The South Carolina Court of Appeals
The State, Respondent,
v.
Juan Carlos Vasquez, Appellant.
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.
Virgil Gosnell, Appellant.
________
Appeal From
Greenville County
Larry R. Patterson,
Circuit Court Judge
_____
Opinion No.
3219
Heard December 9,
1999 - Filed July 17, 2000
________
REVERSED
________
Assistant Appellate Defender Melody J. Brown, of SC Office of Appellate Defense, of Columbia, for appellant.
Attorney General Charles M. Condon; Chief Jonathan E. Ozmint and Assistant Attorney General Anne Hunter Young, both of State Grand Jury, all of Columbia, for respondent.
________
HOWARD, J.: In this State Grand Jury prosecution, Virgil Gosnell and twenty-five co-defendants were charged with conspiracy to traffic in 400 or more grams of cocaine in violation of S.C. Code Ann. § 44-53-370(e)(2)(e) (Supp. 1999). Gosnell was convicted of conspiracy to traffic in cocaine in the amount of at least 200 grams, but less than 400 grams, which was charged by the trial court as a lesser included offense over his objection. Gosnell was sentenced to twenty-five years imprisonment and a $100,000 fine. On appeal, Gosnell argues the trial court erred in charging conspiracy to traffic in cocaine in the amount of at least 200 grams, but less than 400 grams, as a lesser included offense. Gosnell also contends on appeal that he was entitled to a directed verdict, that he was sentenced in the absence of subject matter jurisdiction, and that he was sentenced to an illegal, excessive sentence. We reverse.
FACTS/PROCEDURAL BACKGROUND
The prosecution of Gosnell 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 turning those arrested into cooperating informants.
As a result of information provided by Greer, SGJ officers arranged four controlled cocaine buys from James Smith. Smith agreed to assist the officers and they 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 undercover deal with Jerome "Babe" Harris. Harris agreed to cooperate but had not yet paid for the drugs, so the officers made an undercover payment of $115,000 to O'Bryant "O.B." Harris for him.(1)
Officers arrested O.B. Harris on August 31, 1996, and he identified Jose Gustavo Castineira as his cocaine source. Officers set up a fake undercover payoff of Castineira, to take place September 1 at Harris Brothers' Garage, which was wired for sound and video. On the appointed day, Castineira and Juan Carlos Vasquez, both Cuban residents of Miami, arrived at the garage in a Mercedes Benz driven by Castineira. Both O.B. and Babe Harris were present. After a brief (recorded) conversation, in which O.B. Harris, Babe Harris, and Castineira discussed a twenty kilogram exchange, Castineira picked up the "cash" and placed it in the vehicle. The officers arrested Castineira and Vasquez.
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). Eighteen defendants pleaded guilty; the remaining eight were tried together during a two-week period in late April - early May 1997, including Gosnell.
Under the State's view of the evidence, Castineira was at the top of the distribution chain. To the extent that the State established that the Castineira conspiracy existed, multiple kilograms of a mixture containing cocaine were distributed under any view of the evidence. Gosnell, on the other hand, was at the lower level of the distribution chain. Under the State's evidence, Castineira distributed to O.B. Harris, who then distributed to Johnny Harold Harris, a/k/a Johnny Harold Miller (Miller) until he went to federal prison for distributing two kilograms of cocaine provided by Castineira. Once Miller went to prison, the conspiracy continued to operate, with O.B. Harris then distributing to Jerome "Babe" Harris thereafter. Babe Harris, in turn, distributed to Todd Brank, who distributed in smaller quantities to multiple people, including James Hattaway. Hattaway distributed smaller amounts to Gosnell. Consequently, under the State's evidence, the amount of cocaine actually handled by Gosnell was much less than the multiple kilogram distribution of the conspiracy itself. Because the evidence indicated Gosnell only handled a maximum of 252 grams, the court charged conspiracy to traffic in cocaine in the amount of at least 200 grams, but less than 400 grams, as a lesser included offense which the jury could consider in the case against Gosnell.
At the close of the State's case, Gosnell moved for a directed verdict, asserting the State's evidence, taken in a light most favorably to the State, did not show that Gosnell participated in a conspiracy to traffic in 400 grams or more of cocaine as alleged in the indictment. The tri