         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     April 9, 2002 Session

             STATE OF TENNESSEE v. WILLIAM DAVID MARKS

                Direct Appeal from the Criminal Court for Davidson County
                        No. 2000-C-1524   Cheryl Blackburn, Judge



                     No. M2001-01497-CCA-R9-CO - Filed May 10, 2002


The defendant brings this interlocutory appeal in which he challenges the prosecutor’s denial of
pretrial diversion for simple assault and the trial court’s denial of his certiorari petition. We
conclude the prosecutor properly considered the need for deterrence for domestic violence, the
defendant’s lack of remorse and failure to take responsibility for his actions, and the seriousness of
the offense and its impact upon the victim. However, we conclude the prosecutor wrongfully
considered certain factors relating to domestic violence cases that have no application to the
circumstances of this case, and wrongfully considered the defendant’s depression for which he takes
prescription medication. Accordingly, we reverse the order of the trial court and remand this matter
to the district attorney general for further consideration in accordance with this opinion.

     Tenn. R. App. P. 9 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                        Remanded

JOE G. RILEY, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN E.
GLENN, JJ., joined.

Frank Lannom, Lebanon, Tennessee, for the appellant, William David Marks.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. (Tory) Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                         BACKGROUND
       The defendant, William David Marks, was indicted for Class A misdemeanor assault for
allegedly striking and kicking his ex-wife, Patsy Anderson. The following facts are summarized
from the letter of denial of pretrial diversion by the assistant district attorney.

        The defendant and Anderson spent a Saturday afternoon together. They shared two bottles
of wine at a restaurant and then stopped at a liquor store, where they purchased two more bottles of
wine. They drank this wine while en route to another restaurant. Anderson stated the defendant
called her a “slut.” According to Anderson, she requested the defendant take her home, and he drug
her by her hair from his vehicle and began to hit and kick her. Anderson suffered physical injuries.
Two passersby intervened on behalf of Anderson; the police were called. Police discovered two
empty wine bottles in the defendant’s vehicle. The officer noted defendant was highly intoxicated.
The defendant was taken to the hospital because of his state of intoxication and diabetic condition.

        The defendant indicated he had no recollection of any events that occurred after he and
Anderson left the restaurant. He asserted a high blood sugar level caused by his diabetic condition
affected his ability to think rationally.

         The defendant applied for pretrial diversion. His application indicated the 50-year-old
defendant had three children, had attended two years of college, had run a business for 30 years, was
a diabetic, and was a life-long resident of Lebanon, Tennessee. According to his application, the
defendant belonged to several organizations and a church. The defendant had no prior criminal
record and asserted the charges against him were an “aberration” and “out of character.” Eight
letters from persons who were well acquainted with the defendant, including his former wife Barbara
Marks, were attached to his application. The letters stated the defendant made generous
contributions to his community; he is not a violent person; the alleged offense is not characteristic
of his behavior; and the defendant is a good father to his children.

         In addition to the above, the prosecutor considered the pretrial diversion case manager’s
report, the police report, photographs of the victim’s injuries, a transcript of a civil hearing on the
victim’s request for an order of protection, statistics compiled by the Metro Nashville Police
Department regarding crimes of domestic violence, and interviews with the defendant and the victim
conducted by the prosecutor. The pretrial diversion case manager opined in her report that the
defendant did not appear to exhibit remorse nor take responsibility for the alleged offense. The
statistics compiled by the police department showed the number of domestic violence reports in
Metro Davidson County rose from 12,649 in 1998, to 13,790 in 1999, and to 16,410 in 2000.

       The district attorney general denied the defendant’s request for diversion in a letter that gave
the following reasons for the denial:

       1. Prosecution ... is necessary to deter other similarly situated persons from engaging
       in domestic violence, a frequent and sometimes deadly crime in Davidson County.
       2. The defendant has failed to accept moral responsibility for his crime.


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       3. Prosecution ... is necessary to avoid depreciating the seriousness of the offense and
       its impact on the victim in this case.

