State v. Brooks

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 24, 2006 Session

STATE OF TENNESSEE v. TROY BROOKS

Appeal from the Criminal Court for Wilson County

Nos. 05-0159-05-0164 and 05-0410-05-0411 J.O. Bond, Judge

No. M2006-00459-CCA-R9-CD - Filed December 6, 2006

The Defendant, Troy Brooks,1 who was formerly a licensed attorney in the State of Tennessee,2 was

indicted by a grand jury in Wilson County for five counts of theft over $10,000, four counts of theft

over $1000, six counts of fraudulent use of a credit card in the amount of $1000 to $10,000, and one

count of fraudulent use of a credit card in the amount of over $500. The offenses arose from the

Defendant’s misuse of nine clients’ trust monies and credit card accounts during the course of several

months. The Defendant requested pretrial diversion, and the district attorney general denied the

Defendant’s request. The Defendant filed a petition for writ of certiorari to the Wilson County

Criminal Court, alleging that the district attorney general abused his discretion by denying pretrial

diversion. The trial court denied the Defendant’s petition. The Defendant filed a motion for

interlocutory appeal of the trial court’s decision, and this Court granted the Defendant’s motion. This

Court now affirms the judgment of the trial court and concludes that the district attorney general did

not abuse his discretion by denying pretrial diversion.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C.

MCLIN , JJ., joined.

G. Frank Lannom and Melanie R. Bean, Lebanon, Tennessee, for the appellant, Troy Brooks.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;

Tom P. Thompson, District Attorney General; and Robert Hibbett, Assistant District Attorney

General, for the appellee, State of Tennessee.

1

The Defendant is also referred to in various portions of the record as Troy L. Brooks. This Court will refer

to the Defendant as Troy Brooks, as listed on the indictment.

2

The Defendant’s law license was permanently suspended due to the actions that gave rise to these charges.

OPINION

This case arises from the misappropriation of approximately $185,000. The Defendant was

formerly an attorney. The funds were misappropriated from nine of his clients. The Defendant was

indicted on five counts of theft over $10,000, four counts of theft over $1000, six counts of fraudulent

use of a credit card in the amount of $1000 to $10,000, and one count of fraudulent use of a credit

card in the amount of over $500. Following the indictments, the Defendant requested pretrial

diversion. The Wilson County District Attorney General denied the Defendant’s request and provided

the Defendant with a written response explaining the decision.

The Wilson County District Attorney analyzed eight factors in making the decision to deny

pretrial diversion: (1) whether the Defendant would likely be a repeat offender; (2) the circumstances

of the offense; (3) the criminal history of the Defendant; (4) the social history of the Defendant; (5)

the mental and physical condition of the Defendant; (6) “other factors” favorable to the Defendant;

(7) the State’s factual evidence of the offenses; and (8) the Defendant’s recitation of the facts.3

Ultimately, the district attorney cited “five compelling reasons” for denying the Defendant’s request

for pretrial diversion:

(1) The Defendant, a licensed attorney, being in a role of trust with

his clients, knowingly committed theft of his clients’ funds and made

unauthorized charges to his clients’ credit cards. (2) These crimes

were not merely a casual taking of money, but were well thought out

separate criminal acts. (3) The Defendant was untruthful with his

clients when they questioned him about the money. (4) The

magnitude and nature of the offenses involved included eight separate

victims[,] with the amount of money stolen exceeding $180,000,

[which is only worsened by the fact that] these crimes were

committed in a position of trust. (5) Diversion will not meet the ends

of justice and would be against public policy.

The Defendant filed a petition for writ of certiorari in the Wilson County Criminal Court,

alleging that the district attorney had abused his discretion by denying the Defendant’s request for

pretrial diversion. At the hearing, the Defendant’s attorney began by “announc[ing] an agreement”

3

The Defendant’s recitation of the facts explained that he became involved in gambling through a “get-rich-

quick” scheme promising via email great investment opportunities in Nigerian oil and gas. The Defendant claims that

he had “little if any difficulties with clients’ funds or gambling” before this offer but that he was “aware from [his]

research that oil and gas was prevalent in N igeria and that it was a growing industry.” The Defendant researched the

offer in some depth and believed it to be a fabulous investment offer and thus “began using clients[’] money for the

investment with the full assurances that [he] would have the return of the money in time to take care of all

disbursements.” After the Defendant realized that this scheme was nothing more than a “very well designed [scam],”

the Defendant began “on-line gambling, gambling in casinos and sports gambling through bookies.” The Defendant

stated that “gambling became an obsession” and he continued “under the false hope that [he] could recoup the funds until

[he] was reported [to the Board of Professional Responsibility].”

