/opinions/HTMLFiles/SC/25737.htm

THE STATE OF SOUTH CAROLINA
In The Supreme Court

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The State,        Respondent/Appellant,

v.

Willie Edward Gordon, Jr., a/k/a Jr. Gordon,        Appellant/Respondent.

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Appeal From York County
Paul E. Short, Jr., Circuit Court Judge

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Opinion No. 25737
Heard July 8, 2003 - Filed October 20, 2003

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AFFIRMED

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Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia, for Appellant-Respondent.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Norman Mark Rapoport, of Columbia, and Solicitor Thomas E. Pope, of York, for Respondent-Appellant.

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JUSTICE WALLER: In February 2001, Willie Edward Gordon was convicted of trafficking in crack cocaine and sentenced to thirty years. He appeals, contending his conviction is barred by double jeopardy. The state appeals the trial courts refusal to sentence Gordon to life imprisonment without parole (LWOP) under the Two-Strikes law. We affirm both appeals.

FACTS

In May 1997, a seven-count indictment was handed down against Gordon. On June 9-12, 1997, the state proceeded to trial solely on count five of the indictment, trafficking in crack cocaine in violation of S.C. Code Ann. 44-53-375(c). [1] Count five of the indictment reads:

That WILLIE E. GORDON, AKA JR AND TOMMY JAMES RHINEHART did Traffick in Crack Cocaine in York County, on or about September 21^st through September 23^rd, 1996 by either: knowingly selling, delivering or distributing; or did purchase, or bring into this State; or provide financial assistance or did otherwise aid, abet, or attempt to sell, or deliver, or purchase, or bring into this State; or did possess, either actually or constructively, twenty-eight grams or more of crack cocaine, a Schedule II controlled substance under provisions of Section 44-53-100 et. seq., . . . such conduct not having been authorized by law and is a violation of Section 44-53-375(c)- Trafficking in Crack Cocaine. (emphasis supplied).

Notably, count five does not allege that Gordon in any way conspired to traffic crack. Further, although the trial court instructed the jury the statutory language of 44-53-375(c), it did not give the jury a separate jury instruction concerning the law of conspiracy. The jury found Gordon guilty of trafficking, and he was sentenced to thirty years.

Thereafter, in October 2000, another indictment was issued against Gordon charging him with trafficking crack cocaine, as follows:

That on or about September 27, 1996, in York County, South Carolina, the Defendant, Willie Edward Gordon, Jr. AKA Jr. Gordon, did wilfully, unlawfully and knowingly sell and/or deliver and/or bring into the State of South Carolina and/or provide financial assistance and/or otherwise aid or abet and/or conspire with Spencer L. Gordon to sell and/or was knowingly in actual or constructive possession of more than 10 grams but less than 28 grams of Crack Cocaine as defined in Sections 44-53-110, 44-53-210 (b)(4) and as such did Traffick Crack Cocaine, in violation of Section 44-53-375, Code of Laws of South Carolina (1976, as amended).

(emphasis supplied). [2]

The charges from the 2000 indictment were called for trial in February 2001. Counsel for Gordon moved to dismiss the 2000 indictment, contending the charges therein were all part of one continuing transaction, essentially one conspiracy to traffic, for which Gordon was convicted in 1997. Accordingly, he contended the subsequent prosecution was barred by double jeopardy. The trial court ruled there were two separate and distinct offenses and allowed the state to proceed on the 2000 indictment. The jury found Gordon guilty of trafficking.

In light of Gordons 1997 trafficking conviction, the state moved for a sentence of LWOP under the Two-Strikes law, S.C. Code Ann. 17-25-45 (Supp 2002). [3] The trial court declined to impose a LWOP sentence, finding the crime charged in the 1997 indictment (September 21-23, 1996), and the one charged in the 2000 indictment (September 27, 1997), were so closely connected in point of time as to come within the purview of S.C. Code Ann. 17-25-50. [4] Accordingly, the court held Gordon was not subject to a recidivist sentence under the Two-Strikes law; he was sentenced to thirty years, concurrent to the sentence imposed for his 1997 trafficking conviction.

