         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  October 25, 2005 Session

                 STATE OF TENNESSEE v. JAMES N. HARRELL

                      Appeal from the Circuit Court for Warren County
                         No. F-9808    Larry B. Stanley, Jr., Judge



                     No. M2005-01074-CCA-R9-CO - Filed March 6, 2006


Defendant, James N. Harrell, seeks interlocutory review of the Warren County Circuit Court’s
affirmance of the State’s denial of his application for pretrial diversion. Defendant is charged with
vehicular homicide by recklessness, four counts of reckless aggravated assault, underage possession
and consumption of alcohol, and underage driving while impaired. After unsuccessfully requesting
pretrial diversion, Defendant appealed to the trial court, who determined that the district attorney
general had not abused his discretion when denying Defendant’s request. After a thorough review
of the record and applicable law, we affirm the judgment of the trial court.

                Tenn. R. App. P. 9; Judgment of the Circuit Court is Affirmed

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

Michael Galligan, and John Partin, McMinnville, Tennessee, for the appellant, James N. Harrell.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Dale
Potter, District Attorney General; and Larry Bryant, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                            OPINION

        On the afternoon of June 8, 2003, Defendant, who was 17-years-old, and two of his friends,
C.J. Holmes, and Matt Brown, met up with three girls, Katie Hillis, Brooke Green, and Shannon
Green, in the parking lot of the Manchester Food Lion. The group got into Defendant’s pick-up
truck, and Defendant drove to the Par Four Market where he, Matt, and Brooke entered the store
where Defendant purchased a 12-pack of Bud Light beer. Defendant carried it back to his vehicle.
Once in the vehicle, the three boys began drinking beer. Defendant drank a beer while driving. The
group then drove to a deer stand on Defendant’s farm where they stayed for approximately 15 to 45
minutes, drinking beer and talking. The group then left the field to drive around and, according to
some witnesses, “jump hills.” It began raining lightly, and Defendant’s vehicle’s back end began
to swerve. He overcorrected, and his vehicle swerved off the road, hitting a tree. Upon impact, all
of the occupants, none of whom were wearing seat belts, were ejected from the vehicle and were
rendered unconscious. One occupant, Shannon Green, died as a result of the accident. The
remaining occupants suffered various injuries.

        Defendant was charged as a juvenile, and the state successfully sought to have him
transferred and tried in adult criminal court. At his transfer hearing, the surviving occupants of the
vehicle, including Defendant, testified about the events that transpired leading up to the accident.
Those witnesses estimated Defendant’s speed to be anywhere from 95 miles per hour to 60 miles per
hour. Additionally, various occupants testified that they saw Defendant consume three to four cans
of beer; however, Defendant stated that while he drank from three different beer cans, he only
consumed a total amount of one and a half beers.

        The accident occurred at approximately 4:30 p.m., and at 7:07 p.m., Defendant had a blood
alcohol level of .0205. His blood alcohol level was retested at 7:45 p.m., at which time it was .0092,
which, according to a Tennessee Bureau of Investigation (TBI) special agent, is technically a
negative blood alcohol reading. Expert witnesses for both the state and defense testified about
extrapolating Defendant’s blood alcohol level at the time of the accident from his blood alcohol
levels several hours after the accident. TBI Special Agent Michael Little testified that by using a
formula which allows him to extrapolate back to the time of the accident, he estimates that
Defendant had between a .04 and .07 blood alcohol level at the time of the crash. Medical examiner
Dr. Bruce Levy also testified that through his extrapolation methods, he estimates that Defendant had
a .06 blood alcohol level at the time of the crash, which is consistent with someone consuming three
to four beers. Charles Warren Harlan, a noted toxicology expert who has testified in thousands of
cases, testified that given the known low levels of Defendant’s blood alcohol, an extrapolation to
Defendant’s blood alcohol level at the time of the accident was neither feasible nor reliable.

