State of Tennessee v. Jesse Grant Craven, Tommy Davenport & Greg Pope

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 11, 2011 Session
STATE OF TENNESSEE v. JESSE GRANT CRAVEN,
TOMMY DAVENPORT & GREG POPE
Direct Appeal from the Circuit Court for Warren County
No. F-12055 E. Shayne Sexton, Judge
No. M2010-00516-CCA-R9-CO - Filed May 27, 2011
In this interlocutory appeal, the Appellants, Jesse Grant Craven, Tommy Davenport, and
Greg Pope, appeal the Warren County Circuit Court’s order denying them relief from the
prosecutor’s denial of each of their respective applications for pretrial diversion. After a
thorough review of the record and relevant authorities, we conclude that the trial court
properly affirmed the prosecutor’s denial of pretrial diversion. Accordingly, we affirm the
judgments of the trial court.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgments of the Circuit Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D AVID H. W ELLES
and J ERRY L. S MITH, JJ., joined.
John G. Mitchell, III, Woodbury, Tennessee, for the Appellant Jesse Grant Craven.
James Bryan Lewis and James Robin McKinney, Nashville, Tennessee, for the Appellant
Greg Pope.
Edward H. North, Manchester, Tennessee, for the Appellant Tommy Davenport.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Lisa Zavogiannis, District Attorney General, Tomas J. Miner, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Facts
This case arises from a traffic incident wherein a driver hit and killed a child walking
toward her Warren County school bus, whose flashing warning lights and stop sign were not
operating properly. Each of the three Defendants herein was an employee of the Warren
County Board of Education School Bus Garage and was involved in repairing the warning
system on the school bus after the fatal accident. Based on each Defendant’s failure to
disclose these repairs to police, each was indicted on charges of tampering with evidence.
Defendants Craven and Pope were additionally charged with making a false report to law
enforcement personnel. Each Defendant filed an application for pre-trial diversion, which the
State denied. Each Defendant filed a petition for a writ of certiorari appealing the State’s
denial of their application for pretrial diversion.
At the consolidated hearing on the Defendants’ petitions for writs of certiorai, the
following occurred: The parties agreed that little dispute existed about the facts in the case,
and they agreed that those facts were adequately summarized by the State in its denial of the
Defendants’ applications for pretrial diversion. The State filed three separate denials, one for
each respective defendant, and we summarize the facts presented in those denials as follows:
Defendant Pope was employed as a mechanic at the Warren County Board of Education
School Bus Garage. On the morning of April 23, 2009, Barbara Nunley, a bus driver who was
running her normal morning route picking up children for delivery to school, radioed to the bus
garage and advised Defendant Craven, who was the shop foreman and Defendant Pope’s
supervisor, that she was having problems with the warning system that is supposed operate
when children are boarding the school bus. This system consists of a series of flashing
overhead lights and a stop sign located on the driver’s side of the bus that deploys and has
flashing lights on it. The driver had noted that it was not functioning properly. After Ms.
Nunley discussed the situation with Defendant Craven, she continued on her route with the
understanding that she would bring the bus to the garage after dropping the children off at their
respective schools.
Each of the Warren County school buses is equipped with a radio that the bus driver can
use to communicate with the bus garage and with other bus drivers. The buses are also
equipped with video surveillance cameras and a video and audio recording is made of the
activity in the interior of the bus while the bus is operating. The video from Nunley’s bus on
April 23, 2009, confirmed that she called Defendant Craven and reported,“[M]y stop sign is
off and the overhead lights are not working this morning.” The recording further showed that
Nunley advised Defendant Craven that, after she completed her morning route, she intended
to park the bus outside the school cafeteria where she worked during the day. She asked
Craven pick up the bus from the cafeteria and repair it. Defendant Craven advised Nunley that
he would pick up the bus and that she should “watch out” during the remainder of her morning
route.
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Before the driver completed her morning bus route, an elementary school student who
was crossing the road to board the bus was struck by an oncoming car and fatally injured. The
bus’s warning light system was not operating when this accident occurred. Immediately after
the accident occurred, Nunley called over her radio frantically that she needed help and needed
someone to call 911 because a child had been hit. She added that her stop sign and flashers
were not operating at the time. Defendant Davenport, a mechanic who was present and
working at the bus garage at the time, denied that he heard Nunley report an accident or that
her flashers and stop sign were not working. He admitted that he heard “hysterical screaming”
over the radio after which Defendant Craven told him that he was leaving the garage to check
on Nunley’s bus.
Upon learning of the accident, Defendants Pope and Craven traveled to the location of
the accident in a vehicle assigned to the bus garage to assist with issues related to the school
bus being involved in an accident. Upon arrival at the accident site, they were advised by a law
enforcement officer working traffic control that there was no school bus at the scene. While
Defendants Pope and Craven were gone, there were continuous radio calls between Nunley and
the bus garage about how best to proceed with the children still aboard her bus. Defendant
Davenport, who was present during these calls, denied any knowledge of the accident.
Defendants Pope and Craven then returned to the bus maintenance garage where they were
advised that, upon arrival of the bus, the video tape from the bus’s onboard camera was to be
removed from the bus and taken to the maintenance garage office, and the bus was to be
secured.
Before troopers with the Tennessee Highway Patrol arrived, Defendant Pope boarded
the bus, removed the video tape from the bus’s camera system, and later turned it in at the
maintenance office as he had been instructed to do. Defendant Pope also assisted another
school system mechanic, Defendant Davenport, examine the bus’s boarding warning system,
which consisted of flashing overhead lights and a stop sign. The pair replaced a defective fuse
in the warning system. Defendant Davenport maintained that he did not know that the bus had
been involved in an accident while he was replacing the fuse and that he did not know what
type of problem the bus was having when he repaired the fuse. He said he just happened to
be helping Defendant Pope on this bus when he observed Defendant Pope pull the bus into the
garage.