ISSUES

1. Did the trial court err in refusing to quash the 2000 indictment on the ground that a subsequent prosecution was barred by double jeopardy? (Gordons appeal)

2. Did the trial court err in refusing to sentence Gordon to LWOP? (States appeal)

1.     DOUBLE JEOPARDY

Gordon asserts the conduct for which he was convicted of trafficking in 1997 was part of a continuing course of conduct that constituted one criminal act, and was a continuing conspiracy which continued through the events alleged in the 2000 indictment, such that the 2001 prosecution was barred by double jeopardy. [5] We disagree.

The Double Jeopardy clause protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Nelson, 336 S.C. 186, 519 S.E.2d 786 (1999); State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997). A substantive crime and a conspiracy to commit that crime are not the "same offense" for double jeopardy purposes. United States v. Felix, 503 U.S. 378 (1992). Conspiracies and the substantive offenses committed in the course of those conspiracies may be charged separately. United States v. Love, 767 F.2d 1052, 1062 (4th Cir. 1985) citing Callanan v. United States, 364 U.S. 587 (1960); Iannelli v. United States, 420 U.S. 770 (1975).

Gordon argues his 1997 prosecution essentially involved the same conspiracy as the 2001 prosecution, such that the latter is barred by double jeopardy. We disagree. Initially, we note that the 1997 indictment charged Gordon with trafficking, rather than conspiracy to traffic, and there is absolutely no language whatsoever in that indictment alleging Gordon in any way conspired to traffic cocaine. Moreover, although the trial court charged the jury the language of the trafficking statute at the 1997 trial, it did not charge the jury concerning the elements necessary to establish the offense of conspiracy. [6] We find the 1997 trial was clearly a prosecution for a single substantive offense of trafficking in cocaine, which occurred between September 21-23, 1996.

The 1997 prosecution involved events, details, and persons completely separate from the event proven at Gordons 2001 trial. The 1997 indictment listed a very discrete period of time (Sept. 21-23, 1996), alleged a different amount of cocaine than the 2000 indictment (28 grams or more, as opposed to between 10-28 grams), and alleged Gordon had trafficked with a different individual (Tommy James Rhinehart in 1997 indictment; Spencer Gordon in the 2000 indictment). Moreover, the evidence presented at the 1997 trial clearly demonstrated the substantive offense of trafficking. At that trial, the state proved that on September 23, 1996, police were investigating Tommy Rhinehart, a suspected drug dealer. Rhinehart left his home and went down an alley toward Gordons home, which was 50-75 yards away. When Rhinehart returned, police executed a search warrant on his home and discovered two bags of crack cocaine, and a pill bottle also containing crack. Rhinehart decided to cooperate with police and told them he had gotten the crack from Gordon. Rhinehart testified Gordon had given him two bags of crack, on Sat. Sept. 21, 1996, in the alley between their homes. Rhinehart sold that crack between Saturday and Monday, and paid Gordon $500.00 to pay for it on Monday (Sep. 23^rd), at which time Gordon gave him two more bags. We find this evidence clearly demonstrates the substantive offense of trafficking, for which Gordon was convicted. Accordingly, we find the 1997 prosecution did not result in a conspiracy conviction, such that there is no double jeopardy violation.

Nonetheless, Gordon asserts that because the trial court charged the jury the language of the trafficking statute at his 1997 trial, to wit, that a person who aids, abets, attempts or conspires to sell, manufacture, deliver, purchase, or bring [crack cocaine] into this State . . . [is guilty of trafficking], that his 2001 prosecution was prohibited. We disagree. [7]

Gordons basic contention is that, because the word conspires was included in the judges charge covering the trafficking statute, 44-53-375(C), his 1997 trial was essentially rendered a conspiracy trial. We disagree. As noted previously, Gordon was not indicted for conspiracy, and the jury was not charged on the law of conspiracy at the 1997 trial. Simply because the trial court instructed the jury the language of the trafficking statute did not thereby transform his trafficking trial into one for conspiracy. As noted previously, a substantive crime and a conspiracy to commit that crime are not the "same offense" for double jeopardy purposes, and a defendant may be separately indicted for both offenses. United States v. Felix, supra; see also State v. Wilson, 311 S.C. 382, 391, 429 S.E.2d 453, 458 (1993) (Toal, J. concurring, and noting that conspiracy is a completely separate offense from the substantive offenses which are the objects of the conspiracy.). Accordingly, even if we accept Gordons contention that he was tried for conspiracy in 2001, there is no double jeopardy violation since he was properly tried and convicted of the substantive offense of trafficking in 1997. The circuit court properly ruled there were two separate and distinct offenses.

