State v. Cherry

SHULER, J.,

(concurring in part and dissenting in part):

While I concur in Judge Stilwell’s opinion to the extent it finds the trial court properly submitted the case to the jury, I disagree with the conclusion reached regarding the circumstantial evidence charge and, with responsive changes, respectfully adhere to my original dissent.

The trial court instructed the jury pursuant to State v. Grippon, 327 S.C. 79, 84, 489 S.E.2d 462, 464 (1997) (“The law makes absolutely no distinction between the weight or value to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence----”). Upon realizing the court failed to give the conventional charge on circumstantial evidence, Cherry’s counsel, noting that Grippon “does not preclude a more thorough charge,” requested further instructions. As Judge Stilwell correctly observes, the charge requested is comparable to the traditional language enunciated by our supreme court in State v. Littlejohn, 228 S.C. 324, 89 S.E.2d 924 (1955) and later quoted with approval in State v. Edwards, 298 S.C. 272, 275, 379 S.E.2d 888, 889 (1989) (“[Ejvery circumstance relied upon by the State [must] be proven beyond a reasonable doubt ... and taken together, point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis.”). Because I agree that a fuller Edwards-type instruction was both appropriate and warranted under the circumstances, I would find the court’s failure to further instruct the jury was error.

*317There is no question the charging language set forth in both Grippon and Edwards is valid. See State v. Needs, 333 S.C. 134, 159 n. 13, 508 S.E.2d 857, 870 n. 13 (1998) (reaffirming the “well established” Edwards charge and stating that the court recently approved a charge in Grippon “that makes no distinction between direct and circumstantial evidence”). However, while I concur in the view that the law does not discriminate between the relative weight or probative value of direct versus circumstantial evidence, I must disagree with Judge Stilwell’s assertion that the traditional Edwards instruction “distinguishes” between the two. Edwards, in fact, makes no mention of direct evidence; it merely outlines the test which the jury should use in evaluating circumstantial evidence. See Littlejohn, 228 S.C. at 328, 89 S.E.2d at 926 (describing the charge as the “test by which circumstantial evidence is to be measured by the jury in its deliberations”). The question, then, is not whether both charges are legally correct, but, as Judge Howard' notes, whether they are “functionally equivalent.” I do not believe they are.

In a criminal case, the test set forth in Edwards may be critical to a just resolution because of the nature of circumstantial evidence. See Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 338 n. 6, 534 S.E.2d 672, 681 n. 6 (2000) (wherein the court, while concluding circumstantial and direct evidence are equally valid and convincing, recognized that Edwards “indicates circumstantial evidence requires greater scrutiny than direct evidence in a criminal proceeding”). Unlike direct evidence, which the jury may accept or reject on its face, a proper assessment of circumstantial evidence requires the jury to decide not only whether the facts and circumstances presented are true, but also whether the defendant’s guilt logically can be inferred. See State v. Salisbury, 343 S.C. 520, 525 n. 1, 541 S.E.2d 247, 249 n. 1 (2001) (“Direct evidence immediately establishes the main fact to be proved. Circumstantial evidence immediately establishes collateral facts from which the main fact may be inferred, and is typically characterized by inference or presumption.”) (citations omitted); People v. Wachowicz, 22 N.Y.2d 369, 292 N.Y.S.2d 867, 239 N.E.2d 620, 622 (1968) (“In the end, it is a question whether common human experience would lead a reasonable man, putting his mind to it, to reject or accept the inferences asserted for the established facts.”)."

*318Thus, the use of circumstantial evidence asks the jury to employ analytical tools in a complex reasoning process not otherwise needed when reviewing direct evidence alone. Unfortunately, in so doing it also invites the danger of “logical gaps” legitimately associated with circumstantial evidence— that the jury may surmise guilt from “subjective inferential links based on probabilities” and thereby elevate coincidence or suspicion into permissible inference. People v. Cleague, 22 N.Y.2d 363, 292 N.Y.S.2d 861, 239 N.E.2d 617, 619 (1968).

