State v. Thrift
| Decision Date | 03 May 1993 |
| Docket Number | No. 23957,23957 |
| Citation | 440 S.E.2d 341,312 S.C. 282 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Appellant, v. Glenn V. THRIFT, Gary V. Thrift, John David Gilreath, Sr., Joel Lewis Wilson, and Rogers Dennis Carroll, Respondents. The STATE, Appellant, v. Thomas E. THRIFT, Respondent. The STATE, Appellant, v. Samuel F. THRIFT, Respondent. The STATE, Appellant, v. Norman Franklin REEVES, Respondent. . Heard |
T. Travis Medlock, Atty. Gen., Cameron M. Currie, Chief Deputy Atty. Gen., and Charles W. Gambrell, Jr., Deputy Atty. Gen., Columbia, for appellant.
O. William Bannister and D. Garrison Hill, Greenville, for respondent Glenn V. Thrift.
Andrew J. Savage, III, Charleston and Charles H. Williams, Orangeburg, for Respondent Gary V. Thrift.
Terrell L. Glenn, Peter L. Murphy, Elizabeth V. Gray and Elizabeth Howard Simmons, Columbia, for respondent John David Gilreath, Sr. Richard W. Vieth, Spartanburg, for respondent Joel Lewis Wilson.
Albert Q. Taylor, Jr., Greenville, for respondent Rogers Dennis Carroll.
Bobby Lee Cook, Summerville, GA, and Gedney M. Howe, Charleston, for respondents Samuel F. Thrift and Thomas E. Thrift.
William A. Coates, Greenville, for respondent Norman Franklin Reeves.
The petition for rehearing is granted. We dispense with further briefing and withdraw the opinion in The State v. Glenn V. Thrift, et al., Op. No. 23957 (S.C.Sup.Ct. filed December 6, 1993) (Davis Adv.Sh. No. 29 at 5). The opinion which follows this order is hereby substituted. The following changes have been made in the original opinion:
IT IS SO ORDERED.
The State appeals from the pre-trial order of the trial judge dismissing the indictments against multiple defendants charged in this complex public corruption case. We affirm in part and reverse in part.
Thrift Brothers, Inc. is a family-owned road paving business based in upstate South Carolina. The principals are three brothers, Respondents Sam, Tom, and Glenn Thrift, and a son, Gary Thrift. For many years, the Thrift Brothers, qualified bidders with the South Carolina Highway Department, were engaged in road construction and paving projects in many counties in South Carolina. In October 1989, the Thrifts were contacted by federal officials who were engaged in an investigation of the relationship between the Thrifts and the Highway Department. The focus of the federal investigation was on multiple allegations of impropriety involving gifts, gratuities, payment of money to Highway Department officials, and falsification of quality tests on state road construction projects.
Encompassing activities from the early 1980s until July 1991, the initial investigation was directed by the United States Attorney's Office and involved personnel from the Federal Bureau of Investigation, the Internal Revenue Service, and the South Carolina Law Enforcement Division. The federal authorities determined that there would be no federal prosecution and turned their investigative files over to the South Carolina Attorney General's Office which assumed responsibility for state prosecution in the Thrift cases.
The Attorney General's Office reviewed the information and determined that several substantive charges could be made under state law. Although most of the potential charges stemmed from activity in the upstate, the Attorney General exercised prosecutorial discretion by pursuing only those charges which could be prosecuted in coastal Horry County. The Attorney General's Office felt, based on the reputation of the Thrifts and their position in the community, that there was a poor chance of securing a conviction in the upper part of the state. Looking at the overall chances for conviction, the Attorney General's Office narrowed the focus of the prosecution and consciously chose to pursue the charges in a county where it felt the Thrifts had little influence. 1
The first indictments were obtained in Horry County in October 1991. Under these indictments: (1) Sam and Tom Thrift and Herman P. Snyder, Chief Highway Engineer, were charged with common law conspiracy, § 16-17-410, conspiracy to violate the state ethics law, § 8-13-490, and conspiracy to violate the Highway Department anti-bribery statute, § 57-1-60; (2) Tom Thrift was charged with giving Snyder a $2,000 bribe in violation of § 57-1-60 and § 8-13- Two days later, on December 11, 1991, the Attorney General's Office notified the Highway Department in writing that the Attorney General's Office had After this letter was sent, all of the parties were informed that they could retrieve their documents. It was also clear that the Attorney General's Office then closed its files and turned all discovered documents over to the Highway Department. 3
490; and (3) Snyder was charged with taking a $2,000 bribe in violation of § 57-1-60 and § 8-13-490. Eventually a plea bargain was reached, and on December 9, 1991, the Horry County Grand Jury issued a new indictment charging the three with a general criminal conspiracy, no object specified, in violation of S.C.Code Ann. § 16-17-410. 2 Sam and Tom Thrift pled guilty to this indictment. Tom Thrift also pled guilty to a separate ethics violation pursuant to the agreement
On January 20, 1992, the Highway Department and Thrift Brothers, Inc. entered into a debarment agreement which established a definite period of time for the debarment. A portion of this agreement stipulated that the "Thrift Brothers and its officers" would assist the Highway Department in any internal investigations against Highway Department officials for misconduct or violation of rules and regulations.
