State v. Harris, 25535.

• Decision Date: 14 October 2002
• Docket Number: No. 25535.,25535.
• Citation: 351 S.C. 643,572 S.E.2d 267
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Johnny Harold HARRIS, a/k/a Johnny Harold Miller, Petitioner.

351 S.C. 643

572 S.E.2d 267

The STATE, Respondent, v. Johnny Harold HARRIS, a/k/a Johnny Harold Miller, Petitioner.

No. 25535.

Supreme Court of South Carolina.

Heard June 11, 2002.

Decided October 14, 2002.

Rehearing Denied December 3, 2002.

Jack B. Swerling, of Columbia, for petitioner.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, State Grand Jury Chief Robert E. Bogan, and Assistant Attorney General Tracey Colton Green, all of Columbia, for respondent.

Justice WALLER:

We granted a writ of certiorari to review the Court of Appeals' opinion in State v. Miller, 342 S.C. 191, 535 S.E.2d 652 (Ct.App.2000).¹ We affirm in result.

FACTS

This case arose out of a single State Grand Jury (SGJ) prosecution involving numerous co-defendants. Essentially, the state's case involved a conspiracy to traffic cocaine in the upstate between 1990-1996. Each time police made an arrest, they would seek cooperation from the arrestee and arrange controlled buys from other members of the conspiracy. The state alleged that Jose Castineira was the head supplier, who supplied large amounts of cocaine to O'Bryant (O.B.) Harris who in turn supplied to other distributors, including petitioner Miller,² and a distributor named Todd Brank. Brank sold to Timothy Hammitt. Ultimately, the SGJ indicted twenty-six defendants, eighteen of whom pled guilty; the remaining eight, including Timothy Hammitt, Jose Castineira and Miller, were tried together in April-May 1997. Miller was convicted of conspiracy to traffic in 400 grams of cocaine and sentenced to twenty-five years imprisonment.

ISSUES

1. Was Miller properly sentenced for trafficking pursuant to S.C.Code Ann. § 44-53-370(e)(2)(e)(2002)?

2. Was Miller's conspiracy conviction prohibited by virtue of his 1991 plea to conspiracy under a federal indictment?

3. Did the court err in denying Miller's motion for a severance?

4. Did the court err in denying Miller's motion for a directed verdict?

1. MAXIMUM SENTENCE FOR CONSPIRACY

Pursuant to S.C.Code Ann. § 44-53-370(e)(2)(e)(2002),

(e) Any person who knowingly sells, manufactures, cultivates, delivers, purchases, or brings into this State, or who provides financial assistance or otherwise aids, abets, attempts, or conspires to sell, manufacture, cultivate, deliver, purchase, or bring into this State, or who is knowingly in actual or constructive possession or who knowingly attempts to become in actual or constructive possession of:

(2) ten grams or more of cocaine or any mixtures containing cocaine, as provided in Section 44-53-210(b)(4), is guilty of a felony which is known as "trafficking in cocaine" and, upon conviction, must be punished as follows if the quantity involved is:

(e) four hundred grams or more, a term of imprisonment of not less than twenty-five years nor more than thirty years with a mandatory minimum term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of two hundred thousand dollars. . . .

(Emphasis supplied). The statute goes on to state that, "[n]otwithstanding Section 44-53-420, a person convicted of conspiracy pursuant to this subsection must be sentenced as provided in this section with a full sentence or punishment and not one-half of the sentence or punishment prescribed for the offense." (Emphasis supplied).

Petitioner cites S.C.Code Ann. § 44-53-420 (2002), contending his punishment should not have exceeded one-half of that for trafficking in excess of 400 grams of cocaine (i.e., one-half of thirty years). Section 44-53-420 provides:

Any person who attempts or conspires to commit any offense made unlawful by the provisions of this article shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned or attempted; but such fine or imprisonment shall not exceed one half of the punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

The Court of Appeals held in Castineira, supra, that section 44-53-420 did not apply; it found the language of section 44-53-370(e), under which the defendant was indicted, incorporates conspiracy within the substantive offense. 341 S.C. at 625-26, 535 S.E.2d at 452-53. We agree. Clearly, the plain and unambiguous language of section 44-53-370(e) reflects a legislative intent that those guilty of conspiring to traffic drugs thereunder are subject to the full sentence for the offense, rather than the one-half sentence provided in section 44-53-420.

Recently, in Harris v. State, 349 S.C. 46, 48, 562 S.E.2d 311, 312 (2002), this Court noted that "as defined in [section 44-53-370(e)(2)], there is no distinction between conspiracy to traffick and the substantive offense of trafficking. . . . The legislature clearly intended that conspiracy to traffic be treated as trafficking under § 44-53-370(e)."

