While on trial for attacking his wife with a barbecue fork after downing moonshine, a Laurens County man opened the door for prosecutors to inform jurors that he was convicted of murder when he was a teen, the South Carolina Court of Appeals has ruled.
After the jury convicted Preston Shands Jr., he and his Greenwood-based attorney, Charles Grose, argued on appeal that the trial judge, erred when he allowed the prosecution to impeach Shands by bringing up his 1976 murder conviction. Shands was 17 at the time, according to Grose.
Grose contended that the most recent conviction was inadmissible under the state’s evidence rules because more than a decade had passed since Shands was released from prison. The rule in question, 609, limits the look-back period for the admissibility of a defendant’s conviction to no more than 10 years “since the date of the conviction or of the release of the witness from the confinement imposed for that conviction.”
While Shands had served his prison time for the murder conviction, he was placed on parole for the rest of his life—a fact that spurred the Court of Appeals to consider for the first time whether parole could be considered “confinement” through the lens of Rule 609.
Laurens County Circuit Judge Edward Miller had answered the novel question in the affirmative, ruling that the state could introduce Shands’ prior murder conviction because he was on parole when he allegedly attacked his wife.
In arguing that the earlier conviction was admissible, prosecutors cited the Court of Appeals’ 1997 decision in State v. Scott, which held that a defendant’s 1977 robbery conviction was not too old to be used to impeach her, because her sentence was in effect until 1986, even though she was paroled in 1980.
But Scott was decided before the adoption of the South Carolina Rules of Evidence and based on the common law rule that no prior conviction was too remote to use to impeach a defendant’s testimony, according to Court of Appeals Judge Paula Thomas. She wrote the majority’s unanimous opinion in Shands’ case.
Thomas noted that the majority of jurisdictions that have confronted the question raised in Shands decided that probation and parole are not the same as confinement.
“We follow the majority of jurisdictions in holding that probation and parole do not constitute ‘confinement’ for the purposes of Rule 690(b); confinement ends when a defendant is release from actual imprisonment,” she wrote.
She added that while “Shands was not technically a ‘free citizen’ while he was on parole, we find he was no longer confined because he was not actually imprisoned.”
Criminal defense lawyer Miller Shealy, a former prosecutor who teaches at the Charleston School of Law, reviewed Shands at Lawyers Weekly’s request. He said the decision establishes a “good rule for defendants.”
“If you wait to the end of parole, more defendants would be adversely affected,” he added.
But while Shands won the battle on the interpretation of Rule 609, he lost the war: Thomas went on to determine that even though Shands’ earlier conviction was outside the 10-year lookback window, he and Grose had laid the groundwork at trial for the state to introduce his criminal history.
While cross-examining the state’s witnesses, Grose “elicited testimony … to show that [Shands] had never reacted violently before.” He posed the questions to Shands’ wife and two sons and their neighbor, according to the Court of Appeals.
Those questions allowed the prosecution to impeach Shands when he took the stand by asking about his murder conviction, Thomas found.
“When I asked my questions … I limited it to what they’d witnessed about his behavior, not broader questions about character,” Grose said in an interview. “What I get is that they’re letting the solicitor use his criminal record to impeach the questions that we asked of the state’s witnesses. And that’s not a traditional way of looking at it.”
Asking questions about a defendant’s past behavior is “very risky stuff for the defense attorney to do,” Shealy said. He added that Grose appeared to be “trying to get the benefit of something and avoid the burden.”
“That’s what any good trial lawyer does … you try to be a surgeon about it. I see the point. I take the point. The court just disagrees with it,” Shealy said.
Grose views the decision as an expansion of Rule 609, one that might cause defense lawyers to hesitate before posing certain questions to state witnesses when there’s a possibility that a defendant with a criminal record will testify. Now, the defense might have to decide between asking those questions or putting their client on the stand, Grose said.
He added that Shands planned to petition for a rehearing and if denied would take the case up to the Supreme Court.
The 21-page decision is State v. Shands (Lawyers Weekly No. 011-060-18). An opinion digest is available at sclawyersweekly.com.
Follow Phillip Bantz on Twitter @SCLWBantz