State v. Grandy, 23326

• Decision Date: 24 September 1990
• Docket Number: No. 23326,23326
• Citation: 306 S.C. 224,411 S.E.2d 207
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Harvey Lee GRANDY, Appellant. . Heard

Page 207

411 S.E.2d 207

306 S.C. 224

The STATE, Respondent, v. Harvey Lee GRANDY, Appellant.

No. 23326.

Supreme Court of South Carolina.

Heard Sept. 24, 1990.

Decided Feb. 4, 1991.

Rehearing Denied Dec. 16, 1991.

Asst. Appellate Defender Daniel T. Stacey, of South Carolina Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen., Harold M. Coombs, Jr., and Amie L. Clifford, Columbia, and Sol. Larry F. Grant, of York, for respondent.

FINNEY, Justice:

Appellant Harvey Lee Grandy was tried on December 12, 1988, and convicted of trafficking in cocaine. He was sentenced to twenty-five (25) years imprisonment and fined Two Hundred Thousand ($200,000) Dollars. We reverse and remand.

Appellant was arrested on July 10, 1988, and on July 27, 1988, the York County public defender was appointed to represent him. On October 24, 1988, appellant was indicted for trafficking in cocaine by possessing more than 400 grams of cocaine. Sometime between July and November, 1988, appellant allegedly secured private counsel, and the public defender was relieved.

At a pre-trial hearing on December 8, 1988, the trial court was apprised that a question existed as to the status of appellant's legal representation. The trial court reappointed the public defender pursuant to its finding that appellant had failed to secure private counsel after having ample time to do so.

On appeal, appellant alleges the trial court erred in failing to allow him a reasonable amount of time to complete financial negotiations with private counsel, instead appointing the public defender to represent appellant against his wishes. We disagree.

It is undisputed that appellant had from July to December to secure private counsel. We find that, under the circumstances, five months is a reasonable time in which to retain counsel. Moreover, appellant was not denied the assistance of counsel. The public defender was re-appointed after advising the trial court that she had conducted an investigation, handled the preliminary hearing and could represent the appellant if he would assist her. We conclude that appellant's exception is without merit.

Appellant asserts further that the trial court erred in refusing to charge lesser-included offenses, specifically possession with intent to distribute. We disagree.

Trafficking in cocaine is defined as the possession of ten grams or more of cocaine. S.C.Code Ann. § 44-53-370(e)(2) (Supp.1989). Possession with intent to distribute is defined as the possession of a controlled substance with intent to distribute it. S.C.Code Ann. § 44-53-370(a), (c), (d)(3) (1985). Following our recent case of Matthews v. State, 300 S.C. 238, 387 S.E.2d 258 (1990), possession with intent is a lesser included offense of trafficking in cocaine. In Matthews, we held that "when there is conflicting evidence as to whether the amount of marijuana involved is sufficient to invoke the trafficking statute, both charges should be submitted to the jury. Where, however, the undisputed evidence is that the amount involved exceeds the minimum trafficking amount, then only the trafficking charge should be submitted to the jury." Matthews, 300 S.C. at 241, 387 S.E.2d at 260.

We find no conflict with the evidence that the amount of cocaine in appellant's possession exceeded the quantity required to invoke the trafficking statute. Therefore, this Court holds that the trial court did not err by declining to charge the lesser included offense.

Finally, we address appellant's contention that the trial court erred when it held that the solicitor's explanation for striking venireperson Blake, who is black, was racially neutral and not a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The solicitor used a peremptory strike to exclude a black person from appellant's jury, thereby obtaining an all-white jury. Appellant's counsel moved that the solicitor be required to state a racially neutral explanation for his strike, alleging an all-white jury as forming the basis for a prima facie case. The record reveals that the solicitor's "neutral" reason for striking the prospective black juror was his desire to seat other venirepersons who had not yet been presented.

A...