State v. Dasher , 278 S.C. 395 ( 1982 )

Lewis, Chief Justice:

Respondent, along with others, was charged with conspiracy to violate the South Carolina Controlled Substance Act, a conspiracy punishable under Section 44-53-420, Code of Laws of South Carolina, 1976. He was found guilty, but upon post-trial motion for judgment in his favor notwithstanding the verdict, the trial judge, before sentencing, without the assignment of any grounds, supplanted the jury verdict of guilty and entered a verdict of his own of not guilty. The State has appealed, and because that ruling cannot be affirmed without abandoning our prior decisions on the roles of j udge and j ury, we reverse.

A review of the testimony brings into focus the error of the trial court. Our prior cases have clearly established the elements of criminal conspiracy. State v. Hightower, 221 S. C. 91, 95-96, 69 S. E. 363; State v. Fleming, 243 S. C. 265, 273-274, 133 S. E. (2d) 800; State v. Greuling, 257 S. C. 515, 523-524, 186 S. E. (2d) 706; State v. Steadman, 257 S. C. 528, 186 S. E. (2d) 712; State v. Hayden, 268 S. C. 214, 220, 232 S. E. (2d) 889; State v. Oliver, 275 S. C. 79, 267 S. E. (2d) 529; State v. Sullivan, 277 S. C. 35, 282 S. E. (2d) 838.

Respondent and his codefendants were indicted for conspiring to violate the drug laws by their participation in a scheme to obtain and distribute cocaine in Lexington County through one Robert Jackson Rece. Respondent’s participation consisted mainly in providing financial assistance to the operation.

The only element clearly at issue in respondent’s trial was his knowledge of the unlawful purpose being pursued by his codefendants. There was no dispute whatever that the respondent had made two loans in the amount of five hundred ($500.00) dollars each to Robert Jackson Rece in the monthy of August 1978. Both loans were promptly repaid within a few days at the equivalent of 20% interest, which is to say the respondent received six hundred ($600.00) dollars in repayment on each of his five hundred ($500.00) dollar loans.

Rece and others testified in detail that respondent’s money was used to further drug smuggling operations. Respondent did not deny that his money was so applied. His position was that he only learned of the criminal conspiracy some time after the loan transactions. He so testified at trial, in direct opposition to the testimony of Rece and another witness, William N. Garrington, Jr. The question of respondent’s knowledge was thus placed squarely before the jury as an issue of fact.

Witness Rece operated a liquor store in Cayce, South Carolina, during August 1978, and both loans were made at the store. In other words, respondent met Rece at Rece’s convenience to lend him money. On August 4, 1978, the first loan was made in the presence of Garrington, who also contributed five hundred dollars and who on Rece’s instructions sent the entire thousand dollars to a fourth party in furtherance of the conspiracy. Garrington’s testimony at trial supported Rece’s claim that the respondent knew how his money was to be used.

The second loan was made later in August in a similar manner, except for the absence of any witness to the transaction besides Rece and respondent.

In the Fall of 1978, Rece was arrested. At about the same time, respondent became Chief of Police in Swansea, South Carolina. Rece agreed to assist the authorities in their investigation of the conspiracy, and as a result he placed two telephone calls to respondent which calls were taped under police supervision and placed into evidence at trial.

The tapes show Rece making numerous references back to the earlier loans and their application to the purchase of cocaine. While respondent’s comments are noncommittal, they do evidence some awareness of the earlier cocaine deals. The following is a sample from one call:

Rece: Now, think about this before you say yes or no. Okay. What you made on that last/expletive/is/expletive/. I got a chance to buy 200 pounds of Acapulco Gold for $6000.00. I’ll handle it. I’ll sell it. If I can get you to invest $2000.00, it will bring you $4000.00 back. I will give you title to two Mustangs to hold for me as collateral. Dasher: When you got to make the move?

******

Rece:... You know what you made before in that other/ expletive/, you know, give me $500.00 and get $600.00 back, that’s/expletive/. I’m talking about I can put some good money on you this time.

******

Dasher: It will take me a little time to raise it because I slapped everything on the credit union.

Rece: ... I mean are you interested in this thing? Dasher: I would have to get back with you.

Rece: Well, you know — you know it’s a hell of a lot better than that damn coke thing we, you know, we were fooling with I borrowed the money from you for. A hell of a lot better thing than that.

Dasher: Where are you located at any more?

******

Respondent contended at trial that he knew of the cocaine transactions by the time of these calls but that he was conducting his own investigation and was seeking to exploit Rece for more information. In fact, respondent did contact the state Law Enforcement Division to reveal Rece’s proposal. At no time, however, did respondent reveal to his SLED contacts the true nature of the loans he had made to Rece.

It is possible that a jury, if it believed the testimony of respondent, could have found the requisite knowledge to be lacking and could have rendered a verdict of acquittal. On the other hand, the same testimony could have equally led reasonable jurors to find respondent guilty. It is particularly odd that Rece (an experienced drug dealer) would have been so bold and open in his “pitch” to the respondent (by then, Swansea Chief of Police) unless the two men had previously engaged in similar dealings. Common sense suggests that a prudent dope peddler would be more cautious, tentative and vague than was Rece if in fact he were approaching a known police officer for the first time to propose a criminal conspiracy. This is not the only logical deduction from the evidence, but is a reasonable inference which a jury could have drawn in this case.

