State v. Harrison
| Decision Date | 20 January 2021 |
| Docket Number | Appellate Case No. 2018-002128,Opinion No. 28005 |
| Citation | 432 S.C. 448,854 S.E.2d 468 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. James H. HARRISON, Appellant. |
Elizabeth Van Doren Gray, Robert E. Stepp, and Vordman Carlisle Traywick III, all of Robinson Gray Stepp & Laffitte, LLC, of Columbia for Appellant.
First Circuit Solicitor David M. Pascoe Jr., of Orangeburg, and Assistant Solicitor W. Baker Allen Jr., of St. George, both for Respondent.
Appellant James H. Harrison, a former state legislator, was convicted and sentenced to eighteen months’ imprisonment in a public corruption probe. The case was prosecuted by David Pascoe, Solicitor of the First Judicial Circuit, who was serving as the acting Attorney General. As recognized by this Court in Pascoe v. Wilson ,1 Solicitor Pascoe's authority to pursue the corruption probe was bestowed on him by South Carolina's current Attorney General, Alan Wilson. The extent of the power granted to Solicitor Pascoe lies at the heart of this appeal. Appellant contends Solicitor Pascoe's authority did not grant the solicitor the power to investigate or prosecute him (Appellant). Conversely, Solicitor Pascoe dismisses any suggestion that his authority was limited, for he contends he had the authority to prosecute public corruption wherever the investigation led. For the reasons we will explain, Solicitor Pascoe had the authority to prosecute Appellant for perjury, but did not have the authority to prosecute Appellant for misconduct in office. Consequently, we affirm Appellant's conviction and eighteen-month sentence for perjury, but reverse the statutory and common law misconduct in office charges and remand to the presiding judge of the State Grand Jury for further proceedings.
This is a difficult case, one that has resulted in a sharply divided Court. This is the lead opinion of the Court. With the Court's three separate writings in this case, there are:
Justice Hearn, joined by Chief Justice Beatty, would affirm all of Appellant's convictions, thus adopting Solicitor Pascoe's position that our decision in Pascoe granted him boundless authority to pursue and prosecute public corruption in South Carolina. Justice James would reverse and remand all of Appellant's convictions based on Solicitor Pascoe's clear lack of authority beyond that spelled out in Pascoe . Despite the fact that both separate writings are concurring dissents, we will refer to Justice Hearn's writing as the dissent and Justice James's writing as the concurrence, because Justice James's writing most closely resembles the lead opinion.2
The duly elected Attorney General for South Carolina is Alan Wilson. The South Carolina Attorney General is imbued by our state constitution with substantial authority over the prosecution of criminal cases. S.C. Const. art. V, § 24. To that end, the Attorney General has the constitutional duty to supervise all criminal prosecutions and ensure all laws be faithfully executed, as well as the statutory duty to direct the state solicitors, including the ability to assign solicitors to assist in matters outside of their respective judicial circuits. See, e.g. , S.C. Const. art. IV, § 15 ; S.C. Const. art. V, § 24 ; S.C. Code Ann. § 1-7-50 (2005) ; id. § 1-7-100(2) (2005); id. § 1-7-320 (2005); id. § 1-7-350 (2005); Ex parte McLeod , 272 S.C. 373, 377, 252 S.E.2d 126, 127 (1979).
David Pascoe is the duly elected Solicitor for South Carolina's First Judicial Circuit, which comprises Orangeburg, Calhoun, and Dorchester Counties. See S.C. Const. art. V, § 24 ). Section 1-7-350 of the South Carolina Code sets forth some of the duties of local solicitors:
The several solicitors of the State shall, within their respective circuits, in cooperation with, and as assigned by the Attorney General, represent in all matters, both civil and criminal, all institutions, departments, and agencies of the State. Likewise in criminal matters outside their circuits, and in extradition proceedings in other states, they shall be subject to the call of the Attorney General, who shall have the exclusive right, in his discretion, to assign them in case of the incapacity of the local solicitor or otherwise.
