State v. Lane

• Decision Date: 01 June 2000
• Citation: 56 S.W.3d 20
• Parties: STATE of Tennessee v. James M. LANE, Jr.
• Court: Tennessee Court of Criminal Appeals

56 S.W.3d 20

STATE of Tennessee v. James M. LANE, Jr.

Court of Criminal Appeals of Tennessee, at Knoxville.

June 1, 2000.

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Larry Roddy, Sale Creek, TN, for appellant, James M. Lane, Jr.

Paul G. Summers, Attorney General & Reporter, R. Stephen Jobe, Assistant Attorney General, William H. Cox III, District Attorney General, David M. Denney, Executive Assistant District Attorney General.

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OPINION

WITT, J., delivered the opinion of the court, in which RILEY and WOODALL, JJ., joined.

James M. Lane, Jr. appeals by permission of the trial and appellate courts. Indicted for two counts of aggravated perjury, he alleges that the trial court abused its discretion in failing to reverse the district attorney general's denial of pretrial diversion. Because the prosecutor relied upon improper grounds for denying diversion, we reverse the trial court's finding that the prosecutor did not abuse his discretion in denying diversion. We remand to the trial court with instructions that the prosecutor enter into a memorandum of understanding for pretrial diversion with the defendant.

We granted the defendant, James M. Lane, Jr.'s, application for interlocutory appeal of the trial court's order affirming the district attorney general's denial of pretrial diversion. The defendant claims the trial court abused its discretion in upholding the district attorney general's decision and asks that this court order the district attorney general to enter into a memorandum of understanding pursuant to Code section 40-15-105. Because the prosecutor used some improper bases for denying diversion, we reverse the trial court's determination that the prosecutor did not abuse his discretion in denying diversion and remand the case for the prosecutor to enter into a memorandum of understanding with the defendant.

The defendant has been a firefighter with the Chattanooga Fire Department for over twenty years and has attained the rank of lieutenant. The defendant has been involved in many civic and charitable activities in his community, and he has received commendations related to his work as a firefighter. The defendant is the father of three children, two of whom are in his full custody. He has joint custody of a third child. Twice married, the defendant's troubles with the law began during the course of the breakup of his second marriage.¹

Apparently, the defendant's wife, Dedra Lane, committed an aggravated assault by holding the defendant at gunpoint until she was disarmed by law enforcement officers. A criminal prosecution was initiated against Mrs. Lane, and at the general sessions level the defendant and Mrs. Lane were ordered to have no contact with one another. Mrs. Lane was thereafter indicted. Through Mrs. Lane, the district attorney's office became aware of the defendant's alleged violation of the "no contact" order. The criminal court judge assigned to Mrs. Lane's case held a hearing regarding the matter, at which the court received evidence that the defendant made phone calls to Mrs. Lane's mother's home and Mrs. Lane's place of employment. The defendant denied making these calls despite evidence consisting of a tape recording, Mrs. Lane's testimony, and phone records. As a result of the defendant's testimony at this hearing, the state sought and obtained a two-count aggravated perjury indictment against him.

The defendant applied for pretrial diversion. He attached to his application numerous exhibits attesting to his exemplary job performance, good citizenship, and productive lifestyle.² Along with the application, an assistant district attorney general considered additional items of evidence, including a transcript of the hearing at which the defendant is alleged to have perjured himself, telephone records, an order of protection, a tape recording, and file memoranda from the fire chief. In a lengthy letter, an assistant district attorney general set forth his reasons for denying pretrial diversion.³ Despite findings of many positive attributes of the defendant, the assistant district attorney denied diversion for three reasons. First, the defendant was a city employee and firefighter who abused a position of trust by deliberately lying under oath. Second, as indicated by State v. Perry, 882 S.W.2d 357 (Tenn.Crim.App.1994), there has been a dramatic increase in perjury, and the need for deterrence exists. Finally, the defendant did not admit his crimes and express remorse, and therefore his potential for rehabilitation was considered limited.

Following the assistant district attorney's denial of pretrial diversion, the defendant sought a writ of certiorari in criminal court. Upon consideration, that court found each of the state's reasons for denying pretrial diversion supported by the record. Accordingly, it found no abuse of prosecutorial discretion in the denial of pretrial diversion.

