State v. Sullivan, 21561

CourtUnited States State Supreme Court of South Carolina
Citation277 S.C. 35,282 S.E.2d 838
Decision Date14 September 1981
Docket NumberNo. 21561,21561
PartiesThe STATE, Respondent, v. Bryan O'Neal SULLIVAN, James Charles Dugan, John Ray Ethridge, Ralph Dennis Nichols, Arnold Gene Sims, Lawrence Phillip Lamovec, William Russell Jackson, David Gaither Cochran, Millard Eugene Waites, James Ronald Kelly, George Alexander Gedra, Kenneth Warren Davidson, James Thurmond Kincade, Steven Gerald Schone and Stan White, Defendants, of Whom James Charles Dugan, Ralph Dennis Nichols, William Russell Jackson, George Alexander Gedra, Steven Gerald Schone and Stan White, are Appellants.

Robert B. Wallace, Charleston, John L. Weaver, Florence, Robert L. Kilgo, Darlington, Charles Porter and Francenia B. Heizer, Columbia, and John C. Lindsay, Bennettsville, for appellants.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Kay G. Crowe, Lindy Pike Funkhouser, Buford S. Mabry, Scott A. Elliott and Vinton D. Lide, Columbia, and Sol. J. Dupre Miller, Bennettsville, for respondent.

NESS, Justice:

Appellants James Charles Dugan, Ralph Dennis Nichols, George Alexander Gedra and Steven Gerald Schone were convicted of possession of marijuana with intent to distribute and conspiracy to possess marijuana with intent to distribute; appellants William Russell Jackson and Stan White were convicted on the one count of conspiracy to possess marijuana with intent to distribute. We affirm in part and reverse in part.

This is an extremely complex conspiracy and marijuana possession case. The September 1979 trial generated over 2500 pages of testimony and the appellants have taken 224 exceptions of error.

Indictment # 79-GS-16-159 charges the conspiracy began on dates unknown, but including the period December 9, 1978 through and including January 17, 1979, alleging the appellants combined and conspired to possess and distribute marijuana in and around Darlington, South Carolina. Indictment # 79-GS-16-158 charged the appellants (Dugan, Nichols, Gedra and Schone) with possession of marijuana with intent to distribute on or about January 17, 1979.

The facts indicate an intricate scheme to illegally import marijuana into South Carolina from Colombia, South America. William B. Mozingo, a SLED agent, was contacted by John Etheridge and asked to join a highly sophisticated drug smuggling operation known as "The Company." From December 9, 1978 until January 17, 1979, Agent Mozingo played the role of a corrupt law enforcement officer, while he worked undercover to obtain information about the illicit drug operation. On January 17, 1979, Agent Mozingo and other law enforcement officers arrested the appellants at the Dovesville Airport. They also seized more than 1300 pounds of marijuana and the twin engine Cessna airplane, which brought the marijuana into South Carolina.

The appellants have raised 224 exceptions, which in essence request that we retry the case in toto. However, sixty-six of the exceptions were not argued in appellants' brief and are thereby abandoned. State v. Hiott, S.C., 276 S.E.2d 163, 170 (1981).

Appellants first assert the trial judge erred in admitting evidence of illicit drug operations in other states, other counties in South Carolina and evidence of alleged bribery of law enforcement officers. We disagree.

The appellants contend reversal is mandated by the decision in United States v. Vaught, 485 F.2d 320 (4th Cir. 1973), which held the introduction of evidence regarding activity occurring prior to the formation and existence of the conspiracy was fatally prejudicial. Here, Vaught is not applicable as the evidence of illegal drug operations and bribery falls within the scope of the conspiracy for which appellants were indicted.

Appellants next assert the trial judge erred in admitting hearsay statements of alleged co-conspirators before the conspiracy was proven. We disagree.

In the law of conspiracy, there is a well-recognized exception to the rule against hearsay which permits the statements of one conspirator made during the pendency of the conspiracy, admissible against a co-conspirator, once prima facie evidence of a conspiracy is proved. Thereafter, the acts and declarations of any conspirator made during the conspiracy and in furtherance thereof are deemed to be the acts and declarations of every other conspirator and are admissible against all. State v. Ferguson, et al., 221 S.C. 300, 70 S.E.2d 355 (1952).

