Shari Smith was two days from her high school graduation when she stopped at the mailbox at the end of her family's driveway in Lexington County, South Carolina, on the afternoon of May 31, 1985. Her father found her car there with the engine still running. Three days later the telephone rang at the Smith house, and over the next three weeks a man who knew things only her kidnapper could know called again and again. He told the family a letter from Shari was on its way, and the letter, which state officials took from the mail, was a "Last Will and Testament" she had written in captivity. In one call he gave directions to her body, which was found in Saluda County on June 5. In others he described to her sister, Dawn, exactly how she had died, and told Dawn she would be next.
On June 14, two weeks to the day after Shari disappeared, nine-year-old Debra Mae Helmick was playing in the yard of her family's rented trailer in the Shiloh Trailer Park in Richland County when a neighbor watched a man get out of a silver car, grab her and drive away. Eight days later the caller phoned the Smiths again, this time with directions to Debra's body, which police found in Lexington County. Larry Gene Bell was arrested on June 27. Investigators reached him through an anonymous tip and through a telephone number pressed into the paper Shari had written on, which led them to a house where he had been house-sitting.
Bell was tried twice and sentenced to death twice. The first trial, for Shari's murder, was moved to Berkeley County because of pretrial publicity, and in the 1987 opinion that opens this file the Supreme Court of South Carolina upheld the trial judge's repeated findings that Bell was competent, even as his own lawyer testified that the two of them had stopped communicating; the judge had noticed that Bell's outbursts came only when the jury was in the room. The 1990 opinion upholds his 1987 conviction for Debra's murder by jurors some of whom already knew he was under sentence of death for Shari's. In 1995 the Fourth Circuit rejected his federal habeas petition, including his complaint that his trial lawyer had conceded the kidnapping and asked the jury for a verdict of guilty but mentally ill against his wishes. Bell chose the electric chair over lethal injection and died in it at 1:12 a.m. on October 4, 1996, less than two hours after the United States Supreme Court turned down his last appeal. Shari's uncle and Debra's father were among the witnesses.
Three opinions are printed here in date order, two from the Supreme Court of South Carolina and one from the federal appeals court in Richmond, about nineteen thousand words in all. Each begins by retelling the crimes, and the three retellings together are the fullest court account of the telephone calls that exists in print. They are still the courts' summaries. What the caller said reaches the reader secondhand, through the notes the Smiths made of the early calls and recordings the authorities made of the later ones, as the judges described them. None of the recordings, and none of Shari's letter beyond its title, is in these pages.
The courts do not agree with one another on several small facts, and we have left each version as it was printed. The Fourth Circuit dates Bell's conviction for Shari's murder to February 1986; the 1990 state opinion says he was tried in June of that year. The 1990 opinion calls Debra nine and a half and says she was playing with her three-year-old brother when she was taken, the Fourth Circuit calls her ten, and the United Press International report of the execution says she was with a younger sister. The state court spells her middle name Mae and the federal court May. The trial records that would settle the date are not in this file.
No name has been shortened. The opinions name Shari and Debra, Shari's sister Dawn, who testified at the sentencing hearing, and the lawyers, judges and officials. They do not name the neighbor who saw Debra taken, and in the 1987 opinion's discussion of the victim evidence they do not name the North Carolina mother who testified about Bell's threats to her daughter years earlier.
These are United States court opinions and are in the public domain. The text comes from the Caselaw Access Project's digitized edition of the South Carolina reports and the Federal Reporter, and we ran no spelling repair over it. Its small flaws are left as they are: a stray period in "the. house where Bell was housesitting," a stray apostrophe in "the caller' knew," and "his parent's home" for the home of both his parents. The older South Carolina style of citation, S. E. (2d) for S.E.2d, is how that court's reports printed it.
22773
The STATE, Respondent v. Larry Gene BELL, Appellant.
(360 S. E. (2d) 706)
Supreme Court
Jack B. Swerling and Elizabeth 0. Levy of Swerling and Harpootlian, South Carolina Office of Appellate Defense, Columbia, for appellant
Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Asst. Attys.-Gen. Harold M. Coombs, Jr., and Norman Mark Rapoport, Columbia, Solicitor Donald V. Myers, Lexington, for respondent.
Heard June 9, 1987.
Decided Aug. 24, 1987.
[OPINION BY Ness, Chief Justice: type=majority]
Ness, Chief Justice:
Appellant was convicted of murder and kidnapping arising out of the death of Sharon Faye “Shari” Smith. He was sentenced to death upon recommendation of a jury. This appeal combines his direct appeal and our mandatory review of his death sentence pursuant to S. C. Code Ann. § 16-3-25 (1985). We affirm the conviction and sentence.
On May 31, 1985, 17-year-old Shari Smith was abducted from the driveway of her Lexington County home. On June 3rd, while Shari was still missing, her family received the first of a series of anonymous telephone calls from the abductor. In the first call, the caller told the family they would be receiving a letter from Shari in the next day’s mail. In subsequent calls, extending over a period of nearly three weeks, the caller advised the family of the location of Shari’s body, described having sex with Shari, and recounted her acceptance that he was going to kill her. He said he had given Shari three options for her death: gunshot, drug overdose, or suffocation. When Shari chose suffocation, he tied her to a bed with electrical cord, and wrapped her head with duct tape so she could not breathe.
