State v. Kirk

868 S.W.2d 739, 1993 Tenn. Crim. App. LEXIS 648
CourtCourt of Criminal Appeals of Tennessee
DecidedSeptember 21, 1993
StatusPublished
Cited by9 cases

This text of 868 S.W.2d 739 (State v. Kirk) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kirk, 868 S.W.2d 739, 1993 Tenn. Crim. App. LEXIS 648 (Tenn. Ct. App. 1993).

Opinion

OPINION

WHITE, Judge.

This is an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure to determine whether the prosecutor abused his discretion in denying pretrial diversion. The trial court affirmed the denial. For the reasons set forth, the judgment is reversed and the case remanded to the trial court for further proceedings.

The appellant, Charles Floyd Kirk, was charged with four alternate counts of aggravated assault and one count of carrying a weapon with intent to go armed. The victim, Shawn Lawless, was a sixteen year old friend of appellant’s fourteen year old daughter. On December 17, 1990, appellant located the victim, his daughter, and another young man in a motel room in Pigeon Forge, Tennessee.1 When the victim, who had kept appellant’s daughter out all night the previous Saturday, answered the door, appellant drew his gun, pointed it at the victim, slapped his daughter, forced her, the maintenance man, and the other young man from the room, and struck the victim. Appellant told the victim he should blow his head off. He forced the victim to disrobe. When police arrived at the room a few moments later they recovered the appellant’s small caliber handgun and found it to have one round in the chamber. The victim had no medical treatment but was examined two days later and found to have bruises and a small laceration inside his mouth.

Appellant applied for pretrial diversion. In addition to his letter of application, he filed reference letters. A specific data report was prepared and verified appellant’s previously unblemished criminal record. The state responded by letter denying diversion. The court conducted a hearing at which counsel argued but presented no testimony. Following the hearing, the court entered an order finding that the prosecutor had not abused his discretion. This court granted an interlocutory appeal.

Tennessee Code Annotated Section 40-16-105 creates a statutory vehicle for diverting certain cases from the court system. While that statute establishes minimal eligibility requirements for diversion, the prosecutor is charged with the responsibility of determining whether to grant diversion. The prosecutor’s discretion “must be exercised so as to serve the interests of justice.” Pace v. State, 566 S.W.2d 861, 864 (Tenn.1978). In an effort to assist the prosecutor in exercising this demanding responsibility, the Supreme Court has offered this guidance:

[A] prosecutor should 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 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). In determining whether diversion will serve the ends of justice, deterrence is also an appropriate consideration. It must be viewed “in the context of each case ... assigning it such weight, credit and value as the circumstances warrant.” Id. at 354 (quoting State v. Michael, 629 S.W.2d 13, 15 (Tenn.1982)).

[742]*742The prosecutor is not at liberty to focus exclusively on some of the factors while ignoring others but “must consider evidence which tends to show that the applicant is amenable to correction and is not likely to commit further criminal acts.” State v. Markham, 755 S.W.2d 850, 853 (Tenn.Crim.App.1988). If the decision to deny diversion is not based on consideration of all the relevant factors, the state must articulate why the factors considered outweigh the others. State v. Herron, 767 S.W.2d 151, 156 (Tenn.1989).

The decision by a prosecutor to deny diversion is reviewable by writ of cer-tiorari. Tenn.Code Ann. § 40 — 15—105(b)(3) (1990 Supp.). See id. §§ 27-8-101 & -102 (1992 Supp.).2 Generally that review is limited to examining the record to determine whether material evidence supports the decision. See e.g. City of Chattanooga v. Tennessee Alcoholic Beverage Comm’n, 525 S.W.2d 470 (Tenn.1975); Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272 (1965); City of Memphis v. Sherwood Building Corp., 208 Tenn. 17, 343 S.W.2d 869 (1961). Thus the trial judge must consider only the evidence considered by the prosecutor. State v. Poplar, 612 S.W.2d 498 (Tenn.Crim.App.1980). In reviewing the trial court’s decision we must determine whether substantial evidence supports the refusal to divert the appellant. State v. Hammersley, 650 S.W.2d 352, 356 (Tenn.1983).

The record in this case consists of the appellant’s application for diversion accompanied with character letters, the prosecutor’s letter denying the application, and the proffers and arguments of counsel at the hearing. The prosecutor’s letter listed eleven reasons for denying appellant’s request for pretrial diversion. Of those eleven reasons, eight pertain to the nature of the offense, two to deterrence, and one to appellant’s attitude toward the crime. Many of the reasons are stated conclusively with no detailed supporting facts or circumstances. We have previously advised prosecutors that the failure to justify a conclusion offered as a reason for denying diversion may cause the offered reason to be discounted.

In addition to containing unjustified conclusions, the prosecutor’s letter does not reflect consideration of all the factors relevant to a diversion determination. The record must reflect that the prosecutor considered all relevant factors (i.e., the applicant’s prior record; criminal, social, family, and employment history; present mental and physical condition; amenability to treatment; and whether diversion would serve the needs of the applicant and society), in determining whether to grant diversion. While we have upheld a denial of diversion based on consideration of less than all the relevant factors, those factors considered must outweigh all others before the denial will be sustained. State v. Markham, 755 S.W.2d 850, 852-53 (Tenn.Crim.App.1988). Thus, in this case, if the record established that all relevant factors were considered and, as the state argues, that:

(1) appellant possessed a loaded weapon
(2) and, with no hesitation about committing crimes involving risks to human life

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Bluebook (online)
868 S.W.2d 739, 1993 Tenn. Crim. App. LEXIS 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kirk-tenncrimapp-1993.