       Additionally, two accident reconstruction experts testified at the hearing. The state’s witness,
a crash reconstructionist with the Tennessee Highway Patrol, testified that he observed “scallop
marks” made by Defendant’s vehicle’s tires at the crash scene and that these marks indicated that
Defendant’s vehicle was airborne. The state’s expert further testified that Defendant was traveling
at a minimum of 79 miles per hour when his vehicle crashed. Defendant’s expert witness, an
emeritus professor of the University of Tennessee, testified that his analysis of the accident scene
revealed that Defendant’s vehicle was not airborne and that the vehicle was traveling between 68 and
81 miles per hour at the time of the accident.

         Defendant testified that he did not brake when he started to lose control of his vehicle
because he believed braking would cause him to wreck his new truck. He testified that he has been
haunted by this accident and would do anything to change history. At the time of the transfer hearing
Defendant was working 12-hour days. His two employers, his grandmother and David Bryan,
testified that Defendant was hard-working and dependable and that they believe that Defendant has
been greatly affected by the accident and death of Shannon Green.



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        After the case was transferred to criminal court, Defendant filed a petition for pretrial
diversion, which the prosecutor’s office subsequently denied. Defendant then appealed the denial
to the Warren County Circuit Court. After conducting a hearing in which the court heard arguments
by counsel, the court concluded that the prosecutor had not abused his discretion when denying
Defendant’s request for pretrial diversion. Specifically, the court found that the prosecutor’s
response denying Defendant’s request demonstrated that he had considered all relevant criteria,
including the events comprising Defendant’s crime, his character, his education, his employment
history, his demonstration of remorse, and his admission of culpability or lack thereof.

        In order to be eligible for pretrial diversion, a defendant must not have been previously
granted pretrial or judicial diversion; must not have a prior misdemeanor conviction in which
Defendant served a sentence of confinement or a prior felony conviction within a five-year period
after completing the sentence or probationary period for the prior conviction; and must not be
seeking diversion for a Class A or B felony, a sexual offense, driving under the influence, or
vehicular assault. Tenn. Code Ann. § 40-15-105(B)(i)(a)-(c) (2003). “A person who is statutorily
eligible for pretrial diversion is not presumptively entitled to diversion.” State v. Yancey, 69 S.W.3d
553, 557 (Tenn. 2002) (citing State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999)).

        The decision whether to grant pretrial diversion rests within the discretion of the district
attorney general. See Tenn. Code Ann. § 40-15-105(b)(3) (2003); State v. Hammersley, 650 S.W.2d
352, 355 (Tenn. 1983). The process of applying for, adjudicating, and reviewing pretrial diversion
is attended by formulaic rules.

        The burden is upon the defendant, “in the first instance, to provide the prosecuting attorney
with sufficient background information and data to enable that officer to make a reasoned decision
to grant or deny the relief sought.” State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989), overruled
on other grounds by Yancey, 69 S.W.3d at 559. To carry the burden, an applicant should provide
the prosecutor with “as complete an application as circumstances warrant.” State v. Winsett, 882
S.W.2d 806, 810 (Tenn. Crim. App. 1993).

        Even though the defendant has the burden to demonstrate his or her eligibility and suitability
for pretrial diversion, the prosecutor has specific obligations, especially when he or she denies the
application. State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). Our appellate courts have forged
the following guidelines for prosecutors’ use when considering applications for pretrial diversion:

               (1) The prosecutor should focus on the defendant’s amenability to
               correction. Id. at 156.

               (2) The prosecutor must consider (a) the circumstances of the offense,
               (b) the defendant’s criminal record, (c) the defendant’s social history,
               (d) the physical and mental condition of a defendant where
               appropriate, and (e) the likelihood that pretrial diversion will serve
               the ends of justice and the best interests of both the public and the


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defendant. Id.; Hammersley, 650 S.W.2d at 355; see also State v.
Washington, 866 S.W.2d 950, 951 (Tenn. 1993).

