State v. Perry

882 S.W.2d 357, 1994 Tenn. Crim. App. LEXIS 80
CourtCourt of Criminal Appeals of Tennessee
DecidedFebruary 15, 1994
StatusPublished
Cited by11 cases

This text of 882 S.W.2d 357 (State v. Perry) 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. Perry, 882 S.W.2d 357, 1994 Tenn. Crim. App. LEXIS 80 (Tenn. Ct. App. 1994).

Opinion

OPINION

JONES, Judge.

This Court granted the appellants’ Rule 10 interlocutory appeal to determine the correctness of the trial court’s finding that the district attorney general did not abuse his discretion in refusing to place the appellants on pretrial diversion. The appellants contend that they qualify for pretrial diversion; and the trial court should have ordered the district attorney general to grant them pretrial diversion relief. The state argues that the trial court properly upheld the district attorney general’s refusal to grant the appellants this relief.

The judgment of the trial court is affirmed for the reasons set forth in this decision.

PRIOR PROCEEDINGS

The Sumner County Grand Jury returned a two count presentment. One count of the presentment charged Jessie J. Perry with the offense of aggravated perjury. The second count of the indictment charged Alethea C. Perry with aggravated perjury. Subsequently, defense counsel formally requested the district attorney general to divert the appellants pursuant to Tenn.Code Ann. §§ 40-15-101-105.1 The district attorney general denied the application. An assistant district attorney general sent the following facsimile to defense counsel after defense counsel made several inquiries regarding the district attorney general’s decision:

Thank you for your transmission. Gen. Whitley and I have discussed your request for pre-trial diversion and must respectfully deny same. If you have any questions, please let me know. We can resolve this case on a plea as charged with a 2 year sentence (the minimum) and a sentencing hearing.

The appellants filed a petition for a writ of certiorari, asking the trial court to review the decision of the district attorney general de[359]*359nying their respective applications for pretrial diversion. The trial court reviewed the petition, discovered the facsimile that was attached, and entered an order directing the district attorney general to furnish defense counsel with “the reasons for denying the request of pre-trial diversion.” The assistant district attorney general forwarded a letter to defense counsel. The last paragraph of the letter summarizes the reasons for the denial of the applications: “[W]e feel the nature and the circumstances of the offense demonstrate outrageous conduct, that deterrents [sic] of this crime is necessary, and that we simply cannot take the word of Alethea and Jessie Perry alone to conclude that they would be good candidates for pre-trial diversion.”

NATURE OF APPELLATE REVIEW

When a defendant appeals from an interlocutory order of a trial court affirming the decision of the district attorney general not to divert the defendant, the findings of fact made by the trial court are binding upon' this Court, State v. Helms, 720 S.W.2d 474, 476 (Tenn.Crim.App.1986); State v. Watkins, 607 S.W.2d 486, 488 (Tenn.Crim.App.1980); and this Court cannot reverse the judgment of the trial court unless the evidence contained in the record preponderates against these findings. Helms, supra; Watkins, supra.

Since there was a full hearing on the merits of the appellants’ applications, this Court must review the evidence and documents adduced at the hearing to determine whether the facts contained in the record support or preponderate against the findings of fact made by the trial court in denying the -petition for a writ of certiorari.

THE EVIDENTIARY HEARING

In March of 1990, the appellants purchased a home from Mr. and Mrs. Anthony Escue. Part of the consideration was a $5,000 unsecured note that represented the Escues’ equity in the home. The appellants defaulted on the obligation. The Escues filed suit in the General Sessions Court of Sumner County on March 9, 1992. The appellants filed a sworn denial on March 19, 1992. The trial on the merits was held on March 26, 1992.

The Escues testified about the real estate transaction, the preparation of the note, the signing of the by the appellants, and that the note was in default because the appellants had not made the payments as agreed. Only three payments were made. The appellants testified in support of their defense, both denying that they had executed the note. Alethea C. Perry testified that she had not seen the note prior to the date the case was tried; and she denied signing the note. Jessie J. Perry testified that the signature appearing on the note was not his signature. When the General Sessions judge asked Mrs. Perry about the three payments, she testified that the payments were for something else— not payments on the note. The General Sessions judge, realizing that either the Es-cues or the appellants had committed perjury, gave the parties several chances to tell the truth about the note. The appellants continued to deny that they executed the note. The General Sessions judge subsequently took the case under advisement and asked the Sumner County Sheriffs Department to investigate the matter.

The General Sessions judge testified that there had been four recent cases where individuals had admitted that they committed perjury either in the execution of a warrant or giving testimony in open court. The judge stated that the problem “is serious, and it is on the increase, and there’s just no question about it.”

Jessie J. Perry was thirty-two years of age when he testified at the hearing. His education extends through the eighth grade. He was married to Alethea C. Perry. Three children had been born to this union. The children’s ages were thirteen, ten and eight. He had maintained employment through the years and was employed by a Nashville-based company as a machinist and die maker. He was also a member of a local church and attended services there.

Initially, he denied the amount in controversy because he discovered several problems with the house after moving into it. When his wife denied executing the note, he decided to echo her testimony. His reason [360]*360for denying the execution of the note: “I was so nervous and stuff just out of the blue I said no.” At another point in his testimony he stated that he “was just so nervous and stuff my head was spinning. I was so nervous, like I am now.”

Alethea C. Perry has a high school education and has worked as a lay practical nurse for several years at a local hospital. When asked if she had perjured herself, she replied: “Yes sir, I did tell the Court on impulse that I had not seen the note nor had I signed it.”

Neither of the appellants has ever been convicted of a criminal offense in the past.

Both testified that they discussed the matter after leaving the courtroom. It was agreed that they would call and apologize to the General Sessions judge for what they had done. Mr. Perry testified: “I wanted to make it right.” They testified that the judge’s secretary said she was not available. No further effort was made to contact the judge. The judge testified in rebuttal that she did not recall receiving a call; and, due to her feelings about the matter, her secretary would have advised her if the Perrys had called.

The Perrys were contacted by a deputy sheriff.

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Cite This Page — Counsel Stack

Bluebook (online)
882 S.W.2d 357, 1994 Tenn. Crim. App. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perry-tenncrimapp-1994.