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

              STATE OF TENNESSEE v. ANDREW THOMAS AND
                           ANTHONY BOND

                   Automatic Appeal from the Court of Criminal Appeals
                            Criminal Court for Shelby County
                         No. 00-03095 Joseph B. Dailey, Judge



                    No. W2001-02701-SC-DDT-DD - Filed March 4, 2005




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

        I concur in the conclusion of the majority that Thomas’s conviction should be affirmed. As
to the sentence of death, however, I respectfully dissent. As I have previously expressed in a long
line of dissents, I believe 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 consistently
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 problem with the
current proportionality analysis is threefold: (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 These flaws seriously
undermine the reliability of the current proportionality protocol. See State v. Godsey, 60 S.W.3d at
793-800 (Birch, J., concurring and dissenting). In my view, 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 penalty of death.



                                                                   ___________________________________
                                                                   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 (Birc h, J., concurring and dissenting). The current
protocol allows a finding p roportionality if the case is similar to existing death penalty cases. In other word s, a case is
dispropo rtionate 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 ).

         2
           In my view, exclud ing from com pariso n that gro up of cases in w hich the State did not seek the death pena lty,
or in which no capital sentencing hearing was held, frustrates any meaningful com parison for p ropo rtionality purposes.
See Bland, 958 S.W .2d at 679 (Birc h, J., dissenting). This case, in p articular, 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
Comp troller, one of the conclusions was that prosecutors across the state are inco nsistent in their pursuit of the de ath
penalty, a fact that also contributes to arb itrariness in the imp osition of the death pena lty. See John G. M organ,
Comptroller of the T reasury, Tennessee’s Death Penalty: Costs and Consequences 13 (J uly 2004), available at
www.co mp troller.state.tn.us/orea /repo rts.

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