(3) “[T]he circumstances of the offense and the need for deterrence
may alone justify a denial of diversion, but only if [(a)] all of the
relevant factors have been considered as well,” Curry, 988 S.W.2d at
158 and (b) only when the circumstances are of such overwhelming
significance that they necessarily outweigh all other factors,
Washington, 866 S.W.2d at 951.

(4) Although this court has affirmed the denial of pretrial diversion
where the failure to admit the crime and/or express remorse revealed
that the defendant had been less than truthful with the court, see State
v. Karen Sue Kelsey, No. 03C01-9603-CC-00117, slip op. at 7 (Tenn.
Crim. App., Knoxville, Oct. 29, 1997), perm. app. denied (Tenn.
1998); State v. Martha Jean Frasier, No. 01C01-9601-CC-00012,
slip op. at 12-13 (Tenn. Crim. App., Nashville, Dec. 13, 1996); State
v. Nease, 713 S.W.2d 90, 92 (Tenn. Crim. App. 1986), remorse per
se has been held to be immaterial in determining suitability for
pretrial diversion, see State v. Stoney Gene Golden, No. 88-146-III,
slip op. at 3 (Tenn. Crim. App., Nashville, Apr. 12, 1989), perm. app.
denied (Tenn. 1989). On the other hand, the failure of the defendant
to admit guilt is not, in and of itself, a proper basis for denying
diversion. See State v. Dewey L. Clark, No. 03C01-9706-CR-00227,
slip op. at 7 (Tenn. Crim. App., Knoxville, July 16, 1998); State v.
Christie Quick, No. 01C01-9510-CC-00323, slip op. at 5-6 (Tenn.
Crim. App., Nashville, Feb. 20, 1997); State v. Carl Capps, No. 47,
slip op. at 1 (Tenn. Crim. App., Knoxville, June 13, 1989); cf. State
v. King, 640 S.W.2d 30, 33 (Tenn. Crim. App. 1982) (pretrial
diversion cannot be conditioned upon entry of guilty plea), overruled
on other grounds by State v. Sutton, 668 S.W.2d 678, 680 (Tenn.
Crim. App. 1984).

(5) A denial of the application (a) must be written and (b) must
contain not only an enumeration of the evidence the prosecutor
considered but also a discussion of the weight given to each factor,
State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997); see Curry, 988
S.W.2d at 157 (explaining importance of detailed, written denial);
Winsett, 882 S.W.2d at 810, and of why unfavorable factors outweigh
favorable ones, Herron, 767 S.W.2d at 156.

(6) “In addition to the foregoing items which the prosecutor should
include in a written record, he or she should also identify ‘any factual


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                disputes between the evidence relied upon and the petitioner’s
                application.’” Pinkham, 955 S.W.2d at 960; see Winsett, 882 S.W.2d
                at 810.

If the application is denied, the defendant may seek a writ of certiorari in the trial court. Tenn. Code
Ann. § 40-15-105(b)(3) (2003). The Code and the appellate courts have prescribed the procedure
for the petitioner to follow:

                (1) The compiled record should be attached to the petition. Winsett,
                882 S.W.2d at 810.

                (2) In the petition, the defendant should identify any disputed facts
                which the prosecutor has not identified. State v. Lane, 56 S.W.3d 20,
                26 (Tenn. Crim. App. 2000).

                (3) The defendant has the burden of proving that the district attorney
                abused his or her discretion in denying diversion, State v. Watkins,
                607 S.W.2d 486, 488 (Tenn. Crim. App. 1980), a process that may
                entail showing an absence of any substantial evidence in the record
                to support the prosecutors’s denial of pretrial diversion, Lane, 56
                S.W.3d at 26; see State v. Houston, 900 S.W.2d 712, 714 (Tenn.
                Crim. App. 1995).

Upon receiving a petition for certiorari filed by an aggrieved applicant for pretrial diversion, the trial
court must follow a prescribed procedure:

                (1) The trial court limits its consideration to the evidence which was
                before the prosecutor and to the reasons given by the prosecutor in
                denying diversion. State v. Brown, 700 S.W.2d 568, 570 (Tenn.
                Crim. App. 1985); Winsett, 882 S.W.2d at 809.

