State v. Christopher Cavnor ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1998 SESSION
FILED
March 31, 1998
STATE OF TENNESSEE, * C.C.A. No. 02C01-9704-CR-00155
Cecil Crowson, Jr.
Appellee, * SHELBY COUNTY Appellate C ourt Clerk
VS. * Hon. James C. Beasley, Jr., Judge
CHRISTOPHER CAVNOR, * (Pretrial Diversion)
Appellant. *
For Appellant: For Appellee:
Leslie I. Ballin John Knox Walkup
Mark A. Mesler Attorney General & Reporter
200 Jefferson Ave., Suite 1250
Memphis, TN 38103 Elizabeth T. Ryan
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
Janet Shipman
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Street
Memphis, TN 38103
OPINION FILED:__________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Christopher P. Cavnor, has been indicted for criminally
negligent homicide. Tenn. Code Ann. § 39-13-212. The district attorney general
denied the defendant's application for pretrial diversion. Thereafter, the trial court
denied his petition for a writ of certiorari. In this interlocutory appeal made pursuant
to Rule 9 of the Tennessee Rules of Appellate Procedure, the defendant insists that
the district attorney general abused his discretion by the denial of pretrial diversion.
We find no error and affirm the judgment of the trial court.
On December 16, 1995, the defendant, who had been practice-firing a
.357 magnum at a local shooting range, stopped at the residence of his friend,
Jonathan Stone, to show the gun and how it was loaded. A short while later, the
defendant handed the gun to the victim, mistakenly believing he had disarmed the
weapon. It fired accidentally, a bullet striking the victim in the chest. The defendant
immediately went inside and called 911 for assistance. Although the victim was
rushed via helicopter to a trauma center, the injury proved to be fatal.
The defendant fully cooperated with the police and accepted full
responsibility for the accidental death of the victim. While the defendant has made
no direct apology to the victim's family, he expressed his regret through
correspondence by his counsel requesting pretrial diversion.
The record includes the district attorney's letter denying diversion, a
Shelby County pretrial investigation report, and a transcript of the hearing on petition
for certiorari. The application for pretrial diversion is not included in the appellate
record. At the time of the offense, the eighteen-year-old defendant had recently
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graduated from Houston High School. He resided at home with his mother and
step-father and had secured full-time employment with Adcart. The defendant had
no criminal record or history of criminal behavior.
The district attorney denied pretrial diversion on the following grounds:
1. Victim's family is opposed to defendant being placed
on diversion; this should be a major consideration in a
case of this nature.
2. There is a need for deterrence since many crimes in
this jurisdiction involve illegal use of handguns.
3. The defendant is a youthful offender; to divert cases
of violence involving injury or death sends the wrong
message to the youth of our community.
4. Crimes of violence are a serious problem in this
community, and it does not serve the public interest to
treat these crimes lightly.
5. Defendant does not have a gun permit and apparently
has no handgun training.
6. No exceptional circumstances shown by defendant.
At the hearing, the district attorney testified without objection to
additional reasons for the denial:
The first thing we look at is basically the
circumstances of the crime. And, of course, in this case,
we had a death--a sixteen-year-old boy that is dead as a
result of the defendant's actions.
Secondly, it is a crime of violence. When a life is
taken with the illegal use of a handgun, that is a violent
crime, whether it's intentional or unintentional. All
evidence shows this was an unintentional shooting. But
there are things about this unintentional shooting that we
look at. And one of them is there were no witnesses to
this crime. It was a .357 magnum revolver. For that gun
to be discharged, it had to be loaded, the safety had to
be off, and someone had to pull the trigger. ... This gun,
from all indications, properly operated. ... There was no
indication that there was anything wrong with that
weapon. And that is a circumstance of this crime that I
considered in whether or not to give diversion.
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This wasn't somebody out hunting with a rifle
where the safety is on and off as you're hunting in a
negligent homicide. This was two people, at close
quarters. One of them winds up dead. That is
something I considered.
The other thing I considered is the position of the
victim on whether or not we should grant diversion. We
have victim-impact legislation now that we do have to
consider mandated by the legislature. And I think the
court should consider that when a person in our
community looses a sixteen-year-old son, they come to
the courts for justice. They come to us to represent
them. And I represented this family, in this case, by
denying diversion.