2.    CONTINUOUS COURSE OF CONDUCT

Gordon asserts the trial court properly refused to impose a sentence of LWOP pursuant to the recidivist statute, S.C. Code Ann. 17-25-45 (a/k/a the Two-Strikes law), [8] on the ground that his two trafficking offenses were committed so closely in point of time as to be treated as one offense under S.C. Code Ann. 17-25-50. [9] The state, citing this Courts recent opinion in State v. Benjamin, 353 S.C. 441, 579 S.E.2d 289 (2003), contends a trial court may not consider 17-25-45 in conjunction with 17-25-50 in determining whether a recidivist sentence is warranted under the Two-Strikes law. We agree with Gordon that these statutes must be construed together. Accordingly, we overrule Benjamin and affirm the trial courts ruling that Gordons two offenses were properly treated as one for purposes of sentencing under the Two-Strikes law.

In Benjamin, supra, a majority of this Court held that the recidivist statute must be considered independently of any other statute. [10] It found the introductory language to 17-25-45, to the effect that Notwithstanding any other provision of law [certain defendants] shall be sentenced to life in prison," barred consideration of 17-25-50 in determining whether the defendant qualifies for a Two-Strikes recidivist sentence. 353 S.C. at 445, 579 S.E.2d at 291. We find this holding contrary to both the legislative intent and prior precedent of this Court.

Statutes which are part of the same legislative scheme should be construed together. Stardancer Casino, Inc. v. Stewart, 347 S.C. 377, 556 S.E.2d 357 (2001). In construing statutory language, the statute must be read as a whole, and sections which are part of the same general statutory law must be construed together and each one given effect, if it can be done by any reasonable construction. State v. Alls, 330 S.C. 528, 500 S.E.2d 781 (1998). Furthermore, the court should not consider the particular clause being construed in isolation, but should read it in conjunction with the purpose of the whole statute and the policy of the law. South Carolina Coastal Council v. South Carolina State Ethics Comm'n, 306 S.C. 41, 44, 410 S.E.2d 245, 247 (1991). Courts will reject the plain and ordinary meaning of statutory language when to accept it would lead to a result so absurd that it could not possibly have been intended by Legislature, or would defeat plain legislative intention; if possible we will construe a statute so as to escape an absurd result and carry the legislative intention into effect. Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (2002). Moreover, we are constrained to strictly construe penal statutes in the defendant's favor. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991).

This Court has previously recognized that the predecessor to 17-25-45 (17-25-40) and 17-25-50 must be construed together. See State v. Stewart, 275 S.C. 447, 452, 272 S.E.2d 628, 631, n. 2 (1980) (recognizing that section 17-25-50 must be read in conjunction with section 17-25-40, the predecessor to section 17-25-45). We have also recognized that 17-25-45 and 17-25-50 are part of an overall, legislative scheme for recidivist sentencing. See also State v. Muldrow, 259 S.C. 414, 192 S.E.2d 211 (1972) (statute directing trial court to treat as one offense any number of offenses committed at times so closely connected in point of time that they may be considered as one offense is applicable only for purpose of sentencing under recidivist statute); Legare v. State, 333 S.C. 275, 509 S.E.2d 472 (1999) (recognizing that 17-25-50 is part of the recidivist sentencing scheme).

The Benjamin majority ignores these precedents and holds, under the guise of statutory construction, that it is no longer appropriate or necessary to harmonize or reconcile 17-25-45 with 17-25-50. 353 S.C. at 445, 579 S.E.2d at 291. Under the majoritys rationale, however, S.C. Code Ann. 17-25-50 is rendered a nullity. [11] This cannot have been the intent of the Legislature; if it had intended to repeal 17-25-50, it could have plainly said so. Stardancer Casino v. Stewart, supra; Tilley v. Pacesetter, 333 S.C. 33, 508 S.E.2d 16 (1998) (if legislature had intended certain result in statute it would have said so).

