# State v. Stout

> Tennessee Supreme Court · May 24, 2001 · 46 S.W.3d 689

URL: https://www.frixlaw.com/law-library/cases/9650490

## Case

- **Full name:** STATE of Tennessee v. James P. STOUT
- **Court:** Tennessee Supreme Court
- **Decided:** May 24, 2001
- **Citations:** 46 S.W.3d 689; 2001 Tenn. LEXIS 461
- **Precedential status:** Published
- **Opinion:** Concurring in part by Birch
- **Judges:** Anderson, Drowota, Holder, Barker, Birch, Ogle, Glenn
- **Cited by:** 230 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in State of Tennessee v. Richard Odom, a/k/a Otis Smith.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9650490

## How later opinions describe it (automated extraction)

- concluding that because the trial court had considered all the relevant factors, including the time span between the event and the statement, it was not an abuse of discretion for the trial court to determine that statements made twelve hours after the event were admissible as…
- holding that other crimes evidence was admissible to show the defendant's guilty knowledge when proof of the other crime tended to negate the defendant's "protestations of innocent presence"
- concluding that declarant was under stress after twelve hours
- noting that the trial court, in making a Rule 609 ruling, “correctly determined that especially aggravated robbery is a crime of dishonesty, and is therefore probative of the defendant’s credibility.”
- holding that declarant’s statements made twelve hours after the event were admissible as excited utterances

## Opinion text

ADOLPHO A. BIRCH, Jr., J.,
concurring and dissenting.
Although I agree with the majority’s decision to uphold the conviction in this case, I write separately to emphasize my continued dissatisfaction with Tennessee’s comparative proportionality review protocol. Beginning with my dissent in State v. Chalmers, I have repeatedly called for reform of the protocol. 28 S.W.3d 913, 923-25 (Tenn.2000) (Birch, J., concurring and dissenting); see also, e.g., State v. Carruthers, 35 S.W.3d 516, 581 (Tenn.2000) (Birch, J., concurring and dissenting); State v. Keen, 31 S.W.3d 196, 234 (Tenn.2000) (Birch, J., concurring and dissenting). Our current protocol, in my view, has three shortcomings: “the ‘test’ we employ [for comparative proportionality review] is so broad that nearly any sentence could be found proportionate; our review procedures are too subjective; and the ‘pool’ of cases which are reviewed for proportionality is too small.” Chalmers, 28 S.W.3d at 923 (Birch, J., concurring and dissenting). Unless these shortcomings are remedied, this Court cannot provide genuine assurance that disproportionate sentences of death will be set aside.
“I am unwilling to approve of results reached through the use of a procedure with which I cannot agree,” 1 and to date, the flaws I perceive in our comparative proportionality review protocol have not been cured. Therefore, I dissent, respectfully, from the Court’s decision to impose the death penalty in this case.
. See Coe v. State, 17 S.W.3d 193, 248-49 (Tenn.2000) (Birch, J., dissenting).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650490. Public record. Not legal advice.