                                                 FILED
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE
                                                  October 7, 1997
                        JUNE 1997 SESSION
                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk

STATE OF TENNESSEE,             )
                                )
           Appellee,            )     C.C.A. No. 03C01-9612-CR-00480
                                )
vs.                             )     Hamilton County
                                )
THEODORE FOSTER,                )     Honorable Stephen M. Bevil, Judge
                                )
           Appellant.           )     (Denial of Pre-Trial Diversion)
                                )



FOR THE APPELLANT:                    FOR THE APPELLEE:

MARTIN J. LEVITT                      JOHN KNOX WALKUP
Attorney at Law                       Attorney General & Reporter
312 Vine St.
Chattanooga, TN 37403                 MARVIN E. CLEMENTS, JR.
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      WILLIAM H. COX
                                      District Attorney General

                                      BATES BRYAN, JR.
                                      Asst. District Attorney General
                                      600 Market St., Ste. 310
                                      Chattanooga, TN 37402




OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                       OPINION

              The defendant, Theodore Foster, is aggrieved of the Hamilton County

District attorney's denial of his application for pretrial diversion and the Hamilton

County Criminal Court's denial of his petition seeking reversal of that determination.

Foster is under indictment for vehicular homicide, a Class C felony.             In this

interlocutory appeal, Foster contends the District Attorney's office acted arbitrarily

in denying his application for diversion. After a thorough review of the record, we

affirm.



              The record reveals that on April 14, 1995, Theodore Foster was

involved in a vehicular accident in which he is alleged to have injured several

individuals, one fatally. According to a traffic accident report in the technical record,

the defendant was traveling at a high rate of speed in downtown Chattanooga and

hit a car stopped at a traffic light, then went on to hit another vehicle. There was no

evidence the defendant was intoxicated or otherwise under the influence. However,

following the incident, psychiatric professionals employed by the state and the

defense concurred that an insanity defense was appropriate.



              At the time of the incident, the defendant was a 29 year old student

at UT Chattanooga who had no past criminal convictions. Historically, he received

in-patient psychiatric care in September 1994 for acute Paranoid Schizophrenic

reaction and Major Depression with Psychosis. At first, he was maintained on

medication, although his symptoms later went into remission, and by the time of the

incident upon which the indictment is based he had been weaned off the medication

by his psychiatrist. According to the defendant's psychiatric records, he was given

medication to take in the event he had symptoms of a recurrence. The record

reflects the defendant has no memory of the incident under indictment, and thus we

are without knowledge whether the defendant had any advance warning he was

becoming psychotic, as he alleges in his insanity defense.
              The defendant applied for and was denied pre-trial diversion. In

support of his application, the defendant submitted psychiatric records consisting

of notes from his 1994 inpatient admission and an April 24, 1995 "Psychiatry

Consult" by Jon Cohen, M.D. In Dr. Cohen's notes, he posits, "[It is] difficult to say

how much underlying schizophrenia may be [a] current factor in [the defendant's]

behavior, or perhaps even contributed to [the incident]."         Doctor Cohen also

observed the defendant suffered at that time from delirium and that physical

restraints were appropriate for the defendant's own safety. At the time of the

diversion application, the results of the two mental evaluations had been filed with

the court.1



              In his letter denying diversion, the assistant district attorney based the

denial on (1) the need not to depreciate the seriousness of the offense and provide

effective deterrence to others in light of the death of one of the victims, (2) the need

to protect the public from "any future mental problems the [d]efendant may have

behind the wheel of a car," and (3) the lack of suitability of the mechanism of

diversion to determine and provide for the mental health needs of the defendant

and the protection of the public. The assistant district attorney went on to express

his reservations about his ability to fashion an appropriate mental health program

to address the defendant's needs and provide "appropriate remedies" in the event

public safety became an issue.



              At the hearing on the defendant's petition for writ of certiorari, the

parties stipulated the defendant's driver's license had been revoked by the


       1
        Although the better practice would have been for these documents to
have been included as exhibits to the defendant's application for diversion, we
have considered them based upon the assistant district attorney's recitation of
their contents in his denial letter. It is obvious from the assistant district
attorney's letter that he considered the mental evaluations in reaching the
determination we are called upon to scrutinize in this appeal.

