State v. Brown, No. 24168

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtTOAL; CHANDLER
Citation317 S.C. 55,451 S.E.2d 888
PartiesThe STATE, Respondent, v. George Anthony BROWN, Appellant. . Heard
Decision Date04 October 1994
Docket NumberNo. 24168

Page 888

451 S.E.2d 888
317 S.C. 55
The STATE, Respondent,
v.
George Anthony BROWN, Appellant.
No. 24168.
Supreme Court of South Carolina.
Heard Oct. 4, 1994.
Decided Dec. 12, 1994.

Page 890

[317 S.C. 56] Douglas S. Strickler, Columbia, for appellant.

T. Travis Medlock, Atty. Gen., Donald J. Zelenka, Chief Deputy Atty. Gen., Harold M. Coombs, Jr., Sr. Asst. Atty. Gen., Norman Mark Rapoport, Asst. Atty. Gen., Columbia, and Holman C. Gossett, Jr., Sol. of Seventh Judicial Circuit, Spartanburg, for respondent.

TOAL, Justice:

[317 S.C. 57] Appellant, George Brown (Brown), appeals his conviction for possession of crack cocaine with intent to distribute. Brown claims the provision in S.C.Code Ann. § 44-53-375 (Supp.1991) of higher penalties for possession with intent to distribute crack cocaine than are provided for cocaine in other forms violates the Equal Protection and Due Process Clauses of the United States Constitution. We disagree and affirm.

FACTS

In July 1990, police began conducting a video surveillance of Brown's apartment. As a result of the activity observed on the videotapes, the police obtained a search warrant for the apartment. The officers executed the search warrant and seized 11.673 grams of crack cocaine inside a vacuum cleaner bag found in Brown's apartment. They also seized $2,320 in cash. The police arrested Brown and informed him of his Miranda rights. Thereafter, Brown signed a waiver form and told police the crack cocaine belonged to him. Brown was then transported to the Sheriff's Department and again informed of his Miranda rights. There, Brown gave a written statement in which he admitted placing the crack cocaine inside the vacuum cleaner bag.

At trial, Brown claimed he had no knowledge of the drugs. He testified he loaned the vacuum to a neighbor on the morning of the search and was not aware the neighbor returned the vacuum. Brown also testified he planned to move to Florida that weekend and the cash in the apartment was to pay for moving expenses. Brown stated the officers promised not to arrest the other persons inside the apartment provided Brown admitted ownership of the crack cocaine. The officers, however, testified that they made no promises to Brown in exchange for his statement.

The jury convicted Brown of possession of crack cocaine with the intent to distribute and he was sentenced to fifteen years imprisonment and a $25,000 fine. Brown appeals.

LAW/ANALYSIS

1. Due Process violation

Brown first alleges S.C.Code § 44-53-375(B) (Supp.1991) is unconstitutionally vague and, therefore, violates the Due Process

Page 891

Clause of the United States Constitution[317 S.C. 58] . 1 We disagree.

Section 44-53-375(B) provides:

Any person who manufactures, distributes, dispenses, delivers, purchases, or otherwise aids, abets, attempts or conspires to manufacture, distribute, dispense, deliver, or purchase, or possesses with intent to distribute, dispense, or deliver ice, crank, or crack cocaine, in violation of the provisions of Section 44-53-370 2, is guilty of a felony and, upon conviction, for a first offense, must be sentenced to a term of imprisonment of.... Possession of one or more grams of ice, crank, or crack cocaine is prima facie evidence of a violation of this subsection.

Brown claims section 44-53-375(B) is unconstitutionally vague because it conflicts with other sections of the Narcotics and Controlled Substance Code, S.C.Code Ann. § 44-53-110-590 (1985 & Supp.1991), which generally describe crack cocaine and provide different sentences than section 44-53-375(B). 3

More recent and specific legislation supersedes prior general law. Rainey v. State, 307 S.C. 150, 414 S.E.2d 131 (1992). Accordingly, because section 44-53-375(B) is the most recent and specific statute concerning crack cocaine, this section prevails over any conflicting statute generally describing crack cocaine.

[317 S.C. 59] Moreover, statutes are to be construed in favor of constitutionality and this Court will presume a legislative act is constitutionally valid unless a clear showing to the contrary is made. See Mitchell v. Owens, 304 S.C. 23, 402 S.E.2d 888 (1991). A penal statute offends due process only when it fails to give fair notice of the conduct it proscribes. State v. Edwards, 302 S.C. 492, 397 S.E.2d 88 (1990); State v. Smith, 275 S.C. 164, 268 S.E.2d 276 (1980). The statute must give sufficient notice to enable a reasonable person to comprehend what is prohibited. State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61, cert. denied,449 U.S. 883, 101 S.Ct. 236, 66 L.Ed.2d 108 (1980). The terms of this statute clearly and unambiguously proscribe the possession of crack cocaine with the intent to distribute. Accordingly, we find no due process violation because this statute gives sufficient notice to enable a reasonable person to comprehend what is prohibited.

