motivated.
Allegations of prosecutorial vindictiveness or selective prosecution in the
institution of a prosecution, have constitutional implications that, if proven, may
warrant dismiss al of the ind ictmen t. See Blackledge v. Perry, 417 U.S. 21, 27,
94 S. Ct. 2098, 2102, 40 L. Ed. 2d 628 (1974) (due p roces s ma y be im plicate d if
a prosecutor vind ictively increases a cha rge to a felony after a misdemeanant has
invoked an app ellate rem edy); Wa yte v. United States, 470 U.S. 598, 608, 105
S. Ct. 1524, 1531, 84 L. Ed. 2d 547 (1985) (equal protection standards prevent
selective prose cution on the basis o f race, re ligion, or other arbitrary
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classification). However, as long as the prosecutor has probable cause to
believe that an accuse d com mitted an offense, th e determ ination wh ether to
prosecu te rests entirely within the prosecutor’s discretion, subject to these
constitutional limitations. State v. Superior Oil, Inc., 875 S.W.2d 658, 660 (Tenn.
1994); Quillen v. C rockett, 928 S.W .2d 47, 51 (Tenn . Crim. A pp. 199 5).
In any event, the trial court’s review under Tenn. Code Ann. § 40-15-
105(b)(3) is limited to the question of abuse of discretion concerning the pretrial
diversion decision, not subjective motives concerning the institution of the
prosecution. The trial court must find an abuse of discretion with regard to the
denial of diversion. On th is poin t the trial court specifically found that political
motivations played no part in Assistant District Attorney Miller’s decision to deny
diversion.
The trial court found that this case was “an appropriate case for diversion”
and g ranted diversio n on th is basis . The tr ial cou rt is not at liberty to s ubstitute
its own judgment for that of the district attorney in its review for an abuse of
discretion. See State v. Houston, 900 S.W .2d at 714 . In this case, the assistant
district attorney outlined her reasons for denying diversion in a detailed, four (4)
page letter. She recognized the appellee’s lack of criminal record , her fav orable
social and work history and her amenability to rehabilitation. However, she
determined that the un favora ble factors outweigh ed the favorab le ones and gave
a detailed explana tion as to why the u nfavorable factors were given m ore weig ht.
See State v. Curry, 988 S.W.2d at 158.
Although we believe the question of the ap pellan t’s suitability for diversion
is a close c all, we con clude tha t the trial court s hould have deferred to the
discretion of the prosecutor in her refusa l to divert. As sta ted by th is Cou rt in
State v. Carr,
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It is not the trial court’s function to disapprove the denial whenever
it disagrees with the prosecutor. It is obligated to defe r to the
prose cutor’s discretion when the record contains any substantial
evidence to support the decision. Thus, if the record would s upport
either a grant or a den ial of pretrial diversion, the trial court must
defer to the prosecutor’s discretionary decision. As our Supreme
Court has previously stated regarding a discretionary decision in
another conte xt, if “the evidence would support either conclusion .
. . it cannot be an abuse of discretion to decide the case either wa y.”
861 S.W.2d at 856 (quoting State v. Grear, 568 S.W.2d 285, 286 (Tenn. 197 8)).
IV.
The evidence in the record preponderates against the trial court’s findings
that the district attorney abused her discretion in denying pretrial diversion.3
According ly, the judgment of the trial court is reversed, and the case is remanded
for further proceedings consistent with this opinion.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
DAVID G. HAYES, JUDGE
___________________________________
NORMA MCGEE OGLE, JUDGE
3
Because this Court m ust reverse the trial court’s decision, the issue regarding the propriety of a
retroactive diversionary period is pretermitted.
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