Turner v. State

Opinion

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).

3

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