                     IN THE SUPREME COURT OF TENNESSEE
                                 AT JACKSON
                                  November 15, 2000 Session

                      STATE OF TENNESSEE v. VINCENT SIMS

                      Automatic Appeal from the Court of Criminal Appeals
                               Criminal Court for Shelby County
                       Nos. 96-09279, 96-09280 Joseph B. Dailey, Judge


                       No. W1998-00634-SC-DDT-DD - Filed April 17, 2001


ADOLPHO A. BIRCH, JR., J., concurring and dissenting.

        I concur in the majority’s decision to uphold Sims’s conviction, but I dissent from the
decision to impose the death penalty in this case because I continue to believe, as I have stated in the
past, that the comparative proportionality review protocol currently applied in capital cases is
inadequate.

         In State v. Chalmers, I discussed three shortcomings of Tennessee’s comparative
proportionality review protocol which, in my view, render the protocol deficient: “the ‘test’ we
employ [for comparative proportionality review] is so broad that nearly any sentence could be found
proportionate; our review procedures are too subjective; and the ‘pool’ of cases which are reviewed
for proportionality is too small.” 28 S.W.3d 913, 923 (Tenn. 2000) (Birch, J., concurring and
dissenting). Because of these shortcomings, I have concluded that the test embraced by the majority
fails to provide convincing assurance that “no aberrant death sentence [will be] affirmed.” Cf. State
v. Bland, 958 S.W.2d 651, 665 (Tenn. 1997). In the cases which have followed Chalmers, however,
the majority has continued to apply the protocol despite my objections. See, e.g., State v. Carruthers,
___ S.W.3d ___ (Tenn. 2000) (Birch, J., concurring and dissenting); State v. Keen, 31 S.W.3d 196
(Tenn. 2000) (Birch, J., concurring and dissenting). Consequently, because “I am unwilling to
approve of results reached through the use of a procedure with which I cannot agree,”1 I cannot
support a death sentence upheld under the comparative proportionality review protocol which has
been embraced by the majority. Accordingly, I respectfully dissent from the Court’s decision to
impose the death penalty in this case.



                                                       ___________________________________
                                                       ADOLPHO A. BIRCH, JR., JUSTICE



       1
           See Coe v. State, 17 S.W.3d 193, 248-49 (Tenn. 2000) (Birch, J., dissenting).