                                           2
Department of Safety and later reinstated, the defendant had graduated from

college, and the defendant had obtained employment with an insurance company.

The defendant offered a letter from Dr. William C. Greer dated two months after the

district attorney's letter denying diversion, which generally asserted the defendant

was receiving psychiatric treatment, was on medication, and was able to drive. The

doctor conceded there was no way to predict whether the defendant would have

another psychotic episode while behind the wheel of a car, although he believed this

could happen to any member of the public, as well. After considering the record

before it, the trial court concluded the district attorney's office had not abused its

discretion in denying pretrial diversion.



              The decision of whether to grant pre-trial diversion rests within the

discretion of the district attorney general. Tenn. Code Ann. § 40-15-105(b)(3)

(Supp. 1996); see also State v. Hammersley, 650 S.W.2d 352, 353 (Tenn. 1983);

State v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim. App.), perm. app. denied

(Tenn. 1995); State v. Carr, 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). When

deciding whether to grant an application for pre-trial diversion, the district attorney

general should consider the circumstances of the offense; the criminal record, social

history, and present condition of the defendant, including his mental and physical

conditions where appropriate; the deterrent effect of punishment upon other criminal

activity; the defendant's amenability to correction; the likelihood that pre-trial

diversion will serve the ends of justice and the best interests of both the public and

the defendant; and the applicant's attitude, behavior since arrest, prior record, home

environment, current drug usage, emotional stability, past employment, general

reputation, marital stability, family responsibility, and attitude of law enforcement.

State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (citations omitted); see

Houston, 900 S.W.2d at 714. In appropriate cases, the nature and circumstances

of the offense and the need for deterrence may outweigh all other relevant factors

                                            3
and justify a denial of pre-trial diversion. Carr, 861 S.W.2d at 855. Indeed, the

nature and circumstances of the offense may alone support the denial of pre-trial

diversion. State v. Sutton, 668 S.W.2d 678, 680 (Tenn. Crim. App. 1984).



              If the district attorney denies pretrial diversion, a defendant may file

a writ of certiorari to the trial court. Tenn. Code Ann. § 40-15-105 (b)(3) (Supp.

1996). In that first-tier appeal, the defendant has the burden of proving the district

attorney grossly abused his discretion in denying diversion. Tenn. Code Ann. § 40-

15-105(b)(3) (Supp. 1996); State v. Watkins, 607 S.W.2d 486, 488 (Tenn. Crim.

App. 1980). "The record must [also] show an absence of any substantial evidence

to support the refusal of the District Attorney General to [grant pretrial diversion]."

Watkins, 607 S.W.2d at 488; see Houston, 900 S.W.2d at 714. When reviewing the

district attorney's denial, "the trial judge [has] to [not only] confine his consideration

to the evidence considered by the District Attorney General at the time he

considered the application, but . . . he must also confine his review to the reason or

reasons given by the District Attorney General at that time. Fairness demands that

the defendant know what allegations he must meet when he comes before the trial

judge on his application." State v. Brown, 700 S.W.2d 568, 570 (Tenn. Crim. App.

1985). If the trial court upholds the district attorney's denial of diversion, the

defendant may seek permission to appeal to this court. See Tenn. R. App. P. 9.

In reviewing the matter, this court may not substitute its own judgment for that of the

district attorney. Houston, 900 S.W.2d at 714. The standard of review for this court

is "whether the finding of the trial court that the district attorney general did not

abuse his discretion in denying [the] application of pretrial diversion is supported by

a preponderance of the evidence." State v. Winsett, 882 S.W.2d 806, 809 (Tenn.

Crim. App. 1993).



              In this case, the defendant does not allege that the district attorney's

                                            4
office failed to consider all of the appropriate factors; rather, he alleges the district

attorney's office reached the wrong conclusion on the facts of the case. The

defendant's application for pretrial diversion consisted of his own statements in the

application, records of previous psychiatric treatment, and some of the records from

his psychiatric treatment following the incident under indictment. Based on the

information in the application and its exhibits, the assistant district attorney found

three factors outweighed the others. The three were (1) the defendant's mental

condition, (2) the deterrent effect of punishment upon other criminal activity, and (3)

the likelihood that pre-trial diversion would not serve the ends of justice and the best

interests of both the public and the defendant. See Washington, 866 S.W.2d at

951. Any one of these factors is a permissible ground upon which denial may rest.

See State v. Thomas Dailey, No. 02C01-CR-00008, slip op. at 4 (Tenn. Crim. App.,

Jackson, Aug. 21, 1991) (stating this rule in the context of judicial diversion) (citation

omitted).