A Tennessee Highway Patrol Trooper later arrived at the bus maintenance garage to
inspect the bus, including the warning light system that operates when the bus is being
boarded. Neither Defendant Pope nor Defendant Craven, who were both present, advised the
trooper that the lights had not been working properly. The two men also failed to disclose to
the trooper that they had replaced a defective fuse in the warning system. Both, in fact,
watched as the trooper videotaped the lights functioning properly. The trooper therefore
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believed that the lighting system had been properly functioning at the time the accident
occurred.
During the afternoon of April 23, 2009, Defendant Pope came to the District Attorney’s
office in Warren County where he was questioned about his involvement with this bus on this
date by persons who identified themselves as law enforcement officers. The officers advised
Defendant Pope that he would not be in trouble if he had repaired the lights, insisting they only
needed to know whether the lights had been repaired. In response, Defendant Pope stated he
had checked the lights on the bus and that they were working.
When Defendant Craven was questioned by the district attorney’s office, he repeatedly
denied that he had any knowledge of anyone working on the bus before the trooper arrived.
He later admitted, however, that he had seen one of his mechanics at the access door and one
on the bus before the trooper arrived.
Based upon these facts and after reviewing each Defendant’s application for pre-trial
diversion, the District Attorney General denied each of the Defendants’ applications. The
Defendants filed petitions for writs of certiorari to the trial court, arguing that they each met
all the statutory criteria for pre-trial diversion and that the District Attorney General had abused
her discretion when she denied the applications. The trial court held a hearing on the petitions,
wherein the Defendants were given the opportunity to present evidence. Defendant Pope
presented evidence in the form of multiple letters supporting his petition. He admitted that the
had been convicted of DUI, third offense, fifteen years ago, but said that he had rehabilitated
himself, as evidenced by the letters. The trial court reviewed this evidence, and then it held
“as to [D]efendant Pope, there is no abuse of discretion in the District Attorney[’s] not entering
into a pretrial diversion with Mr. Pope.”
Defendant Davenport then offered the testimony of multiple witnesses who testified that
Defendant Davenport was a “good citizen” and had supported his children through school.
The witnesses said that they had never known him to be in any trouble and recounted that he
was, by all accounts, a good friend. These witnesses each testified that they had not been
contacted by the District Attorney’s office about Defendant Davenport. The trial court then
held that “based on the facts of this case, . . . [the State] did not abuse its discretion” when it
denied Defendant Davenport judicial diversion. It went on to state, “[T]his was public
property used in the commission of a homicide . . . but then other members of the public body
have been accused of participating in a cover-up and in that sense I think the State is entitled
to use the public perception as a factor for their denial.”
With regard to Defendant Craven, the trial court reminded the parties that his standard
of review was whether the State abused its discretion when it denied Defendant Craven’s
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application for pretrial diversion. Based upon the trial court’s review of the State’s written
denial, the letters provided on Defendant Craven’s behalf, and the arguments of the parties, the
trial court found the State had not abused its discretion in refusing to grant Defendant Craven
pretrial diversion.
The trial court did not file a written order memorializing the findings that it made during
the hearing. The three Defendants asked the trial court for permission to seek an interlocutory
appeal, and the trial court granted the Defendants an interlocutory appeal to this Court pursuant
to Tennessee Rule of Appellate Procedure 9. This Court granted the appeal on April 20, 2010.
II. Analysis
On appeal, each of the three Defendants contends that the trial court erred when it
denied his respective petition for a writ of certiorari. The arguments presented by each
Defendant will be discussed thoroughly below.
To be eligible for pretrial diversion, an applicant must not have been previously granted
pretrial or judicial diversion; must not have a prior misdemeanor conviction in which he or she
served a sentence of confinement or a prior felony conviction within a five-year period after
completing the sentence or probationary period for the prior conviction; and must not be
seeking diversion for a Class A or B felony, certain sexual offenses, driving under the
influence, or vehicular assault. T.C.A. § 40-15-105(B)(i)(a)-(c) (2006). Based upon the record
before us, the Defendants are eligible for pretrial diversion. However, we note that “[a] person
who is statutorily eligible for pretrial diversion is not presumptively entitled to diversion.”
State v. Yancey, 69 S.W.3d 553, 557 (Tenn. 2002).
The decision whether to grant pretrial diversion rests within the discretion of the district
attorney general. See T.C.A. § 40-15-105(b)(3); State v. Hammersley, 650 S.W.2d 352, 355
(Tenn. 1983). The burden is upon the applicant, “in the first instance, to provide the
prosecuting attorney with sufficient background information and data to enable that officer to
make a reasoned decision to grant or deny the relief sought.” State v. Herron, 767 S.W.2d 151,
156 (Tenn. 1989), overruled in part by Yancey, 69 S.W.3d at 559. To carry the burden, an
applicant should provide the prosecutor with “as complete an application as circumstances
warrant.” State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993).
Despite an applicant’s burden to demonstrate eligibility and suitability for pretrial
diversion, the prosecutor also has specific obligations, especially when denying the application.
State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). When considering applications for pretrial
diversion, the prosecutor should focus on a defendant’s amenability to correction. Id. at 156.
