# State v. Sims

> Tennessee Supreme Court · April 17, 2001 · 45 S.W.3d 1

URL: https://www.frixlaw.com/law-library/cases/9655782

## Case

- **Full name:** STATE of Tennessee v. Vincent SIMS
- **Court:** Tennessee Supreme Court
- **Decided:** April 17, 2001
- **Citations:** 45 S.W.3d 1; 2001 Tenn. LEXIS 349; 2001 WL 378686
- **Precedential status:** Published
- **Opinion:** Concurring in part by Birch
- **Judges:** Janice M. Holder
- **Cited by:** 357 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9655782

## How later opinions describe it (automated extraction)

- holding that under the post-1989 aggravating factor, a trial court “must necessarily examine the facts underlying the prior felony if the statutory elements of that felony may be satisfied either with or without proof of violence”
- noting the trial court properly found that aggravated assault “does not necessarily involve the use of violence to another person” in that the offense “may be committed by intentionally or knowingly causing the victim to reasonably fear imminent bodily injury by use or display…
- noting that “in determining whether a defense instruction is raised by the evidence, the court must examine the evidence in the light most favorable to the defendant to determine whether there is evidence that reasonable minds could accept as to that defense”
- holding that the comment was an attempt to improperly sway the jury, but it was brief and isolated, and the petitioner was not prejudiced
- affirming the appellate court’s holding that voluntary manslaughter is a lesser-included of first degree murder under the Burns statutory elements test

## Opinion text

ADOLPHO A. BIRCH, Jr., J„
concurring and dissenting.
I concur in the majority’s decision to uphold Sims’s conviction, but I dissent from the decision to impose the death penalty in this case because I continue to believe, as I have stated in the past, that the comparative proportionality review protocol currently applied in capital cases is inadequate.
In State v. Chalmers, I discussed three shortcomings of Tennessee’s comparative proportionality review protocol which, in my view, render the protocol deficient: “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.” 28 S.W.3d 913, 923 (Tenn.2000) (Birch, J., concurring and dissenting). Because of these shortcomings, I have concluded that the test embraced by the majority fails to *24 provide convincing assurance that “no aberrant death sentence [will be] affirmed.” Cf. State v. Bland, 958 S.W.2d 651, 665 (Tenn.1997). In the cases which have followed Chalmers, however, the majority has continued to apply the protocol despite my objections. See, e.g., State v. Carruthers, 35 S.W.3d 516 (Tenn.2000) (Birch, J., concurring and dissenting); State v. Keen, 31 S.W.3d 196 (Tenn.2000) (Birch, J., concurring and dissenting). Consequently, because “I am unwilling to approve of results reached through the use of a procedure with which I cannot agree,” 1 1 cannot support a death sentence upheld under the comparative proportionality review protocol which has been embraced by the majority. Accordingly, I respectfully dissent 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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9655782. Public record. Not legal advice.