        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT NASHVILLE             FILED
                       APRIL SESSION, 1999           June 4, 1999

                                                Cecil W. Crowson
STATE OF TENNESSEE,   )                       Appellate Court Clerk
                               C.C.A. NO. 01C01-9807-CR-00305
                      )
    Appe llant,       )
                      )
                      )        WILSON COUNTY
VS.                   )
                      )        HON. BOBBY CAPERS,
KENNETH BRYAN HARRIS, )        JUDGE
                      )
    Appellee.         )        (State Appe al)


              ON APPEAL FROM THE JUDGMENT OF THE
               CRIMINAL COURT OF WILSON COUNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

FRANK LANNOM                   JOHN KNOX WALKUP
102 East Main Street           Attorney General and Reporter
Lebanon, TN 37087
                               KIM R. HELPER
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243-0493

                               TOM P. THOMPSON, JR.
                               District Attorney General

                               WILLIAM REED
                               District Attorney Ge neral Pro T empore
                               363 Court Street
                               Maryville, TN 37804-5906



OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
                                   OPINION

          The State ap peals from thre e decisions of the Wilson County Criminal

Court concerning Defendant Kenneth Bryan Harris. The State contends that the

trial court erred by (1) dismissing Defendant’s superseding, two-count indictment

for attemp ted first deg ree mu rder and aggrava ted assa ult; (2) denying the State’s

motion to nolle prosequi the initial indictment charging aggravated assault; and

(3) revers ing the district a ttorney gene ral pro tempore’s decision to deny

Defen dant pre trial diversion for the initial cha rge of ag gravated assau lt.



          The facts we glean from the limited record reveal that Defendant and the

victim in this case were neighbors engaged in a dispute. Shortly before the

conflict at bar, De fendan t had acc used th e victim of th reatenin g to kill him with a

gun, resulting in an indictment against the victim. Later, on January 21, 1996,

Defendant saw the victim w alking his do g, stop ped a nd exite d his ca r with his .38

caliber pistol, allegedly threatened to kill the victim, and fired five shots at the

victim.



          Defendant claim s that w hile he was driving, the victim began to walk to the

center of the stree t toward h is car.      De fendan t states th at whe n the vic tim

reached behin d his back, as if for a weapon, Defendant fired a warning shot, after

which the victim b egan to run towa rd the ca r. Defendant then fired four more

shots, injuring the victim . Defendant then called emergency assistance for the

victim, who has suffered irrevocable paralysis from the chest down as a result of

the shooting.



                                           -2-
       The Wilson County Grand Jury indicted Defendant on March 18, 1996 for

one count of aggravated assault; and because of the prior indictment pending

against the victim, a district attorney gene ral pro tempo re was ap pointed to

prosec ute the case. On November 12, 1996, Defendant filed an application for

pretrial diversion, which is authorized by law for the offense of aggravated

assau lt. On December 12, 1996, the State responded by securing a superseding

indictment from the grand jury for aggravated assault and attempted first degree

murde r, the latter of w hich doe s not qua lify for pretrial divers ion.



       The State moved the trial court on May 8, 1997 to nolle prosequi the initial

indictment in favor of the supers eding ind ictmen t. On Ma rch 31, 1 998, the State

denied Defendant’s motion for pretrial diversion on the original indictment, and

Defendant filed a response the same day opposing the State’s motion to nolle the

original ind ictmen t.



       On April 14, 1998, the trial court denied the State’s motion to nolle the first

indictme nt; dismissed the superseding, two-count indictment; and scheduled a

hearing to review th e State’s denial of p retrial diversio n. Following the hearing,

the trial court foun d that the district a ttorney gene ral pro tempore abus ed his

discretion by denyin g Defe ndant p retrial diversio n and o rdered th at a

Memorandum of Understanding be entered for a two-year period. On June 5,

1998, the State filed its notice o f appeal under T ennes see Ru le of App ellate

Proced ure 3.




                                           -3-
               I. DISMISSAL OF SUPERSEDING INDICTMENT
              AND DENIAL OF MOTION TO NOLLE PROSEQUI

      As a preliminary procedural matter, Defendant challenges the timeliness

of the State’s appeal, contending that the appeal, filed under Tennessee Rule of

Criminal Procedure 3, should have been filed within thirty days of April 14, 1998,

the date the trial court denied the motion to nolle the original indictment and

dismissed the superseding indictment. See Tenn. R. App. P. 3(c)(1), (4). The

State did not file its notice, however, until June 5, 1998.



