Tennessee Supreme Court, 2004

State of Tennessee v. Gdongalay P. Berry - Concurring and Dissenting

Tennessee Supreme Court · Decided August 23, 2004 · Justice Adolpho A. Birch, Jr.

Opinion

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 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 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...) 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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