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24865 - Legare v. State

Davis Adv. Sh. No. XX
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.

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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.

ยง17-25-50 (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.



p.22


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



p.23


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.





p.24