                    IN THE SUPREME COURT OF TENNESSEE
                               AT NASHVILLE
                                    February 6, 2001 Session

                 JOHN DAVID TERRY v. STATE OF TENNESSEE

                          Appeal from the Court of Criminal Appeals
                             Criminal Court for Davidson County
                       No. 87-S-975   Hon. J. Randall Wyatt, Jr., Judge


                     No. M1999-00191-SC-DDT-DD - Filed April 25, 2001


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

         In a line of dissents beginning with State v. Chalmers, I have repeatedly emphasized my
belief that Tennessee’s comparative proportionality review protocol is inadequate and must be
reformed. 28 S.W.3d 913, 923-25 (Tenn. 2000) (Birch, J., concurring and dissenting); see also, e.g.,
State v. Carruthers, 35 S.W.3d 516, 581-82 (Tenn. 2000) (Birch, J., concurring and dissenting); State
v. Keen, 31 S.W.3d 196, 233-34 (Tenn. 2000) (Birch, J., concurring and dissenting). I have pointed
out three shortcomings of the current protocol: “the ‘test’ we employ [for comparative
proportionality review] is so broad that nearly any sentence could be found proportionate; our review
procedures are too subjective; and the ‘pool’ of cases which are reviewed for proportionality is too
small.” Chalmers, 28 S.W.3d at 923 (Birch, J., concurring and dissenting). These flaws, in my
view, must be corrected if this Court is to provide genuine assurance that disproportionate sentences
of death will not be upheld. I adhere to the views I have expressed in these previous cases.

         As I have stated before in the context of other dissents, “I am unwilling to approve of results
reached through the use of a procedure with which I cannot agree.” See Coe v. State, 17 S.W.3d
193, 248-49 (Tenn. 2000) (Birch, J., dissenting). To date, the majority has made no discernible
effort to correct the flaws in our comparative proportionality review protocol. Therefore, I dissent
from the Court’s decision to impose the death penalty in this case.




                                                       ___________________________________
                                                       ADOLPHO A. BIRCH, JR., JUSTICE
