IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1998 SESSION
April 7, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9703-CC-00117
Appellee, )
) RUTHERFORD COUNTY
VS. )
) HON. J. S. DANIEL,
MARK F. MAYBREY, ) JUDGE
)
Appellant. ) (Pretrial Diversion)
FOR THE APPELLANT: FOR THE APPELLEE:
R. STEVEN WALDRON JOHN KNOX WALKUP
TERRY A. FANN Attorney General and Reporter
Waldron and Fann
202 West Main Street DARYL J. BRAND
Murfreesboro, TN 37130-3581 Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM C. WHITESELL, JR.
District Attorney General
303 Rutherford Co. Judicial Bldg.
Murfreesboro, TN 37130
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The Rutherford County grand jury returned indictments charging the
defendant, Mark F. Maybrey, with three (3) counts of telephone harassment. The
defendant applied for pretrial diversion, which was denied by the District Attorney
General. Defendant filed a petition for writ of certiorari in the Rutherford County
Circuit Court, seeking to overturn the District Attorney’s denial of diversion. After a
hearing, the trial court found that the District Attorney had not abused his discretion.
Pursuant to Tenn. R. App. P. 9, defendant brings this interlocutory appeal, claiming
the trial court erred in finding that the District Attorney General had not abused his
discretion in denying diversion. We find no error; therefore, the judgment of the trial
court is AFFIRMED.
I
In September 1996, an officer with the Murfreesboro Police Department was
dispatched to Uncle Sandy’s Fireworks in response to a complaint that someone
was making harassing phone calls from a pay phone at that location. Defendant
was observed using a pay phone, and when the officer turned his spotlight on him,
defendant hung up the phone. At the same time, the officer was advised by the
dispatcher that the perpetrator hung up with the victim. Defendant was arrested and
subsequently indicted on two (2) counts of making harassing phone calls to Patty
Levy, and one (1) count of making harassing phone calls to Patsy McClure.
At the time of the alleged offenses, defendant was a lieutenant with the
Smyrna Police Department. He was 33 years old, had never been married and had
no prior criminal history. He was six (6) classes short of attaining a degree from
Middle Tennessee State University and had a stable work history. During his
employment with the Smyrna Police Department, defendant received numerous
awards and letters of commendation.
After he was arrested, defendant resigned from the police department and
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underwent psychological counseling on both an in-patient and out-patient basis.
Two psychologists submitted letters detailing their evaluations of defendant’s mental
health. Terry A. Casey, Ph.D., diagnosed defendant with paraphilia, specifically
“telephone scatologia.” Phillip G. Wright, Ph.D., found defendant to be suffering
from acute depression. Both noted defendant’s cooperation and willingness to
participate in treatment. Both gave defendant a good prognosis, subject to further
psychotherapeutic treatment. Neither gave any indication as to the length of time
required for further treatment.
Attached to defendant’s application for pretrial diversion were letters written
by various friends, business associates and church officials extolling his good
character and positive attributes.
In his letter denying pretrial diversion, District Attorney General William C.
Whitesell, Jr. listed eight (8) reasons to support his denial, including:
(1) defendant should be held to a higher standard of conduct due to
his status as a police officer;
(2) defendant abused a public position of trust in that he used his
position as a police officer to gain access to information regarding the
victims;
(3) the conduct was committed against several victims and occurred
on numerous occasions over a period of years, thereby indicating a
pattern of “continued abuse” and not merely an isolated incident;
(4) as a police officer, defendant had access to resources to correct
his psychological condition, but took no action until after he was
arrested;
(5) the charged conduct was aimed to gratify his desire for pleasure
or excitement;
(6) “defendant’s conduct was directed to at least one victim that was
particularly vulnerable due to health circumstances that existed in her
family and the defendant was aware of these circumstances”;
(7) the offense was committed in such a way as to avoid detection;
therefore, there exists a need to deter others inclined to commit this
type of offense; and
(8) the victims suffered psychological and emotional trauma.
General Whitesell concluded that these factors outweighed the factors in
defendant’s favor and denied pretrial diversion.
The trial court found that the district attorney sufficiently weighed both the
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positive and negative factors for diversion. Therefore, the court found no abuse of
discretion in denying pretrial diversion. It is from this ruling that defendant brings
this appeal.
II
The Pretrial Diversion Act provides a means of avoiding the consequences
of a public prosecution for those who have the potential to be rehabilitated and
avoid future criminal charges. See Tenn. Code Ann. § 40-15-105. Pretrial diversion
is extraordinary relief for which the defendant bears the burden of proof. State v.
Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993); State v. Poplar, 612 S.W.2d
498, 501 (Tenn. Crim. App. 1980).
The decision to grant or deny an application for pretrial diversion is within the
discretion of the district attorney general. Tenn. Code Ann. § 40-15-105(b)(3); see
also State v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997); State v. Houston, 900
S.W.2d 712, 714 (Tenn. Crim. App. 1995); State v. Carr, 861 S.W.2d 850, 855
(Tenn. Crim. App. 1993). In making the determination, the district attorney general
must consider
the defendant's amenability to correction. Any factors which tend to
accurately reflect whether a particular defendant will or will not
become a repeat offender should be considered . . . . Among the
factors to be considered in addition to the circumstances of the
offense are the defendant's criminal record, social history, the
physical and mental condition of a defendant where appropriate, and
the likelihood that pretrial diversion will serve the ends of justice and
the best interest of both the public and the defendant.
