FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
October 7, 1997
JUNE 1997 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9612-CR-00480
)
vs. ) Hamilton County
)
THEODORE FOSTER, ) Honorable Stephen M. Bevil, Judge
)
Appellant. ) (Denial of Pre-Trial Diversion)
)
FOR THE APPELLANT: FOR THE APPELLEE:
MARTIN J. LEVITT JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
312 Vine St.
Chattanooga, TN 37403 MARVIN E. CLEMENTS, JR.
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM H. COX
District Attorney General
BATES BRYAN, JR.
Asst. District Attorney General
600 Market St., Ste. 310
Chattanooga, TN 37402
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT
JUDGE
OPINION
The defendant, Theodore Foster, is aggrieved of the Hamilton County
District attorney's denial of his application for pretrial diversion and the Hamilton
County Criminal Court's denial of his petition seeking reversal of that determination.
Foster is under indictment for vehicular homicide, a Class C felony. In this
interlocutory appeal, Foster contends the District Attorney's office acted arbitrarily
in denying his application for diversion. After a thorough review of the record, we
affirm.
The record reveals that on April 14, 1995, Theodore Foster was
involved in a vehicular accident in which he is alleged to have injured several
individuals, one fatally. According to a traffic accident report in the technical record,
the defendant was traveling at a high rate of speed in downtown Chattanooga and
hit a car stopped at a traffic light, then went on to hit another vehicle. There was no
evidence the defendant was intoxicated or otherwise under the influence. However,
following the incident, psychiatric professionals employed by the state and the
defense concurred that an insanity defense was appropriate.
At the time of the incident, the defendant was a 29 year old student
at UT Chattanooga who had no past criminal convictions. Historically, he received
in-patient psychiatric care in September 1994 for acute Paranoid Schizophrenic
reaction and Major Depression with Psychosis. At first, he was maintained on
medication, although his symptoms later went into remission, and by the time of the
incident upon which the indictment is based he had been weaned off the medication
by his psychiatrist. According to the defendant's psychiatric records, he was given
medication to take in the event he had symptoms of a recurrence. The record
reflects the defendant has no memory of the incident under indictment, and thus we
are without knowledge whether the defendant had any advance warning he was
becoming psychotic, as he alleges in his insanity defense.
The defendant applied for and was denied pre-trial diversion. In
support of his application, the defendant submitted psychiatric records consisting
of notes from his 1994 inpatient admission and an April 24, 1995 "Psychiatry
Consult" by Jon Cohen, M.D. In Dr. Cohen's notes, he posits, "[It is] difficult to say
how much underlying schizophrenia may be [a] current factor in [the defendant's]
behavior, or perhaps even contributed to [the incident]." Doctor Cohen also
observed the defendant suffered at that time from delirium and that physical
restraints were appropriate for the defendant's own safety. At the time of the
diversion application, the results of the two mental evaluations had been filed with
the court.1
In his letter denying diversion, the assistant district attorney based the
denial on (1) the need not to depreciate the seriousness of the offense and provide
effective deterrence to others in light of the death of one of the victims, (2) the need
to protect the public from "any future mental problems the [d]efendant may have
behind the wheel of a car," and (3) the lack of suitability of the mechanism of
diversion to determine and provide for the mental health needs of the defendant
and the protection of the public. The assistant district attorney went on to express
his reservations about his ability to fashion an appropriate mental health program
to address the defendant's needs and provide "appropriate remedies" in the event
public safety became an issue.
At the hearing on the defendant's petition for writ of certiorari, the
parties stipulated the defendant's driver's license had been revoked by the
1
Although the better practice would have been for these documents to
have been included as exhibits to the defendant's application for diversion, we
have considered them based upon the assistant district attorney's recitation of
their contents in his denial letter. It is obvious from the assistant district
attorney's letter that he considered the mental evaluations in reaching the
determination we are called upon to scrutinize in this appeal.
