IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

Heard in Memphis

November 9, 2004 Session

STATE OF TENNESSEE v. DETRICK COLE

Appeal by permission from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 01-01221 Joseph B. Dailey, Judge

No. W2002-01254-SC-DDT-DD - Filed January 20, 2005

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

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

the sentence of death, however, I have two concerns. First, I am uncomfortable with the majority’s

analysis regarding the application of aggravating circumstance (i)(2) (previous conviction of one or

more felonies whose statutory elements involve the use of violence to the person). The majority

acknowledges that the statutory elements of the previous convictions relied on in this case: robbery,

kidnapping, reckless endangerment and attempted rape, may or may not involve the use of violence.

Therefore, the underlying facts of those prior offenses must be analyzed to determine whether

violence was involved. Citing to State v. Sims, 45 S.W.3d 1 (Tenn. 2001), and the more recent case

applying Sims, State v. Powers, 101 S.W.3d 383, 400-401 (Tenn. 2003), the majority holds that a

judge may singly make the determination whether violence was involved in the prior cases and

instruct the jury accordingly. In so holding, the majority characterizes this decision as a “legal,” not

“factual” one. 

Both Sims and Powers, of course, preceded the landmark case of Blakely v. Washington, 542

U.S. ___, ___, 124 S.Ct. 2531, 2536 (2004), in which the Supreme Court clarified unequivocally that

the jury, not the judge, must find any facts that will be used to increase the penalty for a crime

beyond the prescribed statutory maximum. (The Court had previously held in Ring v. Arizona, 536

U.S. 584, 609 (2002), that Apprendi applied to require that a jury find aggravating factors that will

be used to justify a death sentence). By characterizing the decision whether a prior offense involved

violence as a “legal” as opposed to “factual” one, the majority effectively avoids the consequences

of the Apprendi and Blakely holdings. I believe that this conclusion is less certain than the majority

implies, although the Supreme Court has yet to address this narrow issue. I would hold that in light

of the Apprendi, Ring and Blakely holdings, any additional factual findings necessary for application

of the prior violent felony aggravator “beyond the bare fact that a prior conviction exists,” including
I have urged adopting a protocol in which each case would be compared to factually similar cases in which 1

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).

In my view, excluding from comparison that group of cases in which the State did not seek the death penalty, 2

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.

As I stated in my concurring/dissenting opinion in State v. Godsey, “[t]he scope of the analysis employed by 3

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).

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whether the elements ofthe prior conviction are “violent,” must be made by a jury. Accord, Arizona

v. Ring, 65 P.3d 915, 939 (Ariz. 2003) (on remand from the U.S. Supreme Court). 

As for the second concern, I continue to adhere to my views, previously expressed in a long

line of dissents, 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. 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 three basic problems

with the current proportionality analysis are that: (1) the proportionality test is overbroad, (2) the 1

pool of cases used for comparison is inadequate, and (3) review is too subjective. I have previously 2 3

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
I also note that in a recent study on the costs and the consequences of the death penalty conducted by the State

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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.

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death penalty. Accordingly, I respectfully dissent from that portion of the majority opinion 4

affirming the imposition of the death penalty in this case.

___________________________________ 

ADOLPHO A. BIRCH, JR.