596 So.2d 42 (Ala.Crim.App. 1991), CR 90-648, Murphy v. State

Docket Nº:CR 90-648.
Citation:596 So.2d 42
Opinion Judge:TAYLOR, Judge.
Party Name:Anthony Paul MURPHY v. STATE.
Attorney:William R. Blanchard, Montgomery, for appellant. James H. Evans, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for appellee.
Case Date:October 11, 1991
Court:Alabama Court of Criminal Appeals
 
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Page 42

596 So.2d 42 (Ala.Crim.App. 1991)

Anthony Paul MURPHY

v.

STATE.

CR 90-648.

Court of Criminal Appeals of Alabama.

October 11, 1991

Rehearing Denied Nov. 15, 1991.

Page 43

William R. Blanchard, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Anthony Paul Murphy, was convicted of sodomy in the first degree and sexual abuse in the first degree. He was sentenced to 10 years in prison on the sexual abuse charge and life in prison on the sodomy charge, the sentences to run consecutively. On appeal the appellant presents three issues.

I

The appellant initially argues that the trial court erred in denying his Batson motion based on his allegation that males were improperly excluded from the jury. This issue has come before this court on more than one occasion. The law currently states that Batson does not extend to gender-based strikes. Fisher v. State, 587 So.2d 1027 (Ala.Cr.App.1991), writ denied, 587 So.2d 1039 (Ala.1991); Daniels v. State, 581 So.2d 536 (Ala.Cr.App.1990), writ denied, 581 So.2d 541 (Ala.1991); Dysart v. State, 581 So.2d 541 (Ala.Cr.App.1990), cert. denied, 581 So.2d 545 (Ala.1991); Stariks v. State, 572 So.2d 1301 (Ala.Cr.App.1990).

II

The appellant next contends that the trial court erred in defining "reasonable doubt" for the jury. The appellant maintains that the court's instruction violated the United States Supreme Court's holding in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). The appellant contends that the following instruction constituted reversible error:

"Now, you will observe, ladies and gentlemen of the jury, that the state is not required to convince you of the defendant's guilt beyond all doubt but simply beyond all reasonable doubt and to a moral certainty. Beyond a reasonable doubt means beyond a doubt for which a real and substantial reason may be given. This is the law.

"....

"Ladies and gentlemen, whatever verdicts you reach--If the state has proven the case beyond a reasonable doubt and to a moral certainty and proven the elements of the offense, it will be your duty to return a verdict of guilty as to the charge or charges proven. If the state does not prove either or both of the offenses beyond a reasonable doubt and to a moral certainty, it will be your duty to return a verdict of not guilty as to any charge or charges the state does not prove."

(R. 289-90.)

The appellant maintains that the court's use of the term "substantial doubt" several times in its instruction lessened the degree necessary to convict him of the crimes charged. We do not agree. The United States Supreme Court in Cage v. Louisiana stated the following:

"It is plain to us that the words 'substantial' and 'grave,' as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. When those statements are then considered with the reference to 'moral certainty,' rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause."

Cage, 498 U.S. at ----, 111 S.Ct. at 329-30. (Emphasis added.)

This court recently held in Adams v. State, 587 So.2d 1265 (Ala.Cr.App.1991), and Williams v. State, [Ms. 89-191, June

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14, 1991], --- So.2d ---- (Ala.Cr.App.1991), that the use of some of the terminology used in Cage does not automatically render the instruction impermissible under Cage. As this court stated in Adams:

"In [Cage ] the United States Supreme Court held that when the terms 'substantial doubt' and 'grave uncertainty ' are considered with the reference to the term 'moral certainty,' a reasonable juror could find that the degree of proof required to convict is...

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