Additionally, the prosecutor must consider the circumstances of the offense, the defendant’s
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criminal record, the defendant’s social history, the physical and mental condition of the
defendant where appropriate, and the likelihood that pretrial diversion will serve the ends of
justice and the best interests of both the public and the defendant. Id.; see also Hammersley,
650 S.W.2d at 355.
“[T]he circumstances of the offense and the need for deterrence may alone justify a
denial of diversion, but only if all of the relevant factors have been considered as well ” and
only when the circumstances are of such overwhelming significance that they necessarily
outweigh all other factors. Curry, 988 S.W.2d at 158; see also State v. Washington, 866
S.W.2d 950, 951 (Tenn. 1993). Although this Court has affirmed the denial of pretrial
diversion where the failure to admit the crime and/or express remorse revealed that a defendant
had been less than truthful with the court, remorse per se is not a factor in determining
suitability for pretrial diversion, and the failure of a defendant to admit guilt is not, in and of
itself, a proper basis for denying diversion. See State v. Nease, 713 S.W.2d 90, 92 (Tenn.
Crim. App. 1986); State v. Dewey L. Clark, No. 03C01-9706-CR-00227, 1998 WL 397370,
at *3 (Tenn. Crim. App. at Knoxville, July 16, 1998).
A denial of the application must be in writing and must contain not only an enumeration
of the evidence the prosecutor considered but also a discussion of the weight given to each
factor and of why unfavorable factors outweigh favorable ones. State v. Pinkham, 955 S.W.2d
956, 960 (Tenn. 1997); Curry, 988 S.W.2d at 157. Moreover, the prosecutor “should identify
any factual disputes between the evidence relied upon and the [defendant’s] application.”
Pinkham, 955 S.W.2d at 960.
If the application is denied, a defendant may seek a writ of certiorari in the trial court.
T.C.A. § 40-15-105(b)(3). When doing so, the compiled record should be attached to the
petition. Winsett, 882 S.W.2d at 810. “[I]n the petition, the defendant should identify any
‘disputed fact’ which the prosecutor has not identified.” State v. Lane, 56 S.W.3d 20, 26
(Tenn. Crim. App. 2000) (quoting Winsett, 882 S.W.2d at 810). The defendant has the burden
of proving that the prosecutor abused his or her discretion in denying diversion, which may
entail showing the record lacks any substantial evidence supporting the prosecutor’s denial of
pretrial diversion. See State v. Watkins, 607 S.W.2d 486, 488 (Tenn. Crim. App. 1980); Lane,
56 S.W.3d at 26.
When considering a petition for certiorari regarding a denial of pretrial diversion, the
trial court must limit its consideration to the evidence which was before the prosecutor and to
the reasons given by the prosecutor in denying diversion. State v. Brown, 700 S.W.2d 568, 570
(Tenn. Crim. App. 1985). The trial court may conduct a hearing only to resolve any factual
disputes raised by the prosecutor or the defendant; the court may not hear additional evidence.
Curry, 988 S.W.2d at 157-58. The trial court must also adhere to the same case-by-case
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balancing procedure that is imposed upon the prosecutor and must state its findings in writing.
Herron, 767 S.W.2d at 156.
If the trial court declines to reverse the prosecutor’s denial of diversion, the defendant
may seek interlocutory review in this court. See generally Tenn. R.App. P. 9, 10; Tenn. R.
Crim. P. 38. If review is granted by this court, our review is confined to determining whether
the trial court’s determination is supported by a preponderance of the evidence. Curry, 988
S.W.2d at 158.
A. Absence of Written Order
Before addressing each of the Defendants’ contentions, we address the State’s assertion
that this case should be remanded because the trial court failed to file a written order denying
the Defendants’ petitions for writs of certiorari. The State cites an opinion of this Court that
stated that the trial court “must state its findings in writing.” State v. Cody Matthew Headrick,
No. E2008-02598-CCA-MR3-CD, 2009 WL 4505440, at *10 (Tenn. Crim. App., at Knoxville,
Dec. 4, 2009). In that case, this Court stated:
Upon receiving a petition for certiorari filed by an aggrieved applicant for
pretrial diversion, the trial court must then follow a prescribed procedure:
(1) The trial court limits its consideration to the evidence which was before the
prosecutor and to the reasons given by the prosecutor in denying diversion.
State v. Brown, 700 S.W.2d 568, 570 (Tenn. Crim. App. 1985).
(2) The trial court may conduct a hearing only to resolve any factual disputes
raised by the prosecutor or the defendant; the court may not hear additional
evidence. Curry, 988 S.W.2d at 157-58.
(3) The trial court must also adhere to the same case-by-case balancing
procedure that is imposed upon the prosecutor. Herron, 767 S.W.2d at 156.
(4) The trial court must state its findings in writing. Id. If the trial court
declines to reverse the prosecutor’s denial of diversion, the defendant may seek
interlocutory review. See generally Tenn. R. App. P. 9, 10; Tenn. R. Crim. P.
38. If review is granted by this court, our review is confined to determining
whether the trial court’s determination is supported by a preponderance of the
evidence. Curry, 988 S.W.2d at 158.
Id. at *10.
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We first note Hendrick is an unpublished opinion and, as such, constitutes only
persuasive authority and not binding precedent. Tenn. S. Ct. R. 4(H)(1); State v. Transil, 72
S.W.3d 665, 667 (Tenn. Crim. App. 2002). Further, the statement in Hendrick is dicta in that
the facts in that case included that the trial court had, in fact, filed a written order denying the
defendant’s petition for a writ of certiorari. Hendrick, 2009 WL 4505440, at *4-5. Finally,
Herron, the published case cited by the Hendrick Court, does not, in our view, hold that a
written order by the trial court is a necessary prerequisite to our review. Herron, 767 S.W.2d
at 156. While it is a better practice for a trial court to issue a written order, and for the parties
to ensure that such order is included in the record, we conclude that in this case, where the trial
court’s findings were thoroughly articulated in the record, we may still review the issues
contained herein on their merits.