        The assistant district attorney based the deterrence factor on statistics provided by the Metro
Police Department, which showed a significant increase in domestic violence reports for the last
three years. The assistant district attorney said the factor of general deterrence weighed heavily
against granting pretrial diversion.

        The prosecutor opined the defendant’s statements regarding the offense lacked sympathy for
the victim and remorse. According to the assistant district attorney, the defendant stated he
apologized to the victim during the order of protection hearing, but the transcript of the hearing does
not reflect an apology. The assistant district attorney further stated the defendant completely
attributed the incident to his physical problems and to being with the victim. The prosecutor noted
the defendant, who was taking insulin and Zoloft, had been drinking and operating a vehicle under
the influence of alcohol just prior to the offense. According to the prosecutor, this behavior
“exhibited a reckless disregard for himself and others.” The assistant district attorney stated the
defendant’s behavior in this regard combined with an attitude that the offense “was just bad luck”
was a factor which heavily weighed against pretrial diversion.

        The assistant district attorney stated the incident greatly affected the victim’s mental health.
He said the victim did not seek the defendant’s incarceration, but she “strongly seeks” the
defendant’s prosecution. According to the assistant district attorney, this factor weighed against
diversion, but did not weigh as heavily as the prior factors.

        The assistant district attorney recognized the following factors as being in favor of granting
pretrial diversion: (1) the defendant has no prior criminal record; (2) the defendant has a good
relationship with his first ex-wife, Barbara Marks, and their children; (3) the defendant has been
involved with a family business all of his working life and has a good business reputation; and (4)
the defendant’s status in the community and general reputation are very good. The assistant district
attorney declined to apply emotional stability as a factor in favor of diversion because the defendant
reported suffering from depression and took Zoloft, a prescription anti-depressant.

         The defendant filed a writ of certiorari seeking review in the criminal court. After reviewing
the prosecutor’s denial, the criminal court determined the prosecutor did not abuse his discretion in
denying the defendant’s request for pretrial diversion and, therefore, denied the defendant’s request
for relief.


                                     PRETRIAL DIVERSION

        The pretrial diversion statute allows a district attorney general to suspend the prosecution of
an eligible defendant for a period not to exceed two years. See Tenn. Code Ann. § 40-15-105(a)(1).
To be eligible for pretrial diversion, the defendant: (1) must not have been previously granted pretrial

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diversion; (2) must not have a prior misdemeanor conviction for which a sentence of confinement
was served or a prior felony conviction within a five-year period after completing the sentence or
probationary program for such conviction; and (3) must not be charged with a Class A felony, a
Class B felony, certain Class C felonies, a sexual offense, driving under the influence, or vehicular
assault. Id. at (a)(1)(B)(i).

        There is no presumption that a person eligible for pretrial diversion is entitled to diversion.
 State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). The defendant bears the burden of establishing
pretrial diversion is appropriate and in the interest of justice; therefore, it is the defendant’s
responsibility to submit substantial favorable evidence for the district attorney general’s
consideration. State v. Bell, 69 S.W.3d 171, 179 (Tenn. 2002).

        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); State v. Pinkham, 955 S.W.2d
956, 959 (Tenn. 1997). The district attorney general must focus on the defendant’s amenability to
correction and consider any factors which tend to accurately reflect the defendant’s propensity to
become a repeat offender. State v. Yancey, 69 S.W.3d 553, 557 (Tenn. 2002); State v. Hammersley,
650 S.W.2d 352, 355 (Tenn. 1983). These factors include: (1) the circumstances of the offense; (2)
the defendant’s criminal record; (3) the defendant’s social history; (4) where appropriate, the
defendant’s physical and mental condition; (5) the likelihood pretrial diversion will serve the ends
of justice; and (6) the best interest of both the public and the defendant. Hammersley, 650 S.W.2d
at 355. The district attorney should clearly articulate these factors for the record to facilitate
appellate review. Id. If pretrial diversion is denied, the denial must be written, must list the
evidence considered, discuss which factors were considered, and discuss the weight accorded to each
factor. Curry, 988 S.W.2d at 157.

