State v. Harris

• Citation: 342 S.C. 191,535 S.E.2d 652
• Decision Date: 17 July 2000
• Docket Number: No. 3218.,3218.
• Parties: The STATE, Respondent, v. Johnny Harold HARRIS, a/k/a Johnny Harold Miller, Appellant.
• Court: Court of Appeals of South Carolina

342 S.C. 191

535 S.E.2d 652

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

No. 3218.

Court of Appeals of South Carolina.

Heard December 9, 1999.

Decided July 17, 2000.

Rehearing Denied September 30, 2000.

Jack B. Swerling, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Jonathan E. Ozmint and Assistant Attorney Generals Anne Hunter Young and John P. Riordan, all of State Grand Jury, for respondent.

HOWARD, Judge:

In this State Grand Jury prosecution, Johnny Harold Harris, a/k/a/ Johnny Harold Miller (Miller) appeals his conviction and sentence for conspiracy to traffic in 400 or more grams of cocaine in violation of S.C.Code Ann. § 44-53-370(e)(2)(e) (Supp.1999). On appeal, Miller asserts his prosecution for conspiracy violates S.C.Code Ann. § 44-53-410 (1985), which bars prosecution for the same act if it has previously led to conviction or acquittal under federal law or the law of another state. Similarly, Miller argues his conviction violates the Double Jeopardy Clause.¹ Miller also contends the trial court erred in denying a severance, denying his motion for a directed verdict, and sentencing him to an illegal, excessive sentence. We affirm.

FACTS/PROCEDURAL HISTORY

On October 8, 1996, Miller and twenty-five co-defendants were indicted by the State Grand Jury (SGJ) for conspiring to traffic in at least 400 grams of cocaine between 1990 and 1996 following an investigation spanning over two years. The conspiracy was headed by Jose Castineira, who supplied large quantities of cocaine to O'Bryant (O.B.) Harris. O.B., in turn, distributed smaller quantities of the same cocaine to other distributors, including Miller.

In a separate federal investigation, Miller was arrested for conspiring to possess with intent to distribute cocaine in May 1991 (the 1991 conspiracy). On May 28, 1991, Miller and one co-defendant were indicted by the Federal Grand Jury for the District of South Carolina for conspiring with persons both "known and unknown" to distribute approximately two kilograms of cocaine between the dates of "at least" May 7, 1991 and May 16, 1991.² The federal charge stemmed from a controlled purchase of two kilograms of cocaine from Miller during the federal investigation. The government also seized $187,000 in cash from Miller's home in addition to the cocaine.

Miller's source for the two kilograms of cocaine seized in the federal arrest was O.B. The $187,000 seized in the search of Miller's house following his arrest was stored for O.B., but belonged to O.B.'s supplier, Castineira. Miller provided O.B. with a copy of his federal arrest warrant so that O.B. could explain the seizure of the cocaine and the loss of the $187,000 to Castineira.

Miller pled guilty to violating 21 U.S.C. § 846, the conspiracy count of the federal indictment, on September 6, 1991. Miller remained out of jail for almost two years pending sentencing. On May 28, 1993, he was sentenced to 60 months for that offense. Miller was then incarcerated until the date of his trial in this case. According to Miller, he cooperated with federal law enforcement officials after his arrest, including naming O.B. as his supplier and Todd Brank as his distributor. O.B. and Brank were not arrested or prosecuted in connection with that investigation.

Both O.B. and Brank were arrested in the following SGJ investigation, and became cooperating witnesses for the State against Miller in his trial. O.B. testified that he continued to supply Miller with cocaine after his 1991 conviction until he was incarcerated on the federal charge in 1993. Brank testified he continued to purchase cocaine from Miller until Miller was incarcerated in 1993, purchasing approximately 3 kilograms between 1991 and 1993.

Miller moved to dismiss the 1996 SGJ Indictment based upon S.C.Code Ann. § 44-53-410 (1985), which bars prosecution for the same act if it has previously led to conviction or acquittal under federal law or the law of another state. Concomitantly, Miller moved to dismiss the indictment on the grounds that it violated the Fifth Amendment's Double Jeopardy Clause. Miller also moved for severance in the event the court denied his motion to dismiss.

The trial judge ruled that Miller's plea of guilty to the federal indictment ended his original involvement in the conspiracy. Consequently, assuming it was the same conspiracy, his "re-entry" was a separate act for which he could be prosecuted. The trial judge also denied the motion to sever, but instructed the jury that Miller's guilty plea ended his original involvement in the conspiracy, and he could not be found guilty based upon any activity prior to May 16, 1991.

