         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE          FILED
                            JUNE 1999 SESSION
                                                       July 23, 1999

                                                 Cecil W. Crowson
STATE OF TENNESSEE,                 )
                                                Appellate Court Clerk
                                    )    NO. 01C01-9810-CR-00413
      Appellee,                     )
                                    )    PUTNAM COUNTY
VS.                                 )
                                    )    HON. LEON BURNS, JR.,
                                    )    JUDGE
JACK R. ROBERTS,                    )
                                    )
      Appellant.                    )    (Pretrial Diversion)



FOR THE APPELLANT:                       FOR THE APPELLEE:

DONALD G. DICKERSON                      PAUL G. SUMMERS
310-D East Broad Street                  Attorney General and Reporter
Cookeville, TN 38501-3304
                                         KIM R. HELPER
                                         Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         WILLIAM EDWARD GIBSON
                                         District Attorney General

                                         BENJAMIN W. FANN
                                         Assistant District Attorney General
                                         145 S. Jefferson Avenue
                                         Cookeville, TN 38501-3424




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION


       The defendant, Jack R. Roberts, pursuant to a Tenn. R. App. P. 9

interlocutory appeal, challenges the denial of pretrial diversion by the District

Attorney General and subsequent denial of relief by the trial court. Defendant was

indicted for the Class C felony of aggravated assault and contends the prosecutor

abused his discretion in denying pretrial diversion. After our review of the record,

we AFFIRM the judgment of the trial court.



                                   BACKGROUND



       Defendant was indicted for the offense of aggravated assault as a result of

his altercation with John Francisco at a local bar. As a result of the altercation,

Francisco suffered a broken jaw and broken ribs and incurred expenses in excess

of $17,000. Defendant was uninjured.



       Defendant submitted a pretrial diversion application to the prosecutor. The

prosecutor also considered an Investigation Report prepared by the Department of

Correction. These documents indicated that the defendant was 42 years old, had

recently re-married, had two adult children by a previous marriage, had no prior

criminal record and had a stable employment history. His application indicated that

he was a high school graduate.1 Also attached to the application were statements

from six individuals vouching for defendant’s character. The Investigation Report

indicated that the defendant enlisted in the Air Force in 1975, but was not allowed

to enter boot camp since he failed the initial drug test. The report further indicated

that defendant stated that “[s]omebody slipped something into my beer.”




       1
         The Investigation Report indicates that the defendant dropped out of high school
after the 11th grade. This discrepancy was not considered by the prosecutor and will be
deemed immaterial for purposes of this appeal.

                                           2
       Defendant’s version of the offense in his application indicated that the victim

had been “baiting me into a confrontation” for some period of time prior to the

incident. Defendant indicated that he thought the victim was about to hit him, and

he reacted in self-defense.



       The defendant’s version of the offense in the Investigation Report added

other information. Defendant admitted that he referred to the victim as a “midget.”2

The victim asked the defendant if he called him a “midget,” and the defendant

agreed that he did. The defendant stated the victim came up to him in a threatening

way so defendant knocked him to floor, got on top of him and hit him a couple more

times. Defendant further stated that he was “thinking to myself this man is known

to carry a gun strapped to his ankle;” therefore, he kicked him a couple of times in

the chest.



       The Assistant District Attorney General denied the request for diversion by

letter dated October 30, 1997.        The letter indicated that the prosecutor had

considered the application, the attached character witness letters and the

Investigation Report prepared by the Department of Correction. Based upon the

information provided, the prosecutor concluded that the defendant should not be

granted diversion. In doing so the prosecutor noted the following negative factors:

       1.     Defendant had exhibited no remorse.

       2.     Defendant had taken no responsibility for the offense and had
              blamed others.

       3.     Defendant was unable to get into the military due to a positive
              drug test, yet blamed another for this occurrence.

       4.     There were “far too many incidents of this type,” and pretrial diversion
              would provide no deterrence.

       5.     This was a violent, unprovoked attack upon a victim much smaller than
              the defendant.




       2
       The application for pretrial diversion indicated the defendant was 5'11" and
weighed 205 pounds. The prosecutor at the certiorari hearing stated the victim was
“probably about” 5'6" and weighed 130 pounds.

                                           3
       6.     The incident was instigated by the defendant calling the victim
              a “midget.”

       7.     The victim was attempting to leave the establishment when attacked
              by the defendant.

       8.     Defendant administered a severe beating to the victim, including
              kicking the victim while the victim lay helpless.

       9.     The severe beating led to a week’s hospitalization and medical
              bills and lost wages totalling over $17,000.

       10.    Defendant’s statement in his application made no reference to
              a belief that the victim carried a gun, whereas the statement in
              the Investigation Report indicated to the contrary.


       Defendant filed his petition for writ of certiorari to the trial court on November

21, 1997. Several months later on March 13, 1998, he filed a motion with the trial

court to be allowed to amend his application for pretrial diversion to include three

affidavits executed on March 9, 1998. The affidavits indicated that the victim was

known to carry a pistol.



