                       IN THE SUPREME COURT OF TENNESSEE
                                   AT JACKSON
                                           April 11, 2000 Session

                   STATE OF TENNESSEE v. TYRONE CHALMERS

                          Appeal from the Criminal Court for Shelby County
                           No. 95-04473, 74 Carolyn W. Blackett, Judge



                        No. W1997-00174-SC-DDT-DD - Filed October 5, 2000



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

         The comparative proportionality review is intended to guard against the arbitrary imposition
of the death penalty, and I agree with the majority that race is a factor which must be considered if
proportionality review is to accomplish its purpose. The majority opinion, however, fails to provide
any guidance as to how race is to be considered in that analysis. Without such guidance, the
objective of comparative proportionality review is lost. Moreover, there is evidence that the pool
of capital cases examined in proportionality reviews conducted by this Court may be “race-tainted.”1
If this is so, comparing a death-sentenced defendant’s race to the race of defendants in prior capital
cases does nothing to prevent the arbitrary imposition of capital punishment.

        Thus, the lack of guidance, the use of a pool which is probably “race-tainted,” and the
subjective manner in which these reviews are conducted make their efficacy questionable. Because
of these views, I cannot agree to impose the death penalty in this case and therefore dissent.

                                                            I

        Before examining the role of race in comparative proportionality review, its impact upon
capital punishment in general must be addressed. Several commentators have questioned whether
race improperly influences the decision of which defendants should be executed.

        A nationwide review performed by the United States General Accounting Office (USGAO)
of more than two dozen studies on death sentencing found that “[i]n 82 percent of the studies, race
of victim was found to influence the likelihood of being charged with capital murder or receiving
the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to
death than those who murdered blacks.” United States General Accounting Office, Death Penalty


         1
          “Race-tainted” is used to describe those cases in which racial prejudice has influenced either the prosecutor’s
decision to seek the death penalty or the jury’s decision to impose a death sentence.
Sentencing: Research Indicates Pattern of Racial Disparities at 5 (Feb. 1990) reprinted in 136 Cong.
Rec. S6889-90 (daily ed. May 24, 1990). Additionally, the USGAO’s review revealed that “more
than half of the studies found that the race of the defendant influenced the likelihood of being
charged with a capital crime or receiving the death penalty.” Id.2

        Perhaps the most widely cited analysis of this issue in the context of a case is found in
McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756 (1987). The case arose in Georgia, and
McCleskey offered statistical evidence showing that the death penalty in Georgia was more likely
to be imposed upon Afro-American defendants, particularly when the victim was Caucasian. Id. at
286-87, 107 S. Ct. 1764-65 (discussing D. Baldus, C. Pulaski, & G. Woodworth, Comparative
Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L. &
Criminology 661 (1983)). Although a bare majority of the Court upheld McCleskey’s conviction,
Justice Brennan pointed out in dissent that McCleskey’s statistics raised serious questions about the
fairness of the death penalty:

                  At some point in this case, Warren McCleskey doubtless asked his
                  lawyer whether a jury was likely to sentence him to die. A candid
                  reply to this question would have been disturbing. First, counsel
                  would have to tell McCleskey that few of the details of the crime or
                  of McCleskey’s past criminal conduct were more important than the
                  fact that his victim was white. . . . [F]rankness would compel the
                  disclosure that it was more likely than not that the race of
                  McCleskey’s victim would determine whether he received a death
                  sentence: 6 of every 11 defendants convicted of killing a white
                  person would not have received the death penalty if their victims had
                  been black, while, among defendants with aggravating and mitigating
                  factors comparable to McCleskey’s, 20 of every 34 would not have
                  been sentenced to die if their victims had been black. Finally, the
                  assessment would not be complete without the information that cases
                  involving black defendants and white victims are more likely to result
                  in a death sentence than cases featuring any other racial combination
                  of defendant and victim. The story could be told in a variety of
                  ways, but McCleskey could not fail to grasp its essential narrative
                  line: there was a significant chance that race would play a prominent
                  role in determining if he lived or died.



