State v. Kalid Abdulahi ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1998 SESSION
FILED
August 26, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9707-CR-00280
Appellee, )
) SHELBY COUNTY
VS. )
) HON. ARTHUR T. BENNETT,
KALID I. ABDULAHI, ) JUDGE
)
Appellant. ) (Denial of Pretrial Diversion)
FOR THE APPELLANT: FOR THE APPELLEE:
HOWARD L. WAGERMAN JOHN KNOX WALKUP
200 Jefferson, Suite 1313 Attorney General and Reporter
Memphis, TN 38103
ELIZABETH T. RYAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
KENNETH R. ROACH
Assistant District Attorney General
201 Poplar Ave, Suite 301
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Kalid I. Abdulahi, pursuant to a Tenn. R. App. P. 9
interlocutory appeal, challenges the District Attorney General’s denial of pretrial
diversion and subsequent denial of certiorari by the trial court. The defendant
was indicted for vehicular homicide as a proximate result of conduct creating a
substantial risk of death or serious bodily injury, a Class C felony. He complains
the prosecutor abused his discretion in denying pretrial diversion. The judgment
of the trial court is affirmed.
FACTS
The facts considered by the District Attorney General were as follows.
The defendant was driving east on Delano Street in Memphis. The two (2)
center lanes of traffic, one eastbound, one westbound, were closed for repair.
The closed lanes were blocked off with cones. The lanes adjacent to the curb in
each direction were open.
The defendant with reckless disregard for safety entered the closed lanes
in an attempt to pass another eastbound car while traveling at an excessive
speed. Before the defendant had completely passed the other vehicle, he
encountered a steam roller directly in front of him in the closed lanes. In an
attempt to avoid a collision with the steam roller, the defendant sharply veered in
front of the vehicle he was attempting to pass. The defendant hit the curb on the
side of the road and, according to the steam roller operator, “shot all the way
across the street and struck the [victim’s] car.” The victim died as a result of his
injuries. Eyewitnesses estimated the defendant was traveling at least sixty (60)
miles per hour in this construction zone.1
1
The defendant’s version of the facts differs from that of the other
eyewitnesses.
2
The District Attorney General denied pretrial diversion. Pursuant to a
petition for a writ of certiorari, the trial court found that the denial was not an
abuse of discretion.
PRETRIAL DIVERSION
The Pretrial Diversion Act provides a means of avoiding the
consequences of a public prosecution for those who have the potential to be
rehabilitated and avoid future criminal charges. See Tenn. Code Ann. § 40-15-
105. Pretrial diversion is extraordinary relief for which the defendant bears the
burden of proof. State v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993);
State v. Poplar, 612 S.W.2d 498, 501 (Tenn. Crim. App. 1980).
The decision to grant or deny an application for pretrial diversion is within
the discretion of the district attorney general. Tenn. Code Ann. § 40-15-
105(b)(3); see also State v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997); State
v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim. App. 1995); State v. Carr, 861
S.W.2d 850, 855 (Tenn. Crim. App. 1993). In making the determination, the
district attorney general must consider:
the defendant's amenability to correction. Any factors which tend
to accurately reflect whether a particular defendant will or will not
become a repeat offender should be considered . . . . 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.
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983); see also State v.
Washington, 866 S.W.2d 950, 951 (Tenn. 1993); State v. Parker, 932 S.W.2d
945, 958 (Tenn. Crim. App. 1996).
Deterrence, of both the defendant and others, is a factor the importance
of which varies according to the individual circumstances of each case.
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Hammersley, 650 S.W.2d at 354. The circumstances of the crime and the need
for deterrence may, in the appropriate case, outweigh the other relevant factors
and justify a denial of pretrial diversion. Carr, 861 S.W.2d at 855.
A prosecutor's decision to deny diversion is presumptively correct, and the
trial court should only reverse that decision when the appellant establishes a
patent or gross abuse of discretion. State v. Lutry, 938 S.W.2d 431, 434 (Tenn.
Crim. App. 1996); Houston, 900 S.W.2d at 714. The record must be lacking in
any substantial evidence to support the district attorney general’s decision before
an abuse of discretion can be found. Pinkham, 955 S.W.2d at 960; Carr, 861
S.W.2d at 856. The trial court may not substitute its judgment for that of the
district attorney general when the decision of the district attorney general is
supported by the evidence. State v. Watkins, 607 S.W.2d 486, 488 (Tenn. Crim.
App. 1980).
