                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                                      May 2, 2002 Session

           HAROLD WAYNE NICHOLS v. STATE OF TENNESSEE

                 Appeal by Permission from the Court of Criminal Appeals
                           Criminal Court for Hamilton County
         Nos. 205863, 213883-213896 D. Kelly Thomas, Jr., Judge, By Designation



                     No. E1998-00562-SC-R11-PD - Filed October 7, 2002



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

        I fully concur in the conclusion of the majority that Nichols's convictions should be affirmed.
To the extent, however, that the petitioner's allegations of ineffective assistance of counsel may be
interpreted to include the failure to object to the method of proportionality review, I continue to
adhere to the views expressed in a long line of dissents beginning with State v. Chalmers, 28 S.W.3d
913, 923-25 (Tenn. 2000) (Birch, J., concurring and dissenting), and elaborated upon in State v.
Godsey, 60 S.W.3d 759, 793-800 (Tenn. 2001) (Birch, J., concurring and dissenting). Those dissents
suggest, essentially, 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) (1997). Accordingly, while I concur in the
affirmance of Nichols's convictions, I cannot, for the reasons above stated, concur in the imposition
of the death penalty in this case.



                                                       ___________________________________
                                                       ADOLPHO A. BIRCH, JR., JUSTICE
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