And, thirdly, the case law is when there is a death
involved, it is up to the defendant to show exceptional
circumstances--not that [he] just qualif[ies]--not that [he
is] a young man--that [he has] been employed one month
somewhere. That's all that I had to look at. I had a
young man that hadn't been arrested. He'd been
employed one month somewhere....
The trial judge ruled that there was no abuse of discretion by the
district attorney and accredited four of the district attorney's grounds for denial.
Initially, he found that the district attorney was "justified" in looking for exceptional
circumstances and that none had been provided by the defendant. Secondly, he
recognized that the defendant had not contended that he had any prior handgun
safety training or a permit, thus the district attorney was not "wrong in [relying on this
basis] if nothing else were presented to him to the contrary." Thirdly, the trial judge
found that the "ultimate" reason for denial was the facts and circumstances of the
incident:
[T]his involved a gun--a pistol; that the nature of this
particular pistol was a revolver which means it had to be
loaded, manually; that in order for it to discharge, the
trigger had to be pulled. And there was nothing
presented to the district attorney, according to the
testimony, that indicated that this was a malfunctioning
pistol or hair-trigger pistol ....
And, also, the district attorney considered the fact
that there were no witnesses. And that there were no
exceptional circumstances presented ... there was
nothing exceptionally extra presented in this case.
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Finally, the trial judge found that the district attorney properly considered the victim's
family's opposition to diversion. The trial judge did, however, question the district
attorney's characterization of the situation as "illegal use" of a handgun and
expressed reservations about the validity of the remaining grounds:
I'm not sure I agree ... when it comes to the
deterrence factor since many crimes in this jurisdiction
involve illegal use of handguns. ... [O]bviously you have a
handgun in the hands of a nineteen-year old, unlicensed,
unsupervised ... that is an improper and, technically, an
illegal possession ... and I think that should be deterred.
But ... I don't know that this crime is the result of an
illegal use ... other than he shouldn't have had it in his
possession ....
***
I don't think that this is the type of crime that I classify as
a crime of violence, and I don't think this is the type of
crime that the legislature and the courts view as a crime
of violence.
***
I'm concerned with this issue of cases involving, again,
violence involving injury or death sends the wrong
message to the youth of our community. I'm not sure
about that issue.
Whether to grant or deny an application for pretrial diversion is in the
discretion of the district attorney general. Tenn. Code Ann. § 40-15-105; State v.
Hammersley, 650 S.W.2d 352, 353 (Tenn. 1983); State v. Carr, 861 S.W.2d 850,
855 (Tenn. Crim. App. 1993). On a petition for certiorari, the hearing conducted by
the trial judge is limited to two issues:
(1) whether the accused is eligible for diversion; and
(2) whether the attorney general abused his discretion in
refusing to divert the accused.
State v. Watkins, 607 S.W.2d 486, 488-89 (Tenn. Crim. App. 1980).
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In making the initial determination, the district attorney 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; (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) (citing State v. Markham, 755
S.W.2d 850, 852-53 (Tenn. Crim. App. 1988)). The nature and circumstances of
the alleged offenses are not only appropriate factors to be considered upon
application for diversion but may alone provide a sufficient basis for denial. Carr,
861 S.W.2d at 855; State v. Sutton, 668 S.W.2d 678, 680 (Tenn. Crim. App. 1984).
The circumstances of the case and a generalized need for deterrence,
however, "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 (emphasis in original) (quoting Markham, 755 S.W.2d at 853).
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; see
also State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993).
In State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989), our supreme
court expounded upon the duties of the district attorney general in making the initial
assessment:
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This requirement entails more than an abstract statement
in the record that the district attorney general has
considered these factors. He must articulate why he
believes that a defendant in a particular case does not
meet the test. If the attorney general bases his decision
on less than the full complement of factors enumerated
in this opinion he must, for the record, state why he
considers that those he relies on outweigh the others
submitted for his consideration.
"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)). See State v. Pinkham, 955 S.W.2d 956,
957 (Tenn. 1997) (holding the district attorney must "include in the record the factual
basis and rationale for denying diversion").