          If an application for pretrial diversion is denied, a defendant may appeal to the trial court
for a writ of certiorari to determine if the district attorney general abused his or her prosecutorial
discretion. Tenn. Code Ann. § 40-15-105(b)(3). In reviewing the prosecutor’s decision, the trial
court must consider only the evidence considered by the district attorney general. Curry, 988 S.W.2d
at 157. The trial court may conduct a hearing only to resolve factual disputes concerning the
application; it should not hear additional evidence not considered by the prosecutor. Id. at 157-58.
The discretion to grant or deny pretrial diversion rests with the district attorney general rather than
the trial court. Bell, 69 S.W.3d at 179. The trial court is to review the method used by the
prosecutor, but not “the intrinsic correctness” of the prosecutor’s decision. Yancey, 69 S.W.3d at
558-59. The trial court may not reweigh the evidence or substitute its view for that of the prosecutor.
Id. at 559.


                                                 -4-
         The trial court must determine whether the prosecutor has abused his or her discretion by
failing to consider and weigh all the relevant factors or by reaching a decision not supported by
substantial evidence. Curry, 988 S.W.2d at 158. If the trial court concludes the prosecutor failed
to consider all the relevant factors and their weight when the prosecutor denied an application for
pretrial diversion, the trial court must reverse the prosecutor’s decision and remand the matter to the
prosecutor for further consideration of all the relevant factors. Bell, 69 S.W.3d at 179. If the trial
court determines the district attorney’s office considered all relevant factors and their weight, it must
further determine whether there is substantial evidence to support the decision to deny diversion.
Yancey, 69 S.W.3d at 559. This court, like the trial court, is limited to considering only the evidence
considered by the district attorney general. Id.


                POLICY REGARDING DOMESTIC VIOLENCE OFFENSES

       The defendant argues that certain statements included in the assistant district attorney’s
written denial of pretrial diversion indicate the district attorney general’s office has improperly
denied diversion simply because the defendant is charged with a domestic assault. In his letter
denying diversion, the assistant district attorney stated the following:

                The criminal justice system should make these cases a priority.
                Domestic violence cases result in broken homes, serious injuries, and
                even death in the most serious cases. Children raised in domestic
                violence will be more likely to be victims or perpetrators in
                adulthood. . . . The justice system should prosecute all of these cases
                where possible.

        The defendant contends these comments indicate the district attorney general is imposing a
policy denying pretrial diversion to all domestic violence defendants, rather than viewing each
applicant individually. He further argues that none of the societal ills which the assistant district
attorney attributed to domestic violence applied to the circumstances of his case because the
defendant and victim were not married and do not live together; the victim suffered no serious
injury; the victim was not killed; the defendant and the victim have no children together; and there
is no evidence in the record that the defendant has sought revenge because of the charges against
him.

       It is improper for a district attorney general to apply a local policy contrary to or different
from state law when determining whether to grant an application for pretrial diversion, such as
denying pretrial diversion to a defendant eligible for diversion solely because he or she is charged

                                                  -5-
with a particular offense. Hammersley, 650 S.W.2d at 356; State v.Cutshaw, 967 S.W.2d 332, 344
(Tenn. Crim. App. 1997). We do not read the denial of diversion in this case to reflect a blanket
denial of pretrial diversion in all domestic violence cases. However, we do agree that the prosecutor
improperly relied upon some possible results of domestic violence; namely, broken homes, serious
injuries, death, and children being more likely to be perpetrators in adulthood. These possible results
have no application to the circumstances of this case; the defendant should not be penalized for
consequences that could not have resulted from his conduct.