(Emphasis added).
As set forth in detail in our decision in Pascoe , Attorney General Wilson originally appointed Solicitor Pascoe to serve as the "designated prosecutor" in the investigation and prosecution of Robert Harrell, who, at the time of the solicitor's appointment, was under investigation for alleged crimes committed in his capacity as a legislator. 416 S.C. at 631, 788 S.E.2d at 688. A report generated by the South Carolina Law Enforcement Division (SLED) during the Harrell investigation contained the redacted names of two legislators who also were allegedly implicated in illegal conduct. Id. We now know those legislators to be James Merrill and Richard Quinn Jr. (Quinn Jr.). The SLED report additionally referenced and incorporated the businesses of the two redacted legislators because it appeared the businesses had been used by the two legislators in derogation of state law. For example, the investigation of Quinn Jr. necessarily included an investigation into businesses in which he allegedly had an interest, specifically, Richard Quinn & Associates (RQA), First Impressions, Mail Marketing Strategies, and the Copy Shop.
Solicitor Pascoe contacted Attorney General Wilson and indicated his belief that the redacted legislators should be investigated as part of "any corruption probe on the legislature." Id. In response, Attorney General Wilson emailed the Chief Deputy Attorney General, John McIntosh, stating he (Wilson) had a possible conflict of interest between "[him]self and members of the [H]ouse." Id. The Attorney General therefore asked McIntosh to "firewall" him from any involvement and "take over as supervising prosecutor." Id. at 631–32, 788 S.E.2d at 688.
Several months later, McIntosh emailed the Chief of SLED, asking that he forward the SLED report involving the redacted legislators to Solicitor Pascoe "for a prosecutive decision." Id. at 632, 788 S.E.2d at 688 (internal quotation marks omitted). The email further stated that the Attorney General had "recused th[e entire] office from the legislative members in the redacted portions of the SLED report" but had not recused the office from "any other matters." Id. (emphasis omitted).3
Eventually, following the SLED investigation, Solicitor Pascoe sought to impanel the State Grand Jury. Id. at 637, 788 S.E.2d at 691. Due to a deterioration of the relationship between Attorney General Wilson and Solicitor Pascoe, the Attorney General's Office opposed the solicitor's request, and, as a result, the Clerk of the State Grand Jury refused to swear-in the solicitor's staff. Id. at 638, 788 S.E.2d at 691–92. Solicitor Pascoe responded by filing a petition for declaratory relief with this Court. Id. at 639, 788 S.E.2d at 692. As part of Solicitor Pascoe's petition, he admitted that "the nature of the Attorney General's conflict [ ] [wa]s not known" at the time of the Court's decision.4
The Court accepted Attorney General Wilson's recusal and ruled accordingly, granting Solicitor Pascoe's requested relief and finding "Pascoe [ ] met his burden of proving by a preponderance of the evidence he was vested with the authority to act as the Attorney General in the redacted legislators matter, and that this authority necessarily included the power to initiate a state grand jury investigation." Id. at 640, 788 S.E.2d at 692. In its analysis, the Court referred repeatedly to the "redacted legislators matter" or the "redacted legislators investigation," using those phrases to define the scope of the recusal of the Attorney General's Office and Solicitor Pascoe's authority. See, e.g. , id. at 642–44 & nn. 15–16, 788 S.E.2d at 693–95 & nn.15–16 .
Id. at 647, 788 S.E.2d at 696 (internal citations omitted).
Subsequently, during the investigation into Quinn Jr., investigators learned RQA received significant retainer income from a number of lobbyist's principals and that RQA, in turn, made regular payments to legislators, including Appellant. Appellant testified about these payments before the State Grand Jury,5 and he concedes Solicitor Pascoe had the authority to require him to appear and testify before the grand jury for that purpose. It was Appellant's grand jury testimony that resulted in the perjury charge.
During Appellant's grand jury testimony, the focus of the questioning was on the dubious payments from RQA and, specifically, the work Appellant...
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