                    IN THE SUPREME COURT OF TENNESSEE
                                AT JACKSON
                                      Heard in Memphis
                                   November 9, 2004 Session

                    STATE OF TENNESSEE v. DETRICK COLE

                  Appeal by permission from the Court of Criminal Appeals
                             Criminal Court for Shelby County
                           No. 01-01221 Joseph B. Dailey, Judge



                    No. W2002-01254-SC-DDT-DD - Filed January 20, 2005



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

        I concur in the conclusion of the majority that Cole’s conviction should be affirmed. As to
the sentence of death, however, I have two concerns. First, I am uncomfortable with the majority’s
analysis regarding the application of aggravating circumstance (i)(2) (previous conviction of one or
more felonies whose statutory elements involve the use of violence to the person). The majority
acknowledges that the statutory elements of the previous convictions relied on in this case: robbery,
kidnapping, reckless endangerment and attempted rape, may or may not involve the use of violence.
Therefore, the underlying facts of those prior offenses must be analyzed to determine whether
violence was involved. Citing to State v. Sims, 45 S.W.3d 1 (Tenn. 2001), and the more recent case
applying Sims, State v. Powers, 101 S.W.3d 383, 400-401 (Tenn. 2003), the majority holds that a
judge may singly make the determination whether violence was involved in the prior cases and
instruct the jury accordingly. In so holding, the majority characterizes this decision as a “legal,” not
“factual” one.

        Both Sims and Powers, of course, preceded the landmark case of Blakely v. Washington, 542
U.S. ___, ___, 124 S.Ct. 2531, 2536 (2004), in which the Supreme Court clarified unequivocally that
the jury, not the judge, must find any facts that will be used to increase the penalty for a crime
beyond the prescribed statutory maximum. (The Court had previously held in Ring v. Arizona, 536
U.S. 584, 609 (2002), that Apprendi applied to require that a jury find aggravating factors that will
be used to justify a death sentence). By characterizing the decision whether a prior offense involved
violence as a “legal” as opposed to “factual” one, the majority effectively avoids the consequences
of the Apprendi and Blakely holdings. I believe that this conclusion is less certain than the majority
implies, although the Supreme Court has yet to address this narrow issue. I would hold that in light
of the Apprendi, Ring and Blakely holdings, any additional factual findings necessary for application
of the prior violent felony aggravator “beyond the bare fact that a prior conviction exists,” including
whether the elements of the prior conviction are “violent,” must be made by a jury. Accord, Arizona
v. Ring, 65 P.3d 915, 939 (Ariz. 2003) (on remand from the U.S. Supreme Court).

        As for the second concern, 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
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


         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. M cKinney, 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).

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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.




         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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