The South Carolina Court of Appeals
The State, Respondent,
v.
Juan Carlos Vasquez, Appellant.
The Honorable
Larry R. Patterson
Greenville County
Trial Court Case No.
1996-GS-47-15
_________
ORDER
_________
The caption in the above referenced case is being changed to reflect the correct spelling of the appellant's name. The correct caption should read:
The State, Respondent
v.
Juan Carlos Vasquez, Appellant.
South Carolina Court of Appeals Opinions Nos. 3216, State v. Jose Gustavo Castineira; 3217, State v. Juan Carlos Vazquez; 3219, State v. Virgil Gosnell and 3220, State v. Timothy Hammitt, were all connected State Grand Jury cases which were published in Shearouse Advance Sheet No. 29, dated July 22, 2000, in which the incorrect spelling occurred.
IT IS SO ORDERED.
KAYE G. HEARN, CHIEF JUDGE
BY s/Kenneth A. Richstad CLERK
Columbia, South Carolina
August 8, 2000.
cc: James Mixon Griffin,
Esquire
Chief State Grand
Jury Jonathan Ozmint
Assistant Attorney
General State Grand Jury Anne Hunter Young
Assistant Attorney
General State Grand Jury John P. Riordan
THE
STATE OF SOUTH CAROLINA
In
The Court of Appeals
________
The State, Respondent,
v.
Timothy Hammitt, Appellant.
________
Appeal From
Greenville County
Larry R. Patterson,
Circuit Court Judge
________
Opinion No.
3220
Heard December 9,
1999 - Filed July 17, 2000
________
AFFIRMED
________
James M. Griffin, of Simmons, Griffin & Lydon, of Columbia, for appellant.
Attorney General Charles M. Condon; Chief Jonathan E. Ozmint and Assistant Attorney Generals Anne Hunter Young and John P. Riordan, both of the State Grand Jury, all of Columbia, for respondent.
________
HOWARD, J.: In this State Grand Jury prosecution, Timothy Hammitt was convicted of conspiracy to traffic in 400 grams or more of cocaine in violation of S.C. Code Ann. 44-53-370(e)(2)(e) (Supp. 1999) and sentenced to twenty-five years imprisonment and a $200,000 fine. On appeal, Hammitt argues the trial court erred in denying his motion for directed verdict, denying his motion for a new trial, denying a severance, and sentencing him to an illegal, excessive sentence. We affirm.
FACTS/PROCEDURAL BACKGROUND
The prosecution of Hammitt and twenty-five co-defendants was the culmination of a two year State Grand Jury (SGJ) investigation. The investigation began in August 1993, when police arrested Michael Greer on a cocaine charge and executed a search warrant at his residence. Over the next two years, police followed the chain of Greer's suppliers, continuing to make purchases and turn those arrested into cooperating informants.
The sequence of events was
as follows. Once Greer was arrested, he provided information that James Smith
was his supplier to police. As a result of this information, undercover officers
arranged four controlled cocaine buys from Smith. Once he was then arrested, Smith
agreed to assist the officers. They then set up three controlled cocaine buys
from James Hattaway. Hattaway, in turn, led the officers to Todd Brank, from whom
they effected at least two controlled buys. Brank also cooperated, and the officers
set up a five kilogram cocaine purchase with Jerome "Babe" Harris. When Harris
was subsequently arrested, he agreed to cooperate. Harris had not yet paid for
the drugs he attempted to sell to undercover agents, so the officers made an undercover
payment of $115,000 to his supplier, O'Bryant "O.B." Harris (O.B.) for him.(1)
The officers arrested O.B.
on August 31, 1996. Under the State's view of the conspiracy, O.B. was the second
level supplier. His cooperation led to Jose Gustavo Castineira, his cocaine
source. As a result, the officers set up a fake undercover payoff to Castineira,
which led to his arrest and that of Juan Carlos Vasquez, his traveling companion.
On October 8, 1996, the
SGJ indicted twenty-six defendants for conspiracy to traffic in 400 or more
grams of cocaine pursuant to S.C. Code Ann. 44-53-370(e)(2)(e) (Supp. 1999).
Eighteen defendants pleaded guilty; the remaining eight were tried together
during a two-week period in late April - early May 1997, including Hammitt.
Hammitt became a suspect
through information provided by Todd Brank and Leslie Horne. In addition to
distributing cocaine, Brank raced motorcycles. Hammitt owned
a motorcycle repair shop, and specialized in modifying motorcycles for racing.
