1 Tenn. Code An n. § 39-13-206(c)(1)(D) (200 1). 

### IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE January 9, 2002 Sessi

on
STATE OF TENNESSEE v. JAMES HENDERSON DELLINGER AND

GARY WAYNE SUTTON

Appeal from the Co

urt of Criminal Appe

als Circuit Court for Blount County Nos. C-6669, C-6670 D. Kelly Thomas, Jr., Judge

No. E1997-00196-SC-DDT-DD - Filed May 7, 2002

A DOLPHO A. B IRCH , J R ., J., concurring and dissenting.

I concur with

the majority’s opinion a

ffirming the conv

ictions as to both de

fendants. With regard to the imposition of the death sentences in this case, howe ver, I cannot ag

ree. My concerns,
as expressed below, pertain to: (1) the comparative proportionality review protocol imposed by the majority; and (2) the trial court’s refusal, during the sentencing phase, to address a jury question related to the amount of time the defendants would serve under a life sentence.
I. Comparative Proportionality Review

In num erous opinions, I h

ave expressed g

rave concerns about the comparative proportionalit y review protocol employed by the majority in ca

pital cases. See, e.g.
, State v. Chalmers , 28 S.W.3d 913 (Tenn. 2000)(Bir

ch, J., conc urring and dissent ing); State v. Keen , 31 S.W.3d 196 (Tenn. 2000)(Birch, J., concurring a nd dissenting); State v. Carruthers and Montgomery
, 35 S.W .3d 516 (Tenn. 2000)(Birch, J., c

oncurring and dis senting); State v. Sims
, 45 S.W.3d 1 (Tenn. 2001)(Birch, J., concurring and d

issenting); Terry v. State , 46 S.W.3d 147 (Tenn. 2001)(Birch, J., concurring and dissenting); State v. Stout , 46 S.W.3d 689 (Tenn. 2001)(Bir ch, J., concurri

ng and dissenting); State

v. Bane , 5 7 S.W.3d 411 (Tenn. 2001)(Birch, J., c

oncurring and dis senting); State v. Godsey
, 6 0 S.W.3d 759 (Tenn. 2001)(Birch, J., concurring and dissenting); State v. McKinney , ___ S.W.3d

___ (Tenn. 2002)(Birch, J., concurring and dissenting); see also State v. Bland , 958 S.W.2d 651 (Tenn. 1997)(Birch, J., concurring and dissenting). I have not detected any meaningful effort to address and rectify these concerns . Because I do not b elieve that the Cou

rt is properly fulf

illi ng it s statutory obligation to determine whether “the sentence o f de ath is excessive o r disproportionat

e to the penalty imposed in similar cases,” 1 I respectfully disagree with the dec ision to affirm the dea th penalty against these two d

efendants.2 See Van T ran v. State , 66 S.W .3d 790 , 802-03 (Tenn. 2 001); State v. Hartman , 42 S.W.3d 44, 5 9 (Tenn.

2001).

-2- II. Meaning of Life Sentence

In addition to my views regarding comparative proportionality review, I am deeply concerne d about the trial judge’s refusal to answer the jury’s question abo ut the amount of prison time Dellinger and Sutton would serve if given life sentences. An explanation from the trial court should be deemed essential, in my view, in light of t h e extensive evidence demonstrating that grave misperceptions about capital sentencing very well may have biased this jury’s deliberations. One commentator state

s:

There is a pervasive misimpression among jurors that convicted firstdegree murdere rs not given the death penalty will be released on parole wel l before they actually are, or possibly could be under the law – a kind of hegemon ic myth of early re

lease that infec

ts t h e capital sentencing decision with excessiveness in the use of death

as punishment.

William J. Bowers and Benjamin D. Steiner, Death by Default: An Empirical Demonstration of False and Forced Choices in Capital Sentencing , 77 Tex. L. Rev. 605, 716-17 (1999).

The sentencing decis

ion of a capital ju

ry must reflect “ a reasoned moral response to the defendant’s backgrou n d, character, and crime.” Penry v. Lynaugh , 492 U.S. 302, 319, 10 9 S. Ct. 2934, 2947, 106 L. Ed. 2d 256 (1989) (quoting California v. Brown , 479 U.S. 538, 545, 10 7 S. Ct. 837, 93 L. Ed . 2d 934 (1 987) (O’Connor, J., concurring)). Certainly, “accurate sentencing inform atio n is an indispensable prerequisite to a

reasoned deter

mination of whethe

r a defendant sh

all live or die by a jury of people who may never before have made a sentencing decision.” Gregg v. Georgia
, 428 U.S. 153, 190, 96 S. Ct. 2909, 2933, 49 L. Ed. 2d 85 9 (1976) (plurali ty op.). This principle requires, in my view, that jurors make their decisions “unencumbered by ignorance and supported by information sufficient and relevant for reliable and rational decision-making

. ” See The Constitution Project, Mandatory Jus tice: Eighteen R

eforms to the Dea

th Penalty (2001), available at http://www.constitutionproject.org/dpi/index.html (last visited April 24, 2002).

