          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE                FILED
                            MARCH 1998 SESSION                  July 7, 1998

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk

STATE OF TENNESSEE,                  )
                                     ) C.C.A. No. 03C01-9707-CR-00243
      Appellee,                      )
                                     ) Hamblen County
V.                                   )
                                     ) Honorable James E. Beckner, Judge
MICHAEL DURAND HOLMES,               )
                                     ) (Pretrial Diversion)
      Appellant.                     )
                                     )




FOR THE APPELLANT:                         FOR THE APPELLEE:

Greg W. Eichelman                                 John Knox Walkup
District Public Defender                   Attorney General & Reporter

Ethel P. Laws                              Sandy C. Patrick
Assistant District Public Defender         Assistant Attorney General
1609 College Park Drive, Box 11            Criminal Justice Division
Morristown, TN 37813-1618                  425 5th Avenue North
                                           2nd Floor, Cordell Hull Building
                                           Nashville, TN 37243-0493

                                           C. Berkeley Bell
                                           District Attorney General
                                           510 Allison Street
                                           Morristown, TN 37813




OPINION FILED: _______________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                                     OPINION
       The appellant, Michael Durand Holmes, appeals from the judgment of the

Criminal Court of Hamblen County, affirming the district attorney general’s denial

of pretrial diversion. The appellant seeks to divert the offense of delivery of a

controlled substance, crack cocaine.



       The appellant’s sole issue on appeal is whether the trial court erred in

finding that the district attorney general did not abuse his discretion in denying

the appellant’s application for pretrial diversion. We affirm.



       The appellant admitted to delivering 0.3 grams of crack cocaine in April

1996 to an undercover buyer at the Ebony Outdoorsman Club in Morristown,

Tennessee. He was not arrested until November 1996. During the time

between the delivery and his arrest, the appellant became a member of the

Praise World Outreach Center and was apparently attempting to change his life.

The appellant requested pretrial diversion, characterizing the delivery as a “one-

time incident.” District Attorney General Berkeley Bell denied his request.



       The appellant argues that the trial court erred in finding no abuse of

discretion by the district attorney general. His argument is based upon three

factors used to deny him diversion: the circumstances of the offense, his prior

criminal behavior, and his reputation in the community.



       With respect to the circumstances of the offense, the district attorney in

his written denial of pretrial diversion cited the following:

           The undercover agent approached the defendant on the
       outside of the Ebony club and asked him, in the vernacular
       of the drug trade, if he had any crack cocaine. The
       defendant, also in the vernacular of the trade, responded
       in the affirmative and sold the undercover agent seven (7)
       rocks of crack. As the agent was concluding the transaction
       he obtained the defendant’s beeper number to call for
       future transactions.

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First, the appellant asserts that the district attorney abused his discretion by

considering the preceding unsworn allegations. In his brief, the appellant notes

that the district attorney “did not file the transcript of the transaction, he did not

subpoena the officers for the certiorari hearing, [and] he admitted that all the

court could go on was his own say so.” He contends that the district attorney

general “did not establish what actually occurred in his investigation with

witnesses, affidavits, or even letters.” At the certiorari hearing, General Bell,

who had been counsel for the state, became the only witness for the state, and

Assistant District Attorney John Dugger became counsel for the state. The

appellant argues that “the Attorney General became the witness in an attempt to

present evidence he could not otherwise present.” Thus, the appellant argues

that he was not given an opportunity to cross-examine the officers regarding his

reputation. Furthermore, the appellant notes that the trial judge relied upon the

district attorney’s in-court statements in reaching his decision that the district

attorney had not abused his discretion:

       The circumstances of the offense. The circumstances of the offense are
       not unusual except for the indication that the undercover agent could
       get back in touch with the defendant through his beeper to ... and, of
       course, I’m relying upon the State’s answer and the allegations
       therein . . . could get back in touch with the defendant through his
       beeper for future drug transactions. So that would be negative, of
       course.



       Second, the appellant argues that his criminal record should not be used

to disqualify him from pretrial diversion.       First, the charge for theft under $500,

which occurred on the same day as the charge in the instant case, stemmed

from a video. The appellant paid off the video, and the charges were dropped.

Second, because he forfeited a cash bond, the appellant argues that charges of

public intoxication, disorderly conduct, and public profanity on June 11, 1994 do

not disqualify him from pretrial diversion. Therefore, the appellant maintains that

his criminal record is minimal and should not preclude him from pretrial diversion.


