State of Tennessee v. Tony Williams

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 2, 2001

STATE OF TENNESSEE v. TONY WILLIAMS

Interlocutory Appeal from the Criminal Court for Shelby County

No. 00-06333-35 Bernie Weinman, Judge

No. W2001-00788-CCA-R9-CD - Filed November 21, 2001

The defendant, Tony Williams, appeals the trial court's denial of pretrial diversion after a petition

for certiorari from the decision of the district attorney. In this discretionary appeal under Rule 9 of

the Tennessee Rules of Appellate Procedure, the single issue presented for review is whether the

denial of pretrial diversion qualified as an abuse of prosecutorial discretion. The judgment denying

relief is affirmed.

Tenn. R. App. P. 9; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ROBERT

W. WEDEMEYER , JJ., joined.

Jerome C. Payne, Memphis, Tennessee, for the appellant, Tony Williams.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General;

William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendant, an employee of Pretrial Services in Shelby County, was indicted for soliciting

monies from inmates in the Shelby County Jail in exchange for assistance in lowering the amounts

of their bail:

A public servant commits an offense who, with intent to obtain a benefit or

to harm another, intentionally or knowingly:

(1) Commits an act relating to the servant's office or employment that

constitutes an unauthorized exercise of official power . . . .

Tenn. Code Ann. § 39-16-402(a)(1).

An indictment also issued against the defendant for bribery for accepting "a pecuniary benefit

from Kadrian Davis upon an understanding that [the defendant's] action as a public servant would

thereby be influenced." The applicable statute is as follows:

A person commits an offense who:

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(2) While a public servant, solicits, accepts or agrees to accept any pecuniary

benefit upon an agreement or understanding that the public servant's vote, opinion,

judgment, exercise of discretion or other action as a public servant will thereby be

influenced.

Tenn. Code Ann. § 39-16-102(a)(2).

The defendant allegedly committed the crimes between September 1, 1999, and February 1,

2000.

The district attorney general denied an application for pretrial diversion because the crime

was "systemic in nature," extending over a six-month period; because the defendant misused the

criminal justice system by setting bonds based upon the amount of money he personally received;

because the defendant violated public trust by using his authority to set bonds in misdemeanor cases

and certain of the felony cases; because the defendant exposed members of the public to potential

danger and risk; and because prosecution of the crimes would have a deterrent effect. While

conceding that the defendant had no prior criminal record and was a college graduate, the district

attorney general also observed that the defendant was unemployed and had a poor work history.

In his petition for certiorari, the defendant challenged each of the reasons for denial,

explaining that his job opportunities were limited because of his frequent court appearances relating

to these charges; that the duration of his criminal conduct was only three months instead of six; that

his conduct in pretrial services was subject to review by a supervisor and did not include absolute

authority to set bail in either misdemeanors or felonies; and that there was no basis for the conclusion

that prosecution would have a deterrent effect. The defendant submitted that the grant of diversion

would afford supervisory authority over the defendant's future conduct. While admitting that he

violated a position of public trust, the defendant claimed that denial based upon the nature of the

offense would qualify as an abuse of discretion.

The trial court affirmed the decision made by the district attorney general and denied the

petition for a writ of certiorari. After considering both the contents of the petition and the reasons

furnished by the district attorney general for the denial of diversion, the trial court concluded that

whether the misconduct lasted three or six months or whether the defendant himself set bail or

furnished the information for others to do so was "of little consequence" on the issue of pretrial

diversion:

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This type of conduct if perceived by the public went unpunished, the entire criminal

justice system would be damaged. Not only would public trust in the system be

diminished but the message sent to the inmates who paid bribes would be devastating

to the system of justice. It would appear from the record that the district attorney

general considered all of the relevant factors concerning the defendant's suitability

for pretrial diversion including the defendant's social history, the circumstances of

the offense, and what effect the granting of diversion would have on deterring this

type crime.

In this appeal, the defendant insists that the district attorney general failed to consider all

relevant factors and concentrated primarily upon the circumstances of the offense. The defendant

complains that the district attorney general failed to give appropriate weight to his lack of criminal

history and his college diploma.

Pretrial diversion authorizes a district attorney general to suspend prosecution against a

qualified defendant for a period of up to two years. Tenn. Code Ann. § 40-15-105(a)(1)(A). A

defendant who is statutorily eligible for pretrial diversion is not presumptively entitled to the

program. Whether a qualified defendant receives a grant of pretrial diversion is discretionary with

the district attorney. State v. Hammersley, 650 S.W.2d 352, 353 (Tenn. 1983); State v. Carr, 861

S.W.2d 850, 855 (Tenn. Crim. App. 1993).

In making the initial determination upon a request for diversion, the district attorney general

should consider (1) the circumstances of the offense; (2) the defendant's criminal record; (3) the

defendant's social history; (4) the defendant's physical and mental condition; (5) the deterrent effect

of punishment upon other criminal activity; (6) the defendant's amenability to correction; (7) the

likelihood that pretrial diversion will serve the ends of justice and the best interests of the defendant

and the public; and (8) the defendant'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) (quoting State v. Markham, 755 S.W.2d 850, 852-53 (Tenn. Crim. App.

1988)).

A denial of pretrial diversion must be in writing and must include "an enumeration of the

evidence that was considered and a discussion of the factors considered and weight afforded each."

State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997). In State v. Brown, this court provided three

reasons for requiring a written response:

First, the statement would compel the prosecutor to think about and justify his denial

in terms of the applicable standards. Second, the statement of reasons would define

the area of controversy at the evidentiary hearing. Finally, the statement of reasons

would restrict the prosecutor to a particular rationale and insure that the prosecutor

would offer no new reasons at the evidentiary hearing.

