Coe v. State - Case Law

                    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