State v. Livingston

• Decision Date: 08 February 1984
• Docket Number: No. 22110,22110
• Citation: State v. Livingston, 317 S.E.2d 129, 282 S.C. 1 (S.C. 1984)
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Charles R. LIVINGSTON, Appellant. . Heard

Page 129

317 S.E.2d 129

282 S.C. 1

The STATE, Respondent, v. Charles R. LIVINGSTON, Appellant.

No. 22110.

Supreme Court of South Carolina.

Heard Feb. 8, 1984.

Decided May 21, 1984.

Michael J. Thompson, of Thompson, Baity & Savitz, P.A., Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., and Sol. James C. Anders, Columbia, for respondent.

PER CURIAM:

Appellant Charles R. Livingston was convicted of four counts of murder, five counts of kidnapping, conspiracy to commit armed robbery, armed robbery, safecracking, and assault and battery with intent to kill. He was sentenced to ten terms of life imprisonment for murder, kidnapping, and safecracking, five years' imprisonment for conspiracy to commit armed robbery, twenty-five years' imprisonment for armed robbery, and twenty years' imprisonment for assault and battery with intent to kill, all sentences to run consecutively. We vacate the life sentences for kidnapping and otherwise affirm.

On the morning of September 29, 1981, appellant Livingston, Willie Stroman, and Frank McDowell entered the Richland County home of Edward R. Harkless, a "root doctor," killed Harkless and three visitors, attempted to kill and seriously wounded Mrs. Harkless and another visitor, and took an undetermined amount of money from a safe in the home.

After McDowell was arrested, he entered into an agreement with the State whereby he would plead guilty and testify for the State at the trial of Livingston and Stroman and the State would not seek the death penalty against McDowell.

On appeal, Livingston first contends the trial judge should have granted his request for access to McDowell's psychiatric record. We disagree.

Counsel for McDowell employed Dr. Harold Morgan to see McDowell with the understanding that the relationship with the psychiatrist would remain confidential. In State v. Hitopoulus, 279 S.C. 549, 309 S.E.2d 747 (1983), we held the attorney-client privilege extends to communications by a defendant to a psychiatrist employed by his attorney to aid in his defense. Thus, we find no error on the part of the trial judge in refusing Livingston's request for access to McDowell's psychiatric records.

Livingston next contends the trial judge erroneously expressed his opinion as to Livingston's presence at the scene of the crimes. We disagree.

Fletcher Felder, one of the two surviving victims, positively identified Livingston as one of his assailants. At the conclusion of re-cross-examination of Felder, the trial judge questioned Felder on his identification of the other assailant. After Felder again identified Livingston as one of the assailants he saw at the Harkless home, the judge directed Felder to "[g]o down there and look at [Stroman] and tell if you saw [Stroman], too." We agree with the State that this comment, read in context, cannot be construed as the trial judge's opinion that Livingston was present at the scene of the crimes.

Livingston next contends statements made by Stroman to a police officer were inadmissible as they violated his Sixth Amendment right to confront witnesses against him.

The police officer merely testified that Stroman initially denied knowing Livingston but later stated he may have met him on a couple of occasions in Columbia. The State asserts the statements were admissible as statements made by a co-conspirator after his arrest to preserve concealment of the crimes. See State v. Campbell, 210 Kan. 265, 500 P.2d 21 (1972); State v. Greenwood, 22 Or.App. 545, 540 P.2d 389 (1975). Here, however, the statements were not made to conceal the crimes. Nevertheless, we find the admission of the statements harmless error as it was cumulative to other testimony which established there was a relationship between Stroman and Livingston.

Fourth, Livingston contends the trial judge erred in allowing McDowell to testify that Livingston, Stroman, and McDowell had committed two prior armed robberies.

Evidence of the commission by an accused of another crime independent of and unconnected with the one on trial is inadmissible except where the purpose is to prove (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing several crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the wrongdoer. State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). The testimony complained of does not fit within any of these exceptions and, unlike Stroman, Livingston's counsel did not "open the door" for further questioning of McDowell concerning the two prior armed robberies. See State v. Stroman, S.C., 316 S.E.2d 395 (1984). However, where guilt is conclusively proven by competent evidence and no rational conclusion can be reached other than the accused is guilty, a conviction will not be set aside because of insubstantial errors not affecting the result. State v. Key, 256 S.C. 90, 180 S.E.2d 888 (1971). We therefore find the error harmless beyond a reasonable doubt and not reversible.

Livingston next contends there was no probable cause to issue a warrant to search his house; therefore, a chisel seized therefrom was inadmissible at trial. We disagree.

Searches based on warrants are given judicial deference to the extent that an otherwise marginal search may be justified if it meets a realistic standard of probable cause. State v. Bennett, 256 S.C. 234, 182 S.E.2d 291 (1971). A common sense and logical interpretation of the affidavit attached to the search warrant overcomes any asserted deficiency. See State v. Thomas, 275 S.C. 274, 269 S.E.2d 768 (1980). We find no error.

Next, Livingston contends the trial judge erred in allowing the introduction into evidence of photographs of the victims and the crime scene.

The determination of the relevancy and materiality of a photograph is left to the sound discretion of the trial judge. If photographs are calculated to arouse the sympathy or prejudice of the jurors...