Brank became one of Hammitt's customers. According to Brank, he sold Hammitt
10 ounces of cocaine on one occasion, and one to two ounces of cocaine on four
other occasions. The total amount he distributed to Hammitt was approximately
one-half kilogram. Brank testified he began selling drugs to
Hammitt after they developed a relationship through motorcycle racing. The cocaine
dealings with Hammitt occurred from 1993 until 1994.
According to Brank, he purchased
his cocaine from Miller until Miller went to prison, and then from Miller's
half-brother, Babe Harris. Harris testified he and his brother purchased cocaine
from the same supplier, O.B. Harris. During these purchases, Brank always paid
cash, and was never fronted any cocaine. Harris testified his relationship with
Brank was one of seller and buyer, Harris did not work for Brank and Brank did
not work for Harris.
Another State's witness,
Kenny Brooks, confirmed that Hammitt bought "anywhere from one to three ounces
at a time." Brooks also stated he was with Brank several times when Hammitt
"beeped" Brank, requesting cocaine. He further testified he once saw Brank "toss
[Hammitt] a package" of cocaine that contained about two ounces. Brooks never
saw Brank give Hammitt more than three ounces.
Horne is Hammitt's cousin.
He was also arrested as a member of the conspiracy, and agreed to cooperate.
At trial, Horne testified Hammitt fronted him an ounce of cocaine on two separate
occasions. He also stated he sold Hammitt two ounces he had received from Brank
and that Hammitt "worked for" Brank.
At the close of the State's
case, Hammitt moved for a directed verdict, arguing under State v. Gunn,
313 S.C. 124, 437 S.E.2d 75 (1993), that proof of a buyer-seller relationship
was not sufficient to establish a conspiracy. Hammitt also joined in Vasquez's
motion concerning the State's proof of multiple conspiracies when only one was
alleged. In his defense, Hammitt called several witnesses but did not testify
himself. At the close of all the evidence, Hammitt renewed all motions, which
the trial court again denied.
The jury convicted Hammitt
of conspiracy to traffic in more than 400 grams of cocaine. The trial court
sentenced him to twenty-five years imprisonment and a $200,000 fine. This appeal
followed.
ISSUES
I. Whether the trial
court erred in denying Hammitt's motion for directed verdict because the State's
evidence failed to establish that Hammitt was a member of the conspiracy alleged
in the indictment?
II. Whether the
trial court erred in denying Hammitt a new trial on the ground that the jury
found the existence of more than one conspiracy?
III. Whether the
trial court erred in denying Hammitt's motion for a severance?
IV. Whether the
trial court erred in sentencing Hammitt to a 25 year sentence and fine of $200,000
because it exceeded the maximum allowable sentence for conspiracy under S.C.
Code Ann. 44-53-420 (1985)?
LAW/ANALYSIS
I.
DIRECTED VERDICT
In considering a motion
for directed verdict, a trial court is concerned only with the existence or
non-existence of evidence, not its weight. See State v. Kelsey,
331 S.C. 50, 502 S.E.2d 63 (1998); State v. Williams, 303 S.C. 274, 400
S.E.2d 131 (1991). Therefore, in reviewing the denial of a directed verdict
motion, this Court must view the evidence in the light most favorable to the
State and affirm "if there is any direct evidence or any substantial circumstantial
evidence reasonably tending to prove the guilt of the accused. . . ." State
v. Cooper, 334 S.C. 540, 551-52, 514 S.E.2d 584, 590 (1999) (citation omitted). The indictment alleges
a single conspiracy among at least twenty-six individuals to traffic in more
than 400 grams of cocaine in Greenville and Spartanburg Counties, South Carolina,
Florida, and Georgia. The object of the conspiracy alleged by the State was
trafficking in cocaine in the amount of 400 grams or more of cocaine. We conclude
the evidence taken in a light most favorable to the State establishes that Hammitt
participated in the conspiracy charged in the indictment. A conspiracy is "a combination
or agreement between two or more persons for the purpose of accomplishing a
criminal or unlawful object . . . ." State v. Gunn, 313 S.C. 124, 133-34,
437 S.E.2d 75, 80 (1993), cert. denied, 510 U.S. 1115 (citing State
v. Ameker, 73 S.C. 330, 53 S.E. 484 (1906)); see also S.C. Code Ann.
16-17-410 (Supp. 1999); State v. Wilson, 315 S.C. 289, 433 S.E.2d 864
(1993). The gravamen of conspiracy is the agreement or mutual understanding.
