# FILED
June 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

A T NASHVILLE MA Y 1997 SESSION

MAURICE BOOKER, ) ) C.C.A. N o. 01C01-9606-C C-00271 Appellant, ) ) Williamson County V. ) ) Honorab le Donal d P. Harris , Judge ) STA TE OF TENN ESSEE, ) (Post-C onviction) ) Appellee. )

FOR TH E APPEL LANT: FOR THE APPELLEE: John H. Hender

son Charles W. Burson Distric t Public Defender Attorney General & Reporter C. Diane Cr

osier Lisa A. Nay lor Assistant D istrict P ublic Defender Assistant Att orney Gener al 407-C Main S treet Criminal J ustice Div ision P.O. Box 68 450 James Roberts on Parkway Franklin, TN 37065-0068 Nashvil le, TN 37243-0493 Joseph D. Baugh, Jr. Distric t Attorney General Derek K. Smit h Assistant D istrict A

ttorney Gener

al W illiamson County Courthouse, Suite G-6 P.O. Box 937 Franklin, TN 37065-0937

OPINION FILE D: ___________________
AF FIRMED
PAU L G. SUMM ERS, Judge-2- O P I N I O N The appellant, Maur ice Booker, w as convic

ted of the sale of cocai ne and conspiracy

to sell or

deliver cocaine. He received an effective sentenc e of twenty years. The ap pellant filed a pe tition for post- convicti on relief alleg ing that the reasonable doub t instruction used at his trial was unconstitutional. Af ter a hearing, hi s petition was denied. He a ppeals challen ging the constitutionali ty of the re asonabl e doubt jury instr uctio n. Upo n rev iew, we affi rm.
The appellant cont ends that the trial court's reasonab le doubt jury instruction violated his constitu tional rig hts. The jury instructi on at issue reads as follows: Reasonable doubt i s that doubt eng endered by an i nvestig ation of all the proof in the case and an in ability, after such investigation, to let the mind rest easily as to the certainty of guilt. Reasonab le doubt does not mean a c aptious, possi ble or imagi nary doubt. Absolute certa inty of gui lt is not demanded by the law to convic

t of any criminal charge, but moral certainty is required, and this certainty is requi red as to every propos ition of proof req uisite to constitute the offense. The appellant alleges tha t this instruction unconstitutiona lly lowers the state's burden of provi ng every element of the offense beyond a reasonable doubt. Specifically , he avers that the languag e "let the mind rest easily " and "moral certainty " taken together suggest to a reasonable j uror a lower burden of proof than what is

constitutiona lly req uired. In supp ort of his arg ument, the appellant cites Rickman v . Dutton , 864 F. Supp. 686 ( M.D. Tenn. 1994). In Rickman , the U.S. Distr ict Court for

the Middle D istrict of Tennessee found a similar reasonable doubt i nstruction unconstitutional.

The Court first points out that i t is not bound by rulings of the lower

federal courts or th ose of sister states. State v. Jone s , 598 S.W.2d 209 (Tenn. 1980). Moreover, this Court and the Tennesse e Supreme Court have specifica lly addressed and uphel d the constituti onality of very simi lar reasonabl e doubt instruction s. State v. Nichols , 877 S.W.2d 722 (Tenn. 1994); Pettyjohn v . State ,-3- 885 S.W .2d 364, 365 (Tenn . Crim. App. 1994). W e find that the reason able doubt instruction given at the appellan t's trial properly reflects the evidentiary certainty required by the state and federal const itutions. The instruction clearly conveyed the jury' s responsibi lity 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. S UMMERS, Ju dge
CONCUR:

_____________________________ DAVID G. HA YES, Judge

_____________________________ JERRY L. SMI TH, Jud ge