S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Albert Legare, Respondent,
v.
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Charleston County
Jackson V. Gregory, Trial Judge
Larry R. Patterson, Post-Conviction Judge
Opinion No. 24865
Submitted November 19, 1997 - Filed December 14, 1998
REVERSED
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, and Assistant
Deputy Attorney General Teresa A. Knox, all of
Columbia, for petitioner.
Chief Attorney Daniel T. Stacey, of South Carolina
Office of Appellate Defense, of Columbia, for
respondent.
TOAL, A.J.: The State has petitioned for a writ of certiorari,
contesting the grant of relief to Albert Legare by the Post-Conviction Relief
("PCR") court. We reverse.
p.17
LEGARE v. STATE
FACTUAL/PROCEDURAL BACKGROUND
In March 1992, Legare was indicted for armed robbery, attempted
armed robbery, and assault and battery with intent to kill. In November
1992, a jury found Legare guilty on all counts. He was sentenced to 25 years
imprisonment for armed robbery; 20 years, consecutive, for assault and
battery with intent to kill; and 10 years, consecutive, for attempted armed
robbery. Legare appealed his convictions and sentence. We affirmed the
matter, pursuant to Rule 220, in State v. Legare, Op. No. 95-MO-020 (S.C.
filed January 13, 1995).
In February 1995, Legare filed a PCR application, in which he alleged
ineffective assistance of trial and appellate counsel and denial of due process
of law. After a hearing, the PCR court found trial counsel ineffective and
granted. Legare a new trial. The State petitioned for a writ of certiorari,
which this Court granted. The State now argues that the PCR court erred
in granting relief for the following reasons:
1. Legare's prior convictions were admissible to impeach him; thus, he
failed to show prejudice by trial counsel's representation in pursuing
suppression of references to Legare's prior criminal record;
2. Legare's trial counsel had a legitimate basis for not pursuing
suppression of the photo identification and had made a legitimate strategic
decision not to use an expert; thus, Legare failed to show that trial counsel
was ineffective;
3. The record does not support the PCR court's finding that trial
counsel failed to impeach a state's witness; and
.4. Legare failed to show prejudice by trial counsel's failure to request
concurrent sentences.
LAW/ANALYSIS
A. SUPPRESSION OF PRIOR CRIMINAL RECORD
The State argues the PCR court erred in granting relief where Legare
failed to show he was prejudiced by trial counsel's representation in pursuing
suppression of references to Legare's prior criminal record. We agree.
Legare was convicted for armed robbery in 1972; he was released in
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LEGARE v. STATE
1978. In the very year he was released, he was convicted for conspiracy to
commit armed robbery. He was released from this second sentence in 1982.
Legare's trial counsel moved to suppress the introduction of these prior
convictions. The trial court found the convictions were admissible for
impeachment purposes. It concluded that given the circumstances of the case
-- that Legare was released in 1978 and was immediately convicted again --
the prior convictions would be admissible. Legare was granted relief by the
PCR court on this basis.
In his PCR application, Legare contended that he did not testify at trial
because of the trial court's ruling. He asserted that trial counsel erroneously
informed him that the issue could be raised on appeal. See State v. Glenn,
285 S.C. 384, 330 S.E.2d 285 (1985)(when the trial judge chooses to make a
preliminary ruling on the admissibility of prior convictions to impeach a
defendant and the defendant does not testify at trial, the claim of improper
impeachment is not preserved for review).
The State argues that Legare has failed to show prejudice. We have
found that a prior conviction of a crime of moral turpitude1 may be used for
the purpose of impeaching a defendant-witness's credibility if the conviction
is not too remote in time.2 See State v. Johnson, 271 S.C. 485, 248 S.E.2d
1 In determining whether a crime is one involving moral turpitude, the
focus is primarily on the whether the commission of the crime breaches the
duty to society and fellow man. State v. Ball, 292 S.C. 71, 354 S.E.2d 906
(1987)(listing cases involving moral turpitude crimes, including
housebreaking, grand larceny, and robbery), overruled on other grounds by
State v. Major, 301 S.C. 181, 39.1 S.E.2d 235 (1990).
