WPC,}};5 R|W\ k|W WP_TV07806638USA)sports2tlerxsInWPTVWPC2 tRrtf export strings StyleNamesromanswissmodernscriptdecortech RTF ExportWDBN rtfx strings|wpklquy}~}~|xttssR{WP}10{WP}01Times{WP}12Mll   M{WP}11   8{WP}22PWP 6.0 captionM{WP}16 \UN>(9 Z 6Times New Roman Regular %X6 0(($HU:,  AZ"Arial RegularNw@  )e E  E EӀ"44n~<$H3|xW 0_(8(2$ !  X X `   0  R 0D(#$  0  5'  !"   XXXX ePX X   Ad FILED XX eP   August26,1998  CecilCrowson,Jr. *X XAppellateCourtClerk HU:%,cAZ"Arial Regular_ AQ !"#%C<< CLevel 1Level 2Level 3Level 4Level 5R 0D (3$ !  R 0D (3$ !  R 0D .($$   1  = D/ r''' dxd+ B  d+ B P PdA D3 &&&&'dxd  HH  2$HH  Geneva  <Px443!#4$*$$*$ KK  Geneva  Geneva .,6 Geneva   inion Geneva  inion Geneva 4R3.5.2'3.5.2, 1996 Corel Corporation Limited,R3.5.2Created with WordPerfect 3.5.2.(#Z tRCorel WordPerfectxHH(FG(HH(d'h}};W\BPSetBPJobNStylZwp60versWDatSTR PtPtWxWp  (}  ~+ +/ XG5 xL+ 2  9W8 WP W҈ WӨ 7W\ WҌ WX W W| W Wd W _Wϴ Wd! W" Wϸ# FWϔ% WϘ& WϜ'  Wτ( ;Wψ QW  W,W W {WP}10{WP}12{WP}11{WP}22WP 6.0 caption{WP}16{WP}01"Hl' '" tR{WP}10 <<KK ..,,..,, tRTimes۪HHlHЫ tR Helvetica(d(   ٬A 7eSXXdd7A  tR  Times Э      tRl ph s;'$' tR{WP}10 <<KK  tRTimes tR+/{WP}22 tR Helvetica $Y@Y@Y@FILED$ 0$' '0F$$2' '$August 26, 199802@22' '0F@N Cecil Crowson, Jr.$N\'  '$  Appellate Court Clerk     tR tR tR0' '0 tR"IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE0' '0*AT JACKSON*88FJULY 1998 SESSIONFTTbbp$  p~' '$STATE OF TENNESSEE,8)0  ~~~' '0)"NO. 02C019707CR002800  ' '0$Appellee,~)$  ' '$)"SHELBY COUNTY0  ' '0VS.)0' '0)"HON. ARTHUR T. BENNETT,0' '0KALID I. ABDULAHI,U)"JUDGE0' '0)$Appellant.{)"(Denial of Pretrial Diversion)  5&6y' '5ܪ6y  ЫFOR THE APPELLANT:0&4&&' '04BHOWARD L. WAGERMAN$BP' '$200 Jefferson, Suite 13130P^PP' '0Memphis, TN 38103R^l ^^l ' 'RFOR THE APPELLEE:0&4&&' '0$4B' '$JOHN KNOX WALKUP0BPBB' '0Attorney General and ReporterP^$^l' '$ELIZABETH T. RYAN0 lzll' '0Assistant Attorney General!zCordell Hull Building, 2nd Floor"425 Fifth Avenue North#Nashville, TN 372430493$$%' '$WILLIAM L. GIBBONS0&' '0District Attorney General'$(' '$KENNETH R. ROACH0)' '0Assistant District AttorneyGeneral*201 Poplar Ave, Suite 301+"Memphis, TN 381031947 ""(" G&&||(@@G 6y6y,"N-N\.\j/jxJ0x xx HJܿ  tR tR tR tROPINION FILED:  ÿ0 ' '0!"#AFFIRMED$%&'JOE G. RILEY, (JUDGEV )" ~ )" H' 'V tRͪ  Ы tR tR   tRͬA 7eSXXdXXd7A tR  tR  Times  tR tR tRͭOPINION0*2M2' '0 tRͪЫ tR tR tR0+MhM' '0$The defendant, Kalid I. Abdulahi, pursuant to a Tenn. R. App. P. 9interlocutory appeal, challenges the District Attorney Generals denial of pretrial' 'diversion and subsequent denial of certiorari by the trial court. The defendantl' 'was indicted for vehicular homicide as a proximate result of conduct creating asubstantial risk of death or serious bodily injury, a Class C felony. Hecomplains the prosecutor abused his discretion in denying pretrial diversion. The judgment of the trial court is affirmed.2h%$3%@' '$ tRͪЫ tR tR tRFACTS04@[@' '0 tRͪЫ tR tR tR05[v[)' '0$The facts considered by the District Attorney General were as follows. The defendant was driving east on Delano Street in Memphis. The two (2)center lanes of traffic, one eastbound, one westbound, were closed for repair. The closed lanes were blocked off with cones. The lanes adjacent to the curb ineach direction were open.:v;$The defendant with reckless disregard for safety entered the closed lanesin an attempt to pass another eastbound car while traveling at an excessivespeed. Before the defendant had completely passed the other vehicle, heencountered a steam roller directly in front of him in the closed lanes. In anattempt to avoid a collision with the steam roller, the defendant sharply veered6 R@ H6in front of the vehicle he was attempting to pass. The defendant hit the curb onthe side of the road and, according to the steam roller operator,  shot all the wayacross the street and struck the [victims] car. The victim died as a result of hisinjuries. Eyewitnesses estimated the defendant was traveling at least sixty (60)' 'miles per hour in this