ISSUES

I. Whether Miller's prosecution was barred under S.C.Code Ann. § 44-53-410 (1985), which prohibits prosecution for the same act if it has previously led to conviction or acquittal under federal law or the law of another state; and whether the prosecution was barred by Double Jeopardy?

II. Whether the trial judge erred in denying Miller's motion for severance and for allowing evidence of prior bad acts, including Miller's own statement?

III. Whether the trial judge erred in denying Miller's motion for directed verdict?

IV. Whether the trial judge exceeded the maximum allowable sentence by sentencing Miller to 25 years in prison?

LAW/ANALYSIS

I. DOUBLE JEOPARDY

The first two issues raised by Miller are closely intertwined and resolved under the same factual analysis. We therefore treat them together.

Section 44-53-410 reads as follows:

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.

S.C.Code Ann. § 44-53-410 (1985).

The plain wording of this section prohibits a prosecution under Article 3 of Chapter 53 in South Carolina for the same act which has been the source of a conviction or acquittal in another state or federal court. The prohibition against double jeopardy protects against prosecution for the same offense after acquittal or conviction and against multiple punishments for the same offense. See United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The threshold inquiry as to each in this case is whether the same act is involved in the federal conviction and the state conviction.

The gravamen or gist of the offense of conspiracy is the agreement. State v. Dasher, 278 S.C. 454, 298 S.E.2d 215 (1982). "Generally, the agreement, which is the essence of the conspiracy, is proven by various overt acts committed in furtherance of the conspiracy." State v. Amerson, 311 S.C. 316, 319, 428 S.E.2d 871, 873 (1993). "Therefore, a single conspiracy may be established by completely different aggregations of proof so that there appears to be several conspiracies." Id. (citing United States v. Ragins, 840 F.2d 1184 (4th Cir.1988)). A multi-pronged "totality of the circumstances" test is applied to determine whether there were two conspiracies or merely one. Id.

The factors considered are (1) the time periods covered by the alleged conspiracies; (2) the places where the conspiracies are alleged to have occurred; (3) the persons charged as conspirators; (4) the overt acts alleged to have been committed in furtherance of the conspiracies, or any other descriptions of the offenses charged which indicate the nature and scope of the activities being prosecuted; and (5) the substantive statutes alleged to have been violated.

Id. at 319-320, 428 S.E.2d at 873.

Miller contends that prosecution for any continued participation by him in the conspiracy after his plea of guilty to the federal conspiracy indictment is prohibited under both section 44-53-410 and the Double Jeopardy Clause. We disagree. Applying the five-factor analysis, we conclude the prosecution of Miller for the 1996 conspiracy does not violate either the Double Jeopardy Clause or section 44-53-410.

Miller entered a plea of guilty to the conspiracy on September 6, 1991. He thereafter cooperated with federal investigators by naming O.B. Harris as his supplier and Todd Brank as his distributor. Although the gravamen of the offense of conspiracy is the agreement, it is the individual participation of the actor by agreeing which subjects him to criminal liability as a co-conspirator. State v. Gunn, 313 S.C. 124, 134, 437 S.E.2d 75, 81 (1993) ("[G]uilt ... remains individual and personal ... and is not a matter of mass application.") (citation omitted), cert. denied, 510 U.S. 1115, 114 S.Ct. 1063, 127 L.Ed.2d 383 (1994).

Our state has not decided this exact issue, but we find authority from other jurisdictions which is persuasive. 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 Court of Appeals held that a convicted conspirator could be prosecuted for continued participation in the same conspiracy after his original conviction and sentence for conspiracy without violating the Double Jeopardy Clause. Applying the same five-factor analysis adopted by our state in Amerson, the court noted that Asher's re-entry into the same conspiracy constituted a new act for which he could be prosecuted. Likewise, in United States v. Dunn, 775 F.2d 604 (5th Cir.1985), the Fifth Circuit grounded its decision on "basic conspiracy law," noting: "It is well settled that a person's participation in a conspiracy ends when that person is arrested for his role in the conspiracy." Id. at 607. Consequently, notwithstanding the defendant's uninterrupted association with a continuing criminal conspiracy, as a matter of law his arrest ended his involvement with that criminal operation. Id. ("[F]urther participation in an `old' conspiracy after being charged with that crime becomes a new offense for purposes of a double jeopardy claim.") (quoting United States v....