                (2) The trial court may conduct a hearing only to resolve any factual
                disputes raised by the prosecutor or the defendant; the court may not
                hear additional evidence. Curry, 988 S.W.2d at 157-58.

                (3) The trial court must also adhere to the same case-by-case
                balancing procedure that is imposed upon the prosecutor. Herron,
                767 S.W.2d at 156.

                (4) The trial court must state its findings in writing. Id.

If the trial court declines to reverse the prosecutor’s denial of diversion, the defendant may seek
interlocutory review in this court. See generally Tenn. R. App. P. 9, 10; Tenn. R. Crim. P. 38. If


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review is granted by this court, our review is confined to determining whether the trial court’s
determination is supported by a preponderance of the evidence. Curry, 988 S.W.2d at 158.

        We first note that the state does not dispute that Defendant is an eligible candidate for pretrial
diversion. Thus, the resolution of Defendant’s appeal turns on our determination of whether the trial
court properly found that the district attorney general did not abuse his discretion when denying
Defendant’s request for pretrial diversion.

         Defendant argues that in his letter denying Defendant’s petition for pretrial diversion, the
district attorney general merely gave perfunctory consideration to several factors weighing in favor
of pretrial diversion, including Defendant’s attainment of a G.E.D. and his consistent and impressive
employment history. The district attorney general eventually concluded that these factors were
favorable to a grant of pretrial diversion; however, Defendant complains that the district attorney
general failed to articulate how these factors were weighed. Defendant further complains that the
district attorney general failed to clarify whether two factors discussed in his letter were ultimately
deemed to be favorable or unfavorable to a grant of pretrial diversion: (1) Defendant’s stability of
residence based on his consistent residence with his parents and (2) his negligible prior involvement
with the criminal justice system based on juvenile truancy charges filed his senior year and an
uncharged act of purchasing alcohol as a minor.

        Defendant argues that the district attorney general erroneously concluded that Defendant
demonstrated little remorse for his actions and failed to take responsibility for them. Specifically,
Defendant disagrees with the district attorney general’s conclusion that Defendant’s protestations
of remorse and sorrow are insincere. Defendant notes that the prosecutor’s conclusion is based on
Defendant’s testimony at his transfer hearing that he did not brake when his vehicle began to swerve
because he did not want to wreck his new pick-up truck. However, Defendant argues that the
sincerity of his remorse is unrelated to his thoughts about avoiding the accident before the accident
occurred. Moreover, after explaining his motivation for not braking, the district attorney general
asked Defendant whether his vehicle was more important than his passengers’ lives, and Defendant
responded that it was not. Finally, Defendant contends that the district attorney general’s reliance
on Defendant’s alleged failure to take responsibility for his actions is impermissible because this
court has stated that a grant of pretrial diversion cannot be conditioned upon a defendant’s admission
of criminal conduct. See, e.g., King, 640 S.W.2d at 33.

        The state asserts that the district attorney general elucidated more than adequate reasons for
denying pretrial diversion: (1) Defendant failed to fully acknowledge his guilt, (2) he demonstrated
a lack of genuine remorse, and (3) granting pretrial diversion would fail to properly deter future
similar crimes. Specifically, the district attorney general noted that Defendant sought to minimize
his wrongdoing by testifying that he was traveling approximately 60 miles per hour at the time of
the accident when expert and eye witness testimony reflected that his actual speed was somewhere
between 79 and 95 miles per hour; he claimed to have consumed one and a half beers while
witnesses saw him consume three or four beers and expert testimony reflected that his blood alcohol
level was consistent with consuming three to four beers; and he testified that he did not actually


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purchase the 12 pack of beer although all witnesses testified that he did indeed purchase it. Next,
the district attorney general noted that Defendant’s expressions of remorse seemed insincere when
considering his testimony that he deliberately did not brake during the accident to avoid wrecking
his new pick-up truck. Finally, the district attorney general concluded that granting pretrial diversion
would undermine the seriousness of Defendant’s offense and convey a message that no consequences
would result from reckless behavior.