B. Defendant Craven
Defendant Craven contends that the prosecutor abused her discretion when she denied
him pretrial diversion because she based her decision on irrelevant factors, including the
Defendant’s denial of responsibility for his actions as relevant to amenability to correction and
the fact that Warren County had no applicable supervising agency. Further, Defendant Craven
asserts that the prosecutor abused her discretion by not assigning specific weight to his
criminal history and the deterrence value to the Defendant and others. Finally, Defendant
Craven asserts that the trial court did not apply the correct standard of review when it denied
his petition for a writ of certiorari.
1. Factors Supporting Denial of Pretrial Diversion
Defendant Craven suggests that the prosecutor abused her discretion when she found
that he was not amenable to correction and she denied probation based upon the fact that
Warren County had no appropriate supervising agency. He also challenges the prosecutor’s
focus on his denial of responsibility as evidence that he was not amenable to correction, which
he says has no factual basis or relevance to his amenability to correction.
In the prosecutor’s written response to Defendant Craven’s application for diversion,
she considered the Defendant’s social history and health. The State District Attorney General
stated that the Defendant, who was sixty-one years old, was married with three children and
two step-children, all of whom were adults. She noted that Defendant Craven had worked for
the Warren County Board of Education for twenty-eight years and that multiple letters of
recommendation had been filed on his behalf. The response noted that Defendant Craven
suffered from a chronic lung condition, preventing him from engaging in vigorous physical
activity. Defendant Craven had no known criminal history. The District Attorney General
assigned considerable favorable weight to these factors.
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Because our review includes consideration of both the trial court and the prosecutor’s
decisions, we quote the following from the State’s response to Defendant Craven’s application:
3. AMENABILITY TO CORRECTION:
In responding to question number 32 on the Initial Application for Pre-
Trial Diversion, the Defendant is asked for his version of the facts of the
offense. In summary, Defendant Craven states that he did not work on the bus
himself, he did [not] instruct anyone else to work on the bus, he did not know
that any mechanic who was employed to work under his supervision had worked
on the bus, he did not know that he should not have permitted anyone to work
on the bus, apparently because he did not contemplate that the condition of the
bus warning light system would be relevant to the investigation of the accident,
he attributed so little significance to the issue of whether the lights on the bus
were working that when a Trooper asked him if the lights were working he
yelled the question into the garage, and when “someone” yelled back yes, he
relayed that information to the Trooper without further investigation. He blames
the officers at the bus garage for not advising him in a timely manner that the
bus was considered evidence and should not be tampered with and he blames the
officers who interviewed him at the District Attorney’s office for not allowing
him to fully explain his answers to them. In fact, Defendant Craven knew that
the lights on the bus were not working properly because he had spoken with the
bus driver about it over the radio. He knew about the accident and the fact that
the bus was present at the accident scene. With twenty-eight years experience
as a school bus mechanic he certainly anticipated that the question of whether
the lighting systems on the bus were working properly would be important to he
accident investigation. Yet, after having seen two (2) of his mechanics working
on the bus with the access door to the lighting system fuse panel open he claims
that this did not put him on notice that he should tell inquiring law enforcement
officers that the bus lights may have been repaired when they conducted their
investigation to determine if the lights were working.
Persons who deny responsibility for their actions are generally deemed
to be less amenable to correction than those who accept responsibility. If
[Defendant] Craven believes that he has done nothing wrong, a sentiment he
expresses in his Application for Pre-Trial Diversion and has apparently
expressed to several of the people who wrote letters of recommendation for him
as well, then it would be unjust to impose any form of “correction” on
[Defendant] Craven. A person who doesn’t believe that he has done anything
wrong has no reason not to engage in the same conduct again. Similarly, a
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person who tampers with evidence and makes false reports to law enforcement
officers is less likely than others to be amenable to correction because they
believe they can outsmart law enforcement and deflect responsibility away from
themselves.
Given the Defendant’s social history, the State would presume the
Defendant to be amenable to correction because of his demonstrated ability to
conform to social norms. However, this presumption is mitigated by the fact
that the Defendant refuses to accept responsibility for his conduct by arguing
that for some reason he was unable to comprehend the significance of what was
going on around him. Hence, as to the issue of amenability to correction, the
State grants slight weight in favor of the Defendant’s petition for diversion.
4. DETERRENT EFFECT:
Defendant [Craven’s] social history would suggest that the Defendant does not
typically engage in criminal conduct and the likelihood that he would become
a repeat offender is very remote. While one would not anticipate, based upon
Defendant’s social history, that he is going to go out and commit murder,
burglary or any other violent offense, the likelihood that he might commit a
similar offense to the one for which he has been indicted is more significant.
While the offense Defendant is charged with committing arises out of what
would generally be considered a very unique set of circumstances, the fact that
this Indictment arises out of Defendant’s responsibility for the mechanical
condition of a school bus and the further fact that the Defendant continues in his
current employment where he remains responsible for the mechanical condition
of a large number of school buses, a scenario like the one with which we are
confronted could reasonably be expected to reoccur. To allow the Defendant to
disclaim any responsibility for his role in this offense would avoid any day of
reckoning in Court where he is called upon to explain his conduct and face the
judgment of a jury of his peers will offer little deterrent effect specific to this
individual.
