IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE MAY SESSION, 1999
July 30, 1999
STATE OF TENNESSEE, Appe llant,
VS. JOSEPHINE SKIDMORE, Appellee.
) ) ) ) ) ) ) ) ) )
Cecil W. Crowson Appellate Court Clerk C.C.A. NO. 01C01-9804-CR-00159
DAVIDSON COUNTY HON . SETH N ORM AN JUDGE (Pretrial Diversion)
FOR THE APPELLANT : JOHN KNOX WALKUP Attorney General and Reporter DARYL J. BRAND Associate Solicitor General 425 Fifth Avenu e North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General KATRIN MILLER Assistant District Attorney 222 Se cond A venue N orth Nashville, TN 37201-1649
FOR THE APPELLEE: CHARLES R. RAY JEFFERY S. FRENSLEY 211 T hird Aven ue No rth P. O. Box 198288 Nashville, TN 37219-8288
OPINION FILED ________________________ REVERSED AND REMANDED JERRY L. SMITH, JUDGE
The appellee, Jose phine S kidmo re, was ind icted by the Sum ner Co unty grand jury with one (1) count of forgery and one (1) count of making, presenting or using a false document with the intent that it be taken as a genuine governmental record. She applied for pretrial diversion, which was denied by the district attorney. Skidmore subsequently filed a petition for writ of certiorari with the trial court to review the district attorney’s denial of pretrial diversion. The trial court found that the assistant district attorney abused her discretion and placed the appellee on pretrial diversion for a period of one (1) year, which would run retroa ctively from the date of the indictment. The state appeals, claiming that the trial court erred in (1) reversing the district attorney’s decision to deny pretrial diversion, and (2) ordering a retroac tive diversionary period. After a thorough review of the record before this Court, we conclude that the trial cou rt erred in finding that the district attorney abused her discretion and, accordingly, reverse the judgm ent of the tria l court.
The appellee is an alderman for the City of Hendersonville, as well as a Sumner County commissioner. In June 1996, Karen Martin obtained a petition from the appe llee in support of Ray Rollins to be appointed to a vacant seat on the county co mm ission. Skidmore prepared the petition by photocopying seven (7) pages from an earlier petition which opposed a zoning change. She then changed the heading of the petition to support Rollins as county com missioner.
Initials were added in the margins alongside severa l name s, accord ing to Skidmore, to indic ate tho se ind ividuals who a ssen ted to u se the ir nam es in support of Rollins’ n omina tion. commission on June 17. Subseq uently, District Attorney General Lawrence Ray Whitley requested that the Tennessee Bureau of Investigation conduct an investigation into the matter. TBI Agent Richard Stout conta cted m any of th e individ uals listed on the Rollins petition to verify whether these individuals agreed to support Rollins in the petition. Nearly all of the individuals contacted denied signing or initialing the Rollins petition and could not recall being contacted in regards to the Rollins petition. General Whitley recused himself and his office from the matter, and Victor S. Johnson, III was appointed as special prosecutor in this case. The Sumner Coun ty grand jury indicted the appellee with one (1) count of forgery and one (1) count of making, presenting, or using a false document with the intent that it be taken as a genuine governmental record. The appellee subsequently applied for pretrial diversion. At the time of her application, the appellee was sixty-seven (67) ye ars old with no prior criminal record. She is a widow and has two (2) living children. She worked in her daughter’s law office and has held positions as an alderman for the city of Hende rsonville and a Su mner County commissioner. In support of her application, the appellee submitted approximately fifty (50) letters from neighbors, colleagues and friends attesting to her good moral character and active comm unity involvem ent. The appellee also intim ated tha t her pros ecution w as initiated a s part of a “political vendetta” against her. In support of this position, defense counsel -3Martin p resente d this petition to the cou nty
subs eque ntly submitted a letter which detailed other instances of falsification of governmental documents which were not prosecuted by the District Atto rney’s Office for th e Eighte enth Ju dicial District. In her letter de nying pre trial diversion , Assistan t District Attorn ey Ka trin Novak Miller recognized the factors favorable to the appellee, including her lack of a criminal record. Miller stated, “Ms. Skidm ore appea rs to be a n em otiona lly stable and responsible individual. She has no history of substance abuse. She is a responsible and respected member of her community. The likelihood of her ever becom ing involved in a crim inal matter aga in seems unlikely.” Howeve r, Gene ral Miller den ied diversio n base d upon : (1) the circumstances of the offense; (2) the deterrent effect of punishment on other crim inal activity; and (3) the likelihood that pretrial diversion will serve the best interests of the public and the appellee. Miller determined that the reasons fo r denying diversion “far outweigh[ed]” the relevant factors in the appellee’s favor. Specifically, she stated: This office finds that her actions in altering and causing a fraudulent document to be sub mitted to a public office und ermin es the public confidence in the governmental process. Petitions supporting whatever view submitted to whatever body are the public speaking in its purest form next to the actu al live voice. If the integrity of a public petition is not maintained, what assurance do any citizens have in the future of know ing if a signa ture they w illingly give to support one cause won’t be used to espouse another cause? What Ms. Skidmore did was to man ufactu re a pe tition wh ich false ly indicated a public position. Because she is an elected official, she is in a position of leadership and trust. As she is an example of good works in her comm unity, she must also be an example of the consequences of misco nduct. In reviewing cases of pre-trial diversion denial, the appellate courts have re peate dly held that the deterrent effect of punishment upon other criminal a ctivity is a factor which the district attorne y should conside r, . . . Cases in which fraud is involved, including forgery cases, seem to compose such a category of offens e whic h by the ir very na ture, ne ed no extrinsic proof to e stablish the deterren t value of pu nishm ent.
