State v. Gordon, 25737.

• Decision Date: 20 October 2003
• Docket Number: No. 25737.,25737.
• Parties: The STATE, Respondent/Appellant, v. Willie Edward GORDON, Jr., a/k/a Jr. Gordon, Appellant/Respondent.
• Court: South Carolina Supreme Court

356 S.C. 143

588 S.E.2d 105

The STATE, Respondent/Appellant, v. Willie Edward GORDON, Jr., a/k/a Jr.

Gordon, Appellant/Respondent.

No. 25737.

Supreme Court of South Carolina.

Heard July 8, 2003.

Decided October 20, 2003.

Rehearing Denied November 20, 2003.

Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia, for Appellant-Respondent.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Norman Mark Rapoport, of Columbia, and Solicitor Thomas E. Pope, of York, for Respondent-Appellant.

Justice WALLER.

In February 2001, Willie Edward Gordon was convicted of trafficking in crack cocaine and sentenced to thirty years. He appeals, contending his conviction is barred by double jeopardy. The state appeals the trial court's refusal to sentence Gordon to life imprisonment without parole (LWOP) under the Two-Strikes law. We affirm both appeals.

FACTS

In May 1997, a seven-count indictment was handed down against Gordon. On June 9-12, 1997, the state proceeded to trial solely on count five of the indictment, trafficking in crack cocaine in violation of S.C.Code Ann. § 44-53-375(c).¹ Count five of the indictment reads:

That WILLIE E. GORDON, AKA "JR" AND TOMMY JAMES RHINEHART did Traffick in Crack Cocaine in York County, on or about September 21st through September 23rd, 1996 by either: knowingly selling, delivering or distributing; or did purchase, or bring into this State; or provide financial assistance or did otherwise aid, abet, or attempt to sell, or deliver, or purchase, or bring into this State; or did possess, either actually or constructively, twenty-eight grams or more of crack cocaine, a Schedule II controlled substance under provisions of Section 44-53-100 et. seq., ... such conduct not having been authorized by law and is a violation of Section 44-53-375(c)—Trafficking in Crack Cocaine. (emphasis supplied).

Notably, count five does not allege that Gordon in any way conspired to traffic crack. Further, although the trial court instructed the jury the statutory language of § 44-53-375(c), it did not give the jury a separate jury instruction concerning the law of conspiracy. The jury found Gordon guilty of trafficking, and he was sentenced to thirty years.

Thereafter, in October 2000, another indictment was issued against Gordon charging him with trafficking crack cocaine, as follows:

That on or about September 27, 1996, in York County, South Carolina, the Defendant, Willie Edward Gordon, Jr. AKA Jr. Gordon, did wilfully, unlawfully and knowingly sell and/or deliver and/or bring into the State of South Carolina and/or provide financial assistance and/or otherwise aid or abet and/or conspire with Spencer L. Gordon to sell and/or was knowingly in actual or constructive possession of more than 10 grams but less than 28 grams of Crack Cocaine as defined in Sections 44-53-110, 44-53-210(b)(4) and as such did Traffick Crack Cocaine, in violation of Section 44-53-375, Code of Laws of South Carolina (1976, as amended).

(emphasis supplied).²

The charges from the 2000 indictment were called for trial in February 2001. Counsel for Gordon moved to dismiss the 2000 indictment, contending the charges therein were all part of "one continuing transaction," essentially one conspiracy to traffic, for which Gordon was convicted in 1997. Accordingly, he contended the subsequent prosecution was barred by double jeopardy. The trial court ruled there were two separate and distinct offenses and allowed the state to proceed on the 2000 indictment. The jury found Gordon guilty of trafficking.

In light of Gordon's 1997 trafficking conviction, the state moved for a sentence of LWOP under the Two-Strikes law, S.C.Code Ann. § 17-25-45 (Supp 2002).³ The trial court declined to impose a LWOP sentence, finding the crime charged in the 1997 indictment (September 21-23, 1996), and the one charged in the 2000 indictment (September 27, 1997), were so closely connected in point of time as to come within the purview of S.C.Code Ann. § 17-25-50.⁴ Accordingly, the court held Gordon was not subject to a recidivist sentence under the Two-Strikes law; he was sentenced to thirty years, concurrent to the sentence imposed for his 1997 trafficking conviction.

ISSUES

1. Did the trial court err in refusing to quash the 2000 indictment on the ground that a subsequent prosecution was barred by double jeopardy? (Gordon's appeal)

2. Did the trial court err in refusing to sentence Gordon to LWOP? (State's appeal)

1. DOUBLE JEOPARDY

Gordon asserts the conduct for which he was convicted of trafficking in 1997 was "part of a continuing course of conduct that constituted one criminal act," and was a continuing conspiracy which continued through the events alleged in the 2000 indictment, such that the 2001 prosecution was barred by double jeopardy.⁵ We disagree.

