State v. Bryant

• Decision Date: 29 July 1994
• Docket Number: No. 166A91-2,166A91-2
• Parties: STATE of North Carolina v. Kenneth Michael BRYANT.
• Court: North Carolina Supreme Court

Page 71

446 S.E.2d 71

337 N.C. 298

STATE of North Carolina v. Kenneth Michael BRYANT.

No. 166A91-2.

Supreme Court of North Carolina.

July 29, 1994.

Michael F. Easley, Atty. Gen. by Jeffrey P. Gray, Asst. Atty. Gen., for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Janine M. Crawley, Asst. Appellate Defender, for defendant-appellant.

FRYE, Justice.

Defendant was tried noncapitally at the 2 October 1990 Criminal Session of Superior Court, Edgecombe County, and convicted by a jury of first-degree murder. On 5 October 1990, judgment was entered sentencing defendant to life imprisonment. On appeal, this Court found error in the reasonable doubt instruction based on Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). State v. Bryant, 334 N.C. 333, 432 S.E.2d 291 (1993) (Bryant I ). However, the Supreme Court of the United States vacated the judgment and remanded the case to this Court for further consideration in light of Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). North Carolina v. Bryant, 511 U.S. 1001, 114 S.Ct. 1365, 128 L.Ed.2d 42 (1994).

The evidence presented at trial is summarized in this Court's prior opinion. Bryant, 334 N.C. at 335-37, 432 S.E.2d at 292-93. We will discuss only those facts necessary for a complete consideration of the questions before us on remand.

In State v. Cage, 554 So.2d 39 (La.Sup.Ct.1989), the Supreme Court of Louisiana upheld the following jury instruction defining reasonable doubt:

If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant's guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture.

It must be such a doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty. If after giving a fair and impartial consideration to all the facts in the case you find the evidence unsatisfactory or lacking of one any [sic] single point indispensibly [sic] necessary to constitute the defendant's guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty.

Id. at 41 (emphasis in original). The Supreme Court of Louisiana concluded that "[t]he use of 'grave uncertainty' and 'moral certainty,' if taken out of context, might overstate the requisite degree of uncertainty and confuse the jury. However, taking the charge as a whole, we find that reasonable persons of ordinary intelligence would understand the definition of 'reasonable doubt.' " Id.

Defendant's petition for certiorari was allowed by the United States Supreme Court and that Court, in a per curiam opinion, held that the instruction violated the Due Process Clause of the Fourteenth Amendment. Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 329-30, 112 L.Ed.2d 339, 342. The Court explained:

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.

Id.

This Court applied Cage in Bryant I to analyze a constitutional challenge to the following instruction:

A reasonable doubt is not a mere possible doubt, for most things that relate to human affairs are open to some possible or imaginary doubt.

A reasonable doubt is not a vain, imaginary or fanciful doubt, but it is a sane, rational doubt arising out of the evidence or lack of evidence or from its deficiency.

When it is said that the jury must be satisfied of the defendant's guilt beyond a reasonable doubt, it is meant that they must be fully satisfied or entirely convinced or satisfied to a moral certainty of the truth of the charge.

If, after considering, comparing and weighing all the evidence, the minds of the jurors are left in such condition that they cannot say they have an abiding faith to a moral certainty in the defendant's guilt, then they have a reasonable doubt; otherwise not.

A reasonable doubt, as that term is employed in the administration of criminal law, is an honest substantial misgiving generated by the insufficiency of the proof. An insufficiency which fails to convince your judgment and confidence and satisfy your reasons as to the guilt of the defendant.

(Emphasis added.)

Relying on Cage, this Court found the instruction to be constitutionally infirm. We concluded that "the crucial term in the reasonable doubt instruction condemned by the United States Supreme Court in Cage [was] 'moral certainty,' " and that "[t]he correct standard for conviction beyond a reasonable doubt is evidentiary certainty rather than moral certainty." Bryant, 334 N.C. at 342, 432 S.E.2d at 297. We noted that the instruction in Bryant I was essentially identical to the instruction in State v. Montgomery, 331 N.C. 559, 417 S.E.2d 742 (1992), where two members of this Court concluded that "the trial court used a combination of terms so similar to the combination disapproved of in Cage that there is a 'reasonable likelihood' that the jury applied the challenged instruction in a way that violated the Due Process Clause." Id. at 573, 417 S.E.2d at 750. We discussed the distinction between a jury believing that defendant is morally guilty and a finding of guilt based on the evidence presented at trial, concluding that

when reasonable doubt is defined in terms of "grave uncertainty," "actual substantial doubt," or in terms which suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard, and the jury is then told that what is required for conviction is moral certainty of the truth of the charge, the instruction will not pass muster under Cage.

Bryant 334 N.C. at 343, 432 S.E.2d at 297. Implicit in our holding was our conclusion that the term "honest substantial misgiving" is a term which suggests a higher degree of doubt than is required for acquittal under the reasonable doubt standard and, since the jury was also told that what was required for conviction was moral certainty of the truth of the charge, the instruction was error under Cage.

Our reading of Cage has now been enhanced by Victor v. Nebraska in which the Supreme Court of the United States reexamined the constitutionality of jury instructions defining reasonable doubt. In Victor, the Court held that certain reasonable doubt instructions which included the terms "moral certainty" and "substantial doubt" did not violate the Due Process Clause. In each of two cases, the Court found that the instruction, taken as a whole, correctly conveyed the concept of reasonable doubt to the jury. ¹ In the case of petitioner Sandoval, the jury was instructed:

Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.

Victor, 511 U.S. at ----, 114 S.Ct. at 1244, 127 L.Ed.2d at 591-92 (emphasis in original). The Court acknowledged that the term "moral certainty" had lost some of its historical meaning and that a modern jury might understand it to allow conviction on a standard of proof less than the reasonable doubt standard. The Court concluded however that the remainder of the instruction, particularly the abiding conviction language, helped define the phrase and properly directed the jury on the reasonable doubt standard. The Court also considered Sandoval's argument that with this instruction a juror could be convinced to a moral certainty of defendant's guilt even though the prosecutor had not presented proof beyond a reasonable doubt as is constitutionally required. The Court rejected this argument, referring again to other language in the instruction which "explicitly told the jurors that their conclusion had to be based on the evidence in the case." Id. at ----, 114 S.Ct. at 1248, 127 L.Ed.2d at 597. The Court noted that this instruction differed from the Cage instruction which "simply told [the jurors] that they had to be morally certain of the defendant's guilt." Id. at ----, 114 S.Ct. at 1248, 127 L.Ed.2d at 596.

In petitioner Victor's trial the jury was instructed:

'Reasonable doubt' is such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon. It is such a doubt as will not permit you, after full, fair, and impartial consideration of all the evidence, to have an abiding conviction, to a moral certainty, of the guilt of the accused. At the same time, absolute or mathematical certainty is not required. You may be convinced of the truth of a fact beyond a reasonable doubt and yet be fully aware that possibly you may be mistaken. You may find an accused guilty upon the strong probabilities of the...