2
Department of Safety and later reinstated, the defendant had graduated from
college, and the defendant had obtained employment with an insurance company.
The defendant offered a letter from Dr. William C. Greer dated two months after the
district attorney's letter denying diversion, which generally asserted the defendant
was receiving psychiatric treatment, was on medication, and was able to drive. The
doctor conceded there was no way to predict whether the defendant would have
another psychotic episode while behind the wheel of a car, although he believed this
could happen to any member of the public, as well. After considering the record
before it, the trial court concluded the district attorney's office had not abused its
discretion in denying pretrial diversion.
The decision of whether to grant pre-trial diversion rests within the
discretion of the district attorney general. Tenn. Code Ann. § 40-15-105(b)(3)
(Supp. 1996); see also State v. Hammersley, 650 S.W.2d 352, 353 (Tenn. 1983);
State v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim. App.), perm. app. denied
(Tenn. 1995); State v. Carr, 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). When
deciding whether to grant an application for pre-trial diversion, the district attorney
general should consider the 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 pre-trial
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, 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) (citations omitted); see
Houston, 900 S.W.2d at 714. In appropriate cases, the nature and circumstances
of the offense and the need for deterrence may outweigh all other relevant factors
3
and justify a denial of pre-trial diversion. Carr, 861 S.W.2d at 855. Indeed, the
nature and circumstances of the offense may alone support the denial of pre-trial
diversion. State v. Sutton, 668 S.W.2d 678, 680 (Tenn. Crim. App. 1984).
If the district attorney denies pretrial diversion, a defendant may file
a writ of certiorari to the trial court. Tenn. Code Ann. § 40-15-105 (b)(3) (Supp.
1996). In that first-tier appeal, the defendant has the burden of proving the district
attorney grossly abused his discretion in denying diversion. Tenn. Code Ann. § 40-
15-105(b)(3) (Supp. 1996); State v. Watkins, 607 S.W.2d 486, 488 (Tenn. Crim.
App. 1980). "The record must [also] show an absence of any substantial evidence
to support the refusal of the District Attorney General to [grant pretrial diversion]."
Watkins, 607 S.W.2d at 488; see Houston, 900 S.W.2d at 714. When reviewing the
district attorney's denial, "the trial judge [has] to [not only] confine his consideration
to the evidence considered by the District Attorney General at the time he
considered the application, but . . . he must also confine his review to the reason or
reasons given by the District Attorney General at that time. Fairness demands that
the defendant know what allegations he must meet when he comes before the trial
judge on his application." State v. Brown, 700 S.W.2d 568, 570 (Tenn. Crim. App.
1985). If the trial court upholds the district attorney's denial of diversion, the
defendant may seek permission to appeal to this court. See Tenn. R. App. P. 9.
In reviewing the matter, this court may not substitute its own judgment for that of the
district attorney. Houston, 900 S.W.2d at 714. The standard of review for this court
is "whether the finding of the trial court that the district attorney general did not
abuse his discretion in denying [the] application of pretrial diversion is supported by
a preponderance of the evidence." State v. Winsett, 882 S.W.2d 806, 809 (Tenn.
Crim. App. 1993).
In this case, the defendant does not allege that the district attorney's
4
office failed to consider all of the appropriate factors; rather, he alleges the district
attorney's office reached the wrong conclusion on the facts of the case. The
defendant's application for pretrial diversion consisted of his own statements in the
application, records of previous psychiatric treatment, and some of the records from
his psychiatric treatment following the incident under indictment. Based on the
information in the application and its exhibits, the assistant district attorney found
three factors outweighed the others. The three were (1) the defendant's mental
condition, (2) the deterrent effect of punishment upon other criminal activity, and (3)
the likelihood that pre-trial diversion would not serve the ends of justice and the best
interests of both the public and the defendant. See Washington, 866 S.W.2d at
951. Any one of these factors is a permissible ground upon which denial may rest.
See State v. Thomas Dailey, No. 02C01-CR-00008, slip op. at 4 (Tenn. Crim. App.,
Jackson, Aug. 21, 1991) (stating this rule in the context of judicial diversion) (citation
omitted).
