State of Tennessee v. Buffy Twadell ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1997 SESSION
January 8, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. # 01C01-9606-CR-00231 Clerk
Appellate Court
Appellee, * SUMNER COUNTY
VS. * Hon. Jane W. Wheatcraft, Judge
BUFFY M. TWADELL, * (Pretrial Diversion)
Appellant. *
For Appellant: For Appellee:
Steven F. Glaser Charles W. Burson
Assistant Public Defender Attorney General and Reporter
Eighteenth Judicial District
117 East Main Street Karen M. Yacuzzo
Gallatin, TN 37066 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Thomas Dean
Assistant District Attorney General
113 West Main Street
Gallatin, TN 37066
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Buffy Mae Twadell, has been indicted on two counts of
aggravated perjury. Tenn. Code Ann. § 39-16-703. The district attorney general
denied the defendant's application for pretrial diversion. Thereafter, the trial court
denied her petition for a writ of certiorari. In this extraordinary appeal made
pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, the defendant
insists that the district attorney general abused 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, with intent to deceive,
make a false statement under oath in an official
proceeding, to[]wit: the trial of Buffy Mae 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 porch 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 statement under oath in an official proceeding,
to[]wit: the trial of Buffy Mae 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 during the
period of October 28, 1994, through July 1, 1995 she
endorsed the checks she received from AFDC over to
the Tennessee Department of Human Services, Fiscal
Services Division, and did not keep the proceeds of said
checks....
The defendant made a formal request for pretrial diversion. In
response, the district attorney general, while acknowledging the defendant's
eligibility for consideration, rejected the application, concluding that perjury was not
warranted by her fear of losing custody of her child. The district attorney general
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observed that the defendant had refused to recant her perjury when given the
opportunity by the chancellor, who had presided in the divorce case, to do so on the
witness stand; he found that the defendant "stubbornly insisted on the truth of
statements which are now known to have been false." He reasoned that the
defendant had steadfastly refused to "set the record straight" and that her
fabrication extended "over a long period of time." The district attorney concluded
that the nature and circumstances of the crime of perjury overrode the fact that the
defendant had no prior criminal convictions and had otherwise been a productive
member of her community. He observed that the defendant lacked candor in
making only a partial confession and was unrepentant in attitude.
At the conclusion of the hearing on the petition for certiorari, the trial
court determined that the defendant had deliberately lied to the chancellor and that
the nature and degree of the offense indicated a lack of amenability to rehabilitation.
In declining to overrule the district attorney general, the trial court specifically relied
upon a decision by this court in State v. Perry, 882 S.W.2d 357, 360 (Tenn. Crim.
App. 1994):
Perjury strikes at the very heart of the judicial system
because it "offends the basic principles underlying our
judicial system" as well as threatens the vitality of the
system (citing Wilder v. Wilder, 863 S.W.2d 707, 713
(Tenn. App. 1992)).... The seriousness of the offense is
predicated upon the possibility that the perjured
testimony may result in a miscarriage of justice. A
convincing and cunning witness who gives perjured
testimony may be deemed more credible than a honest,
less convincing witness.
Whether to grant or deny an application for pretrial diversion is within
the discretion of the district 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 the
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district attorney to grant diversion, the hearing conducted by the trial judge is limited
to two issues:
(1) whether the accused is eligible for diversion; and
(2) whether the attorney general abused his discretion in
refusing to divert the accused.
State v. Watkins, 607 S.W.2d 486, 488-89 (Tenn. Crim. App. 1980).
In making the initial determination, the district attorney must consider
(1) the circumstances of the offense; (2) the defendant's criminal record; (3) the
defendant's social history; (4) the defendant's physical and mental condition; (5) the
deterrent effect of punishment upon other criminal activity; (6) the defendant's
amenability to correction; (7) the likelihood that pretrial diversion will "serve the ends
of justice" and the best interests of the defendant and the public; and (8) the
defendant'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) (quoting State v. Markham, 755
S.W.2d 850, 852-53 (Tenn. Crim. App. 1988)). The nature and circumstances of
the alleged offenses are not only appropriate factors to be considered upon
application for diversion but may alone provide a sufficient basis for denial. Carr,
861 S.W.2d at 855; State v. Sutton, 668 S.W.2d 678, 680 (Tenn. Crim. App. 1984).
The circumstances of the case and a generalized need for deterrence,
however, "cannot be given controlling weight unless they are 'of such overwhelming
significance that they [necessarily] outweigh all other factors.'" Washington, 866
S.W.2d at 951 (emphasis and alteration in original) (quoting Markham, 755 S.W.2d
at 853). Where there are no "such exceptional circumstances, 'the district attorney
general must consider evidence which tends to show that the applicant is amenable
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to correction [by diversion] and is not likely to commit further criminal acts.'" Id.
(alteration in original); 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 of the district attorney general in making the initial
assessment:
This requirement entails more than an abstract statement
in the record that the district attorney general has
considered these factors. He must articulate why he
believes that a defendant in a particular case does not
meet the test. If the attorney general bases his decision
on less 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 others
submitted for his consideration.
"The decision of a district attorney general granting or denying pretrial diversion to an
accused is said to be 'presumptively correct'; and the decision should not be set aside
unless there has been a 'patent or gross abuse of prosecutorial discretion.'" 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 district attorney must state "the
factual basis and rationale for denying diversion").
In our view, the trial court's decision to uphold the denial of diversion is
supported by a preponderance of the evidence. See State v. Houston, 900 S.W.2d
712, 715 (Tenn. Crim. App. 1995). We hold that the district attorney general's rejection
of the defendant's application for pretrial diversion was for the most part warranted by
the particular nature and circumstances of the alleged crimes. The denial of pretrial
diversion in a perjury case sends an important message to those who may be called
to testify in a court of law. The integrity of the judicial system is at issue. While
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amenability to correction remains paramount in the consideration of pretrial diversion,
general deterrence is also important in this particular instance. See Hammersley, 650
S.W.2d at 354. So is an aversion to contrition.
While the defendant has no prior criminal record, supports her child, has
family support, and otherwise has a good social history, this court cannot hold, under
these circumstances, that there was an abuse of discretion on the part of the district
attorney general.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Thomas T. W oodall, Judge
_____________________________
Curwood Witt, Judge
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