Gunn, 313 S.C. at 134, 437 S.E.2d at 80; Wilson, 315 S.C. at 294,
433 S.E.2d at 868 (emphasis added). Although the gravamen of the offense of
conspiracy is the agreement, it is the individual participation of the actor
by agreeing which subjects him to criminal liability as a co-conspirator. Gunn,
313 S.C. at 134, 437 S.E.2d at 81 ("[G]uilt . . . remains individual and personal
. . . and is not a matter of mass application.") (citation omitted). In analyzing
the degree of connection necessary for conviction, our supreme court stated:
What is required is a shared,
single criminal objective, not just similar or parallel objectives between similarly
situated people. . . . It is not enough that a group of people separately intend
to distribute drugs in a single area, nor enough that their activities occasionally
or sporadically place them in contact with each other. People in the same industry
in the same locale (even competitors) can occasionally be expected to interact
with each other without thereby becoming co-conspirators. What is needed is
proof they intended to act together for their shared mutual
benefit within the scope of the conspiracy charged.
Gunn, 313 S.C. at
134, 437 S.E.2d at 80-81 (citation omitted).
Our review of the sufficiency
of the evidence must be viewed in the light most favorable to the State. State
v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981). However, we must exercise
caution to ensure proof is not obtained "by piling inference upon inference."
Gunn, 313 S.C. at 134, 437 S.E.2d at 81 (citation omitted). Proof of
a buyer-seller relationship alone is inadequate to connect the buyer to a larger
conspiracy, as is nominal association with members of the conspiracy. This is
so because "guilt . . . remains individual and personal . . . and is not a matter
of mass application." Id. (citation omitted).
We conclude the evidence,
taken in a light most favorable to the State, connected Hammitt to the charged
conspiracy. The indictment alleged the conspiracy occurred from 1990 until 1996.
Brank's testimony indicates Hammitt was involved from 1993 until 1994, when
their relationship ended. Hammitt's participation falls within the dates alleged
in the indictment. The State presented evidence of multiple transactions between
Brank and Hammitt and between Hammitt and Horne. Both Brank and Horne were admitted
members of the conspiracy.
Brank testified that he
"fronted" Hammitt the cocaine, meaning that Hammitt paid Brank for the cocaine
after he re-distributed it, thereby creating the fund with which to pay for
it. According to Horne, Hammitt also "fronted" cocaine to him. This evidence
tends to establish a conspiracy because it "suggests that the seller has an
interest in the success of the buyer's re-selling activities, and because it
indicates cooperation and trust rather than an arm's length retail-type sale."
United States v. Ferguson, 35 F.3d 327, 331 (7th Cir. 1994),
cert. denied, 514 U.S. 1100 (1995); see also United
States v. Dortch, 5 F.3d 1056 (7th Cir. 1993), cert. denied,
510 U.S. 1121 (1994); United States v. Cabello, 16 F.3d 179 (7th
Cir. 1994); United States v. Thomas, 12 F.3d 1350 (5th Cir.
1994), cert. denied, 511 U.S. 1095 (1994); State v. Alcorn, 741
S.W.2d 135 (Tenn. Crim. App. 1987); State v. Cavallari, 571 N.W.2d 176
(Wis. Ct. App. 1997), review denied, 576 N.W.2d 281 (1997). The cocaine
fronted in these transactions was derived from sales leading up the distribution
chain within the conspiracy. The amounts "fronted" to Hammitt were further broken
down into smaller quantities by him, and then re-distributed by him. Under the
evidence, different levels of distributor, including Hammitt, reaped a profit
by re-distributing the cocaine in smaller quantities. In this regard, Horne
testified that Hammitt showed him how to cut the mixture of cocaine, in order
to make a larger quantity of cocaine mixture and derive a bigger profit.
Also, according to Brank,
on one occasion Hammitt purchased ten ounces of cocaine (280 grams) from him,
indicating Hammitt had knowledge of the scope of the conspiracy. See
State v. Barroso, 320 S.C. 1, 462 S.E.2d 862 (Ct. App. 1995), reversed
on other grounds, 328 S.C. 268, 493 S.E.2d 854 (1997) (fact that defendant
purchased in excess of 400 grams in a short period of time evinced his knowledge
of the scope of the conspiracy).
The indictment alleged a
single conspiracy to traffic in more than 400 grams of cocaine. To sustain convictions
under the indictment, the State had to prove the defendants "intended to act
together for their shared mutual benefit within
the scope of the conspiracy charged." Gunn, 313 S.C. at 134, 437 S.E.2d
at 80-81 (citation omitted). "The government need not show direct contact or
explicit agreement between the defendants. It is sufficient to show that each
defendant knew or had reason to know of the scope of the conspiracy and that
each defendant had reason to believe his own benefits were dependent upon the
success of the entire venture." State v. Barroso, 320 S.C. at 8-9, 462
S.E.2d at 868 (citing United States v. Kenny, 645 F.2d 1323 (9th Cir.1981),
cert. denied, 452 U.S. 920 (1981)). We conclude the above evidence, taken
in a light most favorable to the State, established Hammitt's participation
in the conspiracy.
