            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE               FILED
                               SEPTEMBER 1997 SESSION
                                                               January 8, 1998

                                                          Cecil W. Crowson
STATE OF TENNESSEE,                *    C.C.A. # 01C01-9606-CR-00231 Clerk
                                                        Appellate Court

              Appellee,            *    SUMNER COUNTY

VS.                                *    Hon. Jane W. Wheatcraft, Judge

BUFFY M. TWADELL,                  *    (Pretrial Diversion)

              Appellant.           *




For Appellant:                          For Appellee:

Steven F. Glaser                        Charles W. Burson
Assistant Public Defender               Attorney General and Reporter
Eighteenth Judicial District
117 East Main Street                    Karen M. Yacuzzo
Gallatin, TN 37066                      Assistant Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        Thomas Dean
                                        Assistant District Attorney General
                                        113 West Main Street
                                        Gallatin, TN 37066




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, JUDGE
                                        OPINION

              The defendant, Buffy Mae Twadell, has been indicted on two counts of

aggravated perjury. Tenn. Code Ann. § 39-16-703. The district attorney general

denied the defendant's application for pretrial diversion. Thereafter, the trial court

denied her petition for a writ of certiorari. In this extraordinary appeal made

pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, the defendant

insists that the district attorney general abused his discretion by the denial of pretrial

diversion. We affirm the judgment of the trial court.



              The allegations in the indictment provide, in part, as follows:

              Count One: [That the defendant] ... on or about the 26th
              day of September, 1995, ... did, with intent to deceive,
              make a false statement under oath in an official
              proceeding, to[]wit: the trial of Buffy Mae Twadell v.
              Bradley Dayne Twadell in the Chancery Court of Sumner
              County, Tennessee, and said false statement was
              material and consisted of [the defendant] testifying that
              on October 7, 1994, Bradley Dayne Twadell struck her at
              her residence, pushed her off the porch and that the
              police made him leave....

              Count Two: [That the defendant] on or about 26th day of
              September, 1995, ... did, with intent to deceive, make a
              false statement under oath in an official proceeding,
              to[]wit: the trial of Buffy Mae Twadell v. Bradley Dayne
              Twadell in the Chancery Court of Sumner County,
              Tennessee, and said false statement was material and
              consisted of [the defendant] testifying that during the
              period of October 28, 1994, through July 1, 1995 she
              endorsed the checks she received from AFDC over to
              the Tennessee Department of Human Services, Fiscal
              Services Division, and did not keep the proceeds of said
              checks....



              The defendant made a formal request for pretrial diversion. In

response, the district attorney general, while acknowledging the defendant's

eligibility for consideration, rejected the application, concluding that perjury was not

warranted by her fear of losing custody of her child. The district attorney general


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observed that the defendant had refused to recant her perjury when given the

opportunity by the chancellor, who had presided in the divorce case, to do so on the

witness stand; he found that the defendant "stubbornly insisted on the truth of

statements which are now known to have been false." He reasoned that the

defendant had steadfastly refused to "set the record straight" and that her

fabrication extended "over a long period of time." The district attorney concluded

that the nature and circumstances of the crime of perjury overrode the fact that the

defendant had no prior criminal convictions and had otherwise been a productive

member of her community. He observed that the defendant lacked candor in

making only a partial confession and was unrepentant in attitude.



              At the conclusion of the hearing on the petition for certiorari, the trial

court determined that the defendant had deliberately lied to the chancellor and that

the nature and degree of the offense indicated a lack of amenability to rehabilitation.

In declining to overrule the district attorney general, the trial court specifically relied

upon a decision by this court in State v. Perry, 882 S.W.2d 357, 360 (Tenn. Crim.

App. 1994):

              Perjury strikes at the very heart of the judicial system
              because it "offends the basic principles underlying our
              judicial system" as well as threatens the vitality of the
              system (citing Wilder v. Wilder, 863 S.W.2d 707, 713
              (Tenn. App. 1992)).... The seriousness of the offense is
              predicated upon the possibility that the perjured
              testimony may result in a miscarriage of justice. A
              convincing and cunning witness who gives perjured
              testimony may be deemed more credible than a honest,
              less convincing witness.



              Whether to grant or deny an application for pretrial diversion is within

the discretion of the district attorney general. Tenn. Code Ann. § 40-15-105; State

v. Hammersley, 650 S.W.2d 352, 353 (Tenn. 1983); State v. Carr, 861 S.W.2d 850,

855 (Tenn. Crim. App. 1993). On a petition for certiorari after a refusal by the

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district attorney to grant diversion, the hearing conducted by the trial judge is limited

to two issues:

              (1) whether the accused is eligible for diversion; and

              (2) whether the attorney general abused his discretion in
              refusing to divert the accused.

State v. Watkins, 607 S.W.2d 486, 488-89 (Tenn. Crim. App. 1980).



              In making the initial determination, the district attorney must 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)). The nature and circumstances of

the alleged offenses are not only appropriate factors to be considered upon

application for diversion but may alone provide a sufficient basis for denial. Carr,

861 S.W.2d at 855; State v. Sutton, 668 S.W.2d 678, 680 (Tenn. Crim. App. 1984).



              The circumstances of the case and a generalized need for deterrence,

however, "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 (emphasis and alteration in original) (quoting Markham, 755 S.W.2d

at 853). Where there are no "such exceptional circumstances, 'the district attorney

general must consider evidence which tends to show that the applicant is amenable

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to correction [by diversion] and is not likely to commit further criminal acts.'" Id.

(alteration in original); see also State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim.

App. 1993).



              In State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989), our supreme

court expounded upon the duties of the district attorney general in making the initial

assessment:

              This requirement entails more than an abstract statement
              in the record that the district attorney general has
              considered these factors. He must articulate why he
              believes that a defendant in a particular case does not
              meet the test. If the attorney general bases his decision
              on less than the full complement of factors enumerated
              in this opinion he must, for the record, state why he
              considers that those he relies on outweigh the others
              submitted for his consideration.

"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.'" Perry, 882

S.W.2d at 360 (quoting Pace v. State, 566 S.W.2d 861, 870 (Tenn. 1978)). See State

v. Charles A. Pinkham, Jr., ____ S.W.2d ____, No. 02S01-9611-CR-00096, slip op. at

2 (Tenn., at Jackson, November 17, 1997)(holding the district attorney must state "the

factual basis and rationale for denying diversion").



              In our view, the trial court's decision to uphold the denial of diversion is

supported by a preponderance of the evidence. See State v. Houston, 900 S.W.2d

712, 715 (Tenn. Crim. App. 1995). We hold that the district attorney general's rejection

of the defendant's application for pretrial diversion was for the most part warranted by

the particular nature and circumstances of the alleged crimes. The denial of pretrial

diversion in a perjury case sends an important message to those who may be called

to testify in a court of law. The integrity of the judicial system is at issue. While


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amenability to correction remains paramount in the consideration of pretrial diversion,

general deterrence is also important in this particular instance. See Hammersley, 650

S.W.2d at 354. So is an aversion to contrition.



             While the defendant has no prior criminal record, supports her child, has

family support, and otherwise has a good social history, this court cannot hold, under

these circumstances, that there was an abuse of discretion on the part of the district

attorney general.



             Accordingly, the judgment is affirmed.



                                         ________________________________
                                         Gary R. Wade, Judge

CONCUR:



_____________________________
Thomas T. W oodall, Judge



_____________________________
Curwood Witt, Judge




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