                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE
                                   February 3, 2005 Session

              STATE OF TENNESSEE v. PAUL DENNIS REID, JR.

                    Automatic Appeal from the Court of Criminal Appeals
                          Circuit Court for Montgomery County
                         No. 38887 John H. Gasaway, III, Judge



                     No. M2001-02753-SC-DDT-DD - Filed May 24, 2005



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

        I concur in the conclusion of the majority that Reid’s conviction should be affirmed. As to
the sentence of death, however, I respectfully dissent. I continue to adhere to my view 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. Thacker, __ S.W.3d __ , __,
2005 WL 984397 (Tenn., April 27, 2005)(Birch, J., concurring and dissenting); State v. Thomas, 158
S.W.3d 361, 384, (Tenn. 2005) (Birch, J., concurring and dissenting); State v. Faulkner, 154 S.W.3d
48, 64 (Tenn. 2005) (Birch, J., concurring and dissenting); State v. Cole, 155 S.W.3d 885, 910
(Tenn. 2005) (Birch, J., concurring and dissenting); 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 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. 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
            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. 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). The majority justifies its decision not to include such cases by
stating that it would be inappropriate to review the exercise of prosecutorial discretion. However, I note that in a July
2004 study conducted by the State Comptroller on the costs and the consequences of the death penalty, one of the
conclusions was that prosecutors across the state are inconsistent in their pursuit of the death penalty. In my view, this
inconsistency 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.

         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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