5. INTEREST OF THE PUBLIC:
One of the foremost concerns of our citizens is that we have a criminal
justice system that functions effectively. The reliability of our criminal justice
system is at stake when there are allegations that evidence has been altered or
destroyed and that officers have been misled by false statements made by
potential witnesses. It is essential to the maintenance of the public confidence
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in the judicial system that when such allegations arise they are fully investigated
and prosecuted. Resolving this case without a finding regarding the Defendant’s
innocence or guilt would do little to ensure the public that the integrity of our
judicial system is being protected.
This is a case that is of public concern in that it involves the
transportation of students in our public school system to which members of our
community are compelled to entrust the well-being of their children on a daily
basis. The fact that the Defendant is an employee of that public school system
and stands accused of giving false statements to officers investigating an
accident and of tampering with evidence raises concerns that there is an attempt
to cover up conduct of school system employees which put the lives of school
students in danger. Allegations of this nature should be resolved in a public
hearing which will determine if there is criminal responsibility and if so where
it lies. Granting Pre-Trial Diversion will preclude a public hearing on these
issues. It will leave the impression that government employees can lie with
impunity while shoplifters and petty thieves face criminal convictions and
possible sentencing. Yet in many instances, the deceitful word can do far more
harm to society than a deceitful act.
These matters related to the integrity of the criminal justice system and
the public interest in seeing these matters resolved in an adversary setting are
entitled to considerable weight and in this case that weight is contrary to the
granting of Pre-Trial Diversion.
While the prosecutor ultimately concluded that the factor regarding Defendant Craven’s
amenability for correction weighed slightly in Defendant Craven’s favor, she mentioned
several considerations that diminished this factor’s weight. She indicated that his version of
the facts did not seem compelling, that his false statements to police indicated his lack of
respect for law enforcement, that his denial of responsibility made him less amenable to
correction, and that nothing would prevent him from engaging in this conduct again because
he did not believe that there was anything wrong with is conduct.
At the hearing on the petition for a writ of certiorari, Defendant Craven agreed that the
facts enumerated in the State’s response to his pretrial diversion request were accurate. Those
facts clearly indicate that bus driver Nunley radioed Defendant Craven to inform him that her
warning system stop sign and lights were not operating properly. Defendant Craven was aware
bus driver Nunley was going to complete her morning route, and he told her to be careful.
Defendant Craven was then informed that an accident involving bus driver Nunley’s bus had
occurred, and he went to the scene of the accident. The bus was not at the accident, and
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Defendant Craven returned to the bus garage, where the bus was located and where Defendant
Craven saw mechanics working on the bus. Defendant Craven later met with a State Trooper
who had come to investigate the accident. He did not inform the trooper of Nunley’s previous
radio transmission, and he did not inform him that the mechanics had been working on the bus.
When Defendant Craven was questioned by the district attorney’s office, he repeatedly denied
having he had any knowledge of anyone working on the bus before the trooper arrived. He
later finally admitted that he had seen one of his mechanics at the access door and one on the
bus before the trooper arrived.
In his application for diversion, Defendant Craven denied knowing that any mechanic
who was employed to work under his supervision had worked on the bus or that he should not
have permitted anyone to work on the bus. We agree with the prosecutor that this weighs
against his amenability for correction. These statements seem unlikely to be accurate, given
other evidence in this case. The credibility of Defendant Craven’s insistence that he believed
the bus driver’s report of her warning system malfunctioning and his plan to fix the bus during
school hours would not have interested police is also suspect. Further, it also seems unlikely
that Defendant Craven had no idea that his two mechanics, whom he admittedly saw at the
access door of the bus and on the bus, were not working on the bus. Especially considering
that he, shortly thereafter, saw the trooper activate the warning system of the bus and videotape
the system and lights working properly.
It is clear from the State’s response to the application for pretrial diversion that the
prosecutor found Defendant Craven’s version of the facts contained therein unlikely to be
accurate. When reviewing a trial court’s denial of prosecutorial diversion, this Court has
affirmed the denial of diversion based upon a finding by the prosecutor that the defendant was
not truthful and therefore not amenable to correction. See State v. Frank Ray Ruth, No.
E2006-01008-CCA-R10-CD, 2007 WL 316408, at *9 (Tenn. Crim. App., at Knoxville, Feb.
5, 2007) (affirming prosecutor’s denial of pretrial diversion when the district attorney stated
that the defendant was not amenable to correction, citing his untruthfulness with investigators
and his behavior during the investigation), no Tenn. R. App. P. 11 application filed; State v.
Mark Gordon Taylor, No. 03C01-9403-CR-00096, 1995 WL 465546 (Tenn. Crim. App., at
Knoxville, August 8, 1995) (affirming prosecutor’s denial of diversion based upon the
defendant’s refusal to accept responsibility, his untruthfulness, and his abuse of his position
of trust as a public school teacher), no Tenn. R. App. P. 11 application filed.
Defendant Craven also takes issue with the prosecutor’s statement that “[p]ersons who
deny responsibility for their actions are generally deemed to be less amenable to correction
than those who accept responsibility.” He asserts that there this is no “established” case law
to support this proposition. This Court, however, has stated “any failure on [the defendant’s]
part to accept responsibility for his actions . . . reflects upon his amenability for rehabilitation.”
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State v. Timothy Lane, No. 01C01-9506-CC-00213, 1996 WL 499517, at *2 (Tenn. Crim.