       We note that in his five-page letter, the district attorney general carefully considered and
thoroughly discussed all criteria relevant to his pretrial diversion determination, and the
comprehensiveness of his letter has greatly aided our appellate review.

        The circumstances of the offense(s) and the need for deterrence may justify the denial of
pretrial diversion if all relevant factors have been considered, as was done in this case. State v.
Curry, 988 S.W.2d 153, 158 (Tenn. 1999). While the prosecutor in the case sub judice did not use
the specific words of “circumstances of the offense,” he did specifically detail the various facts of
the offenses in his letter denying pretrial diversion. However, the prosecutor’s reference to “the
public interest and how justice [would not be] served by granting pre-trial [sic] diversion in this
case” is a reference to the circumstances of the offenses. The prosecutor outlined Defendant’s illegal
purchase of beer as a seventeen-year-old, his sharing of the beer with two other juveniles,
consumption of beer by Defendant, and extremely reckless driving on a narrow, hilly road at speeds
up to 94 miles per hour. Defendant’s petition for writ of certiorari to the trial court does not contest
any of the facts relied upon by the prosecutor in denying pre-trial diversion. In fact, the petition
merely recites the charges brought against Defendant, states that Defendant falls within the category
of statutorily eligible offenders to be placed on pretrial diversion, and makes the bare conclusory
statement that “[t]he District Attorney General has abused his prosecutorial discretion by refusing
to agree to grant [Defendant] pretrial diversion.”

        Defendant in this case had the burden in the trial court of proving that the prosecutor abused
his discretion in denying pretrial diversion. State v. Watkins, 607 S.W.2d 486, 488-89 (Tenn. Crim.
App. 1980). This entails a showing that there is an absence of any substantial evidence to support
the prosecutor’s decision to deny diversion. Curry, 988 S.W.2d at 158 (citing State v. Pinkham, 955
S.W.2d 956, 960 (Tenn. 1997)) (emphasis added).

          The petition for writ of certiorari fails to set forth facts contained in the record which would
show that the prosecutor abused his discretion by denying diversion. The transcript of the certiorari
proceedings in the trial court contains only statements by counsel for Defendant and the prosecutor
and statements by the trial judge. Notwithstanding the fact that defense counsel set forth certain
disputes in the facts as related by the prosecutor in his letter denying diversion, statements of counsel
are not evidence. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988); State v. Dobbins,
754 S.W.2d 637, 640 (Tenn. Crim. App. 1988). Interestingly, defense counsel did emphasize at the
certiorari hearing, on more than one instance, that the prosecutor failed to focus upon Defendant’s
“amenability for correction.” This was, in fact, considered by the prosecutor in paragraph 8 of his
letter, though referred to as Defendant’s “amenability for rehabilitation.” The prosecutor did include


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Defendant’s failure to “recognize” his fault in the offenses. However, the prosecutor also included
in his letter that: (1) Defendant first stated he was driving approximately 45 miles per hour, then later
said 60-62 miles per hour, while expert testimony put the speed at 79 to 94 miles per hour; (2)
Defendant denied purchasing the beer and stated that Matt Brown purchased the beer, while the
store’s clerk and Matt Brown both stated Defendant purchased the beer; (3) Defendant stated that
he only drank one to one and one-half beers while all other occupants of the vehicle who were with
Defendant stated that he drank three to four beers and expert testimony corroborated the testimony
of higher consumption; and (4) Defendant stated in his application for pretrial diversion that “there
was no evidence that he was under the influence of alcohol at the time of the offense[s]” despite the
fact that expert and lay testimony showed that he had consumed at least three to four beers. While
no testimony placed Defendant at or above the “legal” limit of intoxication of an “adult,” 0.08, see
T.C.A. § 55-10-401(a)(2) and 55-10-408, clear legislative intent establishes “impaired” driving of
a person between the ages of 16 and 21 at 0.02. See T.C.A. § 55-10-415. Defendant checked the
answer “no” to question number 29 in the pretrial diversion application, which is “[w]as there
evidence the defendant was under the influence of alcohol that actually contributed to the offense?”