Moreover, we are persuaded by the dissenting position in Benjamin, to wit:

A recidivist is "a habitual criminal. A criminal repeater. An incorrigible criminal. One who makes a trade of crime." Black's Law Dictionary, 1269 (6th Ed.1990). Recidivist legislation attempts to encourage offenders to stay out of trouble and punishes those who refuse to be deterred even after a conviction. Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027, 1031 (Pa.1991). Recidivists are persons who continue to commit criminal, antisocial behavior after incarceration for an earlier offense. Recidivist statutes aim at punishing those who have shown they are incorrigible offenders. Shannon Thorne, One Strike and You're Out: Double Counting and Dual Use Undermines the Purpose of California's Three-Strikes Law, 34 U.S.F.L.Rev. 99 (1999). The purpose of requiring separate offenses is to ensure that those offenders being sentenced under the harsh provisions of a recidivist sentencing statute have not been classified as habitual offenders because of multiple convictions arising from a single criminal enterprise; it provides the state with some certainty that the offender has participated in multiple criminal trials and, despite these opportunities to understand the gravity of his behavior and abide by the law, has continued to engage in criminal conduct. Daniel Rogers, People v. Furman and Three Strikes: Have the Traditional Goals of Recidivist Sentencing Been Sacrificed at The Altar of Public Passion?, 20 Thomas Jefferson L.Rev. 139, 156 (Spring 1998).

353 S.C. at 446, 579 S.E.2d at 291.

We find the recidivist statute is aimed at career criminals, those who have been previously sentenced and then commit another crime, not at those whose recidivist status is premised solely upon acts which occur at times so closely connected in point of time that they may be considered as one offense. Accordingly, we hold 17-25-45 and 17-25-50 must be construed together in determining whether crimes committed at points close in time qualify for a recidivist sentence. We overrule State v. Benjamin, 353 S.C. 441, 579 S.E.2d 289 (2003), and affirm the trial courts consideration of 17-25-50 in refusing to impose a sentence of LWOP under the facts of this case. [12]

CONCLUSION

We affirm the trial courts ruling that Gordon was not placed in double jeopardy as a result of his 2001 prosecution. We also affirm the trial courts consideration of 17-25-50 in refusing to impose a sentence of LWOP. The judgment below is

AFFIRMED.

TOAL, C.J., MOORE, J., and Acting Justice Marc H. Westbrook, concur. BURNETT, J., concurring in part and dissenting in part in a separate opinion.

JUSTICE BURNETT (concurring in part; dissenting in part): I agree Gordon has suffered no double jeopardy violation. However, I disagree with the majoritys conclusion that South Carolina Code Ann. 17-25-45 (2003) must be read in conjunction with South Carolina Code Ann. 17-25-50 (2003).

As fully explained by this Court a few months ago, the language of 17-25-45, specifically the introductory phrase [n]otwithstanding any other provision of law, demonstrates the General Assembly unequivocally intended the statute to be read independently of other provisions, including 17-25-50. State v. Benjamin, 353 S.C. 441, 579 S.E.2d 289 (2003). The Court considered and rejected the very same arguments presented by Gordon today.

Further, the principle of stare decisis compels the majority follow State v. Benjamin, id. Stare decisis exists to insure a quality of justice which results from certainty and stability. State v. One Coin-Operated Video Game Mach., 321 S.C. 176, 181, 467 S.E.2d 443, 446 (1996) (internal citations omitted). Prosecutors, those charged with crimes, and the general public alike benefit from the predictability associated with the Courts decisions. Ultimately, no one benefits when the Court issues opinions which diverge from month to month. Accordingly, even when a judge dislikes the result, stare decisis behoves him to follow precedent. See State v. Hudgins, 319 S.C. 233, 460 S.E.2d 388 (1995) (wherein Chief Justice Finney concurred with majoritys holding with which he did not agree as he recognized stare decisis bound him to the result). Moreover, adhering to stare decisis where we have previously interpreted a statute does not result in rigid application of the law as the General Assembly may correct any misinterpretation on our part. State v. One Coin-Operated Video Game Mach., supra.

In my opinion, State v. Benjamin, supra, is dispositive. I would affirm Gordons LWOP sentence.

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