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between the defense and the State that the trial court be permitted to consider that the Defendant made

“complete restitution” sometime in the period after the request for pretrial diversion was made. The

record is clear that the district attorney assented to the Defendant’s request that the trial judge

consider the recent restitution in its assessment of whether the district attorney abused his discretion

in denying pretrial diversion.

At the writ of certiorari hearing, the Defendant argued that he should not be penalized for the

seriousness of the offenses he committed because the legislature permits pretrial diversion for all of

his indicted crimes. Second, the Defendant argued that the fact that restitution was made should be

a “very mitigating factor” because he “did what had to been done” to return the monies to the victims.

Third, the Defendant argued that an attorney is not in a “position of trust” because “no case law . . .

specifically refers to [an attorney being in] a position of trust.” Fourth, the Defendant argued that the

indicted offenses were not a complex and impulsive scheme, but instead were “no more an impulse

or a complicated theft than somebody stealing . . . out of a store.” Finally, the Defendant asserts that

no facts in the district attorney’s denial letter support the State’s assertion that the Defendant lied to

his clients regarding any misuse of the funds.

The State argued that the denial was based upon five factors enumerated in the written

response to the Defendant’s request for pretrial diversion. The State focused on the facts that “these

crimes were not merely a casual taking of money but were well thought out and separate acts.”

Further, the State emphasized that the “magnitude of the offenses included [nine] separate victims

with the amount of money stolen exceeding $180,000[, which] gives these crimes a high deterrence

value.” Finally, the State argued that these crimes were in fact committed by an individual in a

“position of trust” that required him “to act in accordance with even a higher standard than that

applied to the average citizen.” The State noted that the attorney’s oath contains a “sworn duty . . .

to uphold the law . . . and has thereby breached the public trust” by violating that oath.

The trial court found that the Defendant “definitely [committed] a violation of the trust of the

people who put their money and their faith in him as a lawyer to do what was right [and] what was

legal.” Further, the trial judge stated that pretrial diversion was not appropriate in this case because

“the public will demand more out of the legal profession than just saying he can pay the money back,

what he’s got [sic] caught taking, and walk out of this.” The trial judge heavily weighed his ruling

on the fact of “how important it is that people have trust in the [justice] system and trust in the

lawyers.” The trial judge also concluded that attorneys have a “public trust because [their] licensing

comes through a public act . . . that authorizes [an attorney] to have a license upon . . . taking that

oath” to obey the law. Thus, the trial court found that the district attorney did not abuse his discretion

in denying the Defendant pretrial diversion even when restitution was considered. The Defendant

then filed a motion for interlocutory appeal challenging the trial court’s ruling that the District

Attorney had not abused his discretion in denying pretrial diversion. This Court granted the

Defendant’s motion and now considers the merits of the Defendant’s appeal.

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Analysis

Pretrial diversion is permitted for certain statutorily enumerated offenses. See Tenn. Code

Ann. §§ 40-15-102 to-107. “The decision whether or not to accede to pretrial diversion rests within

the discretion of the District Attorney General, subject to review by the trial court for abuse of

prosecutorial discretion.” State v. Hammersley, 650 S.W.2d 352, 353 (Tenn. 1983); see Tenn. Code

Ann. § 40-15-105(b)(3). The district attorney should consider numerous factors regarding the

defendant and the offense, including deterrence considerations, “the circumstances of the offense[,]

. . . the defendant’s criminal record, social history, the physical and mental condition of the 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.” Hammersley, 650 S.W.2d at 354-55.

Although the prosecutor has broad discretion to permit or deny pretrial diversion, “that

discretion is not unbridled.” Id. at 353. “The prosecutor is not at liberty to focus exclusively on

some factors while ignoring others but ‘must consider evidence which tends to show that the

applicant is amenable to correction and is not likely to commit further criminal acts.’” State v. Kirk,

868 S.W.2d 739 (Tenn. Crim. App. 1993) (quoting State v. Markham, 755 S.W.2d 850, 853 (Tenn.

Crim. App. 1988)). “If the decision to deny diversion is not based on consideration of all the

relevant factors, the state must articulate why the factors considered outweigh the others.” Kirk, 868

S.W.2d at 742 (citing State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989)).

