                       IN THE SUPREME COURT OF TENNESSEE
                                   AT JACKSON
                                          April 4, 2001 Session

                  STATE OF TENNESSEE v. JOHN MICHAEL BANE

                        Automatic Appeal from the Court of Criminal Appeals
                                Criminal Court for Shelby County
                             No. 89-01502 John P. Colton, Jr., Judge


                          No. W1997-02158-SC-DDT-DD - Filed July 3, 2001


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

        I concur in the majority decision to affirm the conviction in this case. I continue to believe,
however, that the comparative proportionality review protocol embraced by the majority is
inadequate and fails to satisfy this Court’s duty, mandated by statute,1 to ensure that no death
sentence will be upheld unless it is proportionate to sentences imposed upon comparable defendants
in similar cases. Because the protocol fails to provide convincing assurance that this defendant’s
death sentence is proportionate, I cannot join the majority decision to impose the death penalty in
this case.

        In a series of dissents, I have repeatedly urged the majority to correct the shortcomings I
perceive in Tennessee’s comparative proportionality review protocol. See, e.g., State v. Chalmers,
28 S.W.3d 913, 923-25 (Tenn. 2000) (Birch, J., concurring and dissenting); State v. Carruthers, 35
S.W.3d 516, 581 (Tenn. 2000) (Birch, J., concurring and dissenting); State v. Keen, 31 S.W.3d 196,
234 (Tenn. 2000) (Birch, J., concurring and dissenting); State v. Terry, ___ S.W.3d ___ (Tenn. 2001)
(Birch, J., dissenting). The need for reform, I have suggested, centers upon three failings of the
current protocol: “the ‘test’ we employ [for comparative proportionality review] 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.” Chalmers, 28 S.W.3d at 923
(Birch, J., concurring and dissenting). If this Court is to adequately ensure that disproportionate
sentences of death will not be upheld, these flaws must be corrected.

        To date, the majority has made no discernible effort to remedy the flaws I have pointed out
in our comparative proportionality review protocol. Because the protocol embraced by the majority




       1
           See Tenn. Code Ann. § 39-13-206 (c) (2000).
does not, in my view, reliably ensure that the defendant’s death sentence is proportionate,2 the Court
has not effectively met the requirements of the comparative proportionality review statute. A death
sentence imposed under such circumstances should not be allowed to stand. Accordingly, I
respectfully dissent.



                                                                    ___________________________________
                                                                    ADOLPHO A. BIRCH, JR., JUSTICE




         2
           The majority suggests that I have failed “to assert or establish that the sentence of death is either arbitrary or
disprop ortionate as applied in this case to this defendant.” Majority op. at ___. This view, however, misconstrues the
crux of my dissent. My concern is that, under the majority analysis, it is impossible to conclude with any certainty that
the defendant’s sentence is not dispropo rtionate. Th us, in my view, the m ajority has failed to sufficiently fulfill its
statutory duty to ensure that the defendant’s death sentence was not arbitrarily or disproportionately imposed.

          Despite the majority’s assertion that proportionality in this case is proven by “the similarity of the facts and
circumstances of this case to nu merous ca ses in which the d eath penalty ha s been uph eld,” its notion of similarity appears
to be highly malleable. Amon g the cases held to have exhibited “similar facts and circumstances” to the case at bar,
which involves an elderly victim who was choked and stabbed in his home during a planned robbery, are State v. Vann,
976 S.W.2d 93 (Tenn. 1998) (eight-year-old victim killed during the perpetration of aggravated rape and incest); State
v. Chalmers, 28 S.W.3d 913 (T enn. 2000) (young victim shot during unplanned, roadside robbery); State v. Mann, 959
S.W.2d 503 (Tenn. 1997) (elderly woman stabbed to death during aggravated rape); and State v. Hall , 958 S.W.2d 679
(Tenn. 1997) (defendant poured gasoline on his ex-girlfriend, who was lying in the front seat of her car, and burned her
to death).

         Given the subjectivity o f the compa rison proto col emplo yed by the m ajority and the widely d ivergent cases
included in the comparison pool, I must conclude that the finding of pr oportion ality in this case is “nothing more than
a statement that the reviewing co urt was able to describe the case befo re it in terms com parable to other capita l cases.”
Chalmers, 28 S.W.3d at 924 (B irch, J., concurring and dissenting).



                                                             -2-