         2
           The USGAO conceded that the evidence of a conn ection be tween th e defend ant’s race a nd the d eath pen alty
was “equivocal” in comparison to the connection associated with the victim’s race. This is significant because the
victim in the pending case was Afro-American. Evidence that the victim’s race improperly influences capital
punishment is relevant here, however, because such evidence would tend to affect the reliability of comparative
propo rtionality review in any case where race is a factor. If the pool of cases upon which we rely for comparative
propo rtionality review is race-tainted, then considering a defendant’s race in comparison to that pool lends no protection
against rac ial bias in cap ital punishm ent.

                                                           -2-
Id. at 321 (Brennan, J., dissenting) (citations omitted). More recently, in State v. Harvey, Justice
Handler of the New Jersey Supreme Court stated in dissent that “the evidence that prosecutors and
juries are significantly more likely to charge with and sentence to death black defendants killing
white victims, is overwhelming.” 731 A.2d 1121, 1194 (N.J. 1999). While a complete review of
the evidence linking race and capital punishment is beyond the scope of this opinion, the
overwhelming conclusion is that “[e]ven under the most sophisticated death penalty statutes, race
continues to play a major role in determining who shall live and who shall die.” Callins v. Collins,
114 S. Ct. 1127, 1135 (1994) (Blackmun, J., dissenting).

                                                  II

          Because of the final, irrevocable nature of the death penalty, we must be cautious to insure
that its imposition is not tainted by racial prejudice. Cf. State v. Cobb, 743 A.2d 1, 136 (Conn. 1999)
(Berdon, J., dissenting) (“When death is the consequence there is no margin for error.”). Such
caution mandates that Tennessee impose reliable safeguards to prevent racial discrimination from
infecting the capital sentencing protocol and its appellate review. Until this is done, we cannot be
certain that the death penalty is being imposed in a fair and constitutional manner. Unfortunately,
the majority’s analysis of proportionality review in the case before us, in my view, fails to provide
the necessary safeguards against the improper consideration of race in the imposition of capital
punishment.

        The majority opinion devotes but a single paragraph to analyzing the role of race in
comparative proportionality review. Under the circumstances, this analysis falls far short, in my
view, of providing the criteria necessary to safeguard against the improper consideration of race in
the imposition of capital punishment. The majority states that “race is considered when performing
comparative proportionality review to ensure that an aberrant death sentence was not imposed due
to the defendant’s race.” Unfortunately, the opinion fails to suggest how a reviewing court should
determine whether a death sentence was imposed “due to” race. As discussed above, numerous
studies have indicated that racial bias may play a significant role in determining which defendants
receive the death penalty. Without some assurance that Tennessee’s death penalty cases have
remained free from such bias, it is unclear how comparative proportionality review could ever ensure
that race-motivated death sentencing does not occur. If a defendant’s sentence is compared to a pool
of cases which are similarly race-tainted, the reviewing court is without a benchmark by which to
determine whether the defendant’s sentence is “aberrant.”

         Furthermore, the majority does not clarify whose race should be considered in comparative
proportionality review–the defendant’s, the victim’s, or both. In State v. Bland, the Court addressed
the list of factors to be considered in proportionality review. 958 S.W.2d 661, 667 (Tenn. 1997).
In addressing the characteristics of defendants, the Bland Court listed “age, race, and gender” as
factors to be considered. However, in addressing the characteristics of victims, the Court listed only
“the similarity of the victims’ circumstances including age, physical and mental conditions.” Id.
Although the Bland Court did recognize that its list was “by no means . . . exhaustive,” see id., the
Tennessee Supreme Court has never clearly stated that the victim’s race should be considered in


                                                 -3-
comparative proportionality review. Given the vast array of evidence indicating that racial
disparities in death sentencing are at their greatest in cases where an Afro-American defendant has
killed a Caucasian person, we should clearly establish that the victim’s race and the defendant’s race
bear equal significance in comparative proportionality review.

