           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                    November 28, 2006 Session

                   STATE OF TENNESSEE v. RUSSELL L. TIPTON

                    Direct Appeal from the Circuit Court for Franklin County
                               No. 15084 J. Curtis Smith, Judge


                       No. M2006-00260-CCA-R9-CO - Filed August 9, 2007


Hayes, David G., Judge, separate concurring.

        This case illustrates the growing disparity in the application of diversion, both pre-trial and
judicial, in the State of Tennessee. The appellant in this case, who presents an unblemished combined
history of thirty-five years of meritorious service to his country in the military and to the citizens of this
state as a police officer, is denied diversion, in effect, for operating a boat without proper light.
Meanwhile, on the date this opinion is being written, the Shelby County Criminal Court grants diversion
of a conviction for manslaughter stemming from the shooting death of the defendant’s husband.

        In his argument to deny diversion, the assistant district attorney general first expressed concern
that because “the [appellant] has been married three times . . . [the appellant’s] issues with multiple
spouses” weigh against a favorable social history. Divorce and remarriage does not violate the public
policy of this State, and I know of no authority which would support the prosecutor’s contentions. The
assistant district attorney further faults the appellant for failing to answer question number (11) of the
diversion application, which required the appellant to state whether he was of low, medium, or high
“IQ.” Nonetheless, the assistant district attorney concludes that the appellant “obviously . . . possesses
some mental abilities.”

        Moreover, the prosecutor faults the appellant for noting on the application form that he has never
been evaluated by a psychologist, because, as the prosecutor explains, “[h]e was subjected to
psychological testing in order to be a certified officer.” However, the POST certification requirements
for psychological evaluations were first implemented in 1992 and exempted law enforcement officers
already certified. See T.C.A. § 38-8-105 (2006). The appellant’s law enforcement career began in
1970. While these or other examples cited by the prosecutor may not be individually significant, the
so-called “evasive” responses become significant in the overall context because they, in part, form the
basis for the prosecutor’s conclusion that the appellant is not amenable to correction.

        Finding discretion abused, I concur that diversion is warranted.


                                                         ____________________________________
                                                         DAVID G. HAYES, JUDGE
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