State v. Markham
| Decision Date | 23 June 1988 |
| Citation | 755 S.W.2d 850 |
| Parties | STATE of Tennessee, Appellant, v. J.W. MARKHAM, Steve Markham, J.W. Markham & Son, and Ray Holt, Appellees. 755 S.W.2d 850 |
| Court | Tennessee Court of Criminal Appeals |
William E. Boston, Bobby W. Sands, Boston, Bates, Holt & Sands, Lawrenceburg, for J.W. Markham, Steve Markham, and J.W. Markham and Son, Inc.
Jerry Wallace, Pulaski, for Ray Holt.
W.J. Michael Cody, Atty. Gen. and Reporter, Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, for appellant.
This case presents a Rule 9, T.R.A.P., appeal by the State from the judgment of the criminal court finding that the action of the district attorney general denying Appellees' applications for pretrial diversion constituted abuse of discretion.
The record supports the judgment of the trial court.
Appellees, J.W. Markham, Steve Markham and Ray Holt, were charged on a two-count indictment with conspiring to defraud the State of Tennessee with regard to contracts for the construction of two highway bridges. The indictment alleges that J.W. Markham and Steve Markham, principals in J.W. Markham and Son, Inc. (Markham), in violation of T.C.A. Sec. 39-1-605 and the terms of the contracts between Markham and the State, agreed to pay Holt, an engineer employed by the State Department of Transportation, to perform "construction stakes, lines and grades" engineering which was the responsibility of Markham. In furtherance of the agreement, which all parties knew was unlawful, Holt and other State employees under his supervision performed for a period of six months the engineering services on State time. Holt was paid $6,400.00 of an agreed $14,750.00 before the arrangement was discovered by the Department of Transportation.
Prior to the contracts on which this case is based, Markham had constructed 50 to 60 highway projects for the State, on all of which the State, rather than the contractor, was required to furnish the engineering services. Except for that change in the contracts, Holt would have performed the engineering on the subject contracts on behalf of the State.
Markham's incentive for the conspiracy was convenience in obtaining engineering services, Holt's was a personal financial crisis.
The contracts were completed by Markham and the State recouped its loss by withholding funds for the engineering services.
Upon Appellees' applications for pretrial diversion, alleging the statutory qualifications and requesting pretrial investigation pursuant to T.C.A. Sec. 40-15-104, an agreed order was entered continuing the case until the investigation had been completed. However, prior to receipt of the investigation report the district attorney general denied the applications for diversion, giving as his reasons:
The pretrial investigation report filed by a State correctional counselor reflected a detailed background investigation of the appellees and concluded that each "would be a good candidate for probation and a minimum risk to the community".
After receiving the report the district attorney general reaffirmed his denial, stating, "There was nothing in the probation report that would change my mind".
In reviewing the testimony presented by Appellees at the hearing on their petitions for certiorari review the action of the district attorney general, the trial court stated:
All the witnesses testified that they were personally and professionally acquainted with Mr. J.W. Markham, his son Steve, and were familiar with their business J.W. Markham and Sons, Inc. The witnesses testified to the effect that the Defendants J.W. Markham and Steve Markham were men of outstanding character and personal habits, and noted for the quality of their work....
The State presented Inspector General Tom Anderson, the prosecutor, who testified to the facts of the case. He also indicated that the Defendants were co-operative with him, and had complied with every request. Mr. Anderson testified further that he had conducted a limited background check on the Defendants and knew their basic biographical data, and that none of the defendants had any prior criminal record. Mr. Anderson indicated that but for the present case he uniformly found the defendants to be respected, well liked in their respective professions, and individuals who enjoyed a good reputation.
....
All of the above stated witnesses testified to the effect that Mr. Holt was a man noted for his community spirit and compassion. These witnesses reported that Mr. Holt was known as an exceptionally dedicated and hard worker who had been actively involved in community affairs over the years.
The Court also heard from each of the Defendants who testified that they were remorseful, ashamed and willing to comply with the terms of probation.
The Court's Findings of Fact and Conclusions of Law include the following:
Before the Court stands three Defendants: who heretofore have acquired the respect of their friends and professional associates. Each has served his community and has been a contributing/productive member of society. From this record the Court would feel compelled to grant probation on these facts even if a conviction were to result from trial. The court is mindful that "the same guidelines applicable in diversion cases as are applicable in probation cases but they are more stringently applied to an applicant for pre-trial diversion." State v. Poplar, 612 S.W.2d 498 (Tenn.Crim.App.1980). The Court after considering all that was presented in this cause, including the pre-diversion reports, is of the opinion that, even if convicted by a jury, the imposition of a sentence absent probation would be something this court could not bring itself to do. The Defendants have suffered substantially from their mistakes. The Court is impressed with the sincerity, candor, and genuine remorsefulness of these Defendants. The Court takes particular notice that Mr. Ray Holt committed the alleged acts at a time of great emotional distress, family trauma, and financial uncertainty. The Court also cannot find that the Defendants' acts resulted in actual loss to the State.
The court ordered that the appellees be placed...
To continue reading
Request your trial
-
State v. Johnson, No. W2003-02349-CCA-R3-CD (TN 10/1/2004), W2003-02349-CCA-R3-CD
...on the record the specific reasons for its determination. See State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989); State v. Markham, 755 S.W.2d 850, 853 (Tenn. Crim. App. 1988). If the trial court fails to place the reason for the denial of diversion on the record, this court must review the ......
-
State v. Melvin
...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) (citations omitted)). A trial court must weigh all of the required factors in determining whether to grant judici......
-
State v. Irwin, No. E2005-00908-CCA-R3-CD (TN 3/31/2006), E2005-00908-CCA-R3-CD.
...for its determination. See State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989); Hammersly, 650 S.W.2d at 355; State v. Markham, 755 S.W.2d 850, 853 (Tenn. Crim. App. 1988). If the trial court fails to place the reason for the denial of diversion on the record, this court must review the evide......
-
State v. Hicks
...on the record the specific reasons for its determination. See State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989); State v. Markham, 755 S.W.2d 850, 853 (Tenn. Crim. App. 1988). If the trial court fails to place the reason for the denial of diversion on the record, this court must review the ......