                      IN THE SUPREME COURT OF TENNESSEE
                                  AT JACKSON
                                       November 10, 2004 Session

                   STATE OF TENNESSEE v. ROBERT FAULKNER

                    Appeal by permission from the Court of Criminal Appeals
                               Criminal Court for Shelby County
                               No. 99-07635 Chris Craft, Judge



                      No. W2001-02614-SC-DDT-DD - Filed January 28, 2005



BIRCH , ADOLPHO , J., concurring and dissenting.

        I concur in the conclusion of the majority that Faulkner’s conviction should be affirmed. As
to the sentence of death, however, I continue to adhere to my views, previously expressed in a long
line of dissents, 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. Robinson, 146 S.W.3d 469, 529 (Tenn. 2004) (Birch,
J., concurring and dissenting); State v. Leach, 148 S.W.3d, 42, 68 (Tenn. 2004) (Birch, J., concurring
and dissenting); State v. Davis, 141 S.W.3d 600, 632 (Tenn. 2004) (Birch, J., concurring and
dissenting); State v. Berry, 141 S.W.3d 549, 589 (Tenn. 2004) (Birch, J., concurring and dissenting);
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). 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


         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”
                                                                                                        (continued...)
pool of cases used for comparison is inadequate,2 and (3) review is too subjective.3 I have previously
discussed, in depth, my perception that 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). I continue to adhere to my view that the current comparative proportionality protocol
is woefully inadequate to protect defendants from the arbitrary or disproportionate imposition of the
death penalty.4 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.




         1
          (...continued)
cases or “death” cases. See State v. McKinney, 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).

         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). This case, in particular, is a prime example of the arbitrariness of
this protocol.

         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).

         4
          I also note that in a recent study on the costs and the consequences of the death penalty conducted by the State
Comptroller, one of the conclusions was that prosecutors across the state are inconsistent in their pursuit of the death
penalty, a fact that also contributes to arbitrariness in the imposition of the death penalty. See John G. Morgan,
Comptroller of the Treasury, Tennessee’s Death Penalty: Costs and Consequences 13 (July 2004), available at
www.comptroller.state.tn.us/orea/reports.

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