C. CONSTITUTIONAL ISSUES
1. Double Jeopardy
a. PWID as a Lesser-Included Offense
The trafficking statute does not enumerate PWID of more than the threshold amount as a means to trigger a trafficking offense. However, knowingly possessing more than the threshold amount does trigger the trafficking statute. This raises the double jeopardy issue64 of whether PWID based upon possession of more than the statutory amount to infer intent is a separate offense from trafficking based upon possession or whether PWID is a lesser-included offense of trafficking based on possession.65 In other words, can a defendant who possesses 12 grams of crack cocaine be convicted of both PWID crack cocaine and trafficking in crack cocaine?
While the code specifically states that PWID a controlled substance is a lesser-included offense of trafficking in a controlled substance based upon possession,66 the South Carolina Supreme Court, in Matthews v. State,67 set forth the rationale. The Matthews court bypassed the Blockburger same-elements analysis because the legislative intent was clear from the language of the two statutes.68 The legislature enacted both PWID and trafficking in the same section of the code.69 In doing so, "the legislature intended to establish penalties for possession of [controlled substances] which are directly related to the amount of [the controlled substance] possessed by a defendant."70
For example, a defendant who possesses less than one ounce of marijuana is guilty of a misdemeanor and may be sentenced to a maximum sentence of 30 days in jail.71 However, a defendant who possesses more than one ounce of marijuana may be convicted of PWID marijuana, a felony, based on the statutory amount alone and may be sentenced to a maximum sentence of five years in prison for a first offense.72 Finally, a defendant possessing ten or more pounds of marijuana is guilty of trafficking, a felony, and may be sentenced to anywhere from one year to 30 years depending on the weight of marijuana involved and the defendant's prior drug history.73
The court concluded that, in enacting the incremental sentencing scheme based upon weight, the legislature did not intend cumulative punishment for PWID and trafficking for possession of the same controlled substance.74 Therefore, PWID is a lesser-included offense of trafficking based upon possession, and the defendant cannot be convicted for both offenses.75 Where the evidence is not conclusive that the weight of the controlled substance is sufficient to sustain a trafficking conviction, the defendant is entitled to a jury instruction on both PWID and trafficking.76 However, if the evidence is uncontroverted that the weight exceeds the trafficking threshold amount, the trial judge should charge the jury only on trafficking based upon possession.77
b. Trafficking Conspiracy and Its Substantive Offense
"Trafficking is not limited to the substantive offenses of purchasing, possessing, and selling large amounts of controlled substances. Conspiring and attempting to do those acts also constitute trafficking."78 It follows that "[o]ne manner in which the State may establish the substantive offense of trafficking . . . under [the trafficking statute] is to prove that the defendant conspired to sell, [manufacture, cultivate, deliver, purchase, or bring into the State of South Carolina the threshold amount]."79 "Thus, a defendant may be charged with trafficking under a theory of conspiracy."80 Conspiracy81 is part of the "substantive framework of the offense of trafficking"82 because the General Assembly intended "conspiracy to traffic to be treated as trafficking."83 Thus, there is no distinction between the crime of "trafficking by conspiracy" and "conspiracy to traffic"; they are both violations of the trafficking statute.84
However, note again that the threshold amount triggers the trafficking statute. Thus, the defendant may be convicted of trafficking in a controlled substance based on distribution and trafficking by conspiracy for a conspiracy in which the distribution was an overt act without violating double jeopardy because "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."85 For example, in Harden v. State,86 the defendant was indicted for trafficking crack cocaine by conspiracy and for four counts of distribution of cocaine, which occurred during the conspiracy. The S.C. Supreme Court distinguished this case from Matthews (discussed in subsection a., infra) because in Matthews, the convictions at issue were based on a single transaction, whereas in Harden, "the trafficking conviction was based on a broader conspiracy than the individual transactions which supported the distribution charges."87 In gratis dictum, the court stated:
Trafficking may be accomplished by several means, including conspiracy. Conspiracy is a separate offense from the substantive offense, which is the object of the conspiracy. A defendant may be separately indicted and convicted of both the conspiracy, and the substantive offenses committed in the course of the conspiracy.88
c. Separate Offenses89
As noted, a defendant cannot be convicted of both PWID and trafficking based upon possession of the same drug. If a defendant is charged separately for each charge, the defendant can only be convicted of both offenses if the offenses occurred separately.90 In State v. Dowey,91 the defendant was charged with trafficking a quantity of cocaine between May and July 1986. He was subsequently arrested for PWID cocaine in September 1986. The defendant pleaded guilty to PWID prior to the trafficking trial. At the trafficking trial, the defendant argued his prosecution for trafficking violated double jeopardy because he had already pleaded guilty to the lesser-included offense of PWID, claiming the cocaine involved in the September arrest was part of the same cocaine from which the trafficking charge arose.
In upholding the trafficking conviction, the court of appeals held the two offenses involved separate amounts of cocaine.92 The State did not seek to prove trafficking by showing the cocaine the defendant possessed on the date of the September arrest was the same cocaine the defendant had been trafficking during the May to June 1996 period. The State produced no evidence of the September PWID offense at the trafficking trial. In addition, by the end of July, 1986, prior to the PWID arrest, the defendant had disposed of the cocaine he possessed, which was the basis for the trafficking offense. Therefore, the evidence of the defendant's conduct during the May to June period was the sole basis for the trafficking conviction.The defendant committed separate offenses based upon possession of separate drugs, and the conviction for the two offenses did not violate double jeopardy. However, if the PWID and trafficking offenses arose from the same occurrence, a subsequent conviction would violate double jeopardy.93
2. Sentencing
a. Separation of Powers
In the trafficking statute, the legislature set forth the punishments for trafficking, with certain mandatory sentences depending on weight, which may not be suspended, nor parole granted.94 This sentencing scheme has been challenged95 unsuccessfully as a violation of the separation of powers doctrine96 because the mandatory sentence removes all judicial discretion in the sentencing decision.
While the legislature is restricted...
