                      IN THE SUPREME COURT OF TENNESSEE
                                 AT NASHVILLE
                                           June 3, 2004 Session

                STATE OF TENNESSEE v. GDONGALAY P. BERRY

                      Automatic Appeal from the Court of Criminal Appeals
                             Criminal Court for Davidson County
                           No. 96-B-866    J. Randall Wyatt, Judge



                       No. M2001-02023-SC-DDT-DD - Filed August 23, 2004




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

        I concur in the conclusion of the majority that Berry’s convictions should be affirmed. As
to the sentences 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, 121 S.W.3d 600,
629-36 (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). See 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


         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...)
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 wo rds, a case is
dispropo rtionate only if the ca se und er 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 wa s held, frustrates any meaningful com parison for p ropo rtionality purposes.
See Bland, 958 S.W .2d at 679 (Birc h, J., dissenting).

         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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