State v. James, 2438

• Decision Date: 19 December 1996
• Docket Number: No. 2438,2438
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Elwaldo Ronaldo JAMES a/k/a Donald Mitchell, Appellant.

Page 38

472 S.E.2d 38

The STATE, Respondent, v. Elwaldo Ronaldo JAMES a/k/a Donald Mitchell, Appellant.

No. 2438.

Court of Appeals of South Carolina.

Submitted April 22, 1996.

Decided April 22, 1996.

Rehearing Denied June 21, 1996.

Certiorari Denied Dec. 19, 1996.

Assistant Appellate Defender Robert M. Pachak of the South Carolina Office of Appellate Defense of Columbia, for appellant.

Attorney General Charles Molony Condon, Chief Deputy Attorney General Charles W. Gambrell, Jr., and Assistant Attorney General Chris Gantt Hoffman, Columbia, for respondent.

ORDER

PER CURIAM:

After a careful consideration of the State's petition for rehearing, the same is granted but without oral argument. It is ordered that the opinion heretofore filed, Opinion No. 2438, filed December 28, 1995, is withdrawn and the attached opinion is substituted.

It Is So Ordered.

/s/ Jasper M. Cureton, J.

/s/ C. Tolbert Goolsby, Jr., J.

/s/ Kaye G. Hearn, J.

CURETON, Judge:

Appellant, Elwaldo Ronaldo James, a/k/a Donald Mitchell, a/k/a Kojak, was indicted along with several others by the State Grand Jury for conspiracy to traffick in 100 grams or more of crack cocaine in the counties of York, Union, and Chester and the State of North Carolina from on or about January 1989 until December 1992 in violation of S.C.Code Ann. § 44-53-375(C) (Supp.1995). James and eight co-defendants were tried jointly. ¹ The trial judge directed verdicts of

acquittal as to seven of the co-defendants; the jury convicted James and Frank Feemster. James raises two issues on appeal. First, he argues the trial court erred in refusing to quash the indictment and superseding indictment because they were returned by grand jurors who were paid by checks issued from the Attorney General's office. He next claims he was entitled to a directed verdict on the conspiracy charge because the State presented no evidence he was part of a multi-county trafficking conspiracy during the time alleged in the indictment. We affirm.

I.

James first contends the trial court erred in refusing to quash the indictment because the grand jurors who returned the indictments were paid by checks issued from the State Attorney General's office. James argues this procedure "violates the public policy of maintaining the secret and non-adversarial nature of grand jury proceedings." We find no reversible error.

In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), the United States Supreme Court declared that an indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for trial the charge on the merits. An indictment is adequate and valid on its face if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, the defendant to know what he is called upon to answer, and acquittal or conviction to be placed in bar to any subsequent prosecution. See State v. McIntire, 221 S.C. 504, 71 S.E.2d 410 (1952) (an indictment is valid on its face if it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet); see also State v. Garrett, 305 S.C. 203, 406 S.E.2d 910 (Ct.App.1991). The indictment in this case is valid on its face because it contains all the necessary elements of the offenses intended to be charged, states the date of the offenses, and the name of the accused.

James does not argue the indictment was insufficient on its face. Rather, he claims irregularity in the proceedings by which the indictment was procured. Specifically, he claims the grand jurors were biased in favor of the State because they were on the Attorney General's payroll. Absent evidence to the contrary, however, the regularity and legality of proceedings before a grand jury is presumed. Cf. Weathers v. State, 319 S.C. 59, 459 S.E.2d 838 (1995) (regularity of proceedings in general sessions court is presumed); see also State v. Thompson, 305 S.C. 496, 409 S.E.2d 420 (Ct.App.1991) (proceedings before the Grand Jury are presumed to be regular unless there is clear evidence to the contrary). Thus, if the record does not reveal any irregularity in the proceedings affecting the indictment, this court must presume the trial court had subject matter jurisdiction.

James presents no evidence, much less any clear evidence, supporting his claim that the proceedings before the State Grand Jury were irregular or tainted, or that the grand jurors issuing the indictment were biased in favor of the State because their checks were issued through the Attorney General's office. James's assertion, standing alone, is not sufficient to overcome the presumption of regularity and legality attending the proceedings before the Grand Jury, and simply based on that assertion, we cannot assume the State abused the grand jury process in order to obtain a finding of probable cause to prosecute. "Speculation about 'potential' abuse of grand jury proceedings cannot substitute for evidence of actual abuse as grounds for quashing an otherwise lawful indictment." Thompson, 305 S.C. at 502, 409 S.E.2d at 424.

