IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
JULY SESSION, 1997
FILED
August 29, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9612-CR-00465
)
Appellee, )
) CUMBERLAND COUNTY
)
V. )
) HON. LEON C. BURNS, JR., JUDGE
KELLY COLSON, )
)
Appellant. ) (PRE-TRIAL DIVERSION - RULE 9)
FOR THE APPELLANT: FOR THE APPELLEE:
JAMES D. WHITE, JR. JOHN KNOX WALKUP
101 Green Street Attorney General & Reporter
Celina, TN 38551
PETER M . COUGHLAN
Assistant Attorney General
425 Fifth Avenue North
2nd Floor, Cordell Hull Building
Nashville, TN 37243
WILLIAM EDWARD GIBSON
District Attorney General
DAVID A. PATTERSON
Assistant District Attorney General
74 East Second Street
Crossville, TN 38555
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
In an indictment returned by the Cumberland County grand jury, the
Defendant, Kelly Colson, was charged with the offense of vehicular homicide
caused by the reckless killing of the victim as the proximate result of conduct
creating a substantial risk of death or serious bodily injury, in violation of
Tennessee Code Annotated section 39-13-213(a)(1), a Class C felony.
Defendant subsequently filed an Application for Pre-Trial Diversion. The District
Attorney General declined to agree to pre-trial diversion. Subsequently,
Defendant filed a Petition for W rit of Certiorari to the trial court. After a hearing,
the trial court entered an order denying the petition, from which this court granted
Defendant’s Application for Permission to Appeal pursuant to Rule 9, Tennessee
Rules of Appellate Procedure. We affirm the judgment of the trial court.
The District Attorney declined to grant pre-trial diversion to Defendant for
three reasons: (1) Since the offense committed by the Defendant caused the
death to another and was a Class C felony, the granting of pre-trial diversion
would “deprecate the deterrent effect as to this Defendant and others regarding
this serious offense;” (2) the Defendant had been “charged and convicted” of
three other offenses occurring at the same time as the vehicular homicide,
including illegal possession of a radar detector, alteration of a medical certificate,
and “no record of duty status,” which indicated the Defendant was willfully and
consciously violating the law at the time of the offense; and (3) the Defendant had
five (5) speeding violations occurring from February 16, 1993 through May 29,
1995, four (4) of which were issued to Defendant while he was operating a
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commercial vehicle, which demonstrated that the Defendant had previously
operated a motor vehicle on public roads in a manner which was unsafe to
himself and other motorists and did not have the ability or desire to conform his
behavior to the confines of the law.
The Defendant relies upon State v. Hamm ersley, 650 S.W .2d 352 (Tenn.
1983), and State v. Herron, 767 S.W .2d 151 (Tenn. 1989), in support of his
argument that the prosecutor did not consider all relevant factors in making the
decision to deny pre-trial diversion. The Defendant also argues that the
prosecutor failed to state why the factors he relied upon outweighed the
remaining factors submitted for his consideration. Based upon our review of the
entire record, including the written notice of denial of pre-trial diversion, the
prosecutor’s testimony at the hearing on the Petition for W rit of Certiorari, and the
prosecutor’s statements to the judge, we respectfully disagree with the
Defendant’s assertions.
W e do agree that the first factor relied upon by the prosecutor, that pre-trial
diversion should not be granted in a case of vehicular homicide based upon
conduct creating a substantial risk of death or serious bodily injury, was
inappropriate. In essence, the District Attorney stated that he felt this offense
involving the death of a person should not be considered for pre-trial diversion
because it would deprecate the deterrent effect to the Defendant and others who
might be charged with the same offense. The offense that Defendant is charged
with committing is an offense eligible for consideration of pre-trial diversion. Tenn.
Code Ann. § 40-15-105(a)(1)(A). Therefore, this reason was not proper to deny
pre-trial diversion. See State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983).
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However, as observed by our court in State v. Carr, 861 S.W .2d 850, 857 (Tenn.
Crim. App. 1993), “the fact that one of the reasons given for the denial was
inappropriate, does not foreclose a determination that substantial evidence still
remains to support the prosecutor’s decision.”
The record in this case provides substantial evidence to support the
remaining reasons for the prosecutor to deny Defendant the availability of pre-
trial diversion. We find that the trial court properly considered the entire record
and arrived at the correct conclusion that the prosecutor had not abused his
discretion.
The judgment of the trial court is affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
DAVID H. W ELLES, Judge
___________________________________
JOHN K. BYERS, Senior Judge
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