App., at Nashville, Sept. 5, 1996), no Tenn. R. App. P. application filed. Further, we have
affirmed the prosecutor’s denial of pretrial diversion based upon a defendant’s lack of
acceptance of responsibility. State v. Nease, 713 S.W.2d 90, 92 (Tenn. Crim. App. 1986)
(holding that a defendant’s failure to be completely truthful about the circumstances of the
crime committed and to take full responsibility made the defendant a poor candidate for
diversion). Compare State v. Lane, 56 S.W.3d 20, 28 (Tenn. Crim. App. 2000) (holding that
an admission of guilt may not be a prerequisite to pretrial diversion).
We conclude that the prosecutor did not abuse her discretion when she determined that
the evidence only “slightly” weighed in favor of the Defendant’s amenability for correction.
Defendant Craven next suggests that the prosecutor abused her discretion because she
based her denial of his application for pretrial diversion upon the fact that Warren County had
no applicable supervising agency. The Defendant makes no citation to the record indicating
where the prosecutor considered this factor. The rules of this court direct waiver of issues not
supported by citation to authorities or appropriate references to the record. See Tenn. R. Ct.
Crim. App. 10(b). Although we have determined that Defendant Craven has waived this issue,
we will address this issue on the merits elsewhere in our opinion, as it pertains to the other
Defendants.
2. Specific Weight Assigned to Factors
Defendant Craven next asserts that the prosecutor erred by not assigning specific weight
to the relevant factors of the Defendant’s criminal history and the deterrence value to the
Defendant and others.
In the State’s response to Defendant Craven’s application for pretrial diversion, the
prosecutor often at the end of the consideration of each factor noted the weight assigned to
each factor. At the conclusion of considering the circumstances of the offense, the prosecutor
stated, “the fact that Defendant [Craven] acted intentionally with the purpose of hindering [the]
investigation of this accident and thus exposed another individual to an increased likelihood
that said person would suffer criminal prosecution weighs heavily against granting the
Defendant diversion.” The prosecutor concluded many of the sections in this manner, stating
whether each factor weighed in favor of or against pretrial diversion. Defendant Craven,
however, takes issue with the fact that the prosecutor did not assign “specific weight to the
factor of Defendant’s criminal history” and did not assign “specific weight to the factor of
deterrence value.”
The Defendant is correct that the prosecutor did not assign specific weight to his lack
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of any prior criminal history and the deterrence value. It is clear, however, that the prosecutor
considered and weighed these factors. She also clearly discussed the factors weighing against
the Defendant and why those factors outweighed factors weighing toward granting him
diversion. As previously stated, a denial of the application must be in writing and must contain
not only an enumeration of the evidence the prosecutor considered but also a discussion of the
weight given to each factor and of why unfavorable factors outweigh favorable ones. State v.
Pinkham, 955 S.W.2d at 960; Curry, 988 S.W.2d at 157. We conclude that the prosecutor
substantially complied with these requirements in her written denial of the application for pre-
trial diversion. In our view, the prosecutor did not abuse her discretion in her denial of the
Defendant’s application.
3. Trial Court’s Standard of Review
Finally, Defendant Craven asserts that the trial court did not apply the correct standard
of review when it denied his petition for writ of certiorari. He asserts that the trial court never
stated that “prosecutor’s decision was supported by substantial evidence,” which, he asserts
is required by law.
The Defendant is correct that in order for the trial court to determine whether the district
attorney general has abused his or her discretion, it must determine whether the district attorney
general has considered all of the relevant factors and whether substantial evidence existed to
support the district attorney general’s denial of diversion. Curry, 988 SW.2d at 158.
The trial court stated that, based upon the its review of the State’s written denial, the
letters provided on Defendant Craven’s behalf, and the arguments of the parties, the State had
not abused its discretion in refusing to grant Defendant Craven pretrial diversion. The trial
court finding necessarily implies that the district attorney general considered all the relevant
factors and that substantial evidence existed to support her denial of diversion. We conclude
that the evidence supports the prosecutor’s denial of pretrial diversion and that the evidence
does not preponderate against the trial court’s denial of writ of certiorari. Defendant is not
entitled to relief on this issue.
C. Defendant Pope
Defendant Pope contends that the prosecutor abused her discretion when she denied him
pretrial diversion because: (1) she based her decision on the fact that Warren County does not
have a supervising agency; (2) she based her decision on the fact that he did not admit guilt;
and (3) she failed to properly weigh and consider all the relevant factors when she determined
he was not a “qualified defendant.” He further contends that the trial court did not apply the
proper standard of review when it denied his petition for writ of certiorari.
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1. Factors Supporting Denial of Pretrial Diversion
a. Warren County Supervisory Agency
The District Attorney General amended her original written denial of Defendant Pope’s
pretrial diversion request to include that:
The District Attorney has just received Attorney General Opinion
Number 10-07 filed January 22, 2010, . . . wherein the Attorney General’s office
is asked to express an opinion on whether the Board of Probation and Parole is
authorized to supervise an individual placed on pre-trial diversion pursuant to
Tennessee Code Annotated § 40-15-101, et seq. It is the opinion of the Attorney
General’s office that the Board of Probation and Parole is not statutorily
authorized to supervise individuals participating in a pre-trial diversion program
because they have not been “convicted of a crime.”
The State went on to note that granting a defendant pretrial diversion under these
circumstances would not be in the best interest of the defendant, in that he would not be
assisted with rehabilitation. The State also noted that granting diversion would not be in the
best interest of the public, in that the defendant would not receive the appropriate supervision.