The defendant has the burden of providing the district attorney with
information in his application that supports his eligibility and suitability for pretrial
diversion. Herron, 767 S.W .2d at 156. The trial court does not conduct a de novo
review at the certiorari hearing but looks instead only to the information available to
and considered by the prosecutor when deciding to deny diversion. Winsett, 882
S.W.2d at 809; Sutton, 668 S.W.2d at 680. And, where the record would support
the grant or denial of pretrial diversion, the court must defer to the prosecutor's
discretion. Carr, 861 S.W.2d at 856 (citing State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978)).
Opposition by the victim's family, suggested by the district attorney as
a "major" reason for denial of diversion, is not expressly included among the factors
presented in Hammersley. This court has previously held that such "opposition to
pre-trial diversion is not a proper factor for consideration." State v. Peter A. Gibson,
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C.C.A. No. 1043, slip op. at 2 (Tenn. Crim. App., at Knoxville, Nov. 7, 1988) (citing
State v. Morton, 639 S.W.2d 666, 669 (Tenn. Crim. App. 1982)); State v. John
Howard Alden, C.C.A. No. 01C01-9309-CC-00299, slip op. at 3 (Tenn. Crim. App.,
at Nashville, May 12, 1995) ("The attitude of the victims toward pre-trial diversion
was irrelevant and did not constitute a proper reason for denying diversion"). Thus,
the district attorney improperly considered this ground.1
Nor was it proper for the district attorney to require a showing of
exceptional circumstances by the defendant. It is well established that principles
applied in probation cases also apply to pretrial diversion. Hammersley, 650
S.W.2d at 354-55. The state argues under Kilgore v. State, 588 S.W.2d 567, 568
(Tenn. Crim. App. 1979), the defendant must show exceptional circumstances to
receive diversion because this offense resulted in a death. This court has held that
the rule announced in Kilgore is no longer applicable in probation eligibility cases
because the legislature has established statutory eligibility requirements. State v.
Adams, 916 S.W.2d 471, 477 (Tenn. Crim. App. 1995). In our view, this rationale
applies in determining pretrial diversion eligibility as well. The legislature
established eligibility requirements for pretrial diversion and the defendant meets
those requirements. Tenn. Code Ann. § 40-15-105(a). The legislature did not
exclude from eligibility persons charged with offenses resulting in loss of life, nor did
the legislature condition eligibility in such cases on a showing of exceptional
circumstances. Id.In his application for diversion, the defendant did fail to demonstrate
that he had a permit or had otherwise undergone training in the handling of guns. At
1
Opposition by a victim or mem ber of a victim's family should be distinguished from
victim im pact sta teme nts that ref lect the circu msta nces o f the offen se. See State v. Randy
Sco tt Mo rrell, C.C.A. No. 03C01-9511-CC-00344, slip op. at 4, n.1 (Tenn. Crim. App., at
Knoxville, Oct. 21, 1997).
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the hearing, however, the defendant's step-father testified that a law enforcement
officer had, some several years earlier, shown the defendant how to properly handle
and shoot a handgun. The defendant did not have a permit for the .357 magnum.
That, in our view, weighs favorably for the position of the state.
In any event, the remaining grounds adequately support the district
attorney's decision. That the defendant lacked adequate firearm training and had
no permit for the weapon were important factors supporting the denial of diversion.
Moreover, the nature and circumstances of this incident are particularly serious in
that a death resulted from the unsupervised, unlicensed use of a handgun by a
young adult. The trial judge found as fact that this type of gun would not fire without
someone pulling the trigger. The gun was in proper working condition. Those
findings are binding on this court because the evidence does not preponderate
otherwise. State v. O'Guinn, 709 S.W.2d 561, 565-66 (Tenn. 1986); see State v.
Houston, 900 S.W.2d 712, 715 (Tenn. Crim. App. 1995). In consequence, the
district attorney general's rejection of the defendant's application for pretrial
diversion was not an abuse of discretion.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
______________________________
Joe B. Jones, Presiding Judge
______________________________
Jerry L. Smith, Judge
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