      The State responds by arguing in the alternative. First, it asserts that

because “the proc eeding did not co nclude with the dismissal of the superseding

indictme nt, . . . an appeal at that time under Rule 3 m ay have b een pre mature .”

Second, the State con tends that if we find that a notice of appe al should have

been filed within thirty days of April 14, we should waive proper filing in the

interest of jus tice, pursu ant to Te nness ee Ru le of App ellate Pro cedure 4(a).



      At the time the trial judge dism issed the superseding indictment, the

original indictment remained pending in the trial court; and prohibiting a nolle of

the original indictment ensured that the indictment would continue to be

prosecuted in that cou rt. The unusual procedura l circum stanc es pre sente d in this

case have convinced us that no benefit would result from an attempt to analyze

the issue of timeline ss base d upon prior decis ions and rules of co urt.



      Had the Sta te imm ediate ly appe aled th e dism issal of th e sup ersed ing

indictme nt, the original indictme nt would have remained pending in the trial court

during the pende ncy of the appea l. Had the trial judge not granted the Defendant

                                         -4-
pretrial diversio n on the origina l indictme nt, the Sta te migh t have ele cted to

proceed to trial on the original indictment rather than pursue an appeal of the

dismissal of the superseding indictment, although perhaps the State could have

pursued both options simultaneously. The order of the trial court granting the

Defendant pretrial divers ion was not enter ed until M ay 6, 199 8. The n otice of

appeal wa s filed within thirty days thereafter.



       Without deciding whethe r the State should have filed its notice of appeal

within thirty days of A pril 14, we c onclud e that eve n if it should h ave, the inte rests

of justice nevertheless me rit this Court’s considera tion of the substan tive

issues—whether the trial court erred by denying the State’s motion to nolle the

original indictment and by dismissing the superseding, two-count indictmen t. See

State v. Burrow, 769 S.W.2d 510, 511 (Tenn. Crim. App. 1989) (“The notice of

appeal can be waived by this Court ‘in the interes t of justice’ . . . without regard

to whether it is the defe ndant or the sta te seeking wa iver.”).



                       A. Dismissal of Superseding Indictment

       Following our review of the rec ord, we conc lude that the trial court did err

by dismissing the superseding indictment for aggravated assault and attempted

first degree murder. In Tennessee, the district attorney general possesses “the

power and autho rity to make cha rging decision s without ve to,” subjec t to

constitutional constrain ts. Quillen v. Crocke tt, 928 S.W.2d 47, 51 (Tenn. Crim.

App. 1995). This significant authority is also granted to a district attorney general

pro tempore by appointment pursuant to Tennessee Code Annotated § 8-7-

106(b)(1).




                                            -5-
      The United States Supr eme Cour t stated in Bordenkircher v. Hayes, 434

U.S. 357 (1978), “[S]o long as the pros ecutor h as prob able cau se to believe that

the accused committed an offense, the decision whether to prosecute, and what

charge to bring before a grand jury generally rests entirely within the discretion

of the prosecu tion . . . .” Id. at 364; State v. Superior Oil, Inc., 875 S.W.2d 658,

660 (Tenn. 1994) (quoting Bordenkircher, 434 U.S. at 364). Furthermore, the

Supreme Court also held that “[a]n indictment . . . , if valid on its face, is enough

to call for a trial of the charge on the me rits.” Costello v. United States, 350 U.S.

359, 36 3 (1956 ); see United States v. Calandra, 414 U.S. 33 8, 345 (1974 ).



      In this case, the State attested in its motion (1) that the district attorney

gene ral, prior to his recusal, sought and obtained the original indictment for

aggravated assault from the Wilson County Grand Jury, and (2) that “[a]fter an

independent evaluation by the dis trict attor ney ge neral pro tempo re of the facts,

circumstances, evidenc e and th e law the d istrict attorney gene ral pro tempore

resubmitted the case to the Wilson County Grand Jury,” resulting in the elevated

charge.



