State of Tennessee v. Daryl Keith Holton - Concurring/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 ofcases used for comparison is inadequate³ 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.