                                           -3-
          Lastly, the appellant argues that he “presented credible evidence as to his

reputation and that evidence was not refuted.” He presented two letters from

churches, an employer letter, and a letter from his mother, which indicate that he

has a good reputation in the community. Pastor Ronald Seals 1, who had written

one of the letters for the appellant, testified at the hearing. Also, in his written

denial, the district attorney states, “[t]here is no evidence of the defendant’s

social history prior to his criminal conduct in this case.” The appellant argues

that his mother, Barbara Holmes, in her letter describes the appellant’s years

from birth to college. Furthermore, the appellant asserts that the district attorney

abused his discretion by referring to and considering matters outside the record.

Specifically, the district attorney repeatedly referred to the appellant as “Little

Mike” and stated that “Little Mike” was known as a drug dealer to police officers

because he rode his bicycle and sold cocaine. The appellant maintains that

none of these allegations was in any of the discovery materials given to the

appellant and none was even mentioned before the denial of the request for

pretrial diversion.2 Therefore, the appellant contends that “the District Attorney

abused his discretion by not reading and carefully considering the statements

made by the defendant’s mother,” and by not providing any evidence to refute

the appellant’s proof regarding his reputation in the community. The appellant

also disputes the trial court’s characterization of his criminal record as “some

pretty horrible conduct,” arguing that there is no proof in the record to support

such a characterization.



           The state argues that the trial court did not err in concluding that the

district attorney general did not abuse his discretion. On the issue of the



          1
            The tr ansc ript spe lls the n ame Sea ls, but th e letter in the te chnic al reco rd spe lls the n ame Sills.
W e will u se the spellin g in the hear ing tra nscrip t.

          2
           The district attorney’s written denial of pretrial diversion states: “The Defendant’s reputation
with the Morr istown Police Dep artme nt’s N arcotic s Un it is that o f a dru g dea ler, kno wn a s “Little M ike.”


                                                                   -4-
circumstances of the offense, the state asserts that the “conversation between

the defendant and the undercover agent clearly indicated that the defendant was

rather knowledgeable in the trade and intended to conduct additional drug sales

in the future.” The state contends that the circumstances surrounding the

offense indicate “a sustained intent to violate the law” and not a “one-time

incident” as the appellant maintains.



       Next, the state asserts that the appellant’s prior criminal offenses were

properly relied upon in denying diversion. It argues that the appellant’s failure to

appear on one charge “reflects poorly on the defendant’s rehabilitative qualities.”

Thus, the state maintains that the district attorney did not abuse his discretion.



       The state cites the appellant’s reputation among law enforcement officers

as “Little Mike,” a bicycle-riding cocaine dealer, as another reason for denying

pretrial diversion. In its brief, the state contends that “the prosecution had, at the

time of its initial consideration, an affidavit from a Drug Task Force official stating

this defendant’s reputation.”



       The decision to grant pretrial diversion rests within the discretion of the

district attorney general.3 Pace v. State, 566 S.W.2d 861, 864 (Tenn. 1978).

When deciding whether to grant an application for pretrial diversion, the district

attorney general should consider the following factors: circumstances of the

offense; the criminal record, social history, and present condition of the

defendant, including his mental and physical conditions where appropriate; the

deterrent effect of punishment upon other criminal activity; the defendant’s

amenability to correction; the likelihood that pretrial diversion will serve the ends

of justice and the best interests of both the public and the defendant; and the

applicant’s attitude, behavior since arrest, prior record, home environment,


       3
           Neither side disputes the appellant’s eligibility for pretrial diversion.


                                                               -5-
current drug usage, emotional stability, past employment, general reputation,

marital stability, family responsibility, and attitude toward law enforcement. State

v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983).



       The district attorney general’s decision regarding pretrial diversion is

presumptively correct, and the trial court will only reverse the decision when the

appellant establishes that there has been a patent or gross abuse of

prosecutorial discretion. State v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim.

App. 1995). To establish abuse of discretion, “‘the record must show an

absence of any substantial evidence to support the district attorney general’s

refusal to grant pretrial diversion.” Id. The trial court may only consider evidence

considered by the district attorney general in the decision denying pretrial

diversion. State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993).



       The findings of the trial court are binding on this Court unless the

evidence preponderates against such findings. Houston, 900 S.W.2d at 715.

We review the case to determine if the evidence preponderates against the

finding of the trial judge who holds that the district attorney general has or has

not abused his discretion, not to determine if the trial judge has abused his or her

discretion. State v. Watkins, 607 S.W.2d 486, 489 (Tenn. Crim. App. 1980).