      In its order dis missing the subs equen t indictme nt, the trial court made no

findings of fact and offered no reasons for dismissing the superseding indictme nt.

Wh en mo ved by the State to “iss ue a written order se tting forth the basis for its

ruling,” the trial court did not comply. Because the second indictment was duly

obtained from the W ilson County G rand Jury by the d istrict atto rney g enera l pro

tempore , within th e app ropria te exer cise of his disc retion followin g his

appointment to the case and h is detailed review of the facts and circumstances,




                                         -6-
we conclude that the trial court exceeded its authority by dismissing the

indictme nts, and w e reverse this dism issal.



                       B. Denial of Motion to Nolle Prosequi

       The district attorney genera l is “‘answerable to no superior and has virtually

unbridled discretion in determining whether to prosecute and for what offense.

No court may interfere with [that] discretion to prosecute, and in the formulation

of this decision he o r she is answe rable to no one.’” Dearb orne v. Sta te, 575

S.W.2d 259, 262 (Tenn. 1978) (quoting Pace v. S tate, 566 S.W.2d 861, 867

(Tenn. 1978) (H enry, C.J ., concurrin g)); see also Bordenkircher, 434 U.S. at 364

(holding that “the decisio n whe ther or not to p rosec ute, an d wha t charg e to file

or bring before a grand jury, generally rests entirely in [the prosecutor’s]

discretion ”).



       In State v. Gilliam, this Court stated, “Neither the appellant nor this co urt

has the right to elect which applicable statute shall be the basis of [the

defendant’s] indictment, subject to procedural bars and the constitutional

restraints of equa l protection and do uble jeop ardy.” 901 S.W.2d 385, 389 (Tenn.

Crim. App. 19 95). In add ition, “the courts are not to interfere with the free

exercise of this discretionary authority in [the district attorney general’s] control

over criminal pros ecution.” Id.



       Tennessee Rule of Criminal Proc edure 48 s tates, “The state may by leave

of court file a dismis sal of an in dictme nt, presentment, information or complaint

and the prosecu tion shall thereupo n terminate.”        T enn. R. Crim. P. 48 (a)

(emp hasis added). Ho wever, the trial court may not in essence comp el the Sta te

                                          -7-
to prosecute a case that the S tate does no t desire or intend to prosecute.

Although Rule 48 requires “leave” of the trial court to remove the c ase from its

docke t, the trial court does not possess the authority or the pow er to exerc ise its

own discretion to determ ine whether a case shou ld or sh ould not be prosecuted.

W e revers e the tria l court’s decisio n denying the State’s motion to nolle the

original ind ictmen t.



             II. REVERSAL OF DENIAL OF PRETRIAL DIVERSION

       Although disposition of the preceding issues pretermit any decisio n by this

Court on the issue of whether the trial court erred by reversing the district

attorney gene ral pro tempo re’s denial of pretrial diversion,1 we address the issue

solely for the purpose of facilitating future appellate review in this case.



       As a preliminary procedural matter, Defendant challenges the propriety of

the State’s appeal of this issue under Tennessee Rule of Appella te Procedure 3,

contending that the appeal should have been filed under Rule 9 or Rule 10. He

argues that under State v. Montgo mery, 623 S.W.2d 116 (Tenn. Crim. App.

1981), and its succes sors, an app eal of pretrial diversion under R ule 3 is

impermissible. In Montgom ery, this Court stated that “an appeal by either side

questioning diversion decisions, either granted or denied, must be brought under

Rule 9 or R ule 10, T.R.A .P., and cann ot come b y Rule 3.” Id. at 118.




       1
         Because we have determined that Defendant’s indictment for attempted first degree
murder, a class A felony, is valid and pending, Defendant is no longer eligible for pretrial
diversion.

