           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                            MARCH 1998 SESSION
                                                               FILED
                                                               March 31, 1998
STATE OF TENNESSEE,              *      C.C.A. No. 02C01-9704-CR-00155
                                                               Cecil Crowson, Jr.
             Appellee,           *      SHELBY COUNTY          Appellate C ourt Clerk

VS.                              *      Hon. James C. Beasley, Jr., Judge

CHRISTOPHER CAVNOR,              *      (Pretrial Diversion)

             Appellant.          *



For Appellant:                          For Appellee:

Leslie I. Ballin                        John Knox Walkup
Mark A. Mesler                          Attorney General & Reporter
200 Jefferson Ave., Suite 1250
Memphis, TN 38103                       Elizabeth T. Ryan
                                        Assistant Attorney General
                                        425 Fifth Avenue North
                                        Nashville, TN 37243

                                        Janet Shipman
                                        Assistant District Attorney General
                                        Criminal Justice Complex, Suite 301
                                        201 Poplar Street
                                        Memphis, TN 38103




OPINION FILED:__________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The defendant, Christopher P. Cavnor, has been indicted for criminally

negligent homicide. Tenn. Code Ann. § 39-13-212. The district attorney general

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

denied his petition for a writ of certiorari. In this interlocutory appeal made pursuant

to Rule 9 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 find no error and affirm the judgment of the trial court.



              On December 16, 1995, the defendant, who had been practice-firing a

.357 magnum at a local shooting range, stopped at the residence of his friend,

Jonathan Stone, to show the gun and how it was loaded. A short while later, the

defendant handed the gun to the victim, mistakenly believing he had disarmed the

weapon. It fired accidentally, a bullet striking the victim in the chest. The defendant

immediately went inside and called 911 for assistance. Although the victim was

rushed via helicopter to a trauma center, the injury proved to be fatal.



              The defendant fully cooperated with the police and accepted full

responsibility for the accidental death of the victim. While the defendant has made

no direct apology to the victim's family, he expressed his regret through

correspondence by his counsel requesting pretrial diversion.



              The record includes the district attorney's letter denying diversion, a

Shelby County pretrial investigation report, and a transcript of the hearing on petition

for certiorari. The application for pretrial diversion is not included in the appellate

record. At the time of the offense, the eighteen-year-old defendant had recently


                                            2
graduated from Houston High School. He resided at home with his mother and

step-father and had secured full-time employment with Adcart. The defendant had

no criminal record or history of criminal behavior.



              The district attorney denied pretrial diversion on the following grounds:

              1. Victim's family is opposed to defendant being placed
              on diversion; this should be a major consideration in a
              case of this nature.

              2. There is a need for deterrence since many crimes in
              this jurisdiction involve illegal use of handguns.

              3. The defendant is a youthful offender; to divert cases
              of violence involving injury or death sends the wrong
              message to the youth of our community.

              4. Crimes of violence are a serious problem in this
              community, and it does not serve the public interest to
              treat these crimes lightly.

              5. Defendant does not have a gun permit and apparently
              has no handgun training.

              6. No exceptional circumstances shown by defendant.



              At the hearing, the district attorney testified without objection to

additional reasons for the denial:

                      The first thing we look at is basically the
              circumstances of the crime. And, of course, in this case,
              we had a death--a sixteen-year-old boy that is dead as a
              result of the defendant's actions.
                      Secondly, it is a crime of violence. When a life is
              taken with the illegal use of a handgun, that is a violent
              crime, whether it's intentional or unintentional. All
              evidence shows this was an unintentional shooting. But
              there are things about this unintentional shooting that we
              look at. And one of them is there were no witnesses to
              this crime. It was a .357 magnum revolver. For that gun
              to be discharged, it had to be loaded, the safety had to
              be off, and someone had to pull the trigger. ... This gun,
              from all indications, properly operated. ... There was no
              indication that there was anything wrong with that
              weapon. And that is a circumstance of this crime that I
              considered in whether or not to give diversion.