                                                           III

        In addition to the difficulties inherent in the comparison of race in comparative
proportionality review, the manner in which proportionality review itself is conducted raises
significant concerns. In order to meet constitutional requirements, a protocol of capital punishment
must provide a “meaningful basis for distinguishing the few cases in which [the death penalty] is
imposed from the many cases in which it is not.” Bland, 958 S.W.2d at 675 (Tenn. 1997) (Reid, J.,
concurring and dissenting) citing Furman v. Georgia, 408 U.S. 238, 313, 92 S. Ct. 2726, 2764 (1972)
(White, J., concurring). Although comparative proportionality review itself is not constitutionally
required,3 the Tennessee legislature has chosen comparative proportionality review as a means of
providing the “meaningful basis” required by the constitution. See Bland, 958 S.W.2d at 675 (Reid,
J., concurring and dissenting). Unfortunately, the manner in which we conduct our comparative
proportionality review fails to accomplish this objective. The review procedures are ineffective for
three reasons: the “test” we employ 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.

         The proportionality review procedures employed by the Court make it exceedingly difficult
for defendants to show that their death sentences are disproportionate. In State v. Bland, the Court
created a narrow “totality of the circumstances” approach for determining whether a defendant’s
death sentence is disproportionate. 958 S.W.2d at 665. The Court first outlined the test to be used
in comparative proportionality review: “If the case, taken as a whole, is plainly lacking in
circumstances consistent with those in similar cases in which the death penalty is imposed, the
sentence of death in the case being reviewed is disproportionate.” Id. (emphasis added). The Court
then stressed that it would not find a death sentence to be disproportionate merely because the
defendant could point to comparable cases where the death penalty was not imposed, because
“[e]ven if a defendant receives a death sentence when the circumstances of the offense are similar
to those of an offense for which a defendant has received a life sentence, the death sentence is not
disproportionate where the Court can discern some basis for the lesser sentence.” Id. Furthermore,
even if a defendant could show that other defendants received life sentences for similar crimes and
the reviewing court could not discern some basis for the difference in treatment, this would not
necessarily spare the defendant. As stated by the Bland Court, “where there is no discernible basis
for the difference in sentencing, the death sentence is not necessarily disproportionate. This Court
is not required to determine that a sentence less than death was never imposed in a case with similar
characteristics.” Id.



       3
           See Pulley v. H arris, 465 U.S. 37, 50-51 (1984 ).

                                                           -4-
         Because our current comparative proportionality review system lacks objective standards,
comparative proportionality analysis seems to be little more than a “rubber stamp” to affirm
whatever decision the jury reaches at the trial level. Justice Handler of the New Jersey Supreme
Court, criticizing New Jersey’s protocol, a comparative proportionality review protocol similar to
Tennessee’s, described such reviews as “an inherently subjective exercise that ‘invokes culpability
assessments by the court, which are, essentially, moral judgments’ . . . . [A] death sentence can
always be justified given the level of individuality afforded the analysis.” State v. Harvey, 731 A.2d
1121, 1179 (1999) (Handler, J., dissenting) (quoting State v. Loftin, 724 A.2d 129 (1999) (Handler,
J., dissenting)). Without some objective standard to guide reviewing courts, “proportionality”
becomes nothing more than a statement that the reviewing court was able to describe the case before
it in terms comparable to other capital cases. In the pending case, the range of similar cases was
broadly defined to encompass “cases involving the shooting of a randomly chosen victim during a
robbery.” Had the Court chosen different factors and defined the comparable cases more narrowly,
it is possible that the number of “similar” cases in which the death penalty had been upheld would
be much smaller.

        Furthermore, Tennessee’s system of comparative proportionality review does not consider
all prior cases in which the death penalty could have been imposed. Therefore, it fails to protect
defendants from arbitrary prosecutorial decisions. In Bland, the Court determined that courts
applying comparative proportionality review should consider only “those cases in which a capital
sentencing hearing was actually conducted to determine whether the sentence should be life
imprisonment, life imprisonment without the possibility of parole, or death by electrocution.” Bland,
958 S.W.2d at 666. Thus, the large segment of first degree murder cases in which the prosecutor
chose not to seek the death penalty are excluded from comparative proportionality review. As I
stated in my dissent in Bland, “[d]efendants are often convicted of first degree murder after a trial
in which the prosecution, for whatever reason, did not seek the death penalty. . . . However, cases
in which the death penalty is not sought are equally relevant to proportionality as cases in which the
death penalty is sought.” Id. at 679. Unless we compare all cases in which the death penalty could
have been imposed, a reliable finding of proportionality is impossible.4

