affirming denial of diversion noting that perjury strikes at "very heart of judicial system"
How later courts described this case
- affirming denial of diversion noting that perjury strikes at "very heart of judicial system"
Written by the judges who cited it.
The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MARCH 1996 SESSION
May 3, 1996
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9410-CR-00454
Appellee, )
) Bradley County
V. )
) Honorable R. Steven Bebb, Judge
)
BARRY HUGHES, ) (Rule 10 - Denial of Pretrial Diversion)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Leonard "Mike" Caputo Charles W. Burson
Phillips & Caputo Attorney General & Reporter
Attorneys at Law
312 Vine Street Hunt S. Brown
Chattanooga, TN 37403 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Jerry N. Estes
District Attorney General
G. Scott Kanavos
Assistant District Attorney General
203 E. Madison Avenue
P.O. Box 647
Athens, TN 37371
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Barry Hughes, challenges, by extraordinary appeal, the trial
court's judgment affirming the district attorney general's denial of his application
for pretrial diversion. The appellant sought to divert two counts of official
oppression, one count of official misconduct, and one count of fabricating
evidence. The charges stem from allegations that, while performing his duties as
a police officer, he planted cocaine in a civilian's car. We affirm.
An assistant district attorney, and later the district attorney general, denied
pretrial diversion based upon the following findings:
1. That the offense was not impulsive but planned and executed in both a
conscientious and repetitious manner over a significant period of time,
2. That the conduct substantially deprived two or more citizens of their
rights to due process,
3. That appellant's actions substantially undermined the integrity of law
enforcement officials,
4. That the offense caused review of nearly 200 criminal cases in which
the appellant was involved,
5. That granting diversion would undermine deterrence of other criminal
activities, and
6. That the actions constituted violations of public and private trust.
A district attorney's grant or denial of pretrial diversion is "presumptively
correct" and the decision shall only be reversed upon a showing of a "patent or
gross abuse of prosecutorial discretion." State v. Perry, 882 S.W.2d 357, 359
(Tenn. Crim. App. 1994). To find an abuse of discretion, the record must be
devoid of "any substantial evidence" supporting the district attorney general's
decision. Id.; State v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim. App. 1995).
We may not supplant the district attorney's judgment with that of our own. Id.
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In assessing whether a defendant is entitled to pretrial diversion, the
district attorney general must 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, and (7) the likelihood that pretrial diversion will serve the ends of
justice and the best interest of both the public and the defendant. Id. The
circumstances of the offense and the need for deterrence may, in an appropriate
case, outweigh all other relevant factors. Id. at 715.
We agree with the district attorney's assessment that the planting of or
fabrication of evidence calls into doubt the integrity of law enforcement.
Fabricating evidence not only strikes at the core of law enforcement and police
integrity, it also strikes at the "very heart" of the judicial process. See Perry, 882
S.W.2d at 360 (affirming denial of diversion noting that perjury strikes at "very
heart of judicial system"). Acts threatening the vitality of our judicial system
should neither be countenanced nor rewarded with remedial measures such as
pretrial diversion. We, therefore, conclude that the circumstances of the
offenses, the need to deter similar acts affecting the integrity of both the courts
and law enforcement, and the need to protect the public's interests outweigh all
factors in favor of pretrial diversion. The trial court's judgment in finding that the
prosecutor did not abuse his discretion is affirmed.
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______________________________
PAUL G. SUMMERS, Judge
CONCUR:
________________________________
JOSEPH M. TIPTON, Judge
________________________________
CHARLES LEE, Special Judge
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