II.
NEW TRIAL
Hammitt next argues the
trial court erred in denying his motion for a new trial because (1) the jury
found the existence of more than one conspiracy when it found Fields and Gosnell
guilty of trafficking in lesser amounts of cocaine; (2) by charging lesser amounts
as to Fields and Gosnell the judge indirectly commented on the evidence against
Hammitt; and (3) the judge's charge on lesser amounts as to Fields and Gosnell
created an erroneous verdict option. Hammitt cites no law in support of these
arguments.
As we have concluded in
our analysis of Hammitt's motion for directed verdict, the State presented sufficient
evidence of Hammitt's involvement in the indicted conspiracy to send the case
to the jury. We have ruled in the case of State v. Gosnell, Op. No. ______
(S.C. Ct. App. filed _______ __, 2000) (Shearouse Adv. Sh. No. 28 at __), that
the trial court erred in charging the jury to consider conspiracy to traffic
in cocaine in lesser amounts as lesser included offenses against Gosnell. The
transcript reveals that the trial judge also charged lesser amounts in the case
against Fields, although that issue has not come before us. However, the judge
correctly charged the law in relation to Hammitt, because the trial judge gave
Hammitt the option of choosing the lesser charges, which he refused. Furthermore,
the jury was instructed to treat each defendant separately. Under
these circumstances, we see no prejudice to Hammitt by the charges pertaining
to Gosnell and Fields.
To warrant reversal, it
is not sufficient to show error. A defendant must also show prejudice flowing
from the error. State v. Hoffman, 257 S.C. 461, 186 S.E.2d 421 (1972).
As prejudice, Hammitt argues that charging lesser degrees of trafficking in
relation to co-defendants was tantamount to a charge on the facts, indirectly
indicating to the jury that the judge perceived the evidence as to Hammitt to
more directly establish his participation in the conspiracy.
Our supreme court considered
the effect of inconsistent jury charges in the setting of a joint trial in State
v. Roof, 298 S.C. 351, 380 S.E.2d 828 (1989). In that case, each of two
co-defendants being jointly tried for murder had given pre-trial statements
admitting to disposing of the deceased's body, but denying any involvement in
the killing of deceased. Their individual statements inculpated themselves for
accessory after the fact of murder, although the evidence established that only
the two co-defendants were with the deceased at the time he was murdered. Circumstantially,
at least one of the two was responsible for causing the fatal wound.
One co-defendant testified
consistent with his statement at trial, and the trial judge charged the jury
as to him that they could consider accessory after the fact as a lesser included
offense. However, the trial judge refused to charge accessory after the fact
for the non-testifying co-defendant. Our supreme court reversed, concluding
that giving the instruction as to the one testifying co-defendant was tantamount
to a charge on the ultimate factual issue in the case, that of the credibility
of the two defendants.
However, unlike Roof,
in this case there were multiple defendants in the conspiracy. Hammitt was not
alleged to be directly connected with either Gosnell or Fields. Unlike the discreet
crime charged in Roof, Hammitt's guilt for the charged conspiracy was
not interdependant upon the guilt or innocense of Gosnell or Fields. Consequently,
we fail to see how the erroneous charge could have been considered a charge
on any fact impacting on Hammitt's guilt. Accordingly, we find Hammitt's argument
to be without merit.
III.
SEVERANCE
Hammitt's argument as to
severance is identical to that raised and ruled upon by this Court in State
v. Castineira, Op. No. 3216 (S.C. Ct. App. filed July 17, 2000) (Shearouse
Adv. Sh. No. 29 at 40. For the reasons set forth in that opinion, we find this
argument to be without merit.
IV.
SENTENCING
Hammitt's final issue is
identical to that raised and ruled upon by this court in State v. Castineira,
Op. No. 3216 (S.C. Ct. App. filed July 17, 2000) (Shearouse Adv. Sh. No. 29
at 40. For the reasons set forth in that opinion, we find this argument to be
without merit.
CONCLUSION
Accordingly, Hammitt's conviction
and sentence are
AFFIRMED.
CURETON and HUFF,
JJ., concur.
1. Babe Harris and O.B. Harris are not related.