                                           DEPRESSION

         The defendant contends the assistant district attorney wrongfully considered that the
defendant suffers from depression and takes a prescription anti-depressant. We agree with the
defendant that taking a prescription medication for depression should not be considered as a negative
factor in determining whether or not to grant diversion. In this case, the assistant district attorney’s
letter indicated the defendant’s emotional stability was not a favorable factor because of the
defendant’s depression for which he was taking Zoloft . Although the prosecutor did not specifically
state this was a factor weighing against pretrial diversion, we conclude the assistant district attorney
implicitly applied it against the defendant. We fail to see any reason to consider this against the
defendant. A person diagnosed with depression, a widespread illness triggered by an event or
genetics, should not be penalized for having the illness and taking medication prescribed to address
this illness.



                                          DETERRENCE

        In a pretrial diversion decision, the need for deterrence may be considered in the same
manner as in probation cases. Hammersley, 650 S.W.2d at 354. To determine whether there is a
need for deterrence, the following factors should be considered: (1) whether other incidents of the
charged offense are increasingly present in the community, jurisdiction, or state as a whole; (2)
whether the crime was the result of intentional, knowing, or reckless conduct or was otherwise
motivated by a desire to profit or gain from criminal behavior; (3) whether the alleged offense
received substantial publicity beyond that normally expected in a typical case; (4) whether the
defendant was a member of a criminal enterprise, or substantially encouraged or assisted others in
achieving the criminal objective; and (5) whether the defendant has previously engaged in criminal
conduct of the same type as the offense in question, irrespective of whether such conduct resulted
in previous arrests or convictions. State v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000).

                                                  -6-
         When determining whether the number of incidents of the charged offense is increasing,
statistics may be helpful. Id. at 11. In the instant case, the statistics provided to the district attorney
by the police department show the number of reports of domestic violence for Metro Davidson
County had increased from 12,649 in 1998 to 16,410 in 2000, an increase of about 30% in three
years. This was sufficient to support the prosecutor’s finding that the number of incidents of
domestic violence was increasing in the judicial district.

         The prosecutor implicitly concluded the offense was the result of intentional, knowing and
reckless conduct. There is certainly substantial evidence to support this conclusion. However, there
is no indication in the record that the charge against the defendant has received substantial publicity,
or that the defendant was a member of a criminal enterprise. The assistant district attorney stated
the defendant had no prior criminal record. We infer that the assistant district attorney did not
consider the defendant to have previously engaged in the same type of criminal conduct as the
offense in question.1

        We conclude there was sufficient evidence to support the prosecutor’s conclusion that a need
for deterrence exists based upon the statistics cited in his letter and the intentional, knowing and
reckless conduct of the defendant. Though the other Hooper factors do not apply, all factors need
not be present. Hooper, 29 S.W.3d at 12.


                                   REMORSE AND RESPONSIBILITY

        The defendant further argues there is no substantial evidence to support the prosecutor’s
application of lack of remorse and failure to take responsibility. These factors may be considered
relating to one’s potential for rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim.
App. 1994) (applying these factors in the context of alternative sentencing).

        The assistant district attorney relied upon statements the defendant made to him and to the
pretrial diversion case manager. The case manager specifically noted defendant’s lack of remorse
and failure to take responsibility for his actions. Although defendant contends he had apologized




         1
          The victim testified at the civil hearing on her request for an order of protection, the transcript of which was
considered by th e pro secutor, that the d efen dan t had shoved her and choked her on prior occasions. It is within the
province of the district attorne y general to determine w hether to use this ev idence as a basis fo r his de cision.

                                                           -7-
to the victim at the order of protection hearing, an apology does not appear in the transcript of that
hearing.2 We find the application of these factors was supported by substantial evidence.



                                        SERIOUSNESS OF OFFENSE

        The prosecutor relied upon the seriousness of the offense and its impact upon the victim. In
the instant case, the prosecutor found the defendant “exhibited a reckless disregard for himself and
others” by consuming a large quantity of alcohol while taking prescription medication and by driving
an automobile. Though the defendant is not charged with driving under the influence, both the
defendant and victim stated they drank about four bottles of wine and the defendant was driving just
prior to the alleged offense.3 A police officer called to the scene following the offense documented
that the defendant was “very intoxicated.” There is substantial evidence to support the prosecutor’s
conclusion that the defendant was operating the vehicle after consuming the alcohol, thereby
endangering the lives of others. It is clear from the evidence considered by the assistant district
attorney that the defendant’s consumption of a large quantity of alcohol played a role in the alleged
offense, and there was a sufficient basis for the assistant district attorney’s finding that it was the
defendant’s choice to consume the alcohol.

