Turner v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1997 SESSION
October 1, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
ROBERT F. TURNER, )
)
Appellant, ) No. 03C01-9603-CR-00098
)
) Hamilton County
v. )
) Honorable Stephen M. Bevil, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Robert F. Turner, Pro Se Charles W. Burson
# 167179 Attorney General of Tennessee
Turney Center Annex and
Route One Eugene J. Honea
Only, TN 37140 Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
William H. Cox
District Attorney General
600 Market Street, Suite 310
Chattanooga, TN 37402
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Robert F. Turner, appeals as of right from the Hamilton
County Criminal Court’s dismissal of his second post-conviction petition without a
hearing. He contends that he is entitled to post-conviction relief because the use of the
term “moral certainty” in the reasonable doubt jury instruction given at his trial allowed
the jury to convict him based on a lower standard of proof than is constitutionally
required.
In 1983, the petitioner was convicted of aggravated kidnapping and
robbery and received a sentence of forty years and five to ten years, respectively. This
court affirmed his conviction. State v. Earl Allen Bailey and Robert Turner, [no number
in original], Hamilton County (Tenn. Crim. App. Jan. 6, 1984). On January 10, 1996,
the petitioner filed the present petition, alleging that the reasonable doubt instruction
given at his trial is unconstitutional under Cage v. Louisiana, 498 U.S. 39, 111 S. Ct.
328 (1990). The trial court dismissed the petition because it concluded that the jury
was properly instructed on the state’s burden of proof at the petitioner’s trial. We agree.
The following instruction was given at the petitioner’s trial:
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 doubt that may
arise from possibility, or an imaginary or captious doubt.
Absolute certainty of guilt is not demanded by the law to
convict of any criminal charge, but moral certainty is required
as to every proposition of proof requisite to constitute the
offense.
This is a correct statement of the burden of proof for criminal trials in Tennessee. See
Nichols v. State, 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263, 266
(Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364, 366 (Tenn. Crim. App.
1994).
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In consideration of the foregoing and the record as a whole, the judgment of
the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
Gary R. Wade, Judge
William M. Barker, Judge
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