        These observations are particularly important in light of Defendant’s failure to put on proof
contesting the facts relied upon by the prosecutor. At least implicitly, the prosecutor found that
Defendant’s lack of candor on the subjects weighed against Defendant’s amenability for correction.
This is a permissible conclusion by the prosecutor. See State v. Dowdy, 894 S.W.2d 301, 305-06
(Tenn. Crim. App. 1994).

         Regarding deterrence as a basis to deny pretrial diversion, the prosecutor did not specifically
state that the offenses of vehicular homicide, reckless aggravated assault, underage possession and
consumption of alcohol, and underage driving while impaired were crimes that necessitated the
general need for deterrence in his jurisdiction or the state as a whole. See State v. Hooper, 29
S.W.3d 1, 10 (Tenn. 2000). However, a fair reading of Hooper, reveals that the issue was the proof
necessary to establish deterrence when deterrence was the sole reason for denying probation. Id. at
3, 4, 6. Deterrence in a pretrial diversion case is guided by the same considerations as deterrence in
probation cases. Id. at 8, n. 9 (citing State v. Hammersley, 650 S.W.2d 352, 354 (Tenn. 1983)).

        As stated above, the prosecutor properly considered the particular circumstances of the
offenses, as well as Defendant’s serious lack of amenability to correction in denying pretrial
diversion. Thus, deterrence is an additional, not a sole, factor to deny pretrial diversion. There is
no question that the prosecutor identified a factual basis to deny pretrial diversion based on
deterrence:

        10.     The State has considered the deterrent effect that granting pre-trial [sic]
                diversion may have on others. This wreck took the life of Shannon Green
                and resulted in serious injuries to four (4) other occupants. The two female
                survivors, Brook Green and Katie Hillis, have had to undergo psychological
                counsel and one has attempted suicide as a result of this incident. The
                defendant was consuming alcohol and driving well above the speed limit on


                                                  -8-
                a narrow, hilly, two-lane road. He never attempted to brake after losing
                control of the vehicle, valuing his new truck more than the safety of his
                passengers. To reward such behavior with pre-trial [sic] diversion would
                have no deterrent effect and may well send a message that there is little
                consequences to be had for driving and speeding recklessly resulting in the
                death of an innocent party.

Paragraph 10, prosecutor’s letter denying diversion.

        Taken in context, the prosecutor considered all of the offenses and their interrelationship with
each other, which culminated in the ultimate results of the offenses. In other words, deterrence
might not be applicable only to a charge of vehicular homicide in this case, or only to four (4)
charges of reckless aggravated assault, or to the remaining offenses if they had only been individually
committed and individually considered. However, combining the illegal purchase, distribution, and
consumption of beer, with reckless driving (jumping hills) and with excessive speed (up to 94 miles
per hour), resulting in the crash of a vehicle containing six (6) teenagers with the death of one and
serious injuries to the remaining occupants, a factual basis for deterrence was established.

          The facts relied upon by the prosecutor were, in effect, totally undisputed. The prosecutor
considered all relevant criteria. Considering the prosecutor’s letter in its entirety, and not piecemeal,
it is clear that there is substantial evidence to support the prosecutor’s determination to deny pretrial
diversion.

         The trial court’s decision denying relief to Defendant is supported by a preponderance of the
evidence. State v. Curry, 988 S.W.2d 153, 158 (Tenn. 1999). Accordingly, Defendant is not entitled
to relief in this appeal.

                                           CONCLUSION

        Based on the foregoing review and analysis, the judgment of the trial court is affirmed.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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