       At the certiorari hearing on March 24, 1998, the prosecutor indicated that he

had not considered the recent affidavits, that they were not presented to him at the

time of his original denial, and that the petition for writ of certiorari made no mention

of this issue. The trial court indicated the affidavits “may be filed, and if they are

considered by the state, and they can be. If they’re not, they’re part of the record.”

The trial court entered a written order on June 23, 1998, indicating the affidavits

“were in response to the denial, the affidavits were timely presented and should be

considered as part of the pre-trial diversion application....”



       In spite of the controversy concerning the three affidavits, the trial court

carefully considered the various factors outlined by the prosecutor in the denial of

diversion and concluded there was no abuse of discretion in the denial.

Accordingly, the petition was denied.




                                           4
                             STANDARD OF REVIEW



              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).



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

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

abuse of discretion. State v. Curry, 988 S.W.2d 153, 158 (Tenn. 1999); 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 hearing court

must consider only the evidence made available to and considered by the

                                           5
prosecutor. Curry, 988 S.W.2d at 157. 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 the trial court’s decision is supported by a

preponderance of the evidence. Curry, 988 S.W.2d at 158. 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).



                                  DETERRENCE



       Defendant contends the prosecutor improperly relied upon general

deterrence. Although general deterrence is a proper consideration in pretrial

diversion cases, see Hammersley, 650 S.W.2d at 354, the record should support

the need for general deterrence. State v. Kirk, 868 S.W.2d 739, 743 (Tenn. Crim.

App. 1993). Although the prosecutor stated there were “far too many incidents of

this type,” it is unclear whether he meant aggravated assaults generally or

aggravated assaults in local bars. Although the District Attorney General is certainly

in a position to be informed about criminal activity in the district, see State v.

Holland, 661 S.W.2d 91, 93 (Tenn. Crim. App. 1983), the record before this Court

is insufficient to justify reliance upon general deterrence.



   FAILURE TO INTERVIEW DEFENDANT AND CHARACTER WITNESSES



       Defendant contends the prosecutor unjustifiably refused to interview the

defendant and his character witnesses in spite of defense counsel’s request to do

so. We have been cited no authority, nor are we aware of any authority, which

requires the prosecutor to conduct an interview of the defendant and/or other


                                          6
character witnesses suggested by defense counsel. The prosecutor did not abuse

his discretion in failing to do so.



                                RECENT AFFIDAVITS



       Defendant argues the prosecutor abused his discretion in refusing to

consider the affidavits filed with the trial court several days prior to the certiorari

hearing. In a certiorari hearing the trial court should consider only the evidence

considered by the prosecutor. Curry, 988 S.W.2d at 157; State v. Winsett, 882

S.W.2d 806, 810 (Tenn. Crim. App. 1993). Defendant contends the instant case

is distinguishable since this information was submitted to the prosecutor prior to the

hearing. The reason for its submission was the prosecutor’s statements in his

denial letter relating to the victim’s alleged reputation for carrying a gun.



       Regardless, it is apparent the prosecutor would have denied diversion in

spite of these three affidavits.       The affidavits are arguably relevant to the

defendant’s state of mind at the time of the incident and would relate to self-

defense. It is further apparent this factual issue would not be resolved to the

prosecutor’s satisfaction by the three affidavits. Further, this disputed factual issue

relating to self-defense would not be resolved by the trial court in a certiorari

hearing. Thus, the failure of the prosecutor to consider these affidavits does not

merit relief.



                                      CONCLUSION



       Although we have concluded the prosecutor improperly relied upon general

deterrence, this does not foreclose a determination that substantial evidence still

remains to support the denial.         Carr, 861 S.W.2d at 857.       The prosecutor

considered the favorable information contained in the application for pretrial

diversion and the Investigation Report; however, the prosecutor found other factors


                                           7
outweighed this favorable information. In addition to other factors, the prosecutor

relied primarily upon the nature and circumstances of the offense. From the

prosecutor’s perspective, the offense was violent, instigated by the defendant and

involved a victim much smaller than the defendant. Most significantly, the beating

was severe and included kicking the victim while he lay on the floor helpless. The

beating resulted in serious injuries, hospitalization for a week, and expenses in

excess of $17,000.



       The only issue is whether the prosecutor abused his discretion in denying

pretrial diversion. Neither the trial court nor this Court may substitute its judgment

for that of the prosecutor if his decision is supported by the evidence. We conclude

there was no abuse of discretion by the prosecutor in the denial of pretrial diversion.



       The judgment of the trial court is AFFIRMED.



                                                  ____________________________
                                                  JOE G. RILEY, JUDGE




CONCUR:


____________________________
JOSEPH M. TIPTON, JUDGE



____________________________
ALAN E. GLENN, JUDGE




                                          8