At the hearing on Defendant Pope’s petition for certiorari, the Assistant District
Attorney addressed this issue, telling the trial court that the Attorney General’s opinion was
only one factor considered and that it was considered after the District Attorney had already
denied pretrial diversion. He stated:
We had already offered the Court our position on the matter [in our response to
Defendant Pope’s request for pretrial diversion] and [the Attorney General’s
opinion] was filed as an amendment and it did not change the ultimate outcome
but certainly it was a factor. When it came to our attention we thought it should
be considered.
We first conclude that the District Attorney General abused her discretion by
considering the Attorney General’s opinion. Considerations for the grant or denial of pretrial
diversion should be based upon the factors enumerated in the statute, and the administration
of pretrial diversion should not be considered when determining whether a defendant is entitled
to diversion. To hold otherwise would be to allow defendants applying for pretrial diversion
in different counties to be treated differently, depending upon the resources of that county,
when all the counties are governed by one pretrial diversion statute created by our Legislature.
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While we so hold, in this unique case, reversal is not necessary. The District Attorney
General denied the Defendant pretrial diversion based upon other considerations and only later
amended that to include the Attorney General’s opinion as a consideration. The fact that the
State posited that the Attorney General’s opinion provided additional support for the denial is
of little or no consequence to the denial itself, which was based on the other factors listed in
the State’s original response. We conclude that Defendant Pope is not entitled to relief on this
issue.
b. Admission of Guilt
Defendant Pope next contends that the prosecutor erred when she denied him pretrial
diversion because she based her decision on the fact that he did not admit guilt. When the
prosecutor denied Defendant Pope’s diversion request, she stated:
Mr. Pope’s prior criminal history [which includes three Driving Under the
Influence convictions] and his failure to candidly address his involvement in this
case and thereby accept responsibility for his actions both suggest that Mr. Pope
is not amenable to correction. In previous decisions, the Appellate Courts have
indicated that amenability to correction is one of the most critical factors to
consider in determining eligibility for pretrial diversion. Thus this factor would
weigh heavily against Defendant being granted diversion.
As previously stated, however, this Court has held “any failure on [the defendant’s] part
to accept responsibility for his actions . . . reflects upon his amenability for rehabilitation.”
Lane, No. 1996 WL 499517, at *2. The prosecutor’s denial of pretrial diversion may be based
in part upon a defendant’s lack of acceptance of responsibility. State v. Nease, 713 S.W.2d 90,
92 (Tenn. Crim. App. 1986) (holding that a defendant’s failure to be completely truthful about
the circumstances of the crime committed and to take full responsibility made the defendant
a poor candidate for diversion). We conclude that the prosecutor did not abuse her discretion
when she considered Defendant Pope’s failure to accept responsibility for his actions when she
denied his request for pretrial diversion. Defendant Pope is not entitled to relief on this issue.
c. Relevant Factors
Defendant Pope contends that the prosecutor failed to properly weigh and consider all
the relevant factors when she determined he was not a “qualified defendant.” He notes that
he presented nearly thirty letters of recommendation from friends, neighbors and colleagues,
who all described him as a man of impeccable character. The Defendant states, “Even if the
prosecutor considered Mr. Pope’s favorable social history, lack of criminal history, and
potential for rehabilitation, she failed to clearly and explicitly assign a weight to those factors
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. . . .”
We first note that the Defendant has a prior criminal history in that he has been
convicted on three occasions for Driving Under the Influence and also of Failure to Yield to
an Emergency Vehicle. When considering his social history, the State noted that, although the
Defendant submitted letters on his behalf, many of which impressed the State, the authors
indicated that their support was based on Defendant Pope’s insistence that he had been falsely
accused. The State also expressed concern that these letters did not address the Defendant’s
DUI convictions or that he served six months in jail for his DUI, third offense, conviction.
Finally, while the prosecutor did not assign specific weight to all of the factors she
considered, it is clear from reading the entirety of the response that she carefully weighed and
considered these factors. She clearly discussed the factors weighing against the Defendant and
why those factors outweighed factors in favor of diversion. As previously stated, a denial of
the application must be in writing and must contain not only an enumeration of the evidence
the prosecutor considered but also a discussion of the weight given to each factor and of why
unfavorable factors outweigh favorable ones. Pinkham, 955 S.W.2d at 960; Curry, 988
S.W.2d at 157. We conclude that the prosecutor substantially complied with these
requirements and that she did not abuse her discretion in her denial.
2. Trial Court’s Standard of Review
Defendant Pope next contends that the trial court did not apply the proper standard of
review when it denied his petition for writ of certiorari. He asserts that the trial court should
have examined each relevant factor to determine whether the prosecutor had considered that
factor and whether the prosecutor’s finding with respect to that factor was supported by the
evidence. When the trial court denied Defendant Pope’s petition for writ of certiorari, the trial
court stated, “[A]s to [D]efendant Pope, there is no abuse of discretion in the District
Attorney[’s] not entering into a pretrial diversion with Mr. Pope.”
State v. Curry requires a trial court, in order to determine whether the district attorney
general has abused her discretion, to examine whether the district attorney general considered
all of the relevant factors and whether substantial evidence existed to support the district
attorney general’s denial of diversion. 988 SW.2d at 158. The trial court’s finding herein
necessary implies that the district attorney general considered all the relevant factors and that
substantial evidence existed to support her denial of diversion. The Defendant is not entitled
to relief on this issue.