                                            3
                      This wasn't somebody out hunting with a rifle
              where the safety is on and off as you're hunting in a
              negligent homicide. This was two people, at close
              quarters. One of them winds up dead. That is
              something I considered.
                      The other thing I considered is the position of the
              victim on whether or not we should grant diversion. We
              have victim-impact legislation now that we do have to
              consider mandated by the legislature. And I think the
              court should consider that when a person in our
              community looses a sixteen-year-old son, they come to
              the courts for justice. They come to us to represent
              them. And I represented this family, in this case, by
              denying diversion.
                      And, thirdly, the case law is when there is a death
              involved, it is up to the defendant to show exceptional
              circumstances--not that [he] just qualif[ies]--not that [he
              is] a young man--that [he has] been employed one month
              somewhere. That's all that I had to look at. I had a
              young man that hadn't been arrested. He'd been
              employed one month somewhere....



              The trial judge ruled that there was no abuse of discretion by the

district attorney and accredited four of the district attorney's grounds for denial.

Initially, he found that the district attorney was "justified" in looking for exceptional

circumstances and that none had been provided by the defendant. Secondly, he

recognized that the defendant had not contended that he had any prior handgun

safety training or a permit, thus the district attorney was not "wrong in [relying on this

basis] if nothing else were presented to him to the contrary." Thirdly, the trial judge

found that the "ultimate" reason for denial was the facts and circumstances of the

incident:

              [T]his involved a gun--a pistol; that the nature of this
              particular pistol was a revolver which means it had to be
              loaded, manually; that in order for it to discharge, the
              trigger had to be pulled. And there was nothing
              presented to the district attorney, according to the
              testimony, that indicated that this was a malfunctioning
              pistol or hair-trigger pistol ....
                      And, also, the district attorney considered the fact
              that there were no witnesses. And that there were no
              exceptional circumstances presented ... there was
              nothing exceptionally extra presented in this case.


                                             4
Finally, the trial judge found that the district attorney properly considered the victim's

family's opposition to diversion. The trial judge did, however, question the district

attorney's characterization of the situation as "illegal use" of a handgun and

expressed reservations about the validity of the remaining grounds:

                      I'm not sure I agree ... when it comes to the
              deterrence factor since many crimes in this jurisdiction
              involve illegal use of handguns. ... [O]bviously you have a
              handgun in the hands of a nineteen-year old, unlicensed,
              unsupervised ... that is an improper and, technically, an
              illegal possession ... and I think that should be deterred.
              But ... I don't know that this crime is the result of an
              illegal use ... other than he shouldn't have had it in his
              possession ....

                                            ***

              I don't think that this is the type of crime that I classify as
              a crime of violence, and I don't think this is the type of
              crime that the legislature and the courts view as a crime
              of violence.

                                            ***

              I'm concerned with this issue of cases involving, again,
              violence involving injury or death sends the wrong
              message to the youth of our community. I'm not sure
              about that issue.



              Whether to grant or deny an application for pretrial diversion is in 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, 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).




                                             5
              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) (citing 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 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 to

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


                                            6
              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.'"

State v. Perry, 882 S.W.2d 357, 360 (Tenn. Crim. App. 1994) (quoting Pace v.

State, 566 S.W.2d 861, 870 (Tenn. 1978)). See State v. Pinkham, 955 S.W.2d 956,

957 (Tenn. 1997) (holding the district attorney must "include in the record the factual

basis and rationale for denying diversion").



              The defendant has the burden of providing the district attorney with

information in his application that supports his eligibility and suitability for pretrial

diversion. Herron, 767 S.W .2d at 156. The trial court does not conduct a de novo

review at the certiorari hearing but looks instead only to the information available to

and considered by the prosecutor when deciding to deny diversion. Winsett, 882

S.W.2d at 809; Sutton, 668 S.W.2d at 680. And, where the record would support

the grant or denial of pretrial diversion, the court must defer to the prosecutor's

discretion. Carr, 861 S.W.2d at 856 (citing State v. Grear, 568 S.W.2d 285, 286

(Tenn. 1978)).