2 Under the South Carolina Rules of Evidence, which became effective
September 3, 1995, evidence that an accused has been convicted of a crime
shall be admitted if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the accused. The
Rules further declare:
Evidence of a conviction under this rule is not admissible if a
period of more than ten years has elapsed since the date of the
conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date, unless
the court determines, in the interests of justice, that the
probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect.
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LEGARE v. STATE
313 (1978). The decision whether a prior conviction is too remote in time is
a matter within the sound discretion of the trial judge. Horton v. State, 306
S.C. 252, 411 S.E.2d 223 (1991). Johnson found no abuse of discretion in
admission of a 13 year old conviction. Johnson, 271 S.C. 485, 248 S.E.2d
313. Similarly, we have found no error in admission of a 12 year old
conviction. See State v. Livingston, 282 S.C. 1, 317 S.E.2d 129 (1984).
Likewise, State v. Mueller, 319 S.C. 266, 460 S.E.2d 409 (Ct. App. 1995)
upheld the trial court's admission of a prior conviction, reasoning that the
conviction was admissible because the defendant had been on probation in
the previous 10 years.
In the present case, Legare was convicted for armed robbery in 1972
and released in 1978. He was convicted again in 1978 for conspiracy to
commit armed robbery and was released in 1982. The trial court found that
in view of Legare's history -- he was released in 1978 and "immediately went
back in" -- the prior convictions were admissible for impeachment purposes.
Legare's trial took place in 1992. The sentences for his previous convictions
were within 14 and 10 years, respectively, of his trial. The decision whether
the prior convictions were too remote was a matter within the sound
discretion of the trial judge. We do not find any abuse of such discretion.
Because the trial court did not err in admitting the prior offenses, Legare
cannot now complain about ineffective assistance of counsel.
B. IDENTIFICATION TESTIMONY
1. SUGGESTIVE LINEUP
The State argues the PCR court erred in granting Legare a new trial
on the basis of trial counsel's failure to pursue suppression of identification
testimony. We agree.
The PCR court found that trial counsel failed to adequately pursue
suppression of identification testimony based on a claim that "mug shots"
used in a photo identification of defendant were impermissibly suggestive.
Legare's counsel moved during trial to have the photo lineup excluded. He
argued that the photographs must not imply the defendant has had a prior
criminal record, and the manner and introduction of the photos at trial must
be such that it does not draw particular attention to the source or implication
of the photos. The photographs (which are not included in the record on
appeal) are described as color photographs showing Legare in street clothes,
Rule 609, SCRE.
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LEGARE v STATE
and unlike the old photographic lineups wherein the arrestee was shown with
a placard hanging around his neck. The date of Legare's photo appears at
the top of his photo. This and other photographs were shown to one of the
State's witnesses as a photo lineup. The State argued to the trial court that
the photo did not implicate any prior criminal doings on Legare's part.
Legare's counsel withdrew his motion after the solicitor agreed not to refer
to the photographs as "mug shots."
At the PCR hearing, Legare's counsel testified that he thought the
photo identification was "useless"; the only thing suggestive about the photos
were the dates underneath the pictures. Counsel felt it would be better to
attack the problem of the photo identification on cross-examination. Counsel
testified that he did attack this on cross-examination. The State's witness
admitted that the date on the photo coincided with the time that she heard
an arrest had been made.
There has not been a demonstration that counsel's representation fell
below an objective standard of reasonableness, nor has Legare established
prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). The PCR court's order does not point to any specific
basis for finding counsel ineffective, nor does the record demonstrate
ineffectiveness. Accordingly, the PCR court's holding should be reversed on
this point. See High v. State, 300 S.C. 88, 386 S.E.2d 463 (1989).