The decision whether to grant pretrial diversion rests within the discretion of the district attorney general. See Tenn.Code Ann. § 40-15-105(b)(3) (Supp.1999); State v. Hammersley, 650 S.W.2d 352, 355 (Tenn.1983).

The burden is upon the defendant, "in the first instance, to provide the prosecuting attorney with sufficient background information and data to enable that officer to make a reasoned decision to grant or deny the relief sought." State v. Herron, 767 S.W.2d 151, 156 (Tenn.1989). To carry the burden, an applicant should provide the prosecutor with "as complete an application as circumstances warrant." State v. Winsett, 882 S.W.2d 806, 810 (Tenn.Crim.App.1993). The application should include evidence relating to the factors the prosecutor is obliged to consider. See State v. Hammersley, 650 S.W.2d 352, 355 (Tenn.1983). It may include "affidavits, character letters, and other material for the prosecutor's consideration." Winsett, 882 S.W.2d at 810. In addition, "upon stipulation of the parties, the trial court may order ... an investigation of the defendant's background." Tenn.Code Ann. § 40-35-104(a) (1997). A report of this investigation is to be used by the prosecutor as part of the available evidence upon which he or she bases the response to the diversion request. Id.; Winsett, 882 S.W.2d at 810.

Even though the defendant has the burden to demonstrate his or her eligibility and suitability for pretrial diversion, the prosecutor has specific obligations, especially when he or she is denying the application. State v. Curry, 988 S.W.2d 153, 157 (Tenn.1999). When deciding whether to enter into a memorandum of understanding for pretrial diversion of a defendant, "a prosecutor should focus on the defendant's amenability to correction." Id. at 156. Along with the circumstances of the offense, the following factors must be considered: "the defendant's criminal record, social history, the physical and mental condition of a 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." Id. (citations omitted); Hammersley, 650 S.W.2d at 355; see also State v. Washington, 866 S.W.2d 950, 951 (Tenn.1993). If the prosecutor denies pretrial diversion, he must do so in writing and give an enumeration of the evidence he considered and a discussion of the factors he considered along with the weight given to each. State v. Pinkham, 955 S.W.2d 956, 960 (Tenn.1997); see Curry, 988 S.W.2d at 157 (explaining importance of detailed, written denial); Winsett, 882 S.W.2d at 810.

"If the application is denied, the factors upon which the denial is based must be clearly articulable and stated in the record...." Herron, 767 S.W.2d at 156. If the prosecutor decides the issue on less than all of the mandated factors listed above, he or she must state via written record why the factors considered outweigh the other factors. Id. "The circumstances of the offense and the need for deterrence may alone justify a denial of diversion, but only if all of the relevant factors have been considered as well." Curry, 988 S.W.2d at 158 (emphasis in original). Moreover, the circumstances of the offense and the need for deterrence "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 (first emphasis in original, second emphasis added) (bracketed material in original) (citations omitted). If the prosecutor relies upon documentary evidence, he or she may, but is not required to insert a copy of the documents in the record; however, the prosecutor is "required to identify the factual basis and rationale for the decision to deny pretrial diversion." Pinkham, 955 S.W.2d at 960. In addition to the foregoing items which the prosecutor should include in a written record, he or she should also identify "any factual disputes between the evidence relied upon and the petitioner's application." Id.; see also Winsett, 882 S.W.2d at 810.

If the application is denied, the defendant may seek a writ of certiorari to the trial court. Tenn.Code Ann. § 40-15-105(b)(3) (Supp.1999). "The record as thus far compiled should be attached to the petition." Winsett, 882 S.W.2d at 810. Also, in the petition, the defendant should identify any "disputed fact" which the prosecutor has not identified. Id. The petition for certiorari gives the defendant the opportunity to dispute any fact in the record which emanated from the preliminary investigation report or any fact upon which the prosecutor relied which was garnered from sources other than the application or the investigation report.

The defendant has the burden of proving that the district attorney abused his discretion in denying diversion. Id.; 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...