dissenting.
I dissent from the majority’s decision to grant a new trial for Cage error essentially for the same reasons I expressed concerning that issue in my dissent in State v. Montgomery, 331 N.C. 559, 577, 417 S.E.2d 742, 752 (1992), and State v. Bryant, 334 N.C. 333, 343, 432 S.E.2d 291, 297 (1993). As in Bryant, defendant here did not object to the reasonable doubt instruction given by the trial judge.
Cage does not dictate that we find reversible error in the instant case. In Cage, the Supreme Court found error in the Louisiana trial court’s reasonable doubt instruction, stating:
The charge did at one point instruct that to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a “grave uncertainty” and an “actual substantial doubt,” and stated that what was required was a “moral certainty” that the defendant was guilty. 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 v. Louisiana, 498 U.S. 39, 41, 112 L. Ed. 2d 339, 342 (1990) (emphasis added).
In reading Cage broadly, the majority opinion deviates from virtually every other appellate court in the land that has considered the matter. See Gaskins v. McKellar, — U.S. —, 114 L. Ed. 2d 728 (Stevens, J., concurring in denial of writ of certiorari and acknowledging that Cage is to be read narrowly and emphasizing the critical import of the “grave uncertainty” language), reh’g denied, — U.S. ---, 115 L. Ed. 2d 1098 (1991); Smith v. State, 588 So. 2d 561 (Ala. Crim. App. 1991) (finding no error in use of terms “actual and substantial doubt” and “moral certainty”); Adams v. State, 587 So. 2d 1265 (Ala. Crim. App. 1991) (finding permissible *467use of terms “actual and substantial doubt” and “moral certainty”); Fells v. State, 587 So. 2d 1061 (Ala. Crim. App. 1991) (finding use of term “moral certainty” to be proper); People v. Jennings, 53 Cal. 3d 334, 807 P.2d 1009, 279 Cal. Rptr. 780 (same), cert. denied, — U.S. —, 116 L. Ed. 2d 462 (1991); Commonwealth v. Beldotti, 409 Mass. 553, 567 N.E.2d 1219 (1991) (instruction permissible with “moral certainty” language); State v. Morley, 239 Neb. 141, 474 N.W.2d 660 (1991) (instruction permissible when “moral certainty” and “actual and substantial doubt” used).
The majority’s extremely broad interpretation of Cage in Bryant, which it says dictates the result here, seems more an excuse than a reason for granting a new trial. The reasonable doubt instruction that the majority finds to be reversible error is one that has been employed by our trial judges for many years and in many cases. I anticipate that this Court will be called upon to review many cases in which the same or a similar jury charge was employed. Unlike McKoy error, which affects only the sentencing proceeding of a capital trial, the error here affects both capital and noncapital trials and requires a totally new trial. The impact of McKoy on our criminal justice system may dim in comparison to the impact of this Court’s interpretation of Cage. For this and other reasons, I would allow a federal appellate court to speak to this issue before granting new trials that may prove to be unnecessary.
I believe that the majority errs in its conclusion that the reasonable doubt instruction tendered by the trial court was error requiring a new trial.