State v. Jack Roberts

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1999 SESSION
July 23, 1999
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) NO. 01C01-9810-CR-00413
Appellee, )
) PUTNAM COUNTY
VS. )
) HON. LEON BURNS, JR.,
) JUDGE
JACK R. ROBERTS, )
)
Appellant. ) (Pretrial Diversion)
FOR THE APPELLANT: FOR THE APPELLEE:
DONALD G. DICKERSON PAUL G. SUMMERS
310-D East Broad Street Attorney General and Reporter
Cookeville, TN 38501-3304
KIM R. HELPER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM EDWARD GIBSON
District Attorney General
BENJAMIN W. FANN
Assistant District Attorney General
145 S. Jefferson Avenue
Cookeville, TN 38501-3424
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Jack R. Roberts, pursuant to a Tenn. R. App. P. 9
interlocutory appeal, challenges the denial of pretrial diversion by the District
Attorney General and subsequent denial of relief by the trial court. Defendant was
indicted for the Class C felony of aggravated assault and contends the prosecutor
abused his discretion in denying pretrial diversion. After our review of the record,
we AFFIRM the judgment of the trial court.
BACKGROUND
Defendant was indicted for the offense of aggravated assault as a result of
his altercation with John Francisco at a local bar. As a result of the altercation,
Francisco suffered a broken jaw and broken ribs and incurred expenses in excess
of $17,000. Defendant was uninjured.
Defendant submitted a pretrial diversion application to the prosecutor. The
prosecutor also considered an Investigation Report prepared by the Department of
Correction. These documents indicated that the defendant was 42 years old, had
recently re-married, had two adult children by a previous marriage, had no prior
criminal record and had a stable employment history. His application indicated that
he was a high school graduate.1 Also attached to the application were statements
from six individuals vouching for defendant’s character. The Investigation Report
indicated that the defendant enlisted in the Air Force in 1975, but was not allowed
to enter boot camp since he failed the initial drug test. The report further indicated
that defendant stated that “[s]omebody slipped something into my beer.”
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The Investigation Report indicates that the defendant dropped out of high school
after the 11th grade. This discrepancy was not considered by the prosecutor and will be
deemed immaterial for purposes of this appeal.
2
Defendant’s version of the offense in his application indicated that the victim
had been “baiting me into a confrontation” for some period of time prior to the
incident. Defendant indicated that he thought the victim was about to hit him, and
he reacted in self-defense.
The defendant’s version of the offense in the Investigation Report added
other information. Defendant admitted that he referred to the victim as a “midget.”2
The victim asked the defendant if he called him a “midget,” and the defendant
agreed that he did. The defendant stated the victim came up to him in a threatening
way so defendant knocked him to floor, got on top of him and hit him a couple more
times. Defendant further stated that he was “thinking to myself this man is known
to carry a gun strapped to his ankle;” therefore, he kicked him a couple of times in
the chest.
The Assistant District Attorney General denied the request for diversion by
letter dated October 30, 1997. The letter indicated that the prosecutor had
considered the application, the attached character witness letters and the
Investigation Report prepared by the Department of Correction. Based upon the
information provided, the prosecutor concluded that the defendant should not be
granted diversion. In doing so the prosecutor noted the following negative factors:
1. Defendant had exhibited no remorse.
2. Defendant had taken no responsibility for the offense and had
blamed others.
3. Defendant was unable to get into the military due to a positive
drug test, yet blamed another for this occurrence.
4. There were “far too many incidents of this type,” and pretrial diversion
would provide no deterrence.
5. This was a violent, unprovoked attack upon a victim much smaller than
the defendant.
2
The application for pretrial diversion indicated the defendant was 5'11" and
weighed 205 pounds. The prosecutor at the certiorari hearing stated the victim was
“probably about” 5'6" and weighed 130 pounds.
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6. The incident was instigated by the defendant calling the victim
a “midget.”
7. The victim was attempting to leave the establishment when attacked
by the defendant.
8. Defendant administered a severe beating to the victim, including
kicking the victim while the victim lay helpless.
9. The severe beating led to a week’s hospitalization and medical
bills and lost wages totalling over $17,000.
10. Defendant’s statement in his application made no reference to
a belief that the victim carried a gun, whereas the statement in
the Investigation Report indicated to the contrary.
Defendant filed his petition for writ of certiorari to the trial court on November
21, 1997. Several months later on March 13, 1998, he filed a motion with the trial
court to be allowed to amend his application for pretrial diversion to include three
affidavits executed on March 9, 1998. The affidavits indicated that the victim was
known to carry a pistol.
At the certiorari hearing on March 24, 1998, the prosecutor indicated that he
had not considered the recent affidavits, that they were not presented to him at the
time of his original denial, and that the petition for writ of certiorari made no mention
of this issue. The trial court indicated the affidavits “may be filed, and if they are
considered by the state, and they can be. If they’re not, they’re part of the record.”
The trial court entered a written order on June 23, 1998, indicating the affidavits
“were in response to the denial, the affidavits were timely presented and should be
considered as part of the pre-trial diversion application....”
In spite of the controversy concerning the three affidavits, the trial court
carefully considered the various factors outlined by the prosecutor in the denial of
diversion and concluded there was no abuse of discretion in the denial.
Accordingly, the petition was denied.
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STANDARD OF REVIEW
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. See Tenn. Code Ann. § 40-15-105.
Pretrial diversion is extraordinary relief for which the defendant bears the burden of
proof. State v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993); State v.