                                            -8-
       W e agree with the State that the rule as stated in Montgom ery has been

effective ly abrogated by T ennesse e Rule of Crim inal Procedu re 38. Effective

July 1, 199 7, Rule 3 8 provide s,

              A defendant who seeks and is denied pre-trial diversion
       pursuant to T.C.A . § 40-15-1 05 sha ll have the rig ht to petition for a
       writ of certiora ri to the trial court for an abuse of prosecutorial
       discretion. If the trial court finds that the prosecuting attorney has
       not com mitted an ab use o f discre tion in fa iling to grant pre-trial
       diversion, the defenda nt may pursue an interlocutory appeal
       pursuant to either Rule 9 or Rule 10 of the Tennessee Rules of
       Appe llate Proced ure. In the event that the defendant does not
       pursue an inte rlocuto ry app eal, the defenda nt shall have the right to
       appeal the decision of the trial court denying the petition for writ of
       certiorari pursu ant to T enne ssee Rule of Appellate Procedure 3(b)
       following th e entry of th e final judg ment in the trial cour t.

Tenn. R. Crim. P. 38. Furthermore, the Advisory Commission Comments state,

“This rule changes prior case law and practice regarding appeal of the denial of

pre-trial diversion from the trial court.” Id. (advisory com mission com ments).



       Rule 38, as D efenda nt sugg ests, doe s not on its face app ly to appe als by

the State of diversion decisions, n or are we aware of any decisions construing

this rule to app ly to appe als by the S tate. We nee d not decide whether the

drafters of Rule 38 inte nded to perm it Rule 3 appe als by the State on pretrial

diversion decision s by the trial co urt. W hen the trial court reversed the State’s

decision to deny pretrial diversio n, this o rder ef fectively terminated prosecution

of the case. We conclude that the State thereby had an appeal as of right from

the judgm ent under Rule 3.         Therefore, we evaluate the substantive issue

appealed.2


       2
          Even had the appeal under Rule 3 been improper, Tennessee courts have long
recognized that we may “transform an appeal improperly filed under Rule 3 of the Tennessee
Rules of Appellate Procedure into a proper appeal under Rule 10 of the Tennessee Rules of
Appellate Procedure.” State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998); State v.
Gallaher, 730 S.W.2d 622, 623 (Tenn. 1987); State v. David C. Doyal, No. 03C01-9712-CR-
00552, 1998 WL 597081, at *1 (Tenn. Crim. App., Knoxville, Sept. 10, 1998).

                                           -9-
       The suprem e court h as set forth the factors for cons ideration by a district

attorney g eneral w hen de terminin g the pro priety of pre trial diversion :

       When deciding whether to enter into a memorandum of
       understanding under the pretrial diversion statute a prosecutor
       shou ld focus on the defendant’s ame nability to correction. Any
       factors which tend to accurately reflect whether a particular
       defendant will or will not become a repeat offender should be
       considered. Such factors must, of course, be clearly articulable and
       stated in the record in order that meaningful appellate review may
       be had. 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
       defend ant.

State v. Hammersley, 650 S.W .2d 352 , 355 (T enn. 19 83); State v. Carolyn L.

Curry, No. 02S 01-970 9-CC -00079 , 1999 W L 115113, at *3 (T enn., Jackso n, Mar.

8, 1999) (fo r publicatio n); State v. Pinkham, 955 S.W .2d 956 , 959-60 (Tenn.

1997) (both quoting same from Hammersley).



       In State v. Herron, 767 S.W .2d 151, 156 (Tenn. 198 9), the suprem e court

described the ne cess ary de tail by which the district attorne y genera l must sta te

reasons for denying an application for pretrial diversion:

              If the application is denied, the factors upon which the denial
       is based must be clearly articulable and stated in the record in order
       that meaningful appellate review may be had. This requirement
       entails more than an abstract statement in the record that the district
       attorney general has considered these factors. He m ust articula te
       why he believes a defe ndan t in a particular case does not meet the
       test. If the attorney general bases his decision on less than the full
       complement of facto rs enu mera ted in th is opin ion he must, for the
       record, state why he considers that those he relies on outweigh the
       others submitted for his consideration.

Id. at 156 (cita tion om itted).




                                          -10-
      In his letter denying Defendant pretrial diversion on the original indictment

for agg ravate d ass ault, the district a ttorney gene ral pro tempo re stated,

      In making a decision as to the application for pre-trial diversion on
      the charge of aggravated assault, I have considered the following
      material and information: (1) The defendant’s biographical
      background and family relationsh ips; (2) The defendant’s lack of
      prior criminal c onvictions ; (3) The letters of support from the
      defen dant’s friends, employer, and political acquaintances; [and] (4)
      The pre-sen tence inve stigation report prepared by the probation
      officer.

