         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 2, 2001

                   STATE OF TENNESSEE v. TONY WILLIAMS

              Interlocutory Appeal from the Criminal Court for Shelby County
                         No. 00-06333-35   Bernie Weinman, Judge



                  No. W2001-00788-CCA-R9-CD - Filed November 21, 2001


The defendant, Tony Williams, appeals the trial court's denial of pretrial diversion after a petition
for certiorari from the decision of the district attorney. In this discretionary appeal under Rule 9 of
the Tennessee Rules of Appellate Procedure, the single issue presented for review is whether the
denial of pretrial diversion qualified as an abuse of prosecutorial discretion. The judgment denying
relief is affirmed.

                  Tenn. R. App. P. 9; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ROBERT
W. WEDEMEYER , JJ., joined.

Jerome C. Payne, Memphis, Tennessee, for the appellant, Tony Williams.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        The defendant, an employee of Pretrial Services in Shelby County, was indicted for soliciting
monies from inmates in the Shelby County Jail in exchange for assistance in lowering the amounts
of their bail:

              A public servant commits an offense who, with intent to obtain a benefit or
       to harm another, intentionally or knowingly:

               (1) Commits an act relating to the servant's office or employment that
       constitutes an unauthorized exercise of official power . . . .

Tenn. Code Ann. § 39-16-402(a)(1).
       An indictment also issued against the defendant for bribery for accepting "a pecuniary benefit
from Kadrian Davis upon an understanding that [the defendant's] action as a public servant would
thereby be influenced." The applicable statute is as follows:

                A person commits an offense who:
                                                 ***
                (2) While a public servant, solicits, accepts or agrees to accept any pecuniary
        benefit upon an agreement or understanding that the public servant's vote, opinion,
        judgment, exercise of discretion or other action as a public servant will thereby be
        influenced.

Tenn. Code Ann. § 39-16-102(a)(2).

        The defendant allegedly committed the crimes between September 1, 1999, and February 1,
2000.

       The district attorney general denied an application for pretrial diversion because the crime
was "systemic in nature," extending over a six-month period; because the defendant misused the
criminal justice system by setting bonds based upon the amount of money he personally received;
because the defendant violated public trust by using his authority to set bonds in misdemeanor cases
and certain of the felony cases; because the defendant exposed members of the public to potential
danger and risk; and because prosecution of the crimes would have a deterrent effect. While
conceding that the defendant had no prior criminal record and was a college graduate, the district
attorney general also observed that the defendant was unemployed and had a poor work history.

        In his petition for certiorari, the defendant challenged each of the reasons for denial,
explaining that his job opportunities were limited because of his frequent court appearances relating
to these charges; that the duration of his criminal conduct was only three months instead of six; that
his conduct in pretrial services was subject to review by a supervisor and did not include absolute
authority to set bail in either misdemeanors or felonies; and that there was no basis for the conclusion
that prosecution would have a deterrent effect. The defendant submitted that the grant of diversion
would afford supervisory authority over the defendant's future conduct. While admitting that he
violated a position of public trust, the defendant claimed that denial based upon the nature of the
offense would qualify as an abuse of discretion.

        The trial court affirmed the decision made by the district attorney general and denied the
petition for a writ of certiorari. After considering both the contents of the petition and the reasons
furnished by the district attorney general for the denial of diversion, the trial court concluded that
whether the misconduct lasted three or six months or whether the defendant himself set bail or
furnished the information for others to do so was "of little consequence" on the issue of pretrial
diversion:




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        This type of conduct if perceived by the public went unpunished, the entire criminal
        justice system would be damaged. Not only would public trust in the system be
        diminished but the message sent to the inmates who paid bribes would be devastating
        to the system of justice. It would appear from the record that the district attorney
        general considered all of the relevant factors concerning the defendant's suitability
        for pretrial diversion including the defendant's social history, the circumstances of
        the offense, and what effect the granting of diversion would have on deterring this
        type crime.

        In this appeal, the defendant insists that the district attorney general failed to consider all
relevant factors and concentrated primarily upon the circumstances of the offense. The defendant
complains that the district attorney general failed to give appropriate weight to his lack of criminal
history and his college diploma.

        Pretrial diversion authorizes a district attorney general to suspend prosecution against a
qualified defendant for a period of up to two years. Tenn. Code Ann. § 40-15-105(a)(1)(A). A
defendant who is statutorily eligible for pretrial diversion is not presumptively entitled to the
program. Whether a qualified defendant receives a grant of pretrial diversion is discretionary with
the district attorney. State v. Hammersley, 650 S.W.2d 352, 353 (Tenn. 1983); State v. Carr, 861
S.W.2d 850, 855 (Tenn. Crim. App. 1993).

         In making the initial determination upon a request for diversion, the district attorney general
should consider (1) the circumstances of the offense; (2) the defendant's criminal record; (3) the
defendant's social history; (4) the defendant's physical and mental condition; (5) the deterrent effect
of punishment upon other criminal activity; (6) the defendant's amenability to correction; (7) the
likelihood that pretrial diversion will serve the ends of justice and the best interests of the defendant
and the public; and (8) the defendant'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) (quoting State v. Markham, 755 S.W.2d 850, 852-53 (Tenn. Crim. App.
1988)).

        A denial of pretrial diversion must be in writing and must include "an enumeration of the
evidence that was considered and a discussion of the factors considered and weight afforded each."
State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997). In State v. Brown, this court provided three
reasons for requiring a written response:

        First, the statement would compel the prosecutor to think about and justify his denial
        in terms of the applicable standards. Second, the statement of reasons would define
        the area of controversy at the evidentiary hearing. Finally, the statement of reasons
        would restrict the prosecutor to a particular rationale and insure that the prosecutor
        would offer no new reasons at the evidentiary hearing.