               Opposition by the victim's family, suggested by the district attorney as

a "major" reason for denial of diversion, is not expressly included among the factors

presented in Hammersley. This court has previously held that such "opposition to

pre-trial diversion is not a proper factor for consideration." State v. Peter A. Gibson,


                                              7
C.C.A. No. 1043, slip op. at 2 (Tenn. Crim. App., at Knoxville, Nov. 7, 1988) (citing

State v. Morton, 639 S.W.2d 666, 669 (Tenn. Crim. App. 1982)); State v. John

Howard Alden, C.C.A. No. 01C01-9309-CC-00299, slip op. at 3 (Tenn. Crim. App.,

at Nashville, May 12, 1995) ("The attitude of the victims toward pre-trial diversion

was irrelevant and did not constitute a proper reason for denying diversion"). Thus,

the district attorney improperly considered this ground.1



                 Nor was it proper for the district attorney to require a showing of

exceptional circumstances by the defendant. It is well established that principles

applied in probation cases also apply to pretrial diversion. Hammersley, 650

S.W.2d at 354-55. The state argues under Kilgore v. State, 588 S.W.2d 567, 568

(Tenn. Crim. App. 1979), the defendant must show exceptional circumstances to

receive diversion because this offense resulted in a death. This court has held that

the rule announced in Kilgore is no longer applicable in probation eligibility cases

because the legislature has established statutory eligibility requirements. State v.

Adams, 916 S.W.2d 471, 477 (Tenn. Crim. App. 1995). In our view, this rationale

applies in determining pretrial diversion eligibility as well. The legislature

established eligibility requirements for pretrial diversion and the defendant meets

those requirements. Tenn. Code Ann. § 40-15-105(a). The legislature did not

exclude from eligibility persons charged with offenses resulting in loss of life, nor did

the legislature condition eligibility in such cases on a showing of exceptional

circumstances. Id.



                 In his application for diversion, the defendant did fail to demonstrate

that he had a permit or had otherwise undergone training in the handling of guns. At

        1
          Opposition by a victim or mem ber of a victim's family should be distinguished from
victim im pact sta teme nts that ref lect the circu msta nces o f the offen se. See State v. Randy
Sco tt Mo rrell, C.C.A. No. 03C01-9511-CC-00344, slip op. at 4, n.1 (Tenn. Crim. App., at
Knoxville, Oct. 21, 1997).

                                                      8
the hearing, however, the defendant's step-father testified that a law enforcement

officer had, some several years earlier, shown the defendant how to properly handle

and shoot a handgun. The defendant did not have a permit for the .357 magnum.

That, in our view, weighs favorably for the position of the state.



              In any event, the remaining grounds adequately support the district

attorney's decision. That the defendant lacked adequate firearm training and had

no permit for the weapon were important factors supporting the denial of diversion.

Moreover, the nature and circumstances of this incident are particularly serious in

that a death resulted from the unsupervised, unlicensed use of a handgun by a

young adult. The trial judge found as fact that this type of gun would not fire without

someone pulling the trigger. The gun was in proper working condition. Those

findings are binding on this court because the evidence does not preponderate

otherwise. State v. O'Guinn, 709 S.W.2d 561, 565-66 (Tenn. 1986); see State v.

Houston, 900 S.W.2d 712, 715 (Tenn. Crim. App. 1995). In consequence, the

district attorney general's rejection of the defendant's application for pretrial

diversion was not an abuse of discretion.



              Accordingly, the judgment is affirmed.



                                           ________________________________
                                           Gary R. Wade, Judge

CONCUR:



______________________________
Joe B. Jones, Presiding Judge



______________________________
Jerry L. Smith, Judge

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