       First, we are troubled by the filing of the affidavit of Mike Long and the

transcript of the drug transaction between the appellant and the undercover

agent. As the appellant notes in his brief, the affidavit of Mike Long of the Third

Judicial District’s Drug Task Force was filed on March 21, 1997, which was two

days after the certiorari hearing on March 19, 1997; and it was filed without a

certificate of service, which the appellant argues is a violation of Rule 49(a) of

the Tennessee Rules of Criminal Procedure. Also, the transcript of the drug


                                         -6-
transaction between the appellant and the undercover agent was not filed until

July 11, 1997, some four months after the hearing, although the district attorney

and appellant’s counsel referred to the transcript during the hearing. We are

troubled that when the transcript was filed, it was not signed as being received by

anyone in the clerk’s office. Also, the transcript, which was included as an

exhibit, was attached with the transcript of the certiorari hearing, and was

authenticated by the trial judge on June 16, 1997, although it was not filed until

July 11, 1997. We also note that appellant’s counsel asked at the close of the

certiorari hearing to file as an exhibit a copy of the discoverable material.

However, the record does not contain such material as a second exhibit. We

note the timing of the filings and their inadequacies, as well as the failure to file

materials, to emphasize the importance of maintaining a correct and complete

record and of following procedural rules. We have only the record upon which to

base our decision, so the importance of maintaining an accurate record cannot

be overstated.



         Although we find the instant record troubling, we do have enough

information upon which to adjudicate this appeal. Appellant argues that he is not

a drug dealer, and this sale was an isolated incident. The conversation between

the appellant and his buyer indicates trade knowledge and appellant’s

willingness to sell drugs again in the future. The trial court found in his order that

the appellant’s actions “were not a casual flirtation with criminal conduct. . . .”

The appellant’s “apparent repetitive drug dealing [is] strongly indicative, even

conclusive -- that the defendant is not amenable to correction.” We agree that it

appears the appellant knew what he was doing and was ready and willing to do it

again.



         Despite the appellant’s counsel’s persuasive arguments about the

prosecution’s method of handling this case, we are cognizant of the other side of


                                          -7-
the coin. A district attorney general cannot personally know everything about

every crime and defendant when a diversion request is filed. He or she must rely

on the collective knowledge of law enforcement, including hearsay; investigative

reports; witness statements; memoranda; and staff. Reliance on hearsay is

proper and reasonable. The prosecutor should know all he or she can when the

diversion decision is made. They should follow the guidance of State v.

Pinkham, 955 S.W.2d 956 (Tenn. 1997) so that factual disputes are minimal.



       The trial judge should confine consideration to the evidence considered by

the prosecutor at the time he or she considered the application. State v. Brown,

700 S.W.2d 568, 570 (Tenn. Crim. App. 1985). The appellant argues that the

trial judge considered evidence not available to the district attorney at the time of

the decision in making his determination that there was no abuse of discretion.

Appellant cites the drug transaction transcript; Mike Long’s affidavit; the

appellant’s reputation; the Department of Correction Specific Data Report; and

other information. This may be true, but this Court must apply reason to see if

the prosecutor did his job.



       We conclude that some information not available to the district attorney at

the time of his decision was introduced during the certiorari hearing. This Court

delineated in State v. Winsett, 882 S.W.2d 806, 809-10 (Tenn. Crim. App. 1993)

the requirements for an application for pretrial diversion, a written denial of

diversion, and the procedure for conducting a certiorari review hearing. We

concluded in Winsett “that the only evidence the trial court may consider at the

certiorari hearing is that evidence considered by the prosecutor in the decision

denying pretrial diversion.” Id. at 810.



       This case is very close. We could remand for a new hearing consistent

with Winsett. However, we believe the answer would be the same. Although the


                                           -8-
certiorari hearing contained evidence that went beyond Winsett, we believe that

General Bell did have enough information, although he could have had much

more, to warrant a diversion denial. The appellant apparently had prior drug

dealing experience and was willing to continue. He had a reputation as a drug

dealer. He had prior criminal behavior and a modest record. These were

enough factors to allow General Bell to make a cognizant decision.



      The record does not preponderate against the trial court’s findings. The

judgment is affirmed.




                                               __________________________
                                               PAUL G. SUMMERS, Judge


CONCUR:




______________________________
JOHN H. PEAY, Judge




______________________________
CORNELIA A. CLARK, Special Judge


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