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700 S.W.2d 568, 570 (Tenn. Crim. App. 1985). There must be "more than an abstract statement in

the record that the district attorney general has considered these factors." State v. Herron, 767

S.W.2d 151, 156 (Tenn. 1989). The factors considered "must be clearly articulable and stated in the

record . . . ." Id. While the defendant has the burden of demonstrating his suitability for diversion,

that does not relieve the district attorney of the obligation to examine all relevant factors. Id. In State

v. Curry, 988 S.W.2d 153, 158 (Tenn. 1999), involving the embezzlement of $27,000.00 by a city

clerk, our supreme court observed that while the circumstances of the offense and the need for

deterrence may alone justify denial of diversion, that is so only if all the relevant factors have been

considered as well.

The district attorney should identify any areas of factual dispute. Brown, 700 S.W.2d at 570.

The circumstances of the case and the generalized need for deterrence, when relied upon by the

district attorney, "cannot be given controlling weight unless they are 'of such overwhelming

significance that they [necessarily] outweigh all other factors.'" Washington, 866 S.W.2d at 951

(quoting Markham, 755 S.W.2d at 853) (emphasis in original). Where there are no "such

exceptional circumstances, 'the district attorney general must consider evidence which tends to show

that the applicant is amenable to correction [by diversion] and is not likely to commit further

criminal acts.'" Id. (quoting Markham, 755 S.W.2d at 853). "The decision of a district attorney

general granting or denying pretrial diversion to an accused is said to be 'presumptively correct'; and

the decision should not be set aside unless there has been a 'patent or gross abuse of prosecutorial

discretion.'" State v. Perry, 882 S.W.2d 357, 360 (Tenn. Crim. App. 1994) (quoting Pace v. State,

566 S.W.2d 861, 870 (Tenn. 1978)).

When an application for pretrial diversion has been denied by the district attorney, the

defendant may appeal to the trial court for a writ of certiorari. Tenn. Code Ann. § 40-15-105(b)(3).

The trial court may only consider the evidence considered by the district attorney general. State v.

Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993). After first determining whether the

defendant is eligible for diversion, the trial court may conduct a hearing to resolve any factual

disputes between the state and the defense but may not hear evidence not considered by the district

attorney. Pinkham, 955 S.W.2d at 960.

In order for the trial court to grant relief to the defendant, the record must show an absence

of any substantial evidence to support the denial of pretrial diversion by the district attorney. Our

scope of review is limited to whether the evidence preponderates against the finding of the trial

court, which has held that the district attorney did not abuse his discretion. Id.; State v. Carr, 861

S.W.2d 850, 856 (Tenn. Crim. App. 1993).

Initially, the crimes alleged against the defendant would not disqualify him from a pretrial

diversion program. See Tenn. Code Ann. § 40-15-105. Yet the circumstances of the charged crimes

were particularly bothersome to the district attorney because they were committed within a criminal

justice system designed to assure the confidence of the public. The record demonstrates that the

district attorney examined relevant factors, including the two factors weighing most heavily in favor

of the grant of diversion, and articulated why the particular nature of these offenses and the deterrent

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value of prosecution outweighed those favorable factors. See State v. Fields, 40 S.W.3d 450 (Tenn.

2001); State v. Hooper, 29 S.W.3d 1, 10 (Tenn. 2000).

The allegations by the state are that the defendant committed the crimes over a period of time

extending from three to six months. A public official employed in the Pretrial Services for Shelby

County, the defendant allegedly had the authority in certain instances to establish the amount of bail

for the release of jail inmates and solicited payment in exchange for the reduction of bail. The

district attorney considered the appropriate factors: the nature of the offense, the defendant's lack of

a prior criminal record, the defendant's social history, the deterrent effect on other criminal activity,

the defendant's amenability to correction, the interests of the defendant and the state, and other

factors, including the defendant's employment record before and after the arrest.

In our view, all factors except for the duration and nature of the offenses, the need for

deterrence, the interests of the state, and, to a limited degree, employment history, weigh in favor of

the grant of pretrial diversion. In this instance, however, the defendant, entrusted with the difficult

responsibility of assisting in the establishment of conditions for pretrial release of inmates, allegedly

misused his authority for purposes of profit. Corruption of this kind does, in fact, discredit the

criminal justice system, which is entirely dependent upon the continuing integrity of those who have

earned the right to participate in the process. The burden of responsibility is particularly onerous

upon those involved in this area of criminal justice. The public trust is at issue. It is difficult to

exaggerate the potential risks and consequences of the misuse of that trust. Cf. State v. Kissinger,

922 S.W.2d 482 (Tenn. 1996).

Here, the defendant stands accused of placing a price on freedom from incarceration and

communicating to jail inmates his willingness to compromise the criminal justice system. This is

one of those rare occasions when general deterrence for similar crimes is an appropriate

circumstance. There is no particular evidence suggesting these crimes are more prevalent in Shelby

County than others areas of the state. Yet it is our view that prosecution in this instance is

particularly suitable. The honesty of personnel within the criminal justice system is essential to

public safety.

The nature of the charged crimes, the public interest in the preservation of the integrity of the

courts and their processes, and the deterrent value of the prosecution of a public employee entrusted

with critical duties within the criminal justice system, when weighed against favorable factors to the

defense, support the denial of diversion. The evidence does not preponderate against the trial court's

conclusion that the district attorney did not abuse his discretionary authority.

Accordingly, the judgment is affirmed.

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GARY R. WADE, PRESIDING JUDGE

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