State v. Gunn

• Decision Date: 11 March 1993
• Docket Number: No. 23931,23931
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Edward Lee GUNN, Sr., Evelyn Gunn, Harold Glenn Moss, Robert Earl Childers, Ronald Clayton Carpenter, Hazel Ruby Carpenter, Edward Joe Smith, Kenneth Lee Smith, James Clifford Smith and Olin Dewitt Thompson, Appellants. . Heard

Page 75

437 S.E.2d 75

313 S.C. 124

The STATE, Respondent, v. Edward Lee GUNN, Sr., Evelyn Gunn, Harold Glenn Moss, Robert Earl Childers, Ronald Clayton Carpenter, Hazel Ruby Carpenter, Edward Joe Smith, Kenneth Lee Smith, James Clifford Smith and Olin Dewitt Thompson, Appellants.

No. 23931.

Supreme Court of South Carolina.

Heard March 11, 1993.

Filed Aug. 30, 1993.

Refiled Sept. 23, 1993.

Dallas D. Ball, Pickens, for appellants Edward Lee Gunn, Sr., and Evelyn Gunn.

Chief Appellate Defender Daniel T. Stacey, and Chief Deputy Appellate Defender Joseph L. Savitz, III, both of S.C. Office of Appellate Defense, Columbia, for appellant Harold Glenn Moss.

Melvin L. Roberts, York, for appellant Robert Earl Childers.

F. Patrick Hubbard, Columbia; and Keith A. Gatlin, Rock Hill, for appellants Ronald Clayton Carpenter, Hazel Ruby Carpenter, Edward Joe Smith, Kenneth Lee Smith and James Clifford Smith.

Randall M. Chastain, Columbia, and Edward E. Saleeby, Jr., Hartsville, for appellant Olin Dewitt Thompson.

Atty. Gen. T. Travis Medlock, Chief Deputy Attys. Gen. Cameron M. Currie and Donald J. Zelenka, Asst. Atty. Gen. Tracy A. Meyers, Columbia, for respondent.

CHANDLER, Justice:

This is a State Grand Jury conspiracy case involving the drug Dilaudid. ¹ Count one of the thirty count indictment alleged thirty-three named defendants conspired with others to traffic in Dilaudid in York and Cherokee Counties between 1982 and 1989, while counts two-thirty alleged substantive trafficking offenses. Thirteen of the thirty-three conspiracy defendants went to trial; ten were convicted. This appeal consolidates the appeals of those ten individuals. In addition, appellant Lee Gunn was convicted of sixteen counts of trafficking Dilaudid and appellant Harold Moss was convicted on five substantive counts. The issues on appeal are the sufficiency of the conspiracy indictment, the sufficiency of the evidence on that charge, the sufficiency of jurisdictional allegations in the substantive trafficking counts, the trial court's refusal to allow the impeachment of a prosecuting witness, and the trial court's refusal of a jurisdictional jury charge. We vacate Gunn's and Moss's substantive convictions for lack of jurisdiction, but affirm their conspiracy convictions as well as those of appellants Evelyn Gunn and Earl Childers. The conspiracy convictions of the remaining six appellants are reversed for insufficient evidence. ²

A. Sufficiency of Conspiracy Count

The State chose to indict thirty-three individuals for a conspiracy alleged to have spanned more than seven years. The indictment itself gives no indication of the State's theory or any specifics involved in the conspiracy but instead simply incorporates the language of the trafficking statute in most of its many permutations:

Count One--Conspiracy

(Trafficking in Illegal Drugs--Dilaudid) S.C.Code Ann. Section 44-53-370(e)(3)(c)

That Lee Edward Gunn, Evelyn S. Gunn, Olin DeWitt Thompson a/k/a "Big O", Bruce Walter Hodges, Robert Francis Leggeri a/k/a "Otis", Olin Daniel Martin, Charles E. Martin a/k/a "Charlie", Lee Edward Gunn Jr. a/k/a "Junior", Harold Glenn Moss, Barbara Roxanne Gregory, Robert Earl Childers a/k/a "Sherman", James Clifford Smith, Joe Billy Barrett a/k/a "Bill", a/k/a James David Goodman, Sandra Mayo Mason a/k/a "Sandy", Rodney R. Wagenknecht a/k/a "Possum", Wade Hampton Bright, Jr., Patricia Suzanne Wiley La Barbera, Joseph R. La Barbera, Willie Mae Gregory a/k/a "Billie", Sabrina Rochelle Gregory, Cindy Deese Faile, Christopher Lynn Hunsucker a/k/a "Chris", Betty Sapp Hinson, Melanie Diane Griffin, Melody Dawn Pelzer, Bobby Wade Collins, Frank Soda, Jr., Robert Preston Algeo a/k/a "Bob", Ronald Clayton Carpenter, Hazel Ruby Carpenter, Edward Joe Smith, Kenneth Lee Smith and Timothy Lee Millwood did in Cherokee and York counties, from on or about early 1982 up to and including the date of this indictment, knowingly, unlawfully and willfully conspire, confederate, agree and have tacit understanding with each other and/or other persons, whose names are both known and unknown to the State Grand Jurors, for the purpose of selling, delivering, or bringing into this State in Cherokee and York counties, or providing financial assistance or otherwise aiding and abetting the sale, delivery or bringing into this State in Cherokee and York counties, or the knowing actual or constructive possession in Cherokee and York counties of more than 28 grams of Dilaudid, a narcotic, a derivative of morphine, which is a controlled substance under provisions of Section 44-53-210, Code of Laws of South Carolina (1976), as amended, such conduct not having been authorized by law.