In my view, the traditional Edwards charge provides the appropriate analytical framework for focusing the jury’s deliberative process in a case such as this, where the State relies solely on circumstantial evidence to prove an element of the crime. The charge recommended in Grippon, on the other hand, unquestionably fails to alert the jury to the unique nature of circumstantial evidence.13 Surely, if Grippon stands for anything it is the proposition that circumstantial and direct evidence are equally valid methods of proving guilt, not that they are identical methods of doing so. See State v. Graddick, 345 S.C. 383, 388, 548 S.E.2d 210, 212 (2001) (finding Grippon’s recommended charge “emphasizes the lack of distinction between the weight to be given to direct and circumstantial evidence” and therefore approving the trial court’s use of an instruction stating that “circumstantial evidence is just as competent or capable of proving a fact in issue as is direct evidence”) (emphasis added); Salisbury, 343 S.C. at 525 n. 1, *319541 S.E.2d at 249 n. 1 (discussing difference between direct and circumstantial evidence).

Without question, the law to be charged in a particular case is determined by the evidence presented at trial. State v. Long, 325 S.C. 59, 480 S.E.2d 62 (1997); State v. Gourdine, 322 S.C. 396, 472 S.E.2d 241 (1996). Accordingly, it is well settled that a trial court commits reversible error when it fails to give a requested charge on an issue raised by the evidence. See State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999); State v. Hill, 315 S.C. 260, 262, 433 S.E.2d 848, 849 (1993). As our supreme court has stated, “[a] request to charge a correct statement of the law on an issue raised by the indictment and the evidence presented at trial should not be refused.” State v. Austin, 299 S.C. 456, 385 S.E.2d 830, 831 (16989); see also State v. Addison, 343 S.C. 290, 540 S.E.2d 449 (2000); State v. Kimbrell, 294 S.C. 51, 362 S.E.2d 630 (1987).

Although the refusal to give a specific charge may not be error “when the given instructions use the proper test for determining the issues before the jury,” State v. Hughey, 339 S.C. 439, 452, 529 S.E.2d 721, 728 (2000), such is not the case when the charge as given fails to cover the substance of the request. See State v. Day, 341 S.C. 410, 535 S.E.2d 431 (2000) (failure to tailor jury instructions to adequately reflect facts and theories presented by the defendant constituted reversible error); State v. Starnes, 340 S.C. 312, 531 S.E.2d 907 (2000) (court must fashion an appropriate charge when defendant requests more than the standard self-defense charge and the evidence supports the request); Battle v. State, 305 S.C. 460, 409 S.E.2d 400 (1991) (counsel was ineffective in failing to request additional jury instructions on self-defense when warranted by the evidence, despite fact that judge had instructed jury in accordance with prior court-approved self-defense charge); State v. Fuller, 297 S.C. 440, 377 S.E.2d 328 (1989) (court erred in giving a prior-approved charge exclusively without considering the facts and circumstances of the particular case when defense counsel repeatedly requested additional charges based in common law); Kimbrell, 294 S.C. at 56, 362 S.E.2d at 632 (reversing conviction for cocaine trafficking where the charge requested was a correct statement of the law but charge given did not adequately cover the substance of the request); State v. Brownlee, 318 S.C. 34, 38, 455 S.E.2d 704, 706 (Ct.App.1995) (reversing conviction for possession *320with intent to distribute because, “although the charge as given correctly stated the elements of the offense, it did not adequately cover the substance of [the defendant’s] request”).

The charge requested by Cherry is a correct statement of the law on circumstantial evidence. See Needs, 333 S.C. at 159 n. 13, 508 S.E.2d at 870 n. 13; Edwards, 298 S.C. at 275, 379 S.E.2d at 889. From Cherry’s perspective, because the jury could have found the sum of the circumstantial facts asserted by the State to be as consistent with innocence of distribution as with guilt, a charge that these facts, taken together, must point conclusively to his guilt to the exclusion of every other reasonable hypothesis before a conviction could stand was imperative. Hence, I would find the inferential nature of the circumstances presented in this case justified additional instructions to guide the jury in making appropriate logical inferences and thus deny a finding of guilt based on mere probability.14 See Grippon, 327 S.C. at 87-88, 489 S.E.2d at 466-67 (Toal, J., concurring in result only) (In “clarifying] the jury’s responsibility to evaluate circumstantial evidence carefully,” the Edwards charge forecloses the possibility that the jury “ ‘may leap logical gaps in the proof offered and draw unwarranted conclusions based on probabilities of low degree.’ ”) (quoting People v. Ford, 66 N.Y.2d 428, 497 N.Y.S.2d 637, 488 N.E.2d 458, 465 (1985)).

