State v. Williams , 111 N.C. App. 861 ( 1993 )

McCRODDEN, Judge.

The sole assignment of error we consider pertains to the trial court’s instruction defining for the jury the term “reasonable doubt.” Defendant contends that he is entitled to a new trial because the instruction given was indistinguishable from the instruction found unconstitutional in Cage v. Louisiana, 498 U.S. —, 112 L.Ed.2d 339 (1990). We agree that the trial court’s instruction violated the principles set forth in Cage and applied by our Supreme Court in State v. Montgomery, 331 N.C. 559, 417 S.E.2d 742 (1992).

When requested to give an instruction on reasonable doubt to a jury, a trial court has the duty to define the term but is not required to use an exact formula. Montgomery, 331 N.C. at 570, 417 S.E.2d at 748. If the trial court undertakes to define reasonable doubt, however, its instruction must be a correct statement of the law. Id.

The Supreme Court in Cage condemned a combination of three terms: “grave uncertainty,” “actual substantial doubt,” and “moral certainty,” because they suggested a higher degree of doubt than is required for acquittal under the reasonable doubt standard. Cage, 498 U.S. at —, 112 L.Ed.2d at 342. Relying on Cage, the Montgomery Court found that the use of the terms “substantial misgiving” and “moral certainty” in combination in the trial court’s reasonable doubt instruction violated the requirements of the Due Process Clause. Montgomery, 331 N.C. at 572, 417 S.E.2d at 749-50. The Montgomery Court found that there was a “reasonable likelihood” that the jury applied the challenged instruction in a way that violated the Due Process Clause, and therefore held that the trial court’s instruction gave rise to error under the Constitution of the United States. Id. at 573, 417 S.E.2d at 750.

The Montgomery Court distinguished State v. Hudson, 331 N.C. 122, 415 S.E.2d 732 (1992), cert. denied, 506 U.S. ---, 122 L.Ed.2d 136 (1993), in which the Court concluded that there was no error in the trial court’s instruction to the jury on reasonable doubt. Although the trial court in Hudson used the term “substantial misgiving,” it did not equate reasonable doubt with a “moral certainty.” Montgomery, 331 N.C. at 572, 417 S.E.2d at 749.

In the case under consideration, the trial court’s instruction included two references to “moral certainty” (“satisfied to a moral certainty of the truth of the charge” and “abiding faith to a moral certainty in the defendant’s guilt”) and one reference to “honest substantial misgiving” (“honest substantial misgiving generated by the insufficiency of the proof”). Although the trial court used these terms in a broader definition of “reasonable doubt,” we must, in light of Cage and Montgomery, find that such instruction violated defendant’s rights under the Due Process Clause.

In the instant case, the State argues that the instruction given by the trial court was approved by our Supreme Court in State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954). Although the language in Hammonds is distinguishable from the language used here, that case was decided well before Cage and Montgomery and is not, therefore, determinative.

The State also asks that we consider whether a constitutionally deficient reasonable doubt instruction may be harmless error. In our earlier opinion, we relied upon Montgomery in concluding that, although the trial court’s instruction defining the term “reasonable doubt” violated the Due Process Clause, defendant was not entitled to a new trial. In Montgomery, after finding that the trial court’s instruction as to reasonable doubt gave rise to constitutional error, our Supreme Court stated that it “must next determine- whether the State has met its burden of showing that the error was harmless beyond a reasonable doubt.” Id. at 573, 417 S.E.2d at 750. We followed the analysis in Montgomery and held in Williams that, even though the jury instruction on reasonable doubt was unconstitutional, the evidence against defendant was so substantial that the trial court’s error in its instructions was harmless beyond a reasonable doubt.

Subsequent to our earlier decision in this case, however, the U.S. Supreme Court in Sullivan held that a constitutionally deficient jury instruction as to the definition of reasonable doubt is not harmless error and, thus, invalidated the defendant’s conviction. The Court stated that the denial of the right to a jury verdict of guilt beyond a reasonable doubt is a structural error which defies analysis by the harmless error standards. Sullivan, 508 U.S. at —, 124 L.Ed.2d at 190-91. Thus, a jury instruction on reasonable doubt which violates the Due Process Clause cannot be harmless regardless of how overwhelming the evidence of the defendant’s guilt. Sullivan, 508 U.S. at —, 124 L.Ed.2d at 191 (concurring opinion). The U.S. Supreme Court further reasoned that:

[T]he essential connection to a ‘beyond-a-reasonable-doubt’ factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings. A reviewing court can only engage in pure speculation — its view of what a reasonable jury would have done. And when it does that, ‘the wrong entity judge[s] the defendant guilty.’

508 U.S. at —, 124 L.Ed.2d at 190 (quoting Rose v. Clark, 478 U.S. 570, 578, 92 L.Ed.2d 460, 471 (1986)).

We follow Sullivan and find that the trial court’s instruction on reasonable doubt, which violated the Due Process Clause, was a structural, not harmless, error.

Since we rule that the trial court committed reversible error, we need not address defendant’s remaining assignment of error.

We reverse the judgment of the trial court and remand the case to the trial court for proceedings consistent with this opinion.

Reversed.

Chief Judge ARNOLD and Judge GREENE concur.