         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                            JULY 1998 SESSION
                                                    FILED
                                                     August 26, 1998

                                                   Cecil Crowson, Jr.
STATE OF TENNESSEE,                 )               Appellate C ourt Clerk
                                    )    NO. 02C01-9707-CR-00280
      Appellee,                     )
                                    )    SHELBY COUNTY
VS.                                 )
                                    )    HON. ARTHUR T. BENNETT,
KALID I. ABDULAHI,                  )    JUDGE
                                    )
      Appellant.                    )    (Denial of Pretrial Diversion)



FOR THE APPELLANT:                       FOR THE APPELLEE:

HOWARD L. WAGERMAN                       JOHN KNOX WALKUP
200 Jefferson, Suite 1313                Attorney General and Reporter
Memphis, TN 38103
                                         ELIZABETH T. RYAN
                                         Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         WILLIAM L. GIBBONS
                                         District Attorney General

                                         KENNETH R. ROACH
                                         Assistant District Attorney General
                                         201 Poplar Ave, Suite 301
                                         Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



       The defendant, Kalid I. Abdulahi, pursuant to a Tenn. R. App. P. 9

interlocutory appeal, challenges the District Attorney General’s denial of pretrial

diversion and subsequent denial of certiorari by the trial court. The defendant

was indicted for vehicular homicide as a proximate result of conduct creating a

substantial risk of death or serious bodily injury, a Class C felony. He complains

the prosecutor abused his discretion in denying pretrial diversion. The judgment

of the trial court is affirmed.



                                         FACTS



       The facts considered by the District Attorney General were as follows.

The defendant was driving east on Delano Street in Memphis. The two (2)

center lanes of traffic, one eastbound, one westbound, were closed for repair.

The closed lanes were blocked off with cones. The lanes adjacent to the curb in

each direction were open.



       The defendant with reckless disregard for safety entered the closed lanes

in an attempt to pass another eastbound car while traveling at an excessive

speed. Before the defendant had completely passed the other vehicle, he

encountered a steam roller directly in front of him in the closed lanes. In an

attempt to avoid a collision with the steam roller, the defendant sharply veered in

front of the vehicle he was attempting to pass. The defendant hit the curb on the

side of the road and, according to the steam roller operator, “shot all the way

across the street and struck the [victim’s] car.” The victim died as a result of his

injuries. Eyewitnesses estimated the defendant was traveling at least sixty (60)

miles per hour in this construction zone.1



       1
        The defendant’s version of the facts differs from that of the other
eyewitnesses.

                                            2
       The District Attorney General denied pretrial diversion. Pursuant to a

petition for a writ of certiorari, the trial court found that the denial was not an

abuse of discretion.



                               PRETRIAL DIVERSION



       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).



       Deterrence, of both the defendant and others, is a factor the importance

of which varies according to the individual circumstances of each case.


                                           3
Hammersley, 650 S.W.2d at 354. The circumstances of the crime and the need

for deterrence may, in the appropriate case, outweigh the other relevant factors

and justify a denial of pretrial diversion. Carr, 861 S.W.2d at 855.



       A prosecutor's decision to deny diversion is presumptively correct, and the

trial court should only reverse that decision when the appellant establishes a

patent or gross abuse of discretion. State v. Lutry, 938 S.W.2d 431, 434 (Tenn.

Crim. App. 1996); 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 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 there is substantial evidence in the record

to support the district attorney’s refusal to divert. 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).



                                     ANALYSIS



       The District Attorney General expressly considered that the defendant had

no prior criminal record, was relatively young, had graduated from high school

and had a stable work history. However, pretrial diversion was denied for the

following reasons set forth by letter:

       (1) Victim’s impact statement indicates the family of victim opposes
       the defendant being placed on Diversion. They indicate it would
       minimize the seriousness of the offense and add to the harmful
       effect the offense has had and is still having on them.