Effective May 4, 1992, the State Grand Jury Act, S.C.Code Ann. §§ 14-7-1600 et seq., was amended to extend the jurisdiction of the State Grand Jury to crimes involving public corruption. On June 17, 1992, Attorney General Medlock filed a petition with the Presiding Judge of the State Grand Jury requesting authorization, in accordance with S.C.Code Ann. § 14-7-1630, to open the Thrift investigation. Authorization was granted and the State Grand Jury received the first presentation of the Thrift investigation in July 1992.
On July 16, 1992, the State Grand Jury returned the first indictment charging Elbert E. Bowers, a Thrift employee, and Carl Dennis Barnwell, a Highway Department official, with conspiring to take and give bribes. Bowers and Barnwell were also charged with various offenses related to the investigation with unindicted co-conspirators. The unindicted co-conspirators were identified as Respondents Tom, Sam, Glenn, and Gary Thrift, and Respondents Carroll and Wilson, Highway Department officials. A superseding indictment was issued on September 17, 1992 adding charges against Johnny Murdock, and Respondents Wilson, Carroll, and Gilreath, all Highway Department officials. Finally, on November 18, 1992, the third superseding indictment was issued adding Glenn and Gary Thrift as defendants in the conspiracy. The same day, separate indictments charging bribery were also returned against Sam Thrift and Tom Thrift, while Respondent Norman Reeves, a paving contractor was also indicted for the "Unlawful Giving of a Thing of Value."
Motions were heard before The Honorable Charles W. Whetstone, Jr., on January 7, 12, 14, and 18. On January 22, 1993, the court entered an order which dismissed all Respondents' indictments concluding that:
[b]ased on the above findings of fact and conclusions of law, the indictments against the following defendants are dismissed: (a) as to the motions argued on the applicability of the plea agreement, the indictments against Sam Thrift, Tom Thrift, Gary Thrift, and Glenn Thrift are dismissed; (b) as to the immunity agreement issue, the Order of The Honorable Charles W. Whetstone, Jr., dated January 22, 1993. (ROA p. 1).
indictments against Sam Thrift, Tom Thrift, Gary Thrift, and Rogers Carroll are dismissed; (c) as to the repeal of South Carolina Code Ann. Section 8-13-490, the indictments against Sam Thrift, Tom Thrift, John Gilreath, Joel Wilson and Norman F. Reeves are dismissed; (d) as to the issue of prosecutorial misconduct, the indictments against Sam Thrift, Tom Thrift, Gary Thrift, Rogers Carroll, [John Gilreath, Sr. 4 and Norman F. Reeves are dismissed; (e) as to the status of the public official argument, the indictments against Rogers Carroll, John Gilreath, and Joel Wilson are dismissed; and (f) as to the charge of conspiracy against Joel Wilson, the alleged acts which constitute the conspiracy are dismissed above and accordingly the conspiracy indictment is also dismissed
Following the trial judge's order, the State filed a notice of appeal which was served on January 22, 1993.
The merits of the State's appeal require us to address the following issues:
1. What was the scope of the Thrifts' earlier plea agreement entered in Horry County?
2. What was the scope of the immunities granted to the various witnesses compelled to testify before the State Grand Jury, specifically, did they receive "transactional" immunity or "use" immunity?
3. Was the introduction of evidence before the State Grand Jury of John David Gilreath's refusal to take a polygraph so prejudicial as to require dismissal of the indictment against him?
4. Did the legislature repeal provisions of the "old" Ethics Act, S.C.Code Ann. § 8-13-490, by enacting the "new" 1991 Ethics Act?
5. What is the definition of "public official" for purposes of the Ethics Act, the common law, and as applied to the present facts?
We recently reiterated the standard of review in appeals of pretrial rulings in State v. Amerson, --- S.C. ----, 428 S.E.2d 871 (1993). In Amerson, we held that "[a]ppellate...
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