                      IN THE SUPREME COURT OF TENNESSEE
                                 AT NASHVILLE
                                         October 3, 2003 Session
                                         Heard at Murfreesboro1

                STATE OF TENNESSEE v. DARYL KEITH HOLTON

                          Direct Appeal from the Court of Criminal Appeals
                                  Circuit Court for Bedford County
                              No. 14302 William Charles Lee, Judge


                       No. M2000-00766-SC-DDT-DD - Filed January 5, 2004


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

        I concur in the conclusion of the majority that Holton’s convictions should be affirmed. As
to the sentence of death, however, I continue to adhere to my views expressed in a long line of
dissents beginning with State v. Chalmers, 28 S.W.3d 913, 920-25 (Tenn. 2000) (Birch, J.,
concurring and dissenting), and most recently elaborated on in State v. Davidson, ___ S.W.3d ___,
___ (Tenn. Oct. 20, 2003) (Birch, J., dissenting), 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). I believe there are three basic problems
with the current proportionality analysis: (1) the proportionality test is overbroad,2 (2) the pool of




         1
         This case was heard as p art of the October 3, 20 03, S .C.A.L.E.S . (Supreme Court Advancing Legal
Education for Students) project in Murfreesboro, Rutherford County, Tennessee.

         2
           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 291, 321 (Tenn. 2002 ) (Birch, J., concurring and
dissenting). The current protocol allows a finding proportionality if the case is similar to existing dea th 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 dea th penalty has been imposed.” Bland, 958 S.W.2d at 665
(emphasis added).
cases used for comparison is inadequate,3 and (3) review is too subjective.4 I have previously
discussed, in depth, my perception that these flaws undermine the reliability of the current
proportionality protocol. See, e.g., Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and
dissenting). 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., JUSTICE




         3
          In my view, exc luding from comp arison that group of cases in w hich the State did not seek the death
penalty, or in wh ich no capital sentencing hearing was held, frustrates any meaningful co mpa rison for proportionality
purp oses. See Bland, 958 S.W .2d at 679 (Birc h, J., dissenting).

         4
          As I stated in my concurring/dissenting opinion in State v. Godsey, “[t]he scope of the analysis employed
by the m ajority appears to be rather am orphous 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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