Miller noted that even though the appellee admitted altering the petition , “she d id not seem to appreciate the wrongfulness of her actions.” In addition, Miller rejected the appellee’s allegations that the prosecution was politically motivated in light of the fact that the Davidson County District Attorney’s Office, rather than the local d istrict attorney , decided to subm it the matte r to the gra nd jury. The appellee filed a petition for writ of certiorari to the trial court 1 t o review the district attorney’s denial of pretrial diversion. At the hearing, Assistant District Attorney Miller testified as to her reasons for denying diversion. When defense counsel intimated that ADA Miller was influen ced b y the M ayor o f Hen derso nville in her decision to deny diversion, the trial court interjected, “I will tell you, the Court knows Gene ral Miller [well] en ough to know th at nobo dy is going to influence her decision. I full well understand General Miller. Both as judge and as a former trial lawyer, I know how General Miler is about her opinion in matters.” The trial court took the matter under advisement, but subsequently released an op inion e xpres sing its c once rn that th e pros ecutio n was politically motivated. The trial court further stated that it was “aware of the requirements” of State v. Hammersley, 650 S .W .2d 35 2 (Te nn. 19 83), “h owev er the C ourt is concerned that a c rimina l prose cution might have been motivated by local politics. This th e Cou rt cann ot allow . This C ourt be lieves th at this is an
approp riate case for diversion.” In a subsequent order, the trial court found that the prosecutor had abused her discretion in denying diversion and, therefore, ruled that the appellee be placed on d iversion for a period of one (1) year. The trial court further determined that “[d]ue to [the appellant’s] cooperation with law
A ll judges from the Eighteenth Judicial District recused themselves from the matter. The Honorable Seth Norman, Criminal Court Judge, Division Four, for the Twentieth Judicial District was appointed to hear the matter by interchange.
enforcement and her conduct during the pendency of this matter, . . . the diversionary period sh all be retroa ctive to the filing of the indictm ent,” appro ximate ly one (1) ye ar prior to the filing of the ord er. The refore, the trial court ordered that the prosecution against the appellee be dismissed, contingent upon h er paym ent of cou rt costs. From the trial c ourt’s o rder, th e State of Ten ness ee brin gs this appe al.