        In addition, there is substantial evidence to indicate the brutality of the attack upon the
victim. Furthermore, the victim not only received physical injuries, but has also undergone mental
health counseling as a result of the offense.

        We conclude the assistant district attorney properly relied upon the seriousness of the offense
and its impact upon the victim in his decision to deny pretrial diversion.


                           CONSIDERATION OF FAVORABLE FACTORS

      The defendant contends the assistant district attorney failed to focus on the defendant’s
amenability to correction and give proper weight to factors favorable to the defendant. He also


         2
           W e recognize the possibility that defendant may have apologized prior to or after the hearing. How ever, there
is noth ing in the rec ord to disp ute the pro secutor’s co nclusion.

         3
          Had defendant been charged with DUI, he would not be eligible for pretrial diversion for that offen se. See
Tenn. Co de An n. § 40-15-1 05(a)(1)(B)(i)(c).

                                                           -8-
argues the trial court erred by refusing to reweigh the factors considered by the assistant district
attorney. However, neither the trial court nor this court may reweigh the factors considered by the
district attorney general’s office. Yancey, 69 S.W.3d at 559.

        The assistant district attorney stated he considered several factors which were in the
defendant’s favor, including lack of a prior criminal record, a good relationship with his first ex-wife
and his children, his good reputation related to his business, and his good reputation in the
community. The assistant district attorney weighed these favorable factors against the unfavorable
factors. We conclude the assistant district attorney considered all the factors in the defendant’s favor
based upon the facts presented to him.

                                                       REMEDY

        We conclude the assistant district attorney properly considered the need for deterrence, the
defendant’s lack of remorse, and the defendant’s failure to take responsibility for his actions. We
further conclude the assistant district attorney considered all factors favorable to the defendant in
determining whether to grant the defendant’s application for pretrial diversion. However, we
conclude he also improperly considered two factors; namely, (1) certain matters relating to domestic
violence cases that have no application to the circumstances of this case; and (2) the defendant’s
depression for which he takes prescription medication.

        Although there may well be substantial evidence to support the assistant district attorney’s
denial of pretrial diversion regardless of these two deficiencies, we are unable to conclude that the
appropriate remedy is to affirm the denial of pretrial diversion. The Tennessee Supreme Court
concluded in Bell that when the prosecutor denies pretrial diversion “without considering and
weighing substantial evidence favorable to a defendant,” the appropriate remedy is to remand to the
prosecutor “for further consideration of all the relevant factors.” Bell, 69 S.W.3d at 179. The failure
of the prosecutor to consider all relevant factors cannot be cured by judicial review to “fill in the
gaps.” Id. Likewise, we conclude we cannot “fill in the gaps” when the prosecutor considers
improper factors. We may not substitute our judgment for that of the prosecutor since the prosecutor
must be given the opportunity to consider the proper factors. Accordingly, pursuant to the procedure
set forth in Bell, we remand this matter to the office of the district attorney general for further
consideration of relevant factors to determine the defendant’s eligibility for pretrial diversion.4

         4
          It is certainly not our intent, nor do we believe it was our supreme court’s intent in Bell, to engage in a
prolonged “ping-pong” match between the prosecutor, trial court and the appellate courts concerning pretrial diversion.
How ever, it appears that until the prosecutor considers all relevant factors, and only the relevant factors, judicial review
                                                                                                               (con tinued...)

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                                               ___________________________________
                                               JOE G. RILEY, JUDGE




         4
           (...continued)
cannot b e bro ugh t to a conclusion.

                                        -10-
