IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 10, 2004 Session

STATE OF TENNESSEE v. ANDREW THOMAS AND 

ANTHONY BOND

Automatic Appeal from the Court of Criminal Appeals 

Criminal Court for Shelby County

No. 00-03095 Joseph B. Dailey, Judge

No. W2001-02701-SC-DDT-DD - Filed March 4, 2005

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

I concur in the conclusion of the majority that Thomas’s conviction should be affirmed. As

to the sentence of death, however, I respectfully dissent. As I have previously expressed in a long

line of dissents, I believe 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 consistently

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. Robinson, 146 S.W.3d 469, 529 (Tenn. 2004) (Birch,

J., concurring and dissenting);State v. Leach, 148 S.W.3d, 42, 68 (Tenn. 2004) (Birch, J., concurring

and dissenting); State v. Davis, 141 S.W.3d 600, 632 (Tenn. 2004) (Birch, J., concurring and

dissenting); State v. Berry, 141 S.W.3d 549, 589 (Tenn. 2004) (Birch, J., concurring and dissenting);

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 problem with the
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”

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). This case, in particular, is a prime example of the arbitrariness of

this protocol.

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-

current proportionality analysis is threefold: (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 These flaws seriously

undermine the reliability of the current proportionality protocol. See State v. Godsey, 60 S.W.3d at

793-800 (Birch, J., concurring and dissenting). In my view, 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 penalty of death.

___________________________________ 

ADOLPHO A. BIRCH, JR.