Tennessee Supreme Court, 2004

State of Tennessee v. Daryl Keith Holton - Concurring/Dissenting

Tennessee Supreme Court · Decided January 5, 2004 · Justice Adolpho A. Birch, Jr.

Opinion

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 3, 2003 Session Heard at Murfreesboro1

STATE OF TENNESSEE v. DARYL KEITH HOLTON

Direct Appeal from the Court of Criminal Appeals Circuit Court for Bedford County No. 14302 William Charles Lee, Judge No. M2000-00766-SC-DDT-DD - Filed January 5, 2004

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

I concur in the conclusion of the majority that Holton’s convictions should be affirmed. As to the sentence 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, ___ S.W.3d ___, ___ (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). I believe there are three basic problems with the current proportionality analysis: (1) the proportionality test is overbroad,2 (2) the pool of cases used for comparison is inadequate,3 and (3) review is too subjective.4 I have previously discussed, in depth, my perception that these flaws undermine the reliability of the current proportionality protocol. See, e.g., Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and dissenting). 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., JUSTICE

1 This case was heard as p art of the October 3, 20 03, S .C.A.L.E.S . (Supreme Court Advancing Legal Education for Students) project in Murfreesboro, Rutherford County, Tennessee. 2 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 291, 321 (Tenn. 2002 ) (Birch, J., concurring and dissenting). The current protocol allows a finding proportionality if the case is similar to existing dea th 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 dea th penalty has been imposed.” Bland, 958 S.W.2d at 665 (emphasis added). 3 In my view, exc luding from comp arison that group of cases in w hich the State did not seek the death penalty, or in wh ich no capital sentencing hearing was held, frustrates any meaningful co mpa rison for proportionality purp oses. See Bland, 958 S.W .2d at 679 (Birc h, J., dissenting). 4 As I stated in my concurring/dissenting opinion in State v. Godsey, “[t]he scope of the analysis employed by the m ajority appears to be rather am orphous 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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