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700 S.W.2d 568, 570 (Tenn. Crim. App. 1985). There must be "more than an abstract statement in
the record that the district attorney general has considered these factors." State v. Herron, 767
S.W.2d 151, 156 (Tenn. 1989). The factors considered "must be clearly articulable and stated in the
record . . . ." Id. While the defendant has the burden of demonstrating his suitability for diversion,
that does not relieve the district attorney of the obligation to examine all relevant factors. Id. In State
v. Curry, 988 S.W.2d 153, 158 (Tenn. 1999), involving the embezzlement of $27,000.00 by a city
clerk, our supreme court observed that while the circumstances of the offense and the need for
deterrence may alone justify denial of diversion, that is so only if all the relevant factors have been
considered as well.

        The district attorney should identify any areas of factual dispute. Brown, 700 S.W.2d at 570.
The circumstances of the case and the generalized need for deterrence, when relied upon by the
district attorney, "cannot be given controlling weight unless they are 'of such overwhelming
significance that they [necessarily] outweigh all other factors.'" Washington, 866 S.W.2d at 951
(quoting Markham, 755 S.W.2d at 853) (emphasis in original). Where there are no "such
exceptional circumstances, 'the district attorney general must consider evidence which tends to show
that the applicant is amenable to correction [by diversion] and is not likely to commit further
criminal acts.'" Id. (quoting Markham, 755 S.W.2d at 853). "The decision of a district attorney
general granting or denying pretrial diversion to an accused is said to be 'presumptively correct'; and
the decision should not be set aside unless there has been a 'patent or gross abuse of prosecutorial
discretion.'" State v. Perry, 882 S.W.2d 357, 360 (Tenn. Crim. App. 1994) (quoting Pace v. State,
566 S.W.2d 861, 870 (Tenn. 1978)).

        When an application for pretrial diversion has been denied by the district attorney, the
defendant may appeal to the trial court for a writ of certiorari. Tenn. Code Ann. § 40-15-105(b)(3).
The trial court may only consider the evidence considered by the district attorney general. State v.
Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993). After first determining whether the
defendant is eligible for diversion, the trial court may conduct a hearing to resolve any factual
disputes between the state and the defense but may not hear evidence not considered by the district
attorney. Pinkham, 955 S.W.2d at 960.

        In order for the trial court to grant relief to the defendant, the record must show an absence
of any substantial evidence to support the denial of pretrial diversion by the district attorney. Our
scope of review is limited to whether the evidence preponderates against the finding of the trial
court, which has held that the district attorney did not abuse his discretion. Id.; State v. Carr, 861
S.W.2d 850, 856 (Tenn. Crim. App. 1993).

         Initially, the crimes alleged against the defendant would not disqualify him from a pretrial
diversion program. See Tenn. Code Ann. § 40-15-105. Yet the circumstances of the charged crimes
were particularly bothersome to the district attorney because they were committed within a criminal
justice system designed to assure the confidence of the public. The record demonstrates that the
district attorney examined relevant factors, including the two factors weighing most heavily in favor
of the grant of diversion, and articulated why the particular nature of these offenses and the deterrent


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value of prosecution outweighed those favorable factors. See State v. Fields, 40 S.W.3d 450 (Tenn.
2001); State v. Hooper, 29 S.W.3d 1, 10 (Tenn. 2000).

         The allegations by the state are that the defendant committed the crimes over a period of time
extending from three to six months. A public official employed in the Pretrial Services for Shelby
County, the defendant allegedly had the authority in certain instances to establish the amount of bail
for the release of jail inmates and solicited payment in exchange for the reduction of bail. The
district attorney considered the appropriate factors: the nature of the offense, the defendant's lack of
a prior criminal record, the defendant's social history, the deterrent effect on other criminal activity,
the defendant's amenability to correction, the interests of the defendant and the state, and other
factors, including the defendant's employment record before and after the arrest.

        In our view, all factors except for the duration and nature of the offenses, the need for
deterrence, the interests of the state, and, to a limited degree, employment history, weigh in favor of
the grant of pretrial diversion. In this instance, however, the defendant, entrusted with the difficult
responsibility of assisting in the establishment of conditions for pretrial release of inmates, allegedly
misused his authority for purposes of profit. Corruption of this kind does, in fact, discredit the
criminal justice system, which is entirely dependent upon the continuing integrity of those who have
earned the right to participate in the process. The burden of responsibility is particularly onerous
upon those involved in this area of criminal justice. The public trust is at issue. It is difficult to
exaggerate the potential risks and consequences of the misuse of that trust. Cf. State v. Kissinger,
922 S.W.2d 482 (Tenn. 1996).

        Here, the defendant stands accused of placing a price on freedom from incarceration and
communicating to jail inmates his willingness to compromise the criminal justice system. This is
one of those rare occasions when general deterrence for similar crimes is an appropriate
circumstance. There is no particular evidence suggesting these crimes are more prevalent in Shelby
County than others areas of the state. Yet it is our view that prosecution in this instance is
particularly suitable. The honesty of personnel within the criminal justice system is essential to
public safety.

        The nature of the charged crimes, the public interest in the preservation of the integrity of the
courts and their processes, and the deterrent value of the prosecution of a public employee entrusted
with critical duties within the criminal justice system, when weighed against favorable factors to the
defense, support the denial of diversion. The evidence does not preponderate against the trial court's
conclusion that the district attorney did not abuse his discretionary authority.

                Accordingly, the judgment is affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE


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