State v. Cherry

Chief Justice TOAL:

The majority holds that the jury charge recommended in State v. Grippon is the sole and exclusive charge to be given in cases relying, in whole or in part, on circumstantial evidence. Because I believe that South Carolina courts should not abandon the traditional circumstantial evidence charge described in State v. Edwards, I dissent.

The traditional circumstantial evidence charge provides that when the State relies on circumstantial evidence to prove its case, a jury may not convict the defendant unless “every circumstance relied upon by the State [has been] proven beyond a reasonable doubt,” and “all of the circumstances so proven [are] consistent with each other and, taken together, point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis.” State v. Edwards, 298 5.C. 272, 275, 379 S.E.2d 888, 889 , cert. denied, 493 U.S. 895 , 110 S.Ct. 246 , 107 L.Ed.2d 196 (1989) (citing State v. Littlejohn, 228 S.C. 324 , 89 S.E.2d 924 (1955)) (emphasis added). This charge is well established in South Carolina. E.g., Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320 , 338 n. 6, 534 S.E.2d 672 , 681 n. 6 (2000); State v. Owens, 291 S.C. 116 , 352 S.E.2d 474 (1987); State v. McIver, 238 S.C. 401 , 120 S.E.2d 393 (1961); State v. Dornberg, 192 S.C. 513 , 7 S.E.2d 467 (1940).

Recently, in State v. Grippon, this Court approved another charge that may be given instead of the traditional circumstantial evidence charge. 16 327 S.C. 79, 83-84 , 489 S.E.2d 462, *603 464 (1997). The charge recommended in Grippon emphasizes that direct and circumstantial evidence are to be given the same weight. More importantly, the charge does not require, as does the traditional charge, that the circumstances “point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis.” Consequently, the Grippon charge leads jurors to believe, in my view, that direct and circumstantial evidence are to be evaluated in the very same manner. Because I disapproved of the new charge, I wrote a separate, concurring opinion. Id. at 84 , 489 S.E.2d at 464 .

Today, the Court holds that once a proper reasonable doubt instruction has been given, the charge recommended in Grippon is the sole remaining charge to be given in circumstantial evidence cases. In support of its holding, the majority finds that the traditional circumstantial evidence charge confuses jurors “by leading them to believe that the standard for measuring circumstantial evidence is different than that for measuring direct evidence.” Because I continue to disapprove of the Grippon charge, I write separately once again, this time in dissent.

It is clear that circumstantial and direct evidence may be “equally valid and convincing” in a criminal case. Moriarty, 341 S.C. at 338 n. 6, 534 S.E.2d at 681 n. 6. But unlike direct evidence, circumstantial evidence establishes collateral facts from which the main facts may be inferred. State v. Salisbury, 343 S.C. 520 , 525 n. 1, 541 S.E.2d 247 , 249 n. 1 (2001) (citations omitted). The evaluation of circumstantial evidence, therefore, requires jurors to connect collateral facts in order to reach a conclusion—a process not required when evaluating direct evidence.

The traditional circumstantial evidence charge does not, in my view, create confusion or change the standard for measuring circumstantial evidence. Instead, the charge clarifies the jury’s responsibility to evaluate circumstantial evidence carefully and gives jurors more detailed information about the relation of circumstantial evidence to the determination of guilt. Moreover, the standard for evaluating evidence remains unchanged: every circumstance must be proven beyond a reasonable doubt. Therefore, in my view, the Edwards charge should be retained.

*604 The Grippon charge, on the other hand, does nothing to alert the jury to this separate and distinct analytical framework. This lack of instruction may have unintended, dangerous consequences. Juries may make logical leaps when putting evidence together, and in doing so, may reach illogical conclusions based on emotion or intuition instead of a rational, deliberative process.

In the present case, the State relied on the following evidence to prove, beyond a reasonable doubt, that Cherry was guilty of PWID: Cherry was a passenger in a car that was in a high crime area “known for drugs”; Cherry was carrying eight rocks of crack cocaine and $322.00, most of which was in twenty-dollar bills; and no drug paraphernalia were found in the car. Because the evidence of “intent to distribute” was purely circumstantial, Cherry requested that the trial judge charge the jury with the traditional circumstantial evidence charge.