Extensive proof

demonstrates, however, that misunderstandings and misinformation about the law often sway the sentencing decisions of capital juries. Evidence gathered in the Capital Jury Project, a leading study of capital juries upon which this Court has

relied in past ca

ses, 2 indicates that

a majority of jurors

“grossly underestimate how long capital murders not sentenced to d eath usually stay in prison,” and the jur ors who hold suc h erroneous beliefs are “far more likely to vote for death.” Bowers and Steiner, supra , at 648, 664; see also Theodore Eisenb erg and Martin T.

Wells, Deadly Confusion: Juror Instructions in Capital Cases , 79 Cornell L. Rev. 1, 8 (1993) (“Refusing to inform jurors about the statutorily mandated length of nondeath sentences appears to lead jurors-3-

to sentence to death when they would not do so if they were more fully inf ormed of the law.”). Indeed, most jurors’ estimates of the time served by defendants given life sentences fell several years short of the actual mandatory minimum terms required for parole eligibility. Bowers and Steiner, supra , at 648-49. Astonishingly, even in states where the only al ternative to the d

eath penalty was li fe wit hout parole, a lar

ge number of juror

s believed that de

fendants could be

released in twen

ty years or less. Id . at 647, 670.

The effect of this pervasive misunderstanding is striking. Jury studies in Georgia and Mississippi hav e sho wn that jurors would be more likely to impose a life sentence if assured that “life” meant tha t the defendant w ould spend at least 20 or 25 years in prison. See Bowers and Steiner, supra , at 634-37 (citing Anthony Paduano and Clive A. Stafford Smith, Deathly Errors: Juror Misconceptions Con

cernin g Paro le in the Impostion of the Death Penalty , 18 Colum. Hum. Rts. L. Rev. 211, 221-24 (1987)). The emp

irical evidence

from the Capital Ju

ry Proje c t demonstrates that the likelihood a nd timing of the def

endant’s relea

se was discussed “

a great deal” in more than half of the cases examined, and “the jurors w ho most underestima

te the death pena

lty alternative - those who believ e release would

usually come

in less than ten years - a

re the ones most likely to take a pro-death stand at each stage of the trial.” Id. at 656, 672. In at least one study, 62 percent of jurors said they would di srega rd a judge’s instructions not to consider parole when choos ing between a l ife and a death sentence. See William W. Hood, The Meaning of “Life” for Virginia Jurors and its Eff

ect on Reliability in

Capital Sentencing , 75 Va. L. Rev. 1605, n.103 and accompanying text (1989) (citing National Lega l Research Group, Report on Jurors’ Attitudes Concerning the Death Penalty 7 (1988)). Importantly, a survey of Georgia capital cases revealed that jurors questioned the judge about parole in roughly 25 percent of the cases, and after the judges in those cases declined t

o elaborate, the j uries typically re turned with a dea

th sentence in short order. See J. Mark Lane, “ Is there Life Without Parole?”: A Capital Defendant’s Right to a Meaningful Alternative Sentence , 26 Loy. L.A. L. Rev. 327, 335-42 ( 199 3). This evidence suggests, as one commentator

states, “that parole concerns may often be the critical, last issue upon which a decision for life or death depends.” Bowers and Steiner, supra , at 629.

In this case, it is diff

icult to ignore the e

vidence that juro

r perceptions (o

r misperceptions) about sent encing may have tainted the decision to impose a death sentence. The jury asked a question related to the length of time Dellinger and Sutton would serve on a life sentence, and after the court declined to answer, it returned with a death sentence. Any presumption that the jur y honored the instruction to “concern [itself] with the sentences in these cases only” must be discarded

as unrealistic in light of the vast amount of evidence to contradict it. There seems to be, in my view,

a substantial probability that the jury returned a d

eath sentence n

ot because it

thought death to be an appropriate

punishment for the defendants’ crimes, but becau se it w rongly believed that a life

sen tence would allo w the defendants to go free after a short amount of time. Thus, the sentences here are beset by the constitutionall y intolerable risk

that the death pen

alty has been “imp

osed in spite of factors which may call for a less severe penalty.” Cf. Lockett v. Ohio , 438 U.S. 586, 605, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (Burger, C.J., plurality op.). I must conclude that such misunderstandings have compromised the sen ten cing hearing in this case beyond what should be toleratedby our Constitut ion. In my view, this Court should hold that Article I, sections 6 and 93 Given the circ umstances of t

his case , I would submit that Dell

inger and

Sutton w ould have be en unlike ly to be releas ed on parole upon i nitial eligibi lity.

-4- of the Tennessee Constitution mandate, at the very least, that the jury in this case should have been informed of

the minimum time the defendants would have to serve before being eligible for

parole and the probability, based on comparison to other first degree murder cases, that the defenda nts would be released

upon initial eligibility for parole. 3 If this jury had been given such information, it is evident

to me that the result very likely would have b een different.

Consequently, I wo

uld hold that the trial court’s refusal to answer the jury’s question was reversible error.

III. Conclusion
For the foregoing

reasons, I would reverse

the sentences of

death for both

defendants and remand the case

for resentenci

ng. Accordingly,

I respectfully d

issent.

___________________________________ ADOLPHO A. BIRCH, J R., JUSTICE