If the prosecutor denies pretrial diversion, the defendant has “a right to petition for a writ of

certiorari to the trial court for an abuse of prosecutorial discretion.” Tenn. Code Ann. § 40-15-

105(b)(3). “On review, the trial court must consider only the evidence considered by the district

attorney general.” State v. Bell, 69 S.W.3d 171, 177 (Tenn. 2002). An abuse of discretion may only

be found where the prosecutor fails to consider all the relevant factors or reaches a decision not

supported by substantial evidence. See id. Such improper prosecutorial discretion occurs if the trial

court determines a “patent or gross abuse” of discretion exists. Pace v. State, 566 S.W.2d 861, 870

(Tenn. 1978). The defendant may further appeal the trial court’s determination of whether the

prosecutor committed an abuse of discretion. “On appeal, the appellate court is bound by factual

findings made by the trial court unless the evidence preponderates against them.” Bell, 69 S.W.3d

at 177 (citing State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999)).

After reviewing the district attorney’s written denial of pretrial diversion and the trial court’s

ruling, we conclude that the evidence does not preponderate against the trial court’s finding that the

district attorney did not abuse his discretion. Specifically, we find that the trial court could properly

conclude that the negative factors against the Defendant outweigh the positive considerations. Thus,

the trial court correctly found that the district attorney’s denial of pretrial diversion was within the

purview of his prosecutorial discretion.

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1) Seriousness of the Offenses

While it is undisputed that the Defendant has a favorable social history4 and an unfortunate

“gambling addiction that mitigates in his favor,” the district attorney and the reviewing trial court

could find that the other factors weigh heavily against the Defendant. Most importantly, the

circumstances of the offense in this case demonstrate that the Defendant committed at least sixteen

acts of theft or fraudulent use of credit cards. The Defendant’s actions continued for several months

and impacted nine of his clients. Over this time frame, the Defendant misappropriated over

$185,000 of clients’ funds. By his own admission, he intended to “cover[] up [his] thefts” by

gambling and by taking loans from his family. Also by his own admission, he continued his attempts

to “recoup the funds” until his actions were reported to the Board of Professional Responsibility and

his license was suspended. The evidence before the district attorney and the reviewing trial court

support the finding that these offenses constituted a deliberate and complex scheme to gamble with

clients’ funds and then to repay the accounts without the clients having any knowledge of the grave

misuse of the funds. As this Court has previously held, “multiple thefts and . . . attempts to thwart

responsibility” are precisely the type of considerations that show that an offense is particularly

serious and may not be deserving of pretrial diversion. State v. Lonnie Russell “Rusty” Gray, No.

01C01-9703-CR-00078, 1998 WL 408616, at *3 (Tenn. Crim. App., Nashville, July 22, 1998).

Thus, in this case, the trial court did not err in determining that the serious and deliberate nature of

the offenses weighs heavily against this Defendant.

2) Abuse of Position of Trust

Further, the district attorney and the trial court determined that the Defendant was in a

“position of trust” as an attorney. They both relied on the attorney’s oath to uphold the law and the

fact that the victims, relying upon that public oath, entrusted money and credit card account

information to the Defendant. Relying on Woodson v. State, 608 S.W.2d 591 (Tenn. Crim. App.

1980), the district attorney noted that the Defendant “stands before the court as one who by

committing a crime has violated his oath of office, and has thereby breached the public trust.” Id.

at 594. The trial court found that the underlying reason for an attorney’s oath is to prevent harm to

the public who will be entrusting their legal claims and their financial assets to members of the

licensed bar. In our view, the district attorney and the trial court may properly consider that the

Defendant was in a position of trust in this case and that the abuse of his client’s trust may weigh

heavily against him in the determination of his eligibility for pretrial diversion.

The Defendant argues that he was not in a position of trust because he was not a public

official. At the writ of certiorari hearing, the Defendant stated that “[t]here are no cases . . .

supporting a denial of . . . a private attorney pretrial diversion based on being in a position of . . .

trust.” In support of the Defendant’s position, the term “public trust” is often used to refer to

4

The Defendant’s background shows that he is an active member in numerous church and charitable

organizations in his community. The Defendant is also apparently very active with and supportive to his family. The

Defendant has obviously obtained extensive education, which included receiving a bachelor’s degree and a juris doctor

degree and a license to practice law. The Defendant does not have any criminal history related to theft or embezzlement,

but the Defendant has had a criminal conviction for driving under the influence, which detracts to some extent from the

strength of his social history.