In any event, the jury in this case was confronted with a clear factual dispute. Moreover, since the critical issue was the respondent’s knowledge of the conspiracy, the jurors were required to weigh his credibility against that of the State’s two witnesses, Rece and Garrington.

At the conclusion of all the evidence, respondent renewed previous motions for a directed verdict of acquittal based upon insufficiency of the evidence. In denying the prior motion, the trial court correctly held that its duty was to view the evidence most .favorably for the State. In passing, the court remarked about the State’s chief witness: (emphasis added)

... as I have to view the evidence in the light which forces me into an unpleasant situation of having to believe everything that Rece says, which I have to for the purpose of this motion, which I may not necessarily agree with, but I am bound under this motion to accept everything Rece says as true.

At the conclusion of the evidence, the court again stated (emphasis added):

It is not a question of whether or not the Court believe[s] a witness or not. The Court is in no position to judge the credibility of witnesses at this point, but the Court has to accept what the witness says as being truthful, and then give the evidence that comes from that benefit of all the inferences that follow.

Here the trial court was correct except for its interpolation of the words “at this point” in stating the rule. Our cases have consistently held that at no point may the trial court weigh the credibility of witnesses. State v. Brown, 205 S. C. 514, 32 S. E. (2d) 825; State v. Marshall, 250 S. C. 448, 158 S. E. (2d) 650, 651; State v. Fleming, 254 S. C. 415, 420, 175 S. E. (2d) 624; State v. Pitts, 256 S. C. 420, 427, 182 S. E. (2d) 738; State v. Wharton, 263 S. C. 437, 443, 211 S. E. (2d) 237; State v. Ham, 268 S. C. 340, 233 S. E. (2d) 698. See also the many cases listed in 7A West’s South Carolina Digest Criminal Law, Key No. 753.

After the verdict, respondent moved and argued for a new trial. Where new trial is sought, this Court has stated: “A trial judge may not invade the province of the jury or substitute his verdict for theirs.” Watford v. S. C. State Highway Dept., 269 S. C. 130, 133, 236 S. E. (2d) 558. On an earlier occasion, the court spoke more simply: “The trial judge is not a juror.” State v. Williams, 166 S. C. 63, 81, 164 S. E. 415. The principle is restated in numerous cases found in 7A West’s South Carolina Digest Criminal Law, Key No. 935.

Notwithstanding settled law, the trial court abruptly announced at the conclusion of argument: “The verdict in this case is hereby vacated. The verdict of not guilty is directed by the court.”

There is no precedent in this State for such action. This is not a case in which a trial judge has granted a new trial upon the facts (a power which he admittedly has), but rather one in which a trial judge has entered a verdict of not guilty in the face of conflicting evidence (a power he has never had in this jurisdiction). Worse still, the trial court’s action appears based upon personal disbelief that the State’s chief witness was truthful in his testimony. It is obvious that the trial court simply disagreed with a jury which had chosen to believe the “wrong” witnesses. To affirm this decision is to grant unprecedented license to trial judges to invade the area where the jury system has been deemed most effective — that is, in assessing the truthfulness of fellow human beings testifying under oath.

There is a total and complete absence of anything in this record, or in judicial precedent in this State, to sustain the action of the trial judge. The record beyond question shows that there was competent evidence to sustain the verdict of guilty. Where there is evidence to sustain the verdict and the trial judge considered an injustice had been done, he would have had, at the most, only authority to grant a new trial. If he acquitted the respondent upon the ground that there was no evidence to sustain the conviction, then he committed an error of law because a finding that there was no evidence would be in the teeth of the record that patently showed otherwise. It is undisputed that the State may appeal where the verdict is set aside wholly upon an error of law.

The trial judge did not exercise a power to grant a new trial upon the facts, but rather set aside the verdict of the jury in the face of conflicting facts and substituted his judgment for that of the jury. In doing so, he committed an error of law, from which the State had a right to appeal.

Concern is expressed for double jeopardy implications should we sustain this appeal. This concern is baffling in light of the fact that reversal here will merely reinstate a jury verdict without further trial. As the United States Supreme Court observed in U. S. v. Wilson, 420 U. S. 353-354, 95 S. Ct. 1013, 1026, 43 L. Ed. (2d) 232, 247; “when a judge rules in favor of a defendant after a verdict of guilty has been entered by the trier of the facts, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause.”

Even if a new trial were involved in this case, a retrial would not be barred under the Double Jeopardy Clause, since the ruling of the trial court was obviously based upon the conclusion that the conviction was against the weight of the evidence. Tibbs v. Florida, 454 U. S. 963, 102 S. Ct. 502, 72 L. Ed. (2d) 652.

Accordingly, we reverse the order under appeal, reinstate the verdict of the jury and remand for sentencing.

Gregory and Harwell, JJ., concur. Ness, J., and William L. Rhodes, Jr., Acting Associate Justice, dissent.