                      IN THE SUPREME COURT OF TENNESSEE
                                 AT NASHVILLE
                                            June 3, 2004 Session

                STATE OF TENNESSEE v. CHRISTOPHER A. DAVIS

                       Automatic Appeal from the Court of Criminal Appeals
                              Criminal Court for Davidson County
                            No. 96-B-866    J. Randall Wyatt, Judge



                        No.M2001-01866-SC-DDT-DD - Filed August 25, 2004




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

        I concur in the conclusion of the majority that Davis’s convictions should be affirmed. As
to the sentences of death, however, I continue to adhere to my views expressed in a long line of
dissents beginning with State v. Chalmers, 28 S.W.3d 913, 920-25 (Tenn. 2000)(Birch, J.,
concurring and dissenting), and most recently elaborated on in State v. Davidson, 121 S.W.3d 600,
629-36 (Tenn. Oct. 20, 2003) (Birch, J., dissenting), that the comparative proportionality review
protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and
disproportionate imposition of the death penalty. See Tenn. Code Ann. § 39-13-206(c)(1)(D)(1995
Supp.). I have repeatedly expressed my displeasure with the current protocol since the time of its
adoption in State v. Bland, 958 S.W.2d 651 (Tenn. 1997). See State v. Holton, 126 S.W.3d 845, 872
(Tenn. 2004) (Birch, J., concurring and dissenting); State v. Davidson, 121 S.W.3d 600, 629-36
(Tenn. 2003) (Birch, J., dissenting); State v. Carter, 114 S.W.3d 895, 910-11 (Tenn. 2003) (Birch,
J., dissenting); State v. Reid, 91 S.W.3d 247, 288-89 (Tenn. 2002) (Birch, J., concurring and
dissenting); State v. Austin, 87 S.W.3d 447, 467-68 (Tenn. 2002) (Birch, J., dissenting); State v.
Stevens, 78 S.W.3d 817, 852 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. McKinney,
74 S.W.3d 291, 320-22 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. Bane, 57 S.W.3d
411, 431-32 (Tenn. 2001) (Birch, J., concurring and dissenting); State v. Stout, 46 S.W.3d 689, 720
(Tenn. 2001) (Birch, J., concurring and dissenting); Terry v. State, 46 S.W.3d 147, 167 (Tenn. 2001)
(Birch, J., dissenting); State v. Sims, 45 S.W.3d 1, 23-24 (Tenn. 2001) (Birch, J., concurring and
dissenting); State v. Keen, 31 S.W.3d 196, 233-34 (Tenn. 2000) (Birch, J., dissenting). As
previously discussed, I believe that the three basic problems with the current proportionality analysis
are that: (1) the proportionality test is overbroad,1 (2) the pool of cases used for comparison is


         1
            I have urged adopting a protocol in which each case would be compared to factually similar cases in which
either a life sentence or capital punishment was imposed to determine whether the case is more consistent with “life”
                                                                                                        (continued...)
inadequate,2 and (3) review is too subjective.3 I have previously discussed, in depth, my perception
that these flaws undermine the reliability of the current proportionality protocol. See State v.
Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and dissenting). I continue to adhere to my
view that the current comparative proportionality protocol is woefully inadequate to protect
defendants from the arbitrary or disproportionate imposition of the death penalty.4 Accordingly, I
respectfully dissent from that portion of the majority opinion affirming the imposition of the death
penalty in this case.



                                                                  ___________________________________
                                                                  ADOLPHO A. BIRCH, JR.




         1
          (...continued)
cases or “death” cases. See State v. McKinney, 74 S.W .3d at 321 (Birch, J., concurring and dissenting). The current
protocol allows a finding proportionality if the case is similar to existing death penalty cases. In other words, a case is
disproportionate only if the case under review “is plainly lacking in circumstances consistent with those in similar cases
in which the death penalty has been imposed.” Bland, 958 S.W .2d at 665 (emphasis added).

         2
          In my view, excluding from comparison that group of cases in which the State did not seek the death penalty,
or in which no capital sentencing hearing was held, frustrates any meaningful comparison for proportionality purposes.
See Bland, 958 S.W .2d at 679 (Birch, J., dissenting).

         3
          As I stated in my concurring/dissenting opinion in State v. Godsey, “[t]he scope of the analysis employed by
the majority appears to be rather amorphous and undefined–expanding, contracting, and shifting as the analysis moves
from case to case.” 60 S.W.3d 759, 797 (Tenn. 2001)(Birch, J., concurring and dissenting).

         4
          I also note that in a recent study on the costs and the consequences of the death penalty conducted by the State
Comptroller, one of the conclusions was that prosecutors across the state are inconsistent in their pursuit of the death
penalty, a fact that also contributes to arbitrariness in the imposition of the death penalty. See John G. Morgan,
Comptroller of the Treasury, Tennessee’s Death Penalty: Costs and Consequences 13 (July 2004), available at
www.comptroller.state.tn.us/orea/reports.

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