Poplar, 612 S.W.2d 498, 501 (Tenn. Crim. App. 1980).
The decision to grant or deny an application for pretrial diversion is within the
discretion of the district attorney general. Tenn. Code Ann. § 40-15-105(b)(3); see
also State v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997); State v. Houston, 900
S.W.2d 712, 714 (Tenn. Crim. App. 1995); State v. Carr, 861 S.W.2d 850, 855
(Tenn. Crim. App. 1993). In making the determination, the district attorney general
must consider
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 considered . . . . Among the
factors to be considered in addition to the circumstances of the
offense are the defendant's criminal record, social history, the
physical and mental condition of a defendant where appropriate, and
the likelihood that pretrial diversion will serve the ends of justice and
the best interest of both the public and the defendant.
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983); see also State v.
Washington, 866 S.W.2d 950, 951 (Tenn. 1993); State v. Parker, 932 S.W.2d 945,
958 (Tenn. Crim. App. 1996).
A prosecutor's decision to deny diversion is presumptively correct, and the
trial court should only reverse that decision when the appellant establishes an
abuse of discretion. State v. Curry, 988 S.W.2d 153, 158 (Tenn. 1999); Houston,
900 S.W.2d at 714. The record must be lacking in any substantial evidence to
support the district attorney general’s decision before an abuse of discretion can be
found. Pinkham, 955 S.W.2d at 960; Carr, 861 S.W.2d at 856. The hearing court
must consider only the evidence made available to and considered by the
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prosecutor. Curry, 988 S.W.2d at 157. The trial court may not substitute its
judgment for that of the district attorney general when the decision of the district
attorney general is supported by the evidence. State v. Watkins, 607 S.W.2d 486,
488 (Tenn. Crim. App. 1980).
Our review focuses on whether the trial court’s decision is supported by a
preponderance of the evidence. Curry, 988 S.W.2d at 158. The underlying issue
for determination on appeal is whether or not, as a matter of law, the prosecutor
abused his or her discretion in denying pretrial diversion. State v. Brooks, 943
S.W.2d 411, 413 (Tenn. Crim. App. 1997).
DETERRENCE
Defendant contends the prosecutor improperly relied upon general
deterrence. Although general deterrence is a proper consideration in pretrial
diversion cases, see Hammersley, 650 S.W.2d at 354, the record should support
the need for general deterrence. State v. Kirk, 868 S.W.2d 739, 743 (Tenn. Crim.
App. 1993). Although the prosecutor stated there were “far too many incidents of
this type,” it is unclear whether he meant aggravated assaults generally or
aggravated assaults in local bars. Although the District Attorney General is certainly
in a position to be informed about criminal activity in the district, see State v.
Holland, 661 S.W.2d 91, 93 (Tenn. Crim. App. 1983), the record before this Court
is insufficient to justify reliance upon general deterrence.
FAILURE TO INTERVIEW DEFENDANT AND CHARACTER WITNESSES
Defendant contends the prosecutor unjustifiably refused to interview the
defendant and his character witnesses in spite of defense counsel’s request to do
so. We have been cited no authority, nor are we aware of any authority, which
requires the prosecutor to conduct an interview of the defendant and/or other
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character witnesses suggested by defense counsel. The prosecutor did not abuse
his discretion in failing to do so.
RECENT AFFIDAVITS
Defendant argues the prosecutor abused his discretion in refusing to
consider the affidavits filed with the trial court several days prior to the certiorari
hearing. In a certiorari hearing the trial court should consider only the evidence
considered by the prosecutor. Curry, 988 S.W.2d at 157; State v. Winsett, 882
S.W.2d 806, 810 (Tenn. Crim. App. 1993). Defendant contends the instant case
is distinguishable since this information was submitted to the prosecutor prior to the
hearing. The reason for its submission was the prosecutor’s statements in his
denial letter relating to the victim’s alleged reputation for carrying a gun.
Regardless, it is apparent the prosecutor would have denied diversion in
spite of these three affidavits. The affidavits are arguably relevant to the
defendant’s state of mind at the time of the incident and would relate to self-
defense. It is further apparent this factual issue would not be resolved to the
prosecutor’s satisfaction by the three affidavits. Further, this disputed factual issue
relating to self-defense would not be resolved by the trial court in a certiorari
hearing. Thus, the failure of the prosecutor to consider these affidavits does not
merit relief.
CONCLUSION
Although we have concluded the prosecutor improperly relied upon general
deterrence, this does not foreclose a determination that substantial evidence still
remains to support the denial. Carr, 861 S.W.2d at 857. The prosecutor
considered the favorable information contained in the application for pretrial
diversion and the Investigation Report; however, the prosecutor found other factors
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outweighed this favorable information. In addition to other factors, the prosecutor
relied primarily upon the nature and circumstances of the offense. From the
prosecutor’s perspective, the offense was violent, instigated by the defendant and
involved a victim much smaller than the defendant. Most significantly, the beating
was severe and included kicking the victim while he lay on the floor helpless. The
beating resulted in serious injuries, hospitalization for a week, and expenses in
excess of $17,000.
The only issue is whether the prosecutor abused his discretion in denying
pretrial diversion. Neither the trial court nor this Court may substitute its judgment
for that of the prosecutor if his decision is supported by the evidence. We conclude
there was no abuse of discretion by the prosecutor in the denial of pretrial diversion.
The judgment of the trial court is AFFIRMED.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
JOSEPH M. TIPTON, JUDGE
____________________________
ALAN E. GLENN, JUDGE
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