        Despite the weaknesses of comparative proportionality review, we continue to insist that
courts, prosecutors, and defense counsel expend time and resources conducting these reviews, just
as we continue to insist that we are protecting defendants from the unfair imposition of the death
penalty. In his concurrence and dissent in Bland, Justice Reid noted that not one of the 116 death
sentences the Court had reviewed at the time had been found disproportionate, and he cautiously
noted that “whether the [comparative proportionality review] procedure . . . will produce more than


         4
          The Bland Court im plied that a comparative proportionality review which encompassed non-de ath pena lty
cases would entail an imperm issible review of prosec utorial discre tion. See id. n.17 (citing State v. W hitfield, 837
S.W.2d 503, 515 (Mo. 1992)). However, a primary purpose of comp arative pro portiona lity review is to “guard again st
the capriciou s or rando m imp osition of the death penalty.” Id. at 665. If the evidenc e were to show th at the death
penalty had been arbitrarily applied because prosecutors treated similar cases differently for no rational reason, such
random choices between life and death should not be accepted by this Court any more than if the same result had been
created by abe rrant juries.

                                                          -5-
the routine affirmation of jury verdicts accompanied by praise of the procedure remains to be seen.”
Bland, 958 S.W.2d at 675 n.1. In the fourteen capital cases the Supreme Court has reviewed for
proportionality since Bland, the string of affirmations remains unbroken by even a single reversal.5
In reviewing a similar comparative proportionality review procedure in Connecticut, Justice Peters
of the Connecticut Supreme Court stated that “the search for an [aberrant death sentence] is the
pursuit of a chimera,” and she concluded that defendants facing the death penalty did not “receive
even a scintilla of protection from proportionality review.” State v. Cobb, 743 A.2d 1, 133 (1999)
(Peters, J., concurring). Because of the weaknesses inherent in Tennessee’s comparative
proportionality review procedure, the same could be said of comparative proportionality review in
Tennessee.

                                                          IV

        For the foregoing reasons, in my view, the majority’s opinion fails to protect defendants from
the arbitrary or disproportionate imposition of the death penalty. Although I agree that comparative
proportionality review is essential to ensure that the death penalty is constitutionally applied, I am
unconvinced that the current system adequately fulfills this purpose. Furthermore, while I agree that
race must be considered a factor if comparative proportionality review is to be effective, the
majority’s cursory treatment of this issue fails to specify how proportionality analysis should be
conducted in order to ensure that racial bias is eliminated from our capital sentencing system. Until
these flaws are addressed and corrected, I cannot agree that the defendant’s death sentence in this
case has been fairly and proportionately imposed in keeping with the constitution. Therefore,
although I concur in the majority’s decision to affirm the defendant’s conviction, I respectfully
dissent from its decision to impose the death penalty in this case.




                                                                ___________________________________
                                                                ADOLPHO A. BIRCH, JR., JUSTICE




         5
            See State v. Keough, 200 Tenn. LEXIS 171 (S. Ct. 200 0); State v. Ha ll, 8 S.W.3 d 593 (T enn. 19 99); State
v. Middlebrooks, 995 S.W .2d 550 (Tenn. 1 999); State v. Sm ith, 993 S.W.2d 6 (Tenn . 1999); State v. Burns, 979 S.W.2d
276 (Tenn. 1 998); State v. Pike, 978 S.W .2d 904 (Tenn. 1 998); State v. Nesbit, 978 S.W .2d 872 (Tenn. 1 998); State
v. Hall, 976 S.W.2d 121 (Tenn. 1998); State v. Vann, 976 S.W .2d 93 (T enn. 19 98); State v. Blanton, 975 S.W.2d 269
(Tenn. 1998); State v. Cribbs, 967 S.W.2d 773 (Tenn. 1 998); State v. Caruthern, 967 S.W .2d 726 (Tenn. 1 998); State
v. Hall , 958 S.W .2d 679 (Tenn. 1 997); State v. Mann, 959 S.W.2d 503 (T enn. 1997).

                                                          -6-