The Double Jeopardy clause protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Nelson, 336 S.C. 186, 519 S.E.2d 786 (1999); State v. Easier, 327 S.C. 121, 489 S.E.2d 617 (1997). A substantive crime and a conspiracy to commit that crime are not the "same offense" for double jeopardy purposes. United States v. Felix, 503 U.S. 378, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). Conspiracies and the substantive offenses committed in the course of those conspiracies may be charged separately. United States v. Love, 767 F.2d 1052, 1062 (4th Cir.1985) citing Callanan v. United States, 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961)

; Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).

Gordon argues his 1997 prosecution essentially involved the same conspiracy as the 2001 prosecution, such that the latter is barred by double jeopardy. We disagree. Initially, we note that the 1997 indictment charged Gordon with "trafficking," rather than "conspiracy to traffic," and there is absolutely no language whatsoever in that indictment alleging Gordon in any way conspired to traffic cocaine. Moreover, although the trial court charged the jury the language of the trafficking statute at the 1997 trial, it did not charge the jury concerning the elements necessary to establish the offense of "conspiracy."⁶ We find the 1997 trial was clearly a prosecution for a single substantive offense of trafficking in cocaine, which occurred between September 21-23, 1996.

The 1997 prosecution involved events, details, and persons completely separate from the event proven at Gordon's 2001 trial. The 1997 indictment listed a very discrete period of time (Sept. 21-23, 1996), alleged a different amount of cocaine than the 2000 indictment (28 grams or more, as opposed to between 10-28 grams), and alleged Gordon had trafficked with a different individual (Tommy James Rhinehart in 1997 indictment; Spencer Gordon in the 2000 indictment). Moreover, the evidence presented at the 1997 trial clearly demonstrated the substantive offense of trafficking. At that trial, the state proved that on September 23, 1996, police were investigating Tommy Rhinehart, a suspected drug dealer. Rhinehart left his home and went down an alley toward Gordon's home, which was 50-75 yards away. When Rhinehart returned, police executed a search warrant on his home and discovered two bags of crack cocaine, and a pill bottle also containing crack. Rhinehart decided to cooperate with police and told them he had gotten the crack from Gordon. Rhinehart testified Gordon had given him two bags of crack, on Sat. Sept. 21, 1996, in the alley between their homes. Rhinehart sold that crack between Saturday and Monday, and paid Gordon $500.00 to pay for it on Monday (Sep. 23rd), at which time Gordon gave him two more bags. We find this evidence clearly demonstrates the substantive offense of trafficking, for which Gordon was convicted. Accordingly, we find the 1997 prosecution did not result in a conspiracy conviction, such that there is no double jeopardy violation. Nonetheless, Gordon asserts that because the trial court charged the jury the language of the trafficking statute at his 1997 trial, to wit, that a person who "aids, abets, attempts or conspires to sell, manufacture, deliver, purchase, or bring [crack cocaine] into this State ... [is guilty of trafficking]," that his 2001 prosecution was prohibited. We disagree.⁷

Gordon's basic contention is that, because the word "conspires" was included in the judge's charge covering the trafficking statute, § 44-53-375(C), his 1997 trial was essentially rendered a "conspiracy" trial. We disagree. As noted previously, Gordon was not indicted for conspiracy, and the jury was not charged on the law of conspiracy at the 1997 trial. Simply because the trial court instructed the jury the language of the trafficking statute did not thereby transform his trafficking trial into one for conspiracy. As noted previously, a substantive crime and a conspiracy to commit that crime are not the "same offense" for double jeopardy purposes, and a defendant may be separately indicted for both offenses. United States v. Felix, supra; see also State v. Wilson,

311 S.C. 382, 391, 429 S.E.2d 453, 458 (1993) (Toal, J. concurring, and noting that conspiracy "is a completely separate offense from the substantive offenses which are the objects of the conspiracy."). Accordingly, even if we accept Gordon's contention that he was tried for conspiracy in 2001, there is no double jeopardy violation since he was properly tried and convicted of the substantive offense of trafficking in 1997. The circuit court properly ruled there were two separate and distinct offenses.

2. CONTINUOUS COURSE OF CONDUCT

Gordon asserts the trial court properly refused to impose a sentence of LWOP pursuant to the recidivist statute, S.C.Code Ann. § 17-25-45 (a/k/a the...