      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE                    FILED
                           MAY 1997 SESSION
                                                              June 30, 1997

                                                           Cecil W. Crowson
                                                          Appellate Court Clerk

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
                                    OPINION


       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




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