       After consideration o f all the material and information it is my
       decision to deny Mr. Harris’ application for pre-trial diversion on the
       charge of aggravated assault. W hile Mr. Ha rris does a ppear to
       enjoy a very favorable reputation among his friends, neighbors,
       employers, and political contacts, the fact remains that the
       gentleman with whom he had an altercation on January 21, 1996
       was paraly zed fro m the ches t down as a re sult of being shot by Mr.
       Harris. Apparently the events of January 21, 1996 were precipitated
       in whole, or at leas t in part, bec ause o f prior conflicts betwee n the
       victim and the defendant, who were neighbors. It is certainly not
       unusual for neighbors a nd adjoining p roperty owners to have
       disputes and conflicts as they have had from the beginning of time;
       however, thankfully, it is fairly infrequent that these conflicts turn into
       armed violence. In my estimation, others in any given com munity
       need to feel assured that these types of conflicts will not be ignored
       by law en forcem ent an d the c riminal justice system. A granting of
       pre-trial diversion under the circumstances of this case would only
       serve to further erode public confidence in the criminal justice
       system and would promote an atmosphere of lawless ness.

       Notwithstanding, Mr. Harris’ good s tanding in the com munity as we ll
       as the apparent likelihood that he will not becom e a repeat offen der,
       it is my considered judgment that pre-trial diversion would not serve
       the ends of justice and th e bes t interest of the public and the
       defendant. I primarily ba se this op inion upo n the gre at weigh t I
       accord to the circums tance s of this case where in a pre viously
       healthy individual has been rendered permanently and irrevoc ably
       paralyzed by the actions of the defen dant. M oreov er, it is eq ually
       my opinion that the citizens in this and other communities sh ould
       have confidence that the criminal justice system will intervene when
       neighborhood and comm unity dispu tes esca late into arm ed con flict.

       When making pretrial diversion decisions, a district attorney general may

prope rly give nea rly exclusive w eight to the circums tances of the offen se. See

State v. Carolyn L. Curry , No. 02S01-9709-CC-000 79, 1999 W L 115113, at *5



                                          -11-
(Tenn. Mar. 8, 19 99) (for pu blication); State v. Stephen Freeman, No. 03C01-

9712-CC-00523, 1999 WL 96272, at *3 (Tenn. Crim. App., Knoxville, Feb. 22,

1999).     At the time the District Attorney Gen eral pro tempore denied the

Defe ndan t’s application for pre-trial diversion for the charge of aggravated

assau lt, an indictment against the Defendant for attempted first degree murder

was pending.



         The Tennessee Supreme Court stated in Curry that “the circumstances of

the offense and the need for deterrence may alone justify a denial of diversion,

but only if all of the relevant factors h ave been cons idered as we ll.” Curry, 1999

W L 115113, at *5 (emphasis added). In addition, the court de clared, “T he facts

and circumstances of nea rly all crimin al offen ses a re by de finition s erious ; only

by analyzing all of the relevant factors, including those favorable to the defendant,

can appropriate candidates for this legislative largess be identified in a manner

consistent with the purpos e of the pretrial diversion ac t.” Id. Furthe rmor e, in

Freeman, this Cou rt held,

               Although the appellant may appear to be an excellent
         candid ate for pretrial diversion, the focus of diversion does not rest
         solely upon th e alleged offende r. In appro priate cas es, the
         circumstances of the offense and the need for deterrence may
         outweigh all other rele vant factors and justify a denial of pretrial
         diversion.

Id.



         W e find that the district attorney gen eral pro tempo re followed the

requirem ents of Hammersley, Herron, and Curry when both making and reporting

his decision to deny pretrial divers ion. W e conclude that the trial court erred by

finding that the district attorney general abused his discretion.



                                          -12-
      W e reverse the order of the trial c ourt de nying th e State ’s motion to nolle

prosequi the orig inal indictment for aggravated assault and dismissing the second

indictm ent for aggravated assault and attempted first degree murder. We also

reverse the judgment of the trial court granting the Defendant pretrial diversion.

This ca se is rem anded for further pr oceed ings.



                                 __________________________
                                 DAVID H. WELLES, JUDGE


CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




                                        -13-