D. Defendant Davenport
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Defendant Davenport raises three issues: (1) whether the District Attorney General
properly analyzed the relevant factors when she denied him pretrial diversion; (2) whether the
District Attorney General improperly mitigated his suitability for pretrial diversion by his
refusal to confess to criminal activity; and (3) whether the trial court erred when it denied his
request to call the District Attorney General as a witness at the hearing on his petition for writ
of certiorari challenging her denial of his pretrial diversion request. The Defendant’s first and
second issues both relate to the factors considered by the District Attorney General, and we
will consider them together.
1. Relevant Factors
Defendant Davenport contends that the prosecutor abused her discretion when she
denied his request for pretrial diversion. He cites that he is a lifelong resident of Warren
County, Tennessee, that he has been active in the community, and that he has been employed
with the Warren County Board of Education since 1985. Defendant Davenport notes that he
has never before been arrested or convicted of any crime. He offered five witnesses who
attested to his good character. Therefore, he asserts, he demonstrated to the State that he is
eligible and suitable for pretrial diversion.
In the State’s response to Defendant Davenport’s request for pretrial diversion, the
District Attorney General cited the Defendant’s social history, including his work history and
community involvement, as being entitled to “considerable weight in favor of granting him
pre-trial diversion.” When considering his amenability to correction, however, the District
Attorney General stated Defendant Davenport’s “unwillingness to admit that he knew that the
bus had been involved in the accident, information which was common knowledge in the bus
garage at the time, and his assertion that he was somehow able to make repairs to the bus
without knowledge as to the nature of the malfunction that he was repairing are simply not
credible.” The District Attorney General concluded that the Defendant’s “reputation as a law
abiding citizen is mitigated by his unwillingness to accept responsibility for his conduct and
the State grants slight weight in favor of the Defendant’s petition for pre-trial diversion.” The
State went on to cite the interest of the public as the primary basis upon which she denied the
Defendant’s request for pretrial diversion.
As previously stated, however, this Court has held “any failure on [the defendant’s] part
to accept responsibility for his actions . . . reflects upon his amenability for rehabilitation.”
Lane, No. 1996 WL 499517, at *2. Further, we have affirmed the denial of pretrial diversion,
both judicial and prosecutorial, based upon a defendant’s lack of acceptance of responsibility.
See Electroplating, Inc., 990 S.W.2d at 229 (denial of judicial diversion warranted not only by
the circumstances of the offense, but also by the defendant's failure to accept responsibility for
the offense); Anderson, 857 S.W.2d at 574 (observing that the trial court is in the better
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possession to assess a defendant’s sincerity in accepting responsibility for the offense which
is a relevant factor in determining his or her amenability to rehabilitation); Nease, 713 S.W.2d
at 92 (holding that a defendant’s failure to be completely truthful about the circumstances of
the crime committed and to take full responsibility made the defendant a poor candidate for
diversion). We also find it improbable that Defendant Davenport, who was present at the
garage when bus driver Nunley’s “hysterical” calls were heard throughout the garage, was
unaware that the bus had been involved in an accident. We do not find persuasive Defendant
Davenport’s contention that requiring him to be more forthcoming about whether he was aware
there had been a bus accident is “tantamount to requiring that he confess to criminal activity
in order to receive favorable consideration for pretrial diversion.”
We conclude that, while the Defendant provided favorable evidence to support his
request, the District Attorney General did not abuse her discretion when she determined that
his lack of credibility about the circumstances of the offense, in addition to the public interest
weighed against granting his pretrial diversion request. The Defendant is not entitled to relief
on this issue.
2. Calling District Attorney General As a Witness
Defendant Davenport next contends that the trial court erred when it denied his request
to call the District Attorney General as a witness at the hearing on his petition for writ of
certiorari. In support of this contention, he cites State v. Duane A. Hendrick, as recognizing
the practice of calling the District Attorney General at a hearing for writ of certiorari. 1997
WL 786173, at *4 (Tenn. Crim. App., at Jackson, Dec. 23, 1997), no Tenn. R. App. P. 11
application filed. In Henderick, this Court stated,
In the case before us, the appellant desired the testimony of the assistant district
attorney relating to the failure to consider appellant’s amenability to correction
and her reliance upon deterrence. We find that the appellant was not prejudiced
by the failure to require testimony. It is apparent from the letter of denial that
all positive factors submitted by appellant were considered. It is implicit that
this included appellant’s amenability to correction. It is also apparent from the
letter of denial that the deterrence factor related to other commercial truckers.
We find this to be a proper consideration for denial of pre-trial diversion. In
short, the appellant was not prejudiced by the refusal to require the prosecutor
to testify.
Id. We first conclude that the language of Hendrick does not, in our opinion, recognize the
practice of calling the District Attorney General to testify. First, and perhaps most importantly,
the trial court’s standard of review when considering a writ of certiorari of this type is based
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upon only the evidence that the prosecutor considered when denying diversion. State v.
Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993). It would seem, therefore, that
testimony from the District Attorney General would be mostly irrelevant to that review.
Further, for all practical purposes, it would impose a great burden upon the District Attorney
General to appear to respond to every denial of pretrial diversion, even after having responded
to the request in writing. Second, as noted by the Hendrick Court about the defendant therein,
even were it error to refuse to Defendant Davenport’s request to have the District Attorney
General testify, any error was harmless in that Defendant Davenport was not prejudiced by this
error. Defendant Davenport is not entitled to relief on this issue.
III. Conclusion
Therefore, we conclude that the trial court’s determination that the prosecutor properly
considered, articulated, and weighed all relevant factors is supported by a preponderance of
the evidence. The judgments of the trial court are, therefore, affirmed.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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