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...)

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
1

(...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 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). 

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

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.

-2-

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.