Moreover, among the statutes promulgating the State Grand Jury, S.C.Code Ann. § 14-7-1660 (Supp.1995) provides that "[j]urors of a state grand jury shall receive a daily subsistence expense...." and S.C.Code

                Ann. § 14-7-1780 (Supp.1995) provides that "[t]he other costs associated with the state grand jury system, including juror per diem, mileage, and subsistence must be paid from funds appropriated to the Attorney General's office for this purpose by the General Assembly in the annual general appropriations act."   Thus, section 14-7-1780 specifically states that the state grand jurors must be paid from sums appropriated to the Attorney General's office.  The State simply issued the checks in the manner prescribed by the Legislature.  Furthermore, the grand jurors' subsistence checks were delivered to them by the Clerk of the Grand Jury, not by any of the prosecutors or their staff.  Accordingly, there was no error in the trial court's refusal to quash the indictment and dismiss the case for lack of subject matter jurisdiction. 2
                

II.

James next argues the trial court erred in refusing to grant him a directed verdict on the charge of conspiracy to traffick in crack cocaine because the State failed to present any substantial evidence beyond a reasonable doubt that he was part of an agreement with a shared criminal objective to traffick in crack cocaine in York, Union, and Chester counties during the period alleged in the indictment. For the reasons discussed below, we find no error in the trial court's refusal to grant a directed verdict.

In ruling on a motion for a directed verdict, the trial court is concerned with the existence or non-existence of evidence, not its weight. State v. Bryant, 316 S.C. 216, 447 S.E.2d 852 (1994); State v. Morgan, 282 S.C. 409, 319 S.E.2d 335 (1984). The motion should be granted if the evidence merely raises a suspicion of the defendant's guilt, or is such to permit the jury to merely conjecture or speculate as to the accused's guilt. State v. Brown, 267 S.C. 311, 227 S.E.2d 674 (1976); State v. Barksdale, 311 S.C. 210, 428 S.E.2d 498 (Ct.App.1993). However, if the State presents any substantial evidence, either direct or circumstantial, which reasonably tends to prove the guilt of the defendant or from which the defendant's guilt may be fairly and logically deduced, the case must go to the jury. State v. Prince, 316 S.C. 57, 447 S.E.2d 177 (1993); State v. Poindexter, 314 S.C. 490, 431 S.E.2d 254 (1993). On appeal from the denial of a motion for directed verdict, this court must view the evidence in the light most favorable to the State. Prince, 316 S.C. 57, 447 S.E.2d 177; State v. Schrock, 283 S.C. 129, 322 S.E.2d 450 (1984).

This case originated out of the State Grand Jury. Pursuant to S.C.Code Ann. § 14-7-1630(A)(1) (Supp.1995), the subject matter jurisdiction of the State Grand Jury is limited to offenses and conspiracies to commit offenses which "are of a multi-county nature or have transpired or are transpiring or have significance in more than one county of this State." Recently, our Supreme Court has interpreted this jurisdictional mandate to require only that an otherwise valid indictment contain an allegation of multi-county significance in order to vest jurisdiction in the State Grand Jury. State v. Evans, --- S.C. ----, 470 S.E.2d 97 (1996). Moreover, the Evans court held that once jurisdiction vests in the State Grand Jury, the State need not prove multi-county impact at trial unless multi-county impact is actually an element of the offense charged. Id.

The indictment in this case alleged, among other things:

COUNT ONE

TRAFFICKING IN CRACK COCAINE

S.C.Code Ann. Section 44-53-375(C)

That ELWALDO RONALDO JAMES ... and other persons both known and unknown to the State Grand Jury, did in York, Union, and Chester counties and the State of North Carolina, from on or about January 1989 until December 1992, knowingly conspire to sell, manufacture, deliver, purchase, bring into this State, or provide financial assistance or did otherwise aid, abet, or attempt to sell manufacture, deliver purchase, or bring into this State one hundred grams or more of crack cocaine, a Schedule II controlled substance ... such conduct not having been authorized by law.

Hence, the indictment alleged multi-county significance, and charged James with two activities which amount to trafficking in crack cocaine under § 44-53-375(C): (1) conspiracy to sell, manufacture, deliver, purchase, or bring into this State more than one hundred grams of crack cocaine; and (2) providing financial assistance or otherwise aiding, abetting, or attempting to sell, manufacture, deliver, purchase, or bring into this State one hundred grams or more of crack cocaine. The State argued to the jury, however, that...