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983); see also State v.
Washington, 866 S.W.2d 950, 951 (Tenn. 1993); State v. Parker, 932 S.W.2d 945,
958 (Tenn. Crim. App. 1996).
Deterrence, of both the defendant and others, is a factor the importance of
which varies according to the individual circumstances of each case. Hammersley,
650 S.W.2d at 354. The circumstances of the crime and the need for deterrence
may, in the appropriate case, outweigh the other relevant factors and justify a denial
of pretrial diversion. Carr, 861 S.W.2d at 855.
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A prosecutor's decision to deny diversion is presumptively correct, and the
trial court should only reverse that decision when the defendant establishes a patent
or gross abuse of discretion. State v. Lutry, 938 S.W.2d 431, 434 (Tenn. Crim. App.
1996); Houston, 900 S.W.2d at 714. The record must be lacking in any substantial
evidence to support the district attorney general’s decision before an abuse of
discretion can be found. State v. Pinkham, 955 S.W.2d at 960; State v. Carr, 861
S.W.2d at 856. The hearing court must consider only the evidence made available
to and considered by the prosecutor. Poplar, 612 S.W.2d at 500. The trial court
may not substitute its judgment for that of the district attorney general when the
decision of the district attorney general is supported by the evidence. State v.
Watkins, 607 S.W.2d 486, 488 (Tenn. Crim. App. 1980).
Our review on appeal focuses on whether the trial court’s decision is
supported by a preponderance of the evidence. Pinkham, 955 S.W.2d at 960. The
underlying issue for determination on appeal is whether or not, as a matter of law,
the prosecutor abused his or her discretion in denying pretrial diversion. State v.
Brooks, 943 S.W.2d 411, 413 (Tenn. Crim. App. 1997).
III
Defendant principally contends that the district attorney did not consider his
amenability to correction, but rather focused on his status as a police officer at the
time the offenses were committed. He asserts that he promptly resigned from the
Smyrna Police Department and sought psychological counseling, thereby
evidencing his rehabilitation potential. Furthermore, he argues that the district
attorney relied upon deterrence as a reason for denying diversion; however, there
is no evidence of the specific need for deterrence in the record. Therefore, he
insists that he is a suitable candidate for pretrial diversion, and the district attorney
abused his discretion in denying diversion.
When making his determination whether to approve pretrial diversion in this
case, the district attorney considered defendant’s lack of a prior criminal record and
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his exemplary work history. He noted that defendant voluntarily sought
psychological treatment and was candid and cooperative in pursuing treatment. He
commended defendant’s positive attitude and behavior since his arrest. General
Whitesell also noted that defendant appeared to be motivated to correct his
behavior by pursuing psychological treatment.
However, General Whitesell found, upon reviewing information provided by
the victims and law enforcement officers, the factors disfavoring diversion
outweighed those in favor of diversion. He was concerned with defendant’s position
as a law enforcement officer which defendant used to gain access to information
about the victims. The husband of one of the victims was confined to a wheelchair,
and defendant made some offensive comments to that victim concerning her
husband’s handicap. He was troubled that the conduct had occurred over a period
of years, which indicated that this was not merely an isolated incident. Compare
State v. Washington, 866 S.W.2d at 951 (allowing pretrial diversion where
defendant’s offenses were “apparently aberrant”). Notwithstanding defendant’s
“good” psychological prognosis, the district attorney found the psychologists’
diagnoses to be qualified and subject to further counseling. Furthermore, because
the crime was committed in such a way as to avoid detection and prosecution, the
district attorney found that the need for deterrence of others likely to commit such
a crime weighed against diversion. The need for deterrence and the circumstances
of the crime may outweigh the other relevant factors and justify a denial of pretrial
diversion. State v. Carr, 861 S.W.2d at 855.
Moreover, in his application for pretrial diversion, defendant maintained that
the phone calls were not annoying or harassing, and instead suggested that the
victims were willing participants. Lack of candor and the failure to accept full
responsibility for the offense can reflect negatively on defendant’s rehabilitation
potential. See State v. Nease, 713 S.W.2d 90, 92 (Tenn. Crim. App. 1986).
The trial court found that the district attorney had carefully considered all
factors, favorable and unfavorable. Although the district attorney focused upon the
need for deterrence and the circumstances of the crime, he also considered
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defendant’s positive factors, including his amenability to rehabilitation. The
evidence does not preponderate against the trial court’s finding. Neither the trial
court nor this Court is at liberty to merely substitute its judgment for that of the
District Attorney General. State v. Watkins, 607 S.W.2d at 488. Under this Court’s
standard of review, we must conclude, as did the trial court, that the district attorney
did not abuse his discretion in denying pretrial diversion.
The judgment of the trial court is affirmed.
JOE G. RILEY, JUDGE
CONCUR:
JOSEPH M. TIPTON, JUDGE
DAVID H. WELLES, JUDGE
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