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government employees or elected officials. See, e.g., State v. Johnny Quent Crudup, No. M2004-

01646-CCA-R9-CO, 2005 WL 1378774 (Tenn. Crim. App., Nashville, June 9, 2005) (holding that

a city government employee who misused his employee credit card violated the public trust); State

v. Donna F. Benson, No. W2001-01926-CCA-R3-CD, 2002 WL 31296110 (Tenn. Crim. App.,

Jackson, Oct. 8, 2002) (holding that a county criminal court clerk that accepted bribes violated the

public trust); State v. Edward Arnold Rivera, No. W2001-00857-CCA-R9-CD, 2002 WL 1482655

(Tenn. Crim. App., Jackson, Feb. 4, 2002) (holding that a sheriff’s deputy selling confiscated

property for personal profit violated the public trust); State v. Tony Williams, No.W2001-00788-

CCA-R9-CD, 2001 WL 1516979 (Tenn. Crim. App., Jackson, Nov. 21, 2001) (holding that a pretrial

services officer accepting bribes violated the public trust).

However, the factor of abuse of a “position of trust” does allow the district attorney to deny

pretrial diversion to individuals in the private sector. In State v. Lonnie Russell “Rusty” Gray, this

Court held that a private martial arts instructor who took his students’ parents’ payments for his

personal needs abused his position of trust. Gray, 1998 WL 408616, at *3. Likewise, in State v.

Charles Robert Harmuth, No. 01C01-9503-CC-00074, 1996 WL 429169 (Tenn. Crim. App.,

Nashville, Aug. 1, 1996), this Court held that a private medical doctor who utilized patients to “gain

sufficient information to commit criminal violations” may be denied pretrial diversion based upon

an abuse of a position of trust. Thus, this Court has previously held private individuals to be

responsible for abusing positions of trust when working with the public at large. The fact that this

Defendant took the attorney’s oath and became an “officer of the court” only further demonstrates

that he had a particularly honored and trusted position which he elected to abuse. As such, we

conclude that the evidence does not preponderate against the trial court’s finding that the district

attorney could properly weigh the Defendant’s abuse of a position of trust against him in his

assessment of pretrial diversion.

3) Payment of Restitution

Although we conclude that the seriousness of the offenses and the abuse of the position of

trust is sufficient in this case to uphold the trial court’s finding that the district attorney did not abuse

his discretion by denying the Defendant pretrial diversion, we will briefly discuss the Defendant’s

payment of restitution in this case.

The factual circumstances surrounding the restitution payment and the trial court’s

consideration of restitution are unique. At the time when the Defendant requested pretrial diversion,

the Defendant had not made restitution. Therefore, the district attorney did not consider restitution

as a factor in assessing the Defendant’s application for pretrial diversion. During the time between

the district attorney’s denial of pretrial diversion and the writ of certiorari hearing, the Defendant

managed to make restitution. At the writ of certiorari hearing, the Defendant and the State agreed

that the trial judge could consider the Defendant’s restitution in its assessment of whether the district

attorney abused his discretion in denying pretrial diversion even though that information was not

present before the district attorney at the time he made his initial decision. This created an unusual

situation because the role of the trial court is generally to assess whether the district attorney’s

decision was proper given the facts before him at the time of the decision. The parties’ stipulation

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to allow the trial judge to consider additional facts, while not necessarily improper based on the

unique circumstances herein, complicated the trial court’s review of the matter.

Regardless, we agree with the trial court that the payment of restitution is not the crucial

factor in determining whether the district attorney abused his discretion by denying pretrial diversion.

Indeed, this Court has previously weighed against a defendant the fact that “[n]o attempt or proffer

of restitution was made to the victims until criminal charges were brought.” Gray, 1998 WL 408616,

at *3. Here, the Defendant did not make restitution immediately after he was indicted or after he lost

his law license but waited until immediately before his writ of certiorari hearing. Thus, the trial

court could properly conclude that the Defendant’s payment of restitution, while proper and

commendable, does not entitle him to pretrial diversion in light of the serious nature of his offenses

and the abuse of his position of trust.

Conclusion

Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.

__________________________________________

DAVID H. WELLES, JUDGE

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