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. Tenn. Code Ann. § 4 0-15-10 5. Pretrial diversion is extraordin ary relief for wh ich the de fendan t bears the burden of proof. State v. Baxter, 868 S.W .2d 679, 681 (Tenn. Crim . App. 1993 ). The decision to grant pr etrial diversio n rests w ithin the discretion of the district attorney. T enn. C ode An n. § 40-1 5-105(b )(3); s ee State v. Curry , 988 S.W.2d 153, 157 (Tenn. 1999). In exercising that discretion, the Tennessee Supre me C ourt has offered this guidan ce: When deciding whether to enter into a memorandum of understanding under the pretrial diversion statute a prosecutor shou ld focus on 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 conside red. . . . Among the factors to be con sidered in addition to the circumstances of the offense are the defendant’s criminal record, social history, the physica l and m ental con dition of a defendant where appropriate, and the likelihood that pretrial diversion will serve the ends of justice and the best interest of both the pub lic and the defend ant. State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983). However, “the focus on amena bility to correction is not an exclus ive one.” State v. Carr , 861 S.W.2d -6-
850, 855 (Ten n. Crim. App . 1993). Deterre nce of the defe ndant and others is also a prope r factor to co nsider. Hammersley , 650 S.W.2d at 354. In fact, the circumstances of the crime and the need for deterrence may outweigh other applic able factors and justify the denial of pretrial diversion. State v. Lutry , 938 S.W .2d 431, 434 (Tenn. Crim . App. 1996 ). When deciding whether to grant pretrial diversion, the district attorney shou ld consider the following factors: (1) the circumstances of the offense; (2) the defend ant’s criminal record, social history, and present condition, including mental and physical conditions if appropriate; (3) the deterrent effect of punishment on othe r criminal a ctivity; (4) the de fendan t’s amen ability to correction; and (5 ) the like lihood that pre trial diver sion w ill serve the ends of justice and the best interests o f both the p ublic and the defen dant. State v. Washington , 866 S.W .2d 950, 951 (Tenn. 199 3). When denying an application for pretrial diversion, the District Attorney must clearly articulate the specific rea sons for d enial in the record in o rder to provide for mea ningful ap pellate revie w. State v. Hammersley , 650 S.W.2d at 355. As stated by the T ennes see Su preme Court, the requirement that the district attorney consider all relevant factors: entails more than an abstract state ment in the rec ord that the district attorney g eneral h as con sidered these fac tors. He must a rticulate why he believes a defendant in a particular case does not meet the test. If the attorney general base s his de cision on les s 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 other submitted for his consideration. State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989). T he failure o f the record to reflect that the District Attorney considered all of the applica ble fac tors wo uld allow a review ing court to find an abuse of discretion . S ee State v. Carr , 861 S.W.2d at 858. -7-
The district a ttorney ’s decis ion to g rant or deny p retrial div ersion is presu mptive ly correc t and s hall be revers ed on ly when the appellant establishes that there has been an abuse of prosecutorial discretion. State v. Curry , 988 S.W.2d at 158. In order to establish such an abuse of discretion, the record must show an absence of any substantial evidence to support the district attorney’s refusal to grant pr etrial diversio n. Id. T herefore , in a close case where the District Attorney could have legitimately granted or denied the application, the trial judge must defer to the judgment of the District A ttorney. State v. Carr , 861 S.W.2d at 856. On appellate review of the judgment of the trial court in diversion cases the trial court’s findings of fact are binding on an appellate court unless the evidence preponderates against th ose findin gs. State v. Lutry , 938 S.W.2d at 434.
Therefore, we review to determine whether the trial court’s decision is supported by a prepo nderan ce of the e vidence . State v. Curry , 988 S.W .2d at 158 ; State v. Pinkham , 955 S.W.2d 956, 960 (Tenn. 1997). When reviewing a denial of pretrial diversion, this Court may no t substitute its judgment for that of the district attorney’s even if we would have preferred a different res ult. State v. Houston, 900 S.W .2d 712, 714 (Tenn. Crim . App. 1995 ).
In her letter denying dive rsion, the assistant d istrict attorney recogn ized that the ap pellee was “a n em otiona lly stable and re spon sible ind ividual. She has no history of sub stanc e abu se. Sh e is a re spon sible and respected member of her community. The likelihoo d of he r ever b ecom ing invo lved in a criminal matter again seems unlikely.” However, the assistant district attorney determined that -8-
pretrial diversion should be de nied based upon (1) the circumstances of the offense, (2) the deterrent effect of punishment on other criminal activity, and (3) the likelihood that pretrial diversion w ill serve the best interests of the public and the appellee. Miller determined that the reasons for denying diversion “far outweig h[ed]” the relevant factors in the appellee’s favor. She expressed concern over the fact that the appellee is a public official, and he r actions s erved to “unde rmine  the pu blic con fidenc e in the governmental process.” Further, the assistant district attorney found tha t because this c ase involved fraud, the deterrent effect of punishment upon other criminal activity was a significant factor weighing against pretrial diversion. M oreover, she o bserved that even though the appellee admitted altering the petition, “she did not seem to appreciate the wrongfu lness of h er actions .” In its written opinion and subsequent order, the trial court found that the assistant district attorney abuse d her disc retion in de nying pre trial diversion . The trial court based its decision solely on its determin ation that the subject prosecution “might have been motivated by local politics.” We believe that the evidence in the record preponderates against the trial court’s findings. First, even if th e reco rd fully su pporte d the a ppelle e’s alleg ations that District Attorn ey Ge neral L awren ce Ra y W hitley was “politica lly motiv ated” in initiating the investigation and subsequ ent charges against the appellee,2 t he subjective motiva tions o f the pro secu tion are irreleva nt if, in fact, there is proba ble cause to believe that the appellee committed the criminal acts as charge d.