Finally, it must be noted that nothing in Grippon or Needs precludes a trial court from giving the more detailed Edwards charge, including the language that all of the circumstances proffered by the State must “point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis.” Edwards, 298 S.C. at 275, 379 S.E.2d at 889; see *321Grippon, 327 S.C. at 82, 489 S.E.2d at 462 (reiterating the supreme court has “never rejected the ‘reasonable hypothesis’ phrase or found [that it] shifted the burden of proof’ from the State). To the contrary, because the charges outlined in Grippon and Edwards serve different purposes, they are inherently complementary, not mutually exclusive. Indeed, in State v. Graddick our supreme court recently affirmed an instruction that “was a hybrid of the traditional [Edwards] circumstantial evidence charge and the charge approved in Grippon.” Graddick, 345 S.C. at 388, 548 S.E.2d at 212.

As our supreme court has said, “[t]he purpose of a charge is to enlighten the jury. This purpose is accomplished by a statement of the law which fits the concrete case.... ” State v. Fair, 209 S.C. 439, 445, 40 S.E.2d 634, 637 (1946) (quoting State v. DuRant, 87 S.C. 532, 534, 70 S.E. 306, 307 (1911)). In my view, while the Grippon charge “obviously is a correct statement of the law,” it does not cover the substance of Cherry’s requested instruction. It was therefore error to refuse the request.

Furthermore, the court’s failure to give the additional instruction cannot be considered harmless, because there exists a reasonable likelihood the jury was unaware it should acquit if it found the combined circumstances relied upon by the State equally susceptible of an inference inconsistent with guilt of the crime charged. See, e.g., State v. Jefferies, 316 S.C. 13, 22, 446 S.E.2d 427, 432 (1994) (“In making a harmless error analysis, our inquiry is not what would the verdict have been had the jury been given the correct charge, but rather did the erroneous charge contribute to the verdict rendered.”). In my opinion, Cherry was prejudiced by the court’s refusal to give the requested charge, particularly in light of a clearly impermissible closing argument wherein the solicitor stated there was evidence Cherry “had already distributed some crack,” and that there was “no evidence that he was going to use [the crack] personally for himself.” Accordingly, I would reverse the conviction and remand for a new trial.

. Interestingly, the Grippon charge stems from the Supreme Court’s decision in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). While it is true that Holland, a tax evasion case involving the "net worth” method of circumstantial proof, proposed as the "better rule” the charging language later articulated in Grippon, it was not without qualification. Id. at 139, 75 S.Ct. 127. To the contrary, the Holland Court referenced the "great danger” associated with equivocal circumstantial evidence — that once the prosecution established the necessary circumstances a jury might assume the inferential crime automatically followed, despite reasonable explanations offered by the defense. Id. at 127-28, 75 S.Ct. 127. Accordingly, the Court warned that jury charges in such cases “should be especially clear, including, in addition to the formal instructions, a summary of the nature of the [circumstantial evidence] method ... and the inferences available both for and against the accused.” Id. at 129, 75 S.Ct. 127.

. I disagree with Judge Howard that this approach would "impermissibly require weighing the evidence.” To me, the trial court's decision on whether to give additional guidance would be the same as in any case where the court must determine whether the evidence supports a particular charge. Nor do I agree that it "implies that a greater explanation of the burden of proof is necessary when the judge believes the case is a close one.” What Edwards offers is not a superior explanation of the burden of proof; rather, it is at least some explanation of how the jury should analyze circumstantial evidence in order to employ it appropriately in deciding if the State has met that burden. Furthermore, in my opinion, continued approval of the Edwards language is rendered superfluous if the charge is not given when warranted by the facts and circumstances of a particular case.