Our review focuses on whether there is substantial evidence in the record
to support the district attorney’s refusal to divert. The underlying issue for
determination on appeal is whether or not, as a matter of law, the prosecutor
abused his or her discretion in denying pretrial diversion. State v. Brooks, 943
S.W.2d 411, 413 (Tenn. Crim. App. 1997).
ANALYSIS
The District Attorney General expressly considered that the defendant had
no prior criminal record, was relatively young, had graduated from high school
and had a stable work history. However, pretrial diversion was denied for the
following reasons set forth by letter:
(1) Victim’s impact statement indicates the family of victim opposes
the defendant being placed on Diversion. They indicate it would
minimize the seriousness of the offense and add to the harmful
effect the offense has had and is still having on them.
(2) The magnitude of the offense. The defendant’s reckless
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behavior and disregard for the safety of others caused the death of
an innocent victim.
(3) The need for deterrence is great for many reasons:
(a) To set an example for others in teens and twenties who
drive and cause a disproportionate number of accidents involving
injury and death.
(b) To assure that Kalid Abdulahi does not engage in this
type of reckless conduct reflecting a disregard for the value of
human life.
(c) This type of offense is a problem in this jurisdiction,
aggravated by the fact of reckless conduct around a construction
zone. Specific laws have been passed by the legislature to combat
this conduct, along with Police saturations to prevent this type of
conduct.
(4) There has been no remorse shown by the defendant, no offer of
restitution for funeral expense, and no concern shown to the family
of victim.
(5) The defendant apparently had no insurance on his vehicle.
This shows a disregard for the Laws of the State and for other
drivers.
(6) There have been no exceptional circumstances shown to the
State for this relief.
The state concedes that victim opposition is not a proper consideration.
State v. Christopher Cavnor, C.C.A. No. 02C01-9704-CR-00155, Shelby County
(Tenn. Crim. App. filed March 31, 1998, at Jackson). Moreover, the requirement
that a defendant in a homicide case show “exceptional circumstances” did not
survive the 1989 Sentencing Act. State v. James Thomas Tanner, III, C.C.A. No.
03C01-9703-CR-00101, Sullivan County (Tenn. Crim. App. filed June 30, 1998,
at Knoxville); State v. Bradley Joe Housewright, C.C.A. No. 03C01-9705-CR-
00195, Sullivan County (Tenn. Crim. App. filed December 16, 1997, at
Knoxville). These factors were improperly considered.
We further find that the alleged failure to have automobile insurance is an
improper consideration, as was the alleged failure to offer restitution for funeral
expenses. The record reflects that civil litigation was pending.
The District Attorney General concluded that “no remorse” was shown by
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the defendant. We are unable to determine from the record any basis for this
conclusion. See State v. Kirk, 868 S.W.2d 739, 743 (Tenn. Crim. App. 1993).
Similarly, we find no basis for the conclusion that individual deterrence of the
defendant is necessary. Individual deterrence is a relevant consideration.
Hammersley, 650 S.W.2d at 354. However, it must be supported by the record.
Kirk, 868 S.W.2d at 743. The defendant has no prior criminal record, and there
is nothing to show a pattern of reckless or criminal behavior.
This brings us to the consideration of the circumstances of the offense
and deterrence of others. Both are relevant considerations and, in the proper
case, may outweigh the other relevant factors so as to justify a denial of pretrial
diversion. Carr, 861 S.W.2d at 855.
The record supports the application of both of these considerations. The
District Attorney General stated that reckless conduct around construction zones
was a problem within the jurisdiction. No one is in a better position to be
informed of criminal activity within a jurisdiction than the District Attorney
General. State v. Holland, 661 S.W.2d 91, 93 (Tenn. Crim. App. 1983).
The record reflects that the District Attorney General considered the
positive factors submitted by the defendant. However, the District Attorney
General has given improper consideration to some negative factors and proper
consideration to others. Even if some inappropriate factors were considered, this
does not foreclose a determination that substantial evidence still remains to
support the denial. State v. Carr, 861 S.W.2d at 857.
We conclude that the circumstances of the offense and the need for
deterrence of construction zone recklessness are sufficient to justify the District
Attorney General’s denial of pretrial diversion. In summary, we find no abuse of
discretion by the prosecutor.
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The judgment of the trial court is AFFIRMED.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
______________________________
CURWOOD WITT, JUDGE
________________________
ROBERT W. WEDEMEYER,
SPECIAL JUDGE
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