                       IN THE SUPREME COURT OF TENNESSEE
                                  AT NASHVILLE
                                             June 1, 2004 Session

                  STATE OF TENNESSEE v. ROBERT L. LEACH, JR.

                        Automatic Appeal from the Court of Criminal Appeals
                               Criminal Court for Davidson County
                             No. 99-D-2508    J. Randall Wyatt, Judge


                       No. M2001-01421-SC-DDT-DD - Filed September 8, 2004



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

        I concur in the conclusion of the majority that Leach’s convictions should be affirmed. As
to the sentences of death, however, I continue to adhere to my views 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); State v. Chalmers, 28 S.W.3d 913, 920-25 (Tenn. 2000) (Birch,
J., concurring and dissenting); State v. Bland, 958 S.W.2d at 679 (Birch, J., concurring and
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


         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”
cases or “death” cases. See State v. M cKinney, 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).
for comparison is inadequate,2 and (3) review is too subjective.3 In my view, 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). 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.




         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).

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