                                                                                            02/05/2019

        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNXOVILLE
                               November 27, 2018 Session

      STATE OF TENNESSEE v. TIMOTHY WAYNE WOODARD

                Appeal from the Criminal Court for Hamblen County
                      No. 16-CR-600      Alex Pearson, Judge



                            No. E2017-02307-CCA-R10-CD


In 2016, the Defendant, Timothy Wayne Woodard, was indicted for nine counts of
removal of government records and nine counts of theft of property. The Hamblen
County District Attorney’s Office denied the Defendant’s application for pre-trial
diversion. The Defendant filed a motion to disqualify the district attorney’s office from
the case, alleging that its response to his application revealed a conflict of interest. After
a hearing, the trial court found that the District Attorney’s Office was not disqualified
from considering the Defendant’s application for pre-trial diversion. The Defendant filed
application for extraordinary appeal, pursuant to Tennessee Rule of Appellate Procedure
10. After review, we affirm the trial court’s judgment.

    Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Criminal Court
                                    Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and JAMES CURWOOD WITT, JR., JJ., joined.

Paul G. S. Whetstone, Morristown, Tennessee, for the appellant, Timothy Wayne
Woodard.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Dan E. Armstrong, District Attorney General, J. Bradley Mercer,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION
                                      I. Background
       This case arises from the Defendant’s theft of records from the Hamblen County
Clerk’s Office, apparently while he held a position of employment in the courthouse
where the clerk’s office was located. In 2016, the files were discovered in the basement
of a nearby law office where the Defendant was working at the time. The Defendant’s
supervisor contacted the Jefferson County Sheriff’s Department, who, along with
members of the Hamblen County Sheriff’s Department, investigated the case. The
Defendant admitted to investigators that he had taken the files from the clerk’s office and
did not intend to return them. For these offenses, a Hamblen County Grand Jury indicted
the Defendant for nine counts of removal of government records and nine counts of theft
of property.

                         a. Application for Pre-Trial Diversion

       In March 2017, the Defendant filed an application for pre-trial diversion. In May
2017, the District Attorney General for Hamblen County, along with an assistant district
attorney, sent the Defendant a letter denying the Defendant’s application for pre-trial
diversion. The letter summarized the facts of the Defendant’s offenses and the reasons
for the District Attorney’s denial, including: (1) the Defendant’s knowledge of the court
system which imputed his knowledge that the theft of the files was unlawful; (2) the fact
that the theft included confidential juvenile records; (3) the Defendant’s failure to take
responsibility for his actions; and (4) the Defendant’s dishonesty in obtaining support
from other legal professionals for his application. The letter also stated that the
Defendant had been dishonest or not forthcoming with the District Attorney’s Office in
the past when he had applied for an internship at the office and referenced specific
employees from the office who had knowledge of the Defendant’s actions related to his
internship. The letter stated that the District Attorney’s Office was “considering the
internship information” when choosing to deny the Defendant’s application.

                                 b. Motion to Disqualify

       Following his receipt of the May 2017 letter, the Defendant filed a motion to
disqualify the District Attorney’s Office from further action related to his case. In the
motion, the Defendant alleged that the letter “allude[d] to matters personalities [sic] that
pertain directly to [the District Attorney’s Office]” and that, as the letter specifically
mentioned the employees who were “directly involved” with the Defendant’s internship,
the office should be disqualified from further prosecution of his case. The Defendant
further asserted that in considering his application for pre-trial diversion, the District
Attorney’s Office was performing a quasi-judicial function and thus would be subject to
the rules of judicial conduct. The District Attorney responded, stating that, pursuant to
Tennessee Rule of Professional Conduct 1.7 and the ensuing rules, no conflict of interest
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existed sufficient to disqualify the entire office from the case. The trial court held a
hearing on the motion, at which the District Attorney’s Office’s May 2017 letter was
admitted into evidence as an exhibit. No other evidence was presented. At the
conclusion of the hearing, the trial court stated the following:

               I don’t think there was anything that was contained in [the letter]
        particularly about the statements from [employees of the office], that
        requires the exclusion of the district attorney’s office. . . . . We’re not here
        today to determine whether or not the district attorney’s office has made the
        appropriate determination in using the necessary [statutory] criteria.
        However, what we are here for today is to determine whether or not just the
        knowledge of [the employees of the office], if that somehow prevents the
        District Attorney from doing his job or his designated assistant’s job.

               And as I review [the May 2017 letter], those [employees of the
        office] are not witnesses to the crime that occurred [in the present case],
        and there’s nothing that I can find that would require the [D]istrict
        [A]ttorney’s office to recuse themselves or for me to exclude them from
        prosecuting this case.1

      In November of 2017, the Defendant filed an application for permission to appeal
pursuant to Tennessee Rule of Appellate Procedure 10, presenting the following issue for
review:

               [W]hether the Office of the District Attorney General for the Third
        Judicial District should have been disqualified from the case based on a
        conflict of interest.

       This court granted the Defendant’s Rule 10 application for permission to appeal in
March of 2018, stating that the State’s reliance in its letter on evidence related to the
Defendant’s internship, wherein employees of the District Attorney’s office could be
potential witnesses, created at a minimum the appearance of impropriety. This court
concluded that the trial court’s ruling dismissing or mitigating this evidence showed a
departure from “the accepted and usual course of judicial proceeding” sufficient to
require review pursuant to Rule 10. We subsequently issued a stay pending the

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  Following the trial court’s denial of his motion to disqualify, the Defendant filed a petition for a writ of
certiorari asking the trial court to review the district attorney’s denial of his application for pre-trial
diversion. The trial court granted the petition and a held a hearing on the petition, following which it
issued an order affirming the district attorney’s denial of the Defendant’s application.
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disposition of this appeal.