              Based on the record before us, we cannot say the evidence

preponderates against the lower court's finding that the district attorney's office

acted within its discretion in denying pretrial diversion to the defendant. We believe

the concerns expressed by the assistant district attorney regarding the defendant's

mental condition and the likelihood that pretrial diversion would not serve the ends

of justice and best interests of the public and the defendant are not assuaged by the

application and its exhibits or the mental evaluation reports. The only document

considered by the district attorney's office which discusses the defendant's on-going

psychiatric condition relates, "During his visits since the accident he has reported

occasions when he feels bombarded by thoughts and easily distracted and

disturbed by noises. He has recognized this as a precursor to developing more

serious symptoms and has started to use Haldol at these times." The defendant's

application as submitted to the district attorney's office contained no evidence

                                            5
lending any meaningful support to the defendant's contention his psychiatric

condition no longer poses a threat to the public. 2 Likewise, the defendant places

great weight on the Department of Safety's reinstatement of his driver's license;

although he presented no evidence to the district attorney of the basis for that

reinstatement.3 In seeking pretrial diversion, the defendant bears the burden of

providing the district attorney's office with sufficient information from which a

reasoned decision regarding the grant or denial of diversion may be made. State

v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989). The district attorney's office acted

within its discretion in denying pretrial diversion based upon the facts submitted by

the defendant.



              In reaching our conclusion, we feel compelled to point out that we

have not considered some of the additional evidence the defendant attempted to

present at the hearing on the petition for writ of certiorari. This evidence consists

of opinions stated in a letter from Dr. Greer written after the assistant district

attorney's denial letter, in which the doctor attempts to rebut the conclusions drawn

in the denial letter regarding the threat of the defendant to public safety.

Technically, this letter was not properly before the lower court in the petition for writ



       2
        Although there are some additional psychiatric records in the technical
record which might be construed somewhat more favorably to the defendant,
these records were not included with the application submitted to the district
attorney's office. Where, as here, the defendant seeks to blame allegedly
culpable conduct on legal insanity, he should be prepared to demonstrate in an
application for pretrial diversion that his alleged disability has either been
removed or does not pose any further threat to the public. See State v. Herron,
767 S.W.2d 151, 156 (Tenn. 1989) (burden of proof on defendant to provide
prosecution with sufficient information to support grant of denial of pretrial
diversion).
       3
         In his brief, the defendant argues the Department of Safety had the
discretion to decline to reinstate the defendant's driver's license based on mental
disability but did not do so. After reviewing the documents the defendant
provided the district attorney, we find no evidence the Department of Safety was
even aware of the defendant's alleged mental disability or that it considered the
issue on its merits.

                                           6
of certiorari, although in this case the assistant district attorney agreed to stipulate

to the factual statements in the letter, which dealt with the defendant's compliance

with psychiatric care and medicinal maintenance. The assistant district attorney

declined to stipulate to the conclusions drawn by the doctor.           We have not

considered the latter. In general, certiorari by its very nature requires the court to

review the earlier proceeding for any irregularities. Winsett, 882 S.W.2d at 809

(citing Black’s Law Dictionary, 288 (6th ed. 1990)). Thus, the trial court's inquiry is

properly limited to that information which was offered to the district attorney's office

at the time of the application for diversion. However, in this case the few additional

facts stipulated into the record do not change the result. As a general principle, we

discourage trial courts from allowing defendants a forum for attempting to relitigate

the issue of the propriety of pretrial diversion itself based upon evidence the

defendant failed to present to the prosecutor.



               Finding no reversible error below, we affirm the trial court's denial of

the defendant's petition for writ of certiorari and remand the matter for further

proceedings.




                                            _______________________________
                                            CURWOOD WITT, JUDGE




CONCUR:




_______________________________
JOHN H. PEAY, JUDGE




                                           7
_______________________________
JOSEPH M. TIPTON, JUDGE




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