2. FAILURE TO CALL EXPERT WITNESS
The PCR court further found that counsel failed to call a certain expert
witness, in the field of identification, to testify at trial to discredit the State's
identification testimony. This finding is in error inasmuch as counsel
articulated very clear reasons for not calling the expert. Counsel had read
a transcript of the expert's testimony at another proceeding. He had also
spoken with the attorney who had arranged to have the expert testify.
Counsel concluded that the expert's testimony was unpersuasive and found
him to be belligerent and arrogant. He got an "uneasy feeling" when he
talked to the expert over the phone and concluded he would be "more
damaging than if I left him alone."
Where counsel articulates a valid reason for employing certain strategy,
such conduct will not be deemed ineffective. Underwood v. State, 309 S.C.
560, 425 S.E.2d 20 (1992). Again, the PCR court's order does not offer any
specific grounds as to why counsel was ineffective in failing to call the expert
to testify.
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LEGARE v STATE
C. IMPEACHMENT OF WITNESS
The State contends that the PCR court erred in granting relief to
Legare where he did not show that trial counsel failed to impeach a State's
witness by attacking her credibility. We agree.
Alpharetta Walker, who was living with Legare at the time of his
arrest, testified for the State. The PCR court found that counsel failed to
pursue impeachment of her testimony based on her criminal history. More
specifically, the order states that counsel testified at the PCR hearing that
he had reviewed her criminal identification record prior to trial and that it
contained information substantiating Legare's claim that Walker had been
convicted of crimes of moral turpitude. The order further declares that
letters by Walker were presented to the court; these letters explained her
motivations for testifying on behalf of the State.
The record does not support the PCR court's findings. Walker's
criminal record is not in the record. Likewise, there is no evidence that
Walker's letters were presented to the Court; they are not contained in the
record either. Counsel did cross-examine Walker. He asked her whether she
was receiving a deal from the solicitor's office in exchange for her testimony.
She indicated she was going to be released in exchange of her testifying.
Legare has failed to establish prejudice under Strickland v. Washington.
D. CONCURRENT SENTENCES
The State finally argues that the PCR court erred in granting Legare
relief where he failed to show he was prejudiced by counsel's failure to
request concurrent sentences.
Legare received sentences of 25 years for armed robbery; 20 years,
consecutive, for assault and battery with intent to kill; and 10 years,
consecutive, for attempted armed robbery. Legare argues that counsel was
ineffective in failing to request concurrent sentences under S.C. Code Ann.
17-25-50 (1985), which provides:
In determining the number of offenses for the purpose of
imposition of sentence, the court shall treat as one offense any
number of offenses which have been committed at times so
closely connected in point of time that they may be considered as
one offense, notwithstanding under the law they constitute
separate and distinct offenses.
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LEGARE v. STATE
In State v. Muldrow, 259 S.C. 414, 192 S.E.2d 211 (1972), we explained
that the above statute is a recidivist statute. Where the indictment charges
the defendant with the commission of separate and distinct crimes, each
involving distinct elements not included in the other, then it is entirely
proper for the court to impose sentences on each count for which the
defendant is convicted. Thus, there is no evidence to support the PCR court's
findings that counsel was ineffective in failing to request concurrent charges.
CONCLUSION
Based on the foregoing, the PCR court's grant of relief to Legare is
REVERSED
MOORE, WALLER and BURNETT, JJ., concur. in separate opinion.
FINNEY, C.J., dissenting
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LEGARE v. STATE
FINNEY, C.J.: I respectfully dissent, and would affirm the grant of post-
conviction relief (PCR) to respondent. In my opinion, the majority errs when
it deviates from the normal deferential scope of review applied to PCR
matters. We are required to affirm the circuit court's PCR order if it is
supported by any evidence in the record. Pauling v. State, ___ S.C. ___, 503
S.E.2d 468 (1998). In my opinion, the order"s findings regarding defective
representation, and especially resulting prejudice, are supported by the
evidence and we should not, and properly cannot, overturn them. I would
affirm.
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