Although it is inferable that Cherry intended to distribute crack cocaine, it is equally as inferable, in my view, he did not. Possessing drugs in a high crime area “known for drugs” does not automatically make one a drug dealer. It is also reasonable that $322 in cash would be comprised of mostly twenty-dollar bills. Moreover, it is reasonable to conclude that because Cherry did not have the requisite amount of crack cocaine on him to give rise to a permissive inference of distribution, he did not intend to distribute crack cocaine. Finally, that there were no drug paraphernalia in the car may or may not establish that Cherry was carrying the crack for his personal use.

In sum, there is no direct evidence that Cherry intended to distribute crack cocaine. Therefore, even if each circumstance were proven beyond a reasonable doubt, jurors must still ask themselves, under the Edwards charge, whether there is any other reasonable conclusion other than guilt. Without this instruction, the jury does not know that this critical step in the reasoning process exists. In fact, the jury is without an analytical framework in which to evaluate the evidence. That the circumstances could lead a juror to make reasonable inferences either way highlights the importance of retaining the Edwards charge.

*605 I recognize, as I did in my Grippon concurrence, that a majority of states have abandoned the circumstantial evidence charge in favor of an approach that does not differentiate between direct and circumstantial evidence and simply provides that a defendant’s guilt must be proven beyond a reasonable doubt. See Irene Merker Rosenberg & Yale L. Rosenberg, “Perhaps What Ye Say Is Based Only on Conjecture” — Circumstantial Evidence Then and Now, 31 Hous. L.Rev. 1371, 1400 (1995) (describing the abandonment of the circumstantial evidence charge as a “bandwagon effect” in response to the United States Supreme Court’s decision in Holland v. United States, 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954), rather than a reasoned rejection of the longstanding charge). But several states have continued to require the special charge when the State’s case is based wholly or substantially on circumstantial evidence. 17 E.g., Stubbs v. State, 265 Ga. 883 , 463 S.E.2d 686 (1995); Nichols v. State, 591 N.E.2d 134 (Ind.1992); People v. Ford, 66 N.Y.2d 428 , 497 N.Y.S.2d 637 , 488 N.E.2d 458 (1985); People v. Towler, 31 Cal.3d 105 , 181 Cal.Rptr. 391 , 641 P.2d 1253 (1982). Further, some states have advanced cogent reasons for retaining the charge. See, e.g., Ford, 497 N.Y.S.2d 637 , 488 N.E.2d at 465 (retaining the charge because it emphasizes the need for careful reasoning and “forecloses [the] danger ... that the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusion based on probabilities of low degree”); State v. Nelson, 112 Idaho 245 , 731 P.2d 788 (1986), aff'd, 114 Idaho 292 , 756 P.2d 409 (1988) (rejecting the argument that the “reasonable hypothesis” language confused jurors and concluding that the language gave “sharpened clarity” to the meaning of reasonable doubt).

In my view, the charge advanced today as the sole and exclusive charge to be given in circumstantial evidence cases does nothing to direct the jury’s deliberative process. By omitting the “reasonable hypothesis” language, this Court leaves open the possibility that even when a reasonable *606 theory exists supporting a defendant’s innocence, a (possibly erroneous) conviction will stand.

Therefore, in my view, the trial judge erred in not granting Cherry’s request that the jury be given the Edwards charge.

Acting Justice REGINALD I. LLOYD, concurs.

. Although a new charge was recommended, the Court did not overrule the traditional circumstantial evidence charge. State v. Graddick, 345 S.C. 383, 388 , 548 S.E.2d 210, 212 (2001).

. For a complete list of states requiring the charge in cases where the evidence is wholly or substantially circumstantial, see Caroll J. Miller, Modem Status of Rule Regarding Necessity of Instruction on Circumstantial Evidence in Criminal Trial —State Cases, 36 A.L.R.4th 1046 , § 3 (2004).