2. Equal Protection violation

Brown next alleges section 44-53-375(B) violates the Equal Protection Clause of the United States Constitution because there is no rational basis for the distinction between crack cocaine and cocaine. Brown argues crack cocaine and cocaine are essentially the same drug and, therefore, should not be subject to different sentencing provisions.

In determining whether a statute violates the Equal Protection Clause, the Court accords "great deference to a legislatively

Page 892

created classification, and the classification will be sustained if it is not plainly arbitrary and there is any reasonable hypothesis to support it." Davis v. County of Greenville, --- S.C. ----, 443 S.E.2d 383 (1994). The burden is upon those challenging the legislation to prove lack of rational basis. Brown v. County of Horry, 308 S.C. 180, 417 S.E.2d 565 (1992).

In United States v. Harding, 971 F.2d 410 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1025, 122 L.Ed.2d 170 (1993), the Ninth Circuit found the distinction between cocaine and crack cocaine in the United States Sentencing Guidelines was neither arbitrary not irrational. The Court noted

[a]lthough crack and powder cocaine are different forms of the same drug, the routes of administration, their [317 S.C. 60] physiological and psychological effects, and the manner in which they are sold set the two forms of the drug apart. Crack is normally smoked in a glass pipe, while powder cocaine is most often ingested...

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45 practice notes
  • State v. Rice, No. 4300.
    • United States
    • Court of Appeals of South Carolina
    • October 5, 2007
    ...Carolina in regard to the principle that general testimony in regard to a law enforcement investigation is NOT hearsay is State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994). Brown edifies: Evidence is not hearsay unless it is an out of court statement offered to prove the truth of the matte......
  • State v. Cherry, No. 3296.
    • United States
    • Court of Appeals of South Carolina
    • February 12, 2001
    ...upheld a conviction for possession with intent to distribute without some specific indicia of the required intent. See State v. Brown, 317 S.C. 55, 57, 451 S.E.2d 888, 890 (1994) ($2,320 in cash); Fernandez v. State, 306 S.C. 264, 266, 411 S.E.2d 426, 427 (1991) ($13,000 in cash); Goldsmith......
  • State v. Barroso, No. 2357
    • United States
    • Court of Appeals of South Carolina
    • March 10, 1995
    ...a certain minority, it is unconstitutional only if that impact can be traced to a discriminatory purpose. State v. Brown, --- S.C. ----, 451 S.E.2d 888 (Sup.Ct.1994). The phrase "discriminatory purpose" implies that the decision maker selected or reaffirmed a particular course of action at ......
  • State v. Thompson, No. 3584.
    • United States
    • Court of Appeals of South Carolina
    • January 6, 2003
    ...Carolina in regard to evidence offered for the purpose of explaining why a government investigation was undertaken is State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994). Brown edifies: Brown argues the trial judge erred in failing to direct a mistrial after two police officers' statements w......
  • Request a trial to view additional results
45 cases
  • State v. Rice, No. 4300.
    • United States
    • Court of Appeals of South Carolina
    • October 5, 2007
    ...Carolina in regard to the principle that general testimony in regard to a law enforcement investigation is NOT hearsay is State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994). Brown edifies: Evidence is not hearsay unless it is an out of court statement offered to prove the truth of the matte......
  • State v. Cherry, No. 3296.
    • United States
    • Court of Appeals of South Carolina
    • February 12, 2001
    ...upheld a conviction for possession with intent to distribute without some specific indicia of the required intent. See State v. Brown, 317 S.C. 55, 57, 451 S.E.2d 888, 890 (1994) ($2,320 in cash); Fernandez v. State, 306 S.C. 264, 266, 411 S.E.2d 426, 427 (1991) ($13,000 in cash); Goldsmith......
  • State v. Barroso, No. 2357
    • United States
    • Court of Appeals of South Carolina
    • March 10, 1995
    ...a certain minority, it is unconstitutional only if that impact can be traced to a discriminatory purpose. State v. Brown, --- S.C. ----, 451 S.E.2d 888 (Sup.Ct.1994). The phrase "discriminatory purpose" implies that the decision maker selected or reaffirmed a particular course of action at ......
  • State v. Thompson, No. 3584.
    • United States
    • Court of Appeals of South Carolina
    • January 6, 2003
    ...Carolina in regard to evidence offered for the purpose of explaining why a government investigation was undertaken is State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994). Brown edifies: Brown argues the trial judge erred in failing to direct a mistrial after two police officers' statements w......
  • Request a trial to view additional results

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