Petitioner asserts there is a difference between "trafficking by conspiracy" and a "conspiracy to traffic." Essentially, he claims one may be guilty of the substantive offense of "trafficking by conspiracy" only if that person conspires to sell, manufacture, deliver or bring into the state more than 10 grams of cocaine. Any other conspiracy to violate the trafficking statute, he contends, is "conspiracy to traffic" which is exempted by section 44-53-420.³ This contention is untenable. Contrary to petitioner's contention, the Harris court specifically found that the legislature intended conspiracy to traffic be treated as trafficking. Petitioner's attempt to circumvent this result with a distinction between a substantive offense of "trafficking by conspiracy" and "conspiracy to traffic" is unavailing.⁴ Accordingly, Miller's twenty-five year sentence is affirmed.

2. MILLER'S FEDERAL CONSPIRACY ARREST

On May 16, 1991, Miller was arrested by federal authorities in conjunction with a cocaine transaction which occurred between May 7, 1991 and May 16, 1991. A three-count indictment was issued charging Miller and one James Nesbitt with conspiracy to distribute two kilos of cocaine, distribution of two kilos of cocaine, and possession with intent to distribute eight ounces of cocaine. No other conspirators were named in the federal indictment; the indictment did state, however, that Miller and Nesbitt conspired "with various other persons both known and unknown." Miller agreed to plead guilty to one count upon the government's agreement to move to dismiss the other two counts.⁵ Accordingly, on September 6, 1991, Miller pled guilty to conspiracy to possess with intent to distribute cocaine. However, he remained out of jail for nearly two years (until May 1993), when he was sentenced to sixty months in prison by a federal judge.

In August 1993, the SGJ began an undercover investigation (dubbed Operation Cue Ball) by making undercover drug buys from an individual named Michael Greer. Greer gave police information which led to the arrest of James Smith a/k/a Smitty, who in turn implicated James Hattaway, who then implicated Todd Brank, who set up controlled buys from Jerome "Babe" Harris, who is Miller's half-brother. Brank, who implicated Miller, testified that Miller had been his cocaine supplier until Miller went to prison in May 1993. Miller admitted his participation but maintained that his involvement in the conspiracy had ended with his federal arrest. Contrary to Miller's testimony, however, O.B. Harris testified he continued to supply Miller with cocaine from the time of his 1991 arrest until his 1993 incarceration, and had even had continued drug dealings with Miller while Miller was in jail. Brank testified he had purchased approximately 3 kilos of cocaine from Miller between 1991-1993.

Miller was indicted by the SGJ on October 8, 1996, for conspiring to traffic 400 grams of cocaine between 1991-1996. He moved to dismiss the SGJ indictment on the ground that there had been but one conspiracy, to which he had already pled guilty in conjunction with his 1991 federal drug arrest, such that the state prosecution was prohibited by S.C.Code Ann. § 44-53-410 (2002) and the Double Jeopardy clauses.⁶ The trial court ruled Miller's involvement in the conspiracy ended on the date of his arrest on May 16, 1991, and instructed the jury that in order to convict Miller, it would have to find he conspired after that date. The Court of Appeals agreed finding, as a matter of law, that Miller's involvement in the conspiracy ended with his arrest and conviction. 342 S.C. at 199, 535 S.E.2d at 656.⁷ Accordingly, it found his continued participation thereafter constituted a new act for which he could be prosecuted. We agree.

S.C.Code Ann. § 44-53-410 (2002) states, "If a violation of this article is a violation of a Federal law or the law of another state, the conviction or acquittal under Federal law or the law of another state for the same act is a bar to prosecution in this State." (Emphasis supplied). Accordingly, the issue before us is whether Miller's arrest effectually ended his participation in the initial conspiracy, such that his "re-entry" or continued participation thereafter constitutes a separate act, or a new "agreement" for which he was properly prosecuted.⁸ Under several authorities, we find that it is.

In United States v. Asher, 96 F.3d 270 (7th Cir.1996), cert. denied, 519 U.S. 1100, 117 S.Ct. 786, 136 L.Ed.2d 729 (1997), the Seventh Circuit held a conspirator's re-entry into the same conspiracy for which he was previously convicted can lead to a second prosecution for conspiracy without violating the Double Jeopardy Clause. 96 F.3d at 273-74. Asher pled guilty to an automobile theft conspiracy. He served a term of imprisonment and upon release immediately became involved in the same conspiracy. He was again charged with conspiracy and raised a double jeopardy claim. The Seventh Circuit upheld the second prosecution finding Asher entered into a new agreement to commit a crime when he decided to rejoin the...