Legare v. State
| Decision Date | 14 December 1998 |
| Docket Number | No. 24865.,24865. |
| Citation | 509 S.E.2d 472,333 S.C. 275 |
| Court | South Carolina Supreme Court |
| Parties | Albert LEGARE, Respondent, v. STATE of South Carolina, Petitioner. |
Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Teresa A. Knox, Columbia, for petitioner.
Chief Attorney Daniel T. Stacey, of South Carolina Office of Appellate Defense, Columbia, for respondent.
ON WRIT OF CERTIORARI
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.
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.
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 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) ().
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.
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, 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).
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.
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...
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