Based on the record before us, we cannot say the evidence
preponderates against the lower court's finding that the district attorney's office
acted within its discretion in denying pretrial diversion to the defendant. We believe
the concerns expressed by the assistant district attorney regarding the defendant's
mental condition and the likelihood that pretrial diversion would not serve the ends
of justice and best interests of the public and the defendant are not assuaged by the
application and its exhibits or the mental evaluation reports. The only document
considered by the district attorney's office which discusses the defendant's on-going
psychiatric condition relates, "During his visits since the accident he has reported
occasions when he feels bombarded by thoughts and easily distracted and
disturbed by noises. He has recognized this as a precursor to developing more
serious symptoms and has started to use Haldol at these times." The defendant's
application as submitted to the district attorney's office contained no evidence
5
lending any meaningful support to the defendant's contention his psychiatric
condition no longer poses a threat to the public. 2 Likewise, the defendant places
great weight on the Department of Safety's reinstatement of his driver's license;
although he presented no evidence to the district attorney of the basis for that
reinstatement.3 In seeking pretrial diversion, the defendant bears the burden of
providing the district attorney's office with sufficient information from which a
reasoned decision regarding the grant or denial of diversion may be made. State
v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989). The district attorney's office acted
within its discretion in denying pretrial diversion based upon the facts submitted by
the defendant.
In reaching our conclusion, we feel compelled to point out that we
have not considered some of the additional evidence the defendant attempted to
present at the hearing on the petition for writ of certiorari. This evidence consists
of opinions stated in a letter from Dr. Greer written after the assistant district
attorney's denial letter, in which the doctor attempts to rebut the conclusions drawn
in the denial letter regarding the threat of the defendant to public safety.
Technically, this letter was not properly before the lower court in the petition for writ
2
Although there are some additional psychiatric records in the technical
record which might be construed somewhat more favorably to the defendant,
these records were not included with the application submitted to the district
attorney's office. Where, as here, the defendant seeks to blame allegedly
culpable conduct on legal insanity, he should be prepared to demonstrate in an
application for pretrial diversion that his alleged disability has either been
removed or does not pose any further threat to the public. See State v. Herron,
767 S.W.2d 151, 156 (Tenn. 1989) (burden of proof on defendant to provide
prosecution with sufficient information to support grant of denial of pretrial
diversion).
3
In his brief, the defendant argues the Department of Safety had the
discretion to decline to reinstate the defendant's driver's license based on mental
disability but did not do so. After reviewing the documents the defendant
provided the district attorney, we find no evidence the Department of Safety was
even aware of the defendant's alleged mental disability or that it considered the
issue on its merits.
6
of certiorari, although in this case the assistant district attorney agreed to stipulate
to the factual statements in the letter, which dealt with the defendant's compliance
with psychiatric care and medicinal maintenance. The assistant district attorney
declined to stipulate to the conclusions drawn by the doctor. We have not
considered the latter. In general, certiorari by its very nature requires the court to
review the earlier proceeding for any irregularities. Winsett, 882 S.W.2d at 809
(citing Black’s Law Dictionary, 288 (6th ed. 1990)). Thus, the trial court's inquiry is
properly limited to that information which was offered to the district attorney's office
at the time of the application for diversion. However, in this case the few additional
facts stipulated into the record do not change the result. As a general principle, we
discourage trial courts from allowing defendants a forum for attempting to relitigate
the issue of the propriety of pretrial diversion itself based upon evidence the
defendant failed to present to the prosecutor.
Finding no reversible error below, we affirm the trial court's denial of
the defendant's petition for writ of certiorari and remand the matter for further
proceedings.
_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_______________________________
JOHN H. PEAY, JUDGE
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_______________________________
JOSEPH M. TIPTON, JUDGE
8