State v. McKim

• Decision Date: 29 January 2007
• Citation: 215 S.W.3d 781
• Parties: STATE of Tennessee v. Stephen McKIM.
• Court: Tennessee Supreme Court

215 S.W.3d 781

STATE of Tennessee v. Stephen McKIM.

Supreme Court of Tennessee, at Jackson.

November 14, 2006 Session Heard in Memphis.¹

January 29, 2007.

Mark S. McDaniel, Memphis, Tennessee, for the appellant, Stephen McKim.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Brian Clay Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; Kevin Rardin, Assistant District Attorney General; for the appellee, the State of Tennessee.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and JANICE M. HOLDER and GARY R. WADE, JJ., and SHARON G. LEE, Sp.J., joined.

We accepted this extraordinary appeal in order to (1) determine the effect of a district attorney general's consideration of an irrelevant factor in deciding whether to grant pretrial diversion and (2) clarify when an interlocutory appeal from a denial of pretrial diversion should be granted. In this case, the defendant was indicted for criminally negligent homicide following the death of his daughter after the defendant left her in his car on a hot summer day. The defendant applied for pretrial diversion. The district attorney general's office denied diversion, in part on the basis of its judgment that diversion of a negligent homicide "appears to be an aberration of the law." The trial court refused to overturn the prosecutor's decision, and the defendant applied for permission to pursue an interlocutory appeal. The trial court denied permission, and the defendant then applied to the Court of Criminal Appeals for permission to pursue an extraordinary appeal. The Court of Criminal Appeals denied the defendant's application. We granted review and hold that the district attorney general abused his discretion when he relied upon an irrelevant factor in denying pretrial diversion. The trial court's judgment affirming the denial of the defendant's application for pretrial diversion is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On the morning of August 9, 2004, the defendant, Stephen McKim, was running late for a meeting with his co-workers at Central North Church, where he serves as a Minister to Students. Before leaving his home for work, he placed his seven-month-old daughter Mia in a carseat in the backseat of his car. Mia attended a daycare center next door to the church where the defendant worked. By the time the defendant arrived at his workplace, Mia had fallen asleep. Forgetting that his daughter was in the car, the defendant rushed into his meeting. When the defendant remembered that he had not removed his daughter from his car, he hurried to retrieve her. Although she was still alive at that time, Mia died a short time later from hyperthermia as a result of the high temperature in the vehicle. The defendant was subsequently indicted for criminally negligent homicide.

In response to his indictment, the defendant applied for pretrial diversion. The defendant's application indicates that he has no prior criminal record; holds a college degree and is seeking a Masters of Divinity degree; taught in the public school system from 2001 to 2003, leaving to take his current position; is in excellent physical health; is married and emotionally stable with significant support from his extended family and community; has an "excellent reputation within the community"; and is "amenable to any conditions imposed during the diversion period." The defendant's application was accompanied by nineteen letters of support from family, friends, co-workers, and students, including an eloquent letter of support from his wife, Mia's mother.

The district attorney general's office denied the defendant's application for pretrial diversion. The written denial sets forth without discussion four factors favoring diversion: the defendant's employment "at the same job for seven years," the defendant's college degree, his lack of a prior criminal record, and the "numerous letters of support." The denial also sets forth four factors supporting denial of pretrial diversion: the defendant's negligence in failing to remove his daughter from his car on a hot summer day, thereby causing her death; the seriousness of the offense; the "need to deter crimes such as these," citing the deaths of almost one hundred children across the nation from being left in "hot vehicles"; and that the grant of diversion to the defendant would "lead the public to believe that crimes that involve death are treated lightly by the criminal justice system." Significantly, in assessing the seriousness of the offense, the assistant district attorney general who authored the written denial wrote,

Even though this class of crime is divertible, it appears to be an aberration of the law. Other crimes involving death that were once divertible have been removed by legislation from consideration. These are voluntary manslaughter and vehicular homicide involving intoxication. Also, Aggravated Assault involving serious bodily injury has been removed from consideration for pretrial diversion by legislation. Certainly, the type of crime and the fact that it involved a death weigh heavily against the defendant's application for pretrial diversion.

The written denial concludes:

After weighing and considering all the factors both for and against the defendant's application for pretrial diversion as outlined above, this office has reached the following conclusion. The positive aspects of the defendant's application for pretrial diversion when weighed against the negative aspects of this application indicate that this office should not grant the defendant's application for pretrial diversion. Having considered and weighed all of the aspects of this application, both positive and negative, this office must respectfully deny the defendant's application for pretrial diversion.

Upon the denial of his request for pretrial diversion, the defendant petitioned the trial court for a writ of certiorari. The defendant contended that the prosecutor abused his discretion in refusing to grant his application for pretrial diversion. The trial court disagreed and denied the defendant's request for relief. Thereafter, the defendant applied to the trial court for permission to pursue an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9. The trial court denied the defendant's application. The defendant then applied to the Court of Criminal Appeals for permission to pursue an extraordinary appeal pursuant to Tennessee Rule of Appellate Procedure 10. The Court of Criminal Appeals denied the defendant's application.² The defendant then sought review by this Court. We granted the defendant's application for extraordinary appeal in order to (1) determine the effect of a district attorney general's consideration of an irrelevant factor in deciding to deny pretrial diversion and (2) clarify when an interlocutory appeal from the denial of pretrial diversion should be granted.

ANALYSIS

I. Prosecutor's Duty upon Pretrial Diversion Application

The pretrial diversion statute permits a district attorney general to suspend his or her prosecution of a qualified defendant for a period of up to two years. See Tenn.Code Ann. § 40-15-105(a)(1)(A) (Supp.2004). Only a narrow class of defendants is eligible for pretrial diversion. An eligible defendant is one who has not previously been granted diversion, does not have a disqualifying prior conviction, and is seeking pretrial diversion for an offense that is not a Class A or Class B felony, certain Class C felonies, a sexual offense, driving under the influence, or vehicular assault. See id. at (a)(1)(B)(i); State v. Bell, 69 S.W.3d 171, 176 (Tenn. 2002).

A statutorily eligible defendant is not presumptively entitled to diversion. State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). Rather, the district attorney general has the sole discretion to determine whether to grant pretrial diversion to one who meets the strict statutory requirements. Bell, 69 S.W.3d at 176 (citing Curry, 988 S.W.2d at 157; State v. Pinkham, 955 S.W.2d 956, 959 (Tenn.1997)). In determining whether to grant pretrial diversion, the district attorney general "has a duty to exercise his or her discretion by focusing on a defendant's amenability for correction and by considering all of the relevant factors, including evidence that is favorable to a defendant." Bell, 69 S.W.3d at 178 (emphases added); see also State v. Hammersley, 650 S.W.2d 352, 355 (Tenn.1983). Any factors tending to reflect accurately upon whether the applying defendant will or will not become a repeat offender should be considered. Hammersley, 650 S.W.2d at 355.

Among the factors to be considered in addition to the circumstances of the offense are 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. The prosecutor may consider the need for general deterrence. See State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993). However, 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.'" Id. (quoting State v. Markham, 755 S.W.2d 850, 853 (Tenn.Crim.App. 1988)). This Court has recognized that "the responsibility placed upon prosecutors to pick and choose among the lot [of applicants for pretrial diversion] based upon a particular candidate's amenability to rehabilitation or recidivism requires the exercise of unusual powers of discrimination." Hammersley, 650 S.W.2d at 353.

If the prosecutor denies the application, "the factors upon which the denial is based must be clearly articulable and stated in...