RULING PLEASES PROSECUTORS

S.C. Supreme Court Decision Affects How Juries Can Consider Circumstantial
Evidence

ROCK HILL - Prosecutors are lauding the S.C. Supreme Court's decision in a
York County drug case that will affect how juries can consider
circumstantial evidence in all criminal trials across the state.

Judges no longer will be allowed to tell juries that "circumstantial
evidence must be so strong as to exclude every reasonable hypothesis other
than guilt."

In a 3-2 ruling, the high court said the new version omits the reasonable
theory language.

"This changes the way judges can explain circumstantial evidence in every
criminal case," said Kevin Brackett, 16th Circuit deputy prosecutor.

But defense lawyers are concerned the burden of proof on prosecutors has
been lowered by the ruling, and they already are discussing how to talk to
juries since the ruling was made.

"Anytime a law makes it easier to convict the guilty, it also makes it
easier to convict the innocent," said Rauch Wise, a Greenwood defense
lawyer who is part of the S.C. Association of Criminal Defense Lawyers.

The high court confirmed the jury conviction of Yukoto Cherry of Rock Hill
on a conviction of possession of crack cocaine with intent to distribute
from a 1998 incident. Cherry was sentenced to five years but has been free
on bond since then as the case moved through two hearings in the Appeals
Court and finally the Supreme Court, said one of his lawyers, Thomas F. McDow.

Cherry was accused of having less than one gram of crack cocaine in eight
rocks, according to court records, but police had no other physical
evidence. Prosecutors argued that because Cherry had money in $20 bills
that is typical of crack sales, lacked smoking paraphernalia and the arrest
was in a high-crime area, Cherry intended to sell the drugs, court records
show.

Defense lawyers have argued through trials and now appeals that prosecutors
had no evidence Cherry was going to sell drugs.

"This was a total circumstantial evidence case. Where do people go to buy
drugs? A high-crime area," Wise said.

Brackett said the decision shows the conviction was proper.

The case is so complex that it was argued before the Supreme Court on Dec.
2, 2003, but the high court did not issue its opinion until this week,
McDow said.

Two of the five supreme court justices, including Chief Justice Jean Toal,
dissented with last week's ruling.

Toal wrote, "By omitting the 'reasonable hypothesis' language, this Court
leaves open the possibility that even when a reasonable theory exists
supporting a defendant's innocence, a (possibly erroneous) conviction will
stand."

The case has been a lightning rod in the courts for years. Including the
five Supreme Court justices, 17 appellate judges now have heard the case,
and 10 said Cherry is entitled to a new trial or outright dismissal, McDow
said.

"That alone should be enough to indicate there is something wrong with this
conviction," McDow said.

McDow plans to file papers asking the Supreme Court to hear the case again.