       (2) The magnitude of the offense. The defendant’s reckless

                                          4
       behavior and disregard for the safety of others caused the death of
       an innocent victim.

       (3) The need for deterrence is great for many reasons:

               (a) To set an example for others in teens and twenties who
       drive and cause a disproportionate number of accidents involving
       injury and death.

              (b) To assure that Kalid Abdulahi does not engage in this
       type of reckless conduct reflecting a disregard for the value of
       human life.

              (c) This type of offense is a problem in this jurisdiction,
       aggravated by the fact of reckless conduct around a construction
       zone. Specific laws have been passed by the legislature to combat
       this conduct, along with Police saturations to prevent this type of
       conduct.

       (4) There has been no remorse shown by the defendant, no offer of
       restitution for funeral expense, and no concern shown to the family
       of victim.

       (5) The defendant apparently had no insurance on his vehicle.
       This shows a disregard for the Laws of the State and for other
       drivers.

       (6) There have been no exceptional circumstances shown to the
       State for this relief.


       The state concedes that victim opposition is not a proper consideration.

State v. Christopher Cavnor, C.C.A. No. 02C01-9704-CR-00155, Shelby County

(Tenn. Crim. App. filed March 31, 1998, at Jackson). Moreover, the requirement

that a defendant in a homicide case show “exceptional circumstances” did not

survive the 1989 Sentencing Act. State v. James Thomas Tanner, III, C.C.A. No.

03C01-9703-CR-00101, Sullivan County (Tenn. Crim. App. filed June 30, 1998,

at Knoxville); State v. Bradley Joe Housewright, C.C.A. No. 03C01-9705-CR-

00195, Sullivan County (Tenn. Crim. App. filed December 16, 1997, at

Knoxville). These factors were improperly considered.



       We further find that the alleged failure to have automobile insurance is an

improper consideration, as was the alleged failure to offer restitution for funeral

expenses. The record reflects that civil litigation was pending.



       The District Attorney General concluded that “no remorse” was shown by

                                          5
the defendant. We are unable to determine from the record any basis for this

conclusion. See State v. Kirk, 868 S.W.2d 739, 743 (Tenn. Crim. App. 1993).

Similarly, we find no basis for the conclusion that individual deterrence of the

defendant is necessary. Individual deterrence is a relevant consideration.

Hammersley, 650 S.W.2d at 354. However, it must be supported by the record.

Kirk, 868 S.W.2d at 743. The defendant has no prior criminal record, and there

is nothing to show a pattern of reckless or criminal behavior.



       This brings us to the consideration of the circumstances of the offense

and deterrence of others. Both are relevant considerations and, in the proper

case, may outweigh the other relevant factors so as to justify a denial of pretrial

diversion. Carr, 861 S.W.2d at 855.



       The record supports the application of both of these considerations. The

District Attorney General stated that reckless conduct around construction zones

was a problem within the jurisdiction. No one is in a better position to be

informed of criminal activity within a jurisdiction than the District Attorney

General. State v. Holland, 661 S.W.2d 91, 93 (Tenn. Crim. App. 1983).



       The record reflects that the District Attorney General considered the

positive factors submitted by the defendant. However, the District Attorney

General has given improper consideration to some negative factors and proper

consideration to others. Even if some inappropriate factors were considered, this

does not foreclose a determination that substantial evidence still remains to

support the denial. State v. Carr, 861 S.W.2d at 857.



       We conclude that the circumstances of the offense and the need for

deterrence of construction zone recklessness are sufficient to justify the District

Attorney General’s denial of pretrial diversion. In summary, we find no abuse of

discretion by the prosecutor.



                                           6
     The judgment of the trial court is AFFIRMED.




                                            _________________________
                                            JOE G. RILEY, JUDGE



CONCUR:




______________________________
CURWOOD WITT, JUDGE




________________________
ROBERT W. WEDEMEYER,
SPECIAL JUDGE




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