                                       II. Analysis

       On appeal, the Defendant alleges that the trial court abused its discretion when it
denied his motion to disqualify the District Attorney’s Office from considering his
application for pre-trial diversion. He contends that the office had a conflict of interest,
as evidenced by the office’s response letter to his application. The State responds that the
record supports the trial court’s refusal to disqualify the District Attorney’s Office
because the Defendant did not present evidence of actual impropriety. We agree with the
State.

       A trial court’s ruling on attorney disqualification will be reversed only upon a
showing of an abuse of discretion. Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn.
2001) (citing State v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000)). A trial court
abuses its discretion whenever it “applie[s] an incorrect legal standard, or reache[s] a
decision which is against logic or reasoning that cause[s] an injustice to the party
complaining.” Id. (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

       We begin by addressing the Defendant’s claim that, due to its quasi-judicial role in
the Defendant’s case, the District Attorney’s Office is subject to the Rules of Judicial
Conduct, rather than the Rules of Professional Conduct governing attorneys. While we
agree that the role of the prosecutor is always one of a quasi-judicial nature, see Manning
v. State, 257 S.W.2d 6 (Tenn. 1953), it is well settled that a prosecutor’s conduct is
governed by specific rules codified within the Rules of Professional Conduct. Sup. Ct.
Rules, Rule 8, RPC 3.8.

       We turn now to decide whether the trial court abused its discretion when it denied
the Defendant’s motion to disqualify the District Attorney’s Office. The trial court found
that the employees allegedly involved with the Defendant’s internship at the office, listed
by name in the May 2017 letter, were not witnesses to the crime for which the Defendant
sought pre-trial diversion. As such, the trial court found that there was not sufficient
evidence warranting the recusal of the district attorney’s office.

       Tennessee Rule of Professional Conduct 1.10 is a general rule regarding the
vicarious imputation of conflicts of interests, whereas RPC 1.11 is the specialized rule
regarding the conflicts of interests of former and current government attorneys, and the
principles of construction require the specialized rule to prevail over the general rule.
State v. Stephen Berline Orrick, No. M2017-01856-CCA-R9-CD, 2018 WL 4961414, at
*9 (Tenn. Crim. App., at Nashville, Oct. 15, 2018) (citing Tenn. Sup. Ct. Rule 8, RPC
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1.11 and Keough v. State, 356 S.W.3d 366, 371 (Tenn. 2011)), no perm. app. filed. “A
‘per se rule’ of disqualification for a district attorney’s office when an assistant district
attorney general has a conflict of interests is inappropriate.” Orrick, at *4 (citing Tenn.
Bd. Prof. Resp., Formal Op. No. 87-F-111, 1987 WL 1446637, at *2 (Sept. 16, 1987));
see also State v. Thomas Paul Odum, No. E2017-00062-CCA-R3-CD, 2017 WL
5565629, at *6-8 (Tenn. Crim. App. Nov. 20, 2017) (for the conclusion that a “per se
disqualification rule based upon the appearance of impropriety expressed in Clinard was
“more applicable to civil cases” and private attorneys than to criminal cases involving
prosecutors) (citing State v. Davis, 141 S.W.3d 600, 613 (Tenn. 2004) and State v.
Coulter, 67 S.W.3d 3, 32 (Tenn. Crim. App. 2001)), perm. app. denied (Tenn. Feb. 15,
2018). The rule governing disqualification due to either an actual or apparent conflict
would not usually bar the entire office from prosecuting a defendant. State v. Tate, 925
S.W.2d 548, 556 (Tenn. Crim. App. 1995). “[T]he mere possibility of impropriety is
insufficient to warrant disqualification.” Clinard, 46 S.W.3d at 186-87. “‘It cannot be a
fanciful, unrealistic or purely subjective suspicion of impropriety that requires
disqualification. The appearance of impropriety must be real.’” Id. (citing United States
v. Smith, 653 F.2d 126, 128 (4th Cir. 1981)).

        In the present case, the District Attorney’s Office sent the Defendant a detailed
letter denying his application for pre-trial diversion. In it, the assistant district attorney
who authored the letter, also signed by the district attorney, addressed the factors that a
prosecutor must focus on when granting or denying a defendant’s application for pre-trial
diversion, including: the Defendant’s amenability to correction; whether the Defendant
would or would not become a repeat offender; the Defendant’s criminal record, social
history, the physical and mental condition of the Defendant: and the likelihood that
pretrial diversion would serve the ends of justice and the best interest of both the public
and the Defendant. See State v. Pinkham, 955 S.W.2d 956, 959-60 (Tenn. 1997) (citing
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983) for the required factors). The
letter included a recitation of the Defendant’s employment history with the district
attorney’s office, which he had allegedly been untruthful about. The letter stated that this
deceptive behavior, considered in tandem with the Defendant’s behavior in the instant
offenses, led to the conclusions that the Defendant was not amenable to correction nor
would the public’s interest be served by a granting of pre-trial diversion. The Defendant
contends that this letter in and of itself provides evidence of a conflict of interest
sufficient to require the disqualification of the district attorney’s office. We respectfully
disagree, and we conclude that there is no evidence of any actual impropriety requiring
disqualification. We reiterate that the “mere possibility” of impropriety is not enough to
necessitate disqualification. Clinard, 46 S.W.3d at 186-87. Because the Defendant has
not presented evidence of anything other than a “suspicion” of impropriety, see id., we
conclude that the trial court did not abuse its discretion when it held that the district
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attorney’s office need not be disqualified from the Defendant’s case. The Defendant is
not entitled to relief.

                                   III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s judgment.


                                               ________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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