This Cou rt doe s not find th at su ch alle gatio ns w ere e stab lished in this r eco rd. T he on ly “evidence” that this prosecution was politically motivated consists of a letter submitted by defense counsel alleging various instances of unprosecuted fraudulent conduct committed by other individuals within the Eighteen th Judicial D istrict.
Second ly, once the TBI had concluded its investigation into these matters, the entire case was transferred to the Davidson County District Attorney’s Office who decided to su bmit the case to the Sum ner Coun ty grand jury. The g rand jury then returned an indictment charging the appellee with one (1) coun t of forgery and one (1) count of making, presenting or using a false document with the intent that it be taken as a genuine governmental record. Finally and, m ost im portan tly, there is no evid ence in the record to su pport the allegation that the de cision to deny p retrial div ersion was p olitically motivated. During his exam ination of A ssistant District Attorney Miller, defense counsel questioned her about phone calls she had received from the Mayor of Hen derso nville in connection with this matter. W hen d efens e cou nsel im plied that Miller m ight ha ve bee n influe nced by the m ayor in her decision to deny diversion, the trial court interjected, “I will tell you, the Court knows General Miller [well] enough to know that n obod y is goin g to influ ence her de cision . I full well understand General Miller. Both as judge and as a former trial lawyer, I know how Gen eral M iler is ab out he r opinio n in matters.” Thus, the trial court made a spec ific finding of fact tha t the de cision to den y divers ion wa s not p olitically motivated. Allegations of prosecutorial vindictiveness or selective prosecution in the institution of a prosecution, have constitutional implications that, if proven, may warrant dismiss al of the ind ictmen t. S ee B lackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974) (due p roces s ma y be im plicate d if a prosecutor vind ictively increases a cha rge to a felony after a misdemeanant has invoked an app ellate rem edy); Wa yte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985) (equal protection standards prevent selective prose cution on the basis o f race, re ligion, or other arbitrary -10-
However, as long as the prosecutor has probable cause to
believe that an accuse d com mitted an offense, th e determ ination wh ether to prosecu te rests entirely within the prosecutor’s discretion, subject to these constitutional limitations. State v. Superior Oil, Inc., 875 S.W.2d 658, 660 (Tenn. 1994); Quillen v. C rockett , 928 S.W .2d 47, 51 (Tenn . Crim. A pp. 199 5). In any event, the trial court’s review under Tenn. Code Ann. § 40-15105(b)(3) is limited to the question of abuse of discretion concerning the pretrial diversion decision, not subjective motives concerning the institution of the prosecution. The trial court must find an abuse of discretion with regard to the denial of diversion. On th is poin t the trial court specifically found that political motivations played no part in Assistant District Attorney Miller’s decision to deny diversion. The trial court found that this case was “an appropriate case for diversion” and g ranted diversio n on th is basis . The tr ial cou rt is not at liberty to s ubstitute its own judgment for that of the district attorney in its review for an abuse of discretion. S ee S tate v. Houston, 900 S.W .2d at 714 . In this case, the assistant district attorney outlined her reasons for denying diversion in a detailed, four (4) page letter. She recognized the appellee’s lack of criminal record , her fav orable social and work history and her amenability to rehabilitation. However, she determined that the un favora ble factors outweigh ed the favorab le ones and gave a detailed explana tion as to why the u nfavorable factors were given m ore weig ht. See S tate v. Curry , 988 S.W.2d at 158. Although we believe the question of the ap pellan t’s suitability for diversion is a close c all, we con clude tha t the trial court s hould have deferred to the discretion of the prosecutor in her refusa l to divert. As sta ted by th is Cou rt in State v. Carr , -11-
It is not the trial court’s function to disapprove the denial whenever it disagrees with the prosecutor. It is obligated to defe r to the prose cutor’s discretion when the record contains any substantial evidence to support the decision. Thus, if the record would s upport either a grant or a den ial of pretrial diversion, the trial court must defer to the prosecutor’s discretionary decision. As our Supreme Court has previously stated regarding a discretionary decision in another conte xt, if “the evidence would support either conclusion . . . it cannot be an abuse of discretion to decide the case either wa y.”
861 S.W.2d at 856 (quoting State v. Grear, 568 S.W.2d 285, 286 (Tenn. 197 8)).
The evidence in the record preponderates against the trial court’s findings that the district attorney abused her discretion in denying pretrial diversion.3 According ly, the judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.
____________________________________ JERRY L. SMITH, JUDGE
___________________________________ DAVID G. HAYES, JUDGE
___________________________________ NORMA MCGEE OGLE, JUDGE
B ecause this Court m ust reverse the trial court’s decision, the issue regarding the propriety of a retroactive diversionary period is pretermitted.