The first issue we address is appellants' contention that this count of the indictment is so vague and overbroad that the trial court should have granted their motion to quash. We disagree.

"It is not necessary to detail the evidence of the conspiracy in the indictment nor to recite the facts connecting all the accused with one another in the web of the conspiracy, nor to describe the conspiracy with the same degree of particularity required in describing a substantive offense." State v. McIntire, 221 S.C. 504, 71 S.E.2d 410 (1952). A review of other conspiracy indictments challenged for overbreadth or vagueness shows, however, that those indictments contained more specific allegations than the general indictment here. See, e.g., State v. Sweat, 276 S.C. 448, 279 S.E.2d 375 (1981); State v. Fleming, 243 S.C. 265, 133 S.E.2d 800 (1963); State v. McIntire, supra; and State v. Hightower, 221 S.C. 91, 69 S.E.2d 363 (1952). It is questionable whether this indictment on its face sufficiently apprised the appellants of the charges against them.

It is well settled, however, that in viewing the sufficiency of an indictment we must look at the issue with a practical eye in view of the surrounding circumstances. State v. Adams, 277 S.C. 115, 283 S.E.2d 582 (1981). This indictment was returned by the State Grand Jury. Under its specialized procedure, a defendant is permitted to review, and to reproduce, the transcript of the testimony of the witnesses who appeared before the Grand Jury. S.C.Code Ann. § 14-7-1700 (Supp.1992). In light of the availability of this evidence to these appellants, we hold that this count of the indictment is not fatally vague or overbroad.

B. Sufficiency of Substantive Offense Allegations

Appellant Lee Gunn was convicted of sixteen substantive Dilaudid trafficking offenses and appellant Moss of five counts. The counts alleging these crimes do not contain any allegation that the crimes either transpired in more than one county or had impact in more than one county. Accordingly, these counts do not sufficiently allege jurisdiction. State v. Wilson, Op. No. 23910 --- S.C. ----, 433 S.E.2d 864 (1993). These convictions and sentences are vacated. ³

C. Sufficiency of Conspiracy Evidence

Count One alleges a single conspiracy among at least thirty-three individuals to traffic in Dilaudid in York and Cherokee Counties. Under our view of the evidence , the State proved multiple conspiracies, only one of which ("The Gunn Conspiracy") was alleged in the indictment. Accordingly, we hold there was sufficient evidence to submit to the jury the conspiracy charges of those involved in the Gunn Conspiracy. We reverse the convictions of those who are not co-conspirators in that crime, holding they were entitled to directed verdicts of acquittal. A review of the evidence and the law relevant to conspiracy is necessary to explain our conclusion.

The evidence showed that defendant Bobby Wade Collins, ⁴ a York County resident, was a major Dilaudid distributor in the Rock Hill-Charlotte area between 1982 and 1985. Collins purchased Dilaudid in Detroit and Florida, and sold it to defendant Joe Billy Barrett, a large scale dealer in Charlotte, and to appellant Ken Smith in York County, and to appellant Ed Smith in North Carolina. During this period Collins's girlfriend was defendant Roxanne Gregory (Roxanne), a Dilaudid addict. There is no evidence connecting Collins to the Gunn Conspiracy.

Defendant Cindy Deese Faile (Cindy) was addicted to Dilaudid in 1980. Cindy and defendant Chris Hunsucker (Chris) were members of a Rock Hill group who produced counterfeit drugs and sold them at rock concerts up and down the East Coast. In 1985 Chris and Cindy met a Dilaudid dealer at a Philadelphia concert. Cindy testified she was romantically involved with appellant Moss at this time. Later, in 1986, she introduced Moss and his friend, appellant Lee Gunn, to the Philadelphia connection. She made several trips to Philadelphia with Lee Gunn and Moss to purchase Dilaudids; her payment was always several pills. Eventually, Cindy was "cut out" of the Philadelphia deal.

Lee Gunn and Harold Moss made a connection with Randy Klinger, the supplier for their original Philadelphia Dilaudid source. Moss was living then with Roxanne, Collins's former girlfriend. Roxanne testified that she made trips to Philadelphia and Florida with Lee Gunn and Moss to purchase large quantities of Dilaudids for distribution in North and South Carolina during 1986 and 1987. Moss and Lee Gunn ceased their association in 1987 or 1988 when Moss learned Lee Gunn was making trips to Philadelphia behind his back. The evidence showed that appellant Earl Childers was a Dilaudid distributor for Lee Gunn, and that Lee's wife Evelyn was actively involved in the Gunn Conspiracy.

After Moss and Lee Gunn ceased doing business together in 1987 or 1988, each continued separately to import Dilaudid from Philadelphia for distribution and sale in North and South Carolina. During this period Bob and Martha Durbin made most of the trips to Philadelphia for Lee Gunn, while Moss, Roxanne, and members of her family transported the drug for Moss.

There is evidence in the record to support a finding that appellant Cliff Smith was a large scale Dilaudid dealer...