IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FILED
ROBERT GLEN COE, ) March 6, 2000
) FOR PUBLICATION
Petitioner/Appellant, ) Cecil Crowson, Jr.
) Appellate Court Clerk
v. ) FILED: March 6, 2000
)
STATE OF TENNESSEE, )
) NO. M1999-01313-SC-DPE-PD
Respondent/Appellee. )
DISSENTING OPINION
In Heck van Tran v. State,1 a majority of this Court
established the protocol that an inmate sentenced to death must
follow to assert a common law and constitutional challenge to his
or her competence to be executed. In the context of a Separate
Concurring and Dissenting Opinion, I identified three components of
the protocol which, when implemented, would each produce an
unconstitutional result. Two are most significant: (1) use of the
protocol would permit the execution of inmates who are, due to
mental defect or disease, unable to consult with and assist their
counsel; and (2) use of the protocol would deprive inmates of the
right to have the ultimate issue–-competence to be executed--
determined by a jury of their peers.
Additionally, I provided what I deemed to be substantial
and cogent support for concluding that these flaws in the protocol
not only violate the Fourteenth Amendment and public standards of
decency and propriety, but also compromise the integrity of the
ultimate determination of competence. I adhere to those views.
Under different circumstances, I would concur with the
majority opinion insofar as several relatively minor procedural
1
6 S.W.3d 257, 274-77 (Tenn. 1999).
issues are concerned. But such a concurrence is rendered
meaningless in view of my already expressed disagreement with the
methodology within which the procedural issues have arisen and upon
which the validity of the trial court’s (as well as the majority’s)
determinations of competence depend.
Thus, I am unwilling to approve of results reached
through the use of a procedure with which I cannot agree.
Accordingly, I would grant the stay of execution.
______________________________
ADOLPHO A. BIRCH, JR., Justice
2