construction zone. tR+{WP}11  1    tR  "Hl'  '" tR{WP}10  <<KK  tRTimes tR} {WP}12HHll$  1   The defendants version of the facts differs from that of the other'  'eyewitnesses. ֭0 E:l' '0F:U$The District Attorney General denied pretrial diversion. Pursuant to a' 'petition for a writ of certiorari, the trial court found that the denial was not anp' 'abuse of discretion.IU$J' '$ tRͪЫ tR tR tRPRETRIAL DIVERSION0K' '0 tRͪЫ tR tR tR0L-' '0$The Pretrial Diversion Act provides a means of avoiding theconsequences of a public prosecution for those who have the potential to be' 'rehabilitated and avoid future criminal charges. See Tenn. Code Ann.  4015 -~' ' 105. Pretrial diversion is extraordinary relief for which the defendant bears theburden of proof. State v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993);State v. Poplar, 612 S.W.2d 498, 501 (Tenn. Crim. App. 1980).RS$The decision to grant or deny an application for pretrial diversion is within' 'the discretion of the district attorney general. Tenn. Code Ann.  4015 N   U+ H' 'N 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, 861S.W.2d 850, 855 (Tenn. Crim. App. 1993). In making the determination, thedistrict attorney general must consider:$Yf' '$ tRͪ  Ы tR tR   tR0Zftfl' '0$the defendant's amenability to correction. Any factors which tendto accurately reflect whether a particular defendant will or will notbecome a repeat offender should be considered . . . . Among thefactors to be considered in addition to the circumstances of theoffense are the defendant's criminal record, social history, thephysical and mental condition of a defendant where appropriate,and the likelihood that pretrial diversion will serve the ends ofjustice and the best interest of both the public and the defendant.#bt#$c' '$ tRͪ  Ы tR tR   tRState 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.2d945, 958 (Tenn. Crim. App. 1996).f Cg C ^$Deterrence, of both the defendant and others, is a factor the importanceof which varies according to the individual circumstances of each case.  tR tRHammersley, 650 S.W.2d at 354. The circumstances of the crime and the needfor deterrence may, in the appropriate case, outweigh the other relevant factorsand justify a denial of pretrial diversion. Carr, 861 S.W.2d at 855.l ^ m $A prosecutor's decision to deny diversion is presumptively correct, andthe trial court should only reverse that decision when the appellant establishesa patent or gross abuse of discretion. State v. Lutry, 938 S.W.2d 431, 434(Tenn. Crim. App. 1996); Houston, 900 S.W.2d at 714. The record must be6 QWq H6lacking in any substantial evidence to support the district attorney generalsdecision before an abuse of discretion can be found. Pinkham, 955 S.W.2d at960; Carr, 861 S.W.2d at 856. The trial court may not substitute its judgment forthat of the district attorney general when the decision of the district attorneygeneral is supported by the evidence. State v. Watkins, 607 S.W.2d 486, 488(Tenn. Crim. App. 1980). w x  9$Our review focuses on whether there is substantial evidence in therecord to support the district attorneys refusal to divert. The underlying issue fordetermination on appeal is whether or not, as a matter of law, the prosecutorabused his or her discretion in denying pretrial diversion. State v. Brooks, 943S.W.2d 411, 413 (Tenn. Crim. App. 1997).} 9 $~ ' '$ tRͪЫ tR tR tRANALYSIS0  _' '0 tRͪЫ tR tR tR0  z' '0$The District Attorney General expressly considered that the defendanthad no prior criminal record, was relatively young, had graduated from highschool and had a stable work history. However,    pretrial    diversion was deniedfor the following reasons set forth by letter:6  }l' '6 tRͪlHl  Ы tR tR  l tR(1) Victims impact statement indicates the family of victim opposes }' 'the defendant being placed on Diversion. They indicate it wouldminimize the seriousness of the offense and add to the harmfuleffect the offense has had and is still having on them. }   (2) The magnitude of the offense. The defendants recklessbehavior and disregard for the safety of others caused the death of6 U H6an innocent victim.  (3) The need for deterrence is great for many reasons:   '$(a) To set an example for others in teens and twenties whodrive and cause a disproportionate number of accidents involvinginjury and death. ' Q Q _$(b) To assure that Kalid Abdulahi does not engage in thistype of reckless conduct reflecting a disregard for the value ofhuman life. _  $(c) This type of offense is a problem in this jurisdiction,aggravated by the fact of reckless conduct around a constructionzone. Specific laws have been passed by the legislature tocombat this conduct, along with Police saturations to prevent thistype of conduct.    (4) There has been no remorse shown by the defendant, no offerof restitution for funeral expense, and no concern shown to thefamily of victim.   #(5) The defendant apparently had no insurance on his vehicle. This shows a disregard for the Laws of the State and for otherdrivers. #MM[(6) There have been no exceptional circumstances shown to theState for this relief.6[wl' '6 tRͪllH  Ы tR tRlH   tR0ww' '0$The state concedes that victim opposition is not a proper consideration. State v. Christopher Cavnor, C.C.A. No. 02C019704CR00155, ShelbyCounty (Tenn. Crim. App. filed March 31, 1998, at Jackson). Moreover, therequirement that a defendant in a homicide case show  exceptionalcircumstances did not survive the 1989 Sentencing Act. State v. JamesThomas Tanner, III, C.C.A. No. 03C019703CR00101, Sullivan County (Tenn.Crim. App. filed June 30, 1998, at Knoxville); State v. Bradley Joe    Housewright,   6 4E$ H6C.C.A. No. 03C019705CR00195, Sullivan County (Tenn. Crim. App. filedDecember 16, 1997, at Knoxville). These factors were improperly considered. $We further find that the alleged failure to have automobile insurance is animproper consideration, as was the alleged failure to offer restitution for funeralexpenses. The record reflects that civil litigation was pending.$The District Attorney General concluded that  no remorse was shown bythe 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). R' 'Similarly, we find no basis for the conclusion that individual deterrence of thedefendant 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 thereis nothing to show a pattern of reckless or criminal behavior.$This brings us to the consideration of the circumstances of the offenseand deterrence of others. Both are relevant considerations and, in the propercase, may outweigh the other relevant factors so as to justify a denial of pretrialdiversion. Carr, 861 S.W.2d at 855.{{$The record supports the application of both of these considerations. TheDistrict Attorney General stated that reckless conduct around construction zones6 R H6was a problem within the jurisdiction. No one is in a better position to beinformed of criminal activity within a jurisdiction than the District AttorneyGeneral. State v. Holland, 661 S.W.2d 91, 93 (Tenn. Crim. App. 1983).--H$The record reflects that the District Attorney General considered thepositive factors submitted by the defendant. However, the District AttorneyGeneral has given improper consideration to some negative factors and properconsideration to others. Even if some inappropriate factors were considered,this does not foreclose a determination that substantial evidence still remains tosupport the denial. State v. Carr, 861 S.W.2d at 857.H$We conclude that the circumstances of the offense and the need fordeterrence of construction zone recklessness are sufficient to justify the DistrictAttorney Generals denial of pretrial diversion. In summary, we find no abuse ofdiscretion by the prosecutor.qq$The judgment of the trial court is AFFIRMED.$ ' '$ tRͪ  Ы tR tR   tR0 ' '0 tR tR tR tR0 ' '0$$$$$$$_________________________ $$$$$$$JOE G. RILEY, JUDGE ##1J1? 1U ? HJܿO]CONCUR:]kkyy______________________________CURWOOD WITT, JUDGE     ________________________ROBERT W. WEDEMEYER,!SPECIAL JUDGE$!/' '$ tR tR tR tR