FILED

June 30, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

 AT NASHVILLE

 MAY 1997 SESSION

MAURICE BOOKER, ) 

) C.C.A. No. 01C01-9606-CC-00271 

Appellant, )

) Williamson County

V. )

) Honorable Donald P. Harris, Judge

)

STATE OF TENNESSEE, ) (Post-Conviction)

) 

Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

John H. Henderson Charles W. Burson

District Public Defender Attorney General & Reporter 

C. Diane Crosier Lisa A. Naylor

Assistant District Public Defender Assistant Attorney General

407-C Main Street Criminal Justice Division

P.O. Box 68 450 James Robertson Parkway

Franklin, TN 37065-0068 Nashville, TN 37243-0493

Joseph D. Baugh, Jr.

District Attorney General

Derek K. Smith

Assistant District Attorney General

Williamson County Courthouse, Suite G-6

P.O. Box 937

Franklin, TN 37065-0937

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS,

Judge
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O P I N I O N

The appellant, Maurice Booker, was convicted of the sale of cocaine and

conspiracy to sell or deliver cocaine. He received an effective sentence of

twenty years. The appellant filed a petition for post-conviction relief alleging that

the reasonable doubt instruction used at his trial was unconstitutional. After a

hearing, his petition was denied. He appeals challenging the constitutionality of

the reasonable doubt jury instruction. Upon review, we affirm.

The appellant contends that the trial court's reasonable doubt jury

instruction violated his constitutional rights. The jury instruction at issue reads as

follows:

Reasonable doubt is that doubt engendered by an investigation of

all the proof in the case and an inability, after such investigation, to

let the mind rest easily as to the certainty of guilt. Reasonable

doubt does not mean a captious, possible or imaginary doubt. 

Absolute certainty of guilt is not demanded by the law to convict of

any criminal charge, but moral certainty is required, and this

certainty is required as to every proposition of proof requisite to

constitute the offense. 

The appellant alleges that this instruction unconstitutionally lowers the state's

burden of proving every element of the offense beyond a reasonable doubt.

Specifically, he avers that the language "let the mind rest easily" and "moral

certainty" taken together suggest to a reasonable juror a lower burden of proof

than what is constitutionally required. In support of his argument, the appellant

cites Rickman v. Dutton, 864 F. Supp. 686 (M.D. Tenn. 1994). In Rickman, the

U.S. District Court for the Middle District of Tennessee found a similar

reasonable doubt instruction unconstitutional. 

The Court first points out that it is not bound by rulings of the lower federal

courts or those of sister states. State v. Jones, 598 S.W.2d 209 (Tenn. 1980). 

Moreover, this Court and the Tennessee Supreme Court have specifically

addressed and upheld the constitutionality of very similar reasonable doubt

instructions. State v. Nichols, 877 S.W.2d 722 (Tenn. 1994); Pettyjohn v. State,
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885 S.W.2d 364, 365 (Tenn. Crim. App. 1994). We find that the reasonable

doubt instruction given at the appellant's trial properly reflects the evidentiary

certainty required by the state and federal constitutions. The instruction clearly

conveyed the jury's responsibility to decide the verdict based on the facts and the

law. The appellant's contention is without merit. The judgment dismissing his

petition is affirmed. 

________________________________

PAUL G. SUMMERS, Judge

CONCUR:

_____________________________

DAVID G. HAYES, Judge

_____________________________

JERRY L. SMITH, Judge