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State v. Cherry2/12/2001
ch 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.
Moreover, 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.
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