In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the declarations of one conspirator made in furtherance of the objects of the conspiracy to a third party are admissible against all of the members, but only after proof that each defendant was a member of the conspiracy.

Under Glasser there was a preferred order of proof; nonhearsay which established membership in the conspiracy must precede the hearsay declarations. However, order of proof is discretionary with the trial judge and declarations made by a conspirator to a third party may be admitted in advance of evidence which would prima facie establish the existence of the conspiracy. State v. Rutledge, 261 S.C. 44, 198 S.E.2d 250 (1973); In accord: United States v. Vaught, supra.

Here, appellants Dugan, Nichols, Schone and Jackson were connected to the conspiracy by evidence, other than and in addition to the hearsay declarations. Moreover, once a conspiracy has been established,

"[E]vidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy. United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977)." United States v. Jabara, 618 F.2d 1319, 1328 (9th Cir. 1980).

Viewing the evidence in the light most favorable to the State, and drawing all reasonable inferences from the evidence in favor of the State, we conclude there was sufficient evidence to establish the conspiracy and appellants Dugan, Nichols, Schone and Jackson were members. See: Jabara, supra.

We have reviewed the record and find no competent evidence which connected appellants Gedra and White to the conspiracy. The hearsay declarations against these appellants should not have been considered by the jury and their convictions are reversed because of insufficient evidence. They took no part in any of the negotiations, were unknown to the officers, and apparently had no financial interest in the transaction. Mere association was all that was shown here, and that does not satisfy the tests. United States v. Lopez, 625 F.2d 889 (9th Cir. 1980).

Appellants next assert the trial court erred in ordering the indictments for conspiracy and possession be jointly tried. We disagree.

Where the offenses charged in separate indictments are of the same general nature, involving connected transactions closely related in kind, place and character, the trial judge has the authority, in his discretion, to order the indictments tried together over the objection of the defendant absent a showing that the defendant's substantive rights were violated. State v. Williams, 263 S.C. 290, 210 S.E.2d 298 (1974).

Appellants contend they were prejudiced by the introduction of hearsay evidence on the conspiracy indictment because it would not have been admissible if the possession charge would have been tried separately. However, it is not necessary for an indictment to charge conspiracy in order for the declarations of a conspirator to be admissible against other alleged co-conspirators. State v. Blackwell, et al., 220 S.C. 342, 67 S.E.2d 684 (1951). Therefore, the declarations of the co-conspirators would have been admissible as an exception to the rule against hearsay on the substantive charge of possession of marijuana with intent to distribute. See: State v. Wells, 249 S.C. 249, 153 S.E.2d 904 (1967).

We have reviewed the record and find the trial judge did not abuse his discretion in ordering the indictments for conspiracy and possession with intent to distribute be tried together.

Appellants next assert it was reversible error for the State to attempt to introduce into evidence the written transcript of a taped conversation between Agent Mozingo and John Etheridge because appellants claim they were forced to prejudice their case by objecting to the admissibility of the statement. Appellants contend this left the jury with the impression they were withholding information. We hold it was a decision of trial strategy whether or not to object to the introduction of the written transcript and appellant cannot be heard to complain on appeal of alleged error they voluntarily committed at trial. State v. Faulkner, 274 S.C. 619, 266 S.E.2d 420, 422 (1980). This exception is without merit.

Appellants next assert the trial court erred in allowing testimony regarding alleged payment of bond fees and attorney fees by "The Company" as this constituted post-conspiracy declarations which are generally not admissible under the conspiracy exception to the rule against hearsay. We disagree.

Appellants did not make a contemporaneous objection to this testimony, therefore, cannot claim error on appeal. State v. Atchison, 268 S.C. 588, 235 S.E.2d 294 (1977). Moreover, the challenged testimony concerned a conversation between Etheridge and Agent Mozingo, in which Etheridge told Mozingo of the benefits of joining the conspiracy. Since the conversation was made in furtherance of the alleged conspiracy it was admissible under the hearsay exception. Ferguson, supra.

Appellants next contend the trial judge erred in referring to them as "conspirators" because this expressed an opinion concerning their guilt. We disagree.

The trial judge made it clear he was referring to the appellants as alleged conspirators when he denied their motion for a mistrial. Moreover, when the jury returned he gave a curative instruction which informed the jury that he was referring to the defendants as alleged conspirators.

In State v....

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