                  IN THE SUPREME COURT OF TENNESSEE

                              AT JACKSON             FILED
                                                     December 1, 1997

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,             )    For Publication
                                                  Appellate C ourt Clerk
                                )
     Appellee,                  )    Filed:
                                )
v.                              )    Shelby County
                                )
ANDRE S. BLAND,                 )    Hon. Arthur T. Bennett, Judge
                                )
     Appellant.                 )    No. 02-S-01-9603-CR-00032



             SEPARATE CONCURRING AND DISSENTING OPINION



            I concur, in principle, with Justice Reid’s dissent.           I

would, however, increase the pool of similar cases to include all

cases in which a trial judge’s report is required by Supreme Court

Rule 12.1   The majority chose to exclude from the proportionality

review pool all cases in which the State did not seek the death

penalty and all cases in which no capital sentencing hearing was

held.    In my view, this exclusion discourages a more meaningful

proportionality analysis.



            Defendants are often convicted of first degree murder

after a trial in which the prosecution, for whatever reason, did

not seek the death penalty.   The pool defined by the majority would

exclude such cases.    However, cases in which the death penalty is

not sought are equally relevant to proportionality as cases in

which the death penalty is sought. Without all first degree murder


     1
      I interpret Rule 12 to require a report in all cases in which
the defendant is convicted of first degree murder, regardless of
whether the State seeks the death penalty.
convictions included in the pool, it would be, in my opinion, quite

difficult to conduct the proportionality review as required by

Tenn. Code Ann. § 39-13-206(c)(1)(Supp. 1996). Thus, because of my

view that the pool of similar cases as described by the majority is

too narrow, I respectfully dissent from that part of the majority

opinion.



           I agree with the majority that the evidence is sufficient

to   support   the   jury’s   finding    of   premeditation   and   torture.

Further, I agree that the evidence is sufficient to support the

jury’s finding that the aggravating circumstances outweigh the

mitigating circumstances. However, like Justice Reid, I would find

the death sentence disproportionate in this case.




                                   ____________________________________
                                   ADOLPHO A. BIRCH, JR., Justice




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