Appellant was indicted in Saluda County, where Shari’s body was found, for murder and kidnapping. Upon appellant’s motion, venue was transferred to Berkeley County because of pretrial publicity.
GUILT PHASE
Appellant first asserts error in the trial judge’s determination at several points during the trial that he was mentally competent to continue with the trial. A determination of competency was made prior to jury selection in Saluda County. During the guilt phase and again during the sentencing phase in Berkeley County, defense counsel expressed concerns about appellant’s deteriorating mental condition. Each time, the trial judge permitted psychiatric and psychological experts for the State and the defense to examine appellant and to give their opinions of his mental condition at that time. The opinions of the experts are in dispute at each of the competency hearings. Defense counsel testified each time that communications between him and his client had ceased, and that appellant was not assisting in his defense in any manner.
At each of the competency hearings, the trial judge considered the expert testimony and the testimony of defense counsel. He also made independent conclusions based on his own observations of appellant’s conduct. He specifically noted that appellant’s outbursts and erratic behavior occurred only when the jury was present in the courtroom. Based on all the evidence before him, on each occasion, the trial judge determined appellant was competent to continue trial.
The test for competency to stand or continue trial is whether the defendant has the sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational, as well as a factual, understanding of the proceedings against him. Dusky v. United States, 362 U. S. 402, 80 S. Ct. 788, 4 L. Ed. (2d) 824 (1960); Carnes v. State, 275 S. C. 353, 271 S. E. (2d) 121 (1980). A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing his defense may not be subjected to trial. Drope v. Missouri, 420 U. S. 162, 95 S. Ct. 896, 43 L. Ed. (2d) 103 (1975); State v. Blair, 275 S. C. 529, 273 S. E. (2d) 536 (1981).
The thrust of appellant’s argument is that none of the State’s experts ever interviewed defense counsel to determine whether appellant was assisting in his defense. However, the test of mental competence does not focus on whether a defendant in fact cooperates with his counsel; the question is whether he has sufficient mental capacity to do so if he so chooses.
A defendant’s claim that a psychologist’s testimony was incomplete or wrong does not preclude a finding that the defendant is competent to stand trial where the psychologist was subject to cross-examination by defense counsel. United States v. Birdsell, 775 F. (2d) 645 (5th Cir. 1985), cert. denied,_U. S__, 106 S. Ct. 1979, 90 L. Ed. (2d) 662 (1986). Here, defense counsel fully cross-examined each of the State’s experts regarding their failure to determine whether appellant was communicating with his counsel. In addition, defense counsel testified to his client’s failure to cooperate.
The trial judge’s findings of competence were based on the expert testimony, defense counsel’s testimony, and the trial judge’s own observations of appellant’s behavior. The very nature of the inquiry as to a defendant’s competency to stand trial demands that a court not be bound strictly by the views of experts. United States v. Baraban, 599 F. Supp. 1171 (S. D. Fla. 1984). The trial judge’s determinations of competency have evidentiary support and are not against the preponderance of the evidence.
Appellant next asserts he was denied his Sixth Amendment right to a public trial by the trial judge’s order that the courtroom be sealed during the testimony of all witnesses. At the commencement of trial, the judge addressed himself to the spectators in the courtroom, and advised that ingress and egress to the courtroom would be prohibited while witnesses were testifying. Spectators were permitted to come and go between witnesses, and when the jury was out of the courtroom.
Appellant asserts this absolute prohibition and sealing of the courtroom denied him his constitutional right to a public trial. The Sixth Amendment to the United States Constitution and Article I, Section 14 of the South Carolina Constitution guarantee a criminal defendant a public trial. This protection is for the benefit of the accused, so the public may see that he is dealt with fairly, and the public’s presence may keep his triers aware of the importance of their functions. Waller v. Georgia, 467 U. S. 39, 104 S. Ct. 2210, 81 L. Ed. (2d) 31 (1984). The requirement of openness of criminal proceedings can be overcome only by a finding that closure is necessary to preserve higher values. Press-Enterprise Co. v. Superior Court, 464 U. S. 501, 104 S. Ct. 819, 78 L. Ed. (2d) 629 (1984). Any order restricting the right to a public trial must be closely scrutinized to assure there is no impermissible infringement of the right. State v. Sinclair, 275 S. C. 608, 274 S. E. (2d) 411 (1981).
Appellant asserts the trial judge’s order cannot survive this scrutiny, since he articulated no reasons for his closure of the courtroom. The cases upon which appellant relies involve orders in which certain persons were excluded from the courtroom, or all persons were excluded for particular testimony. Here, the trial judge’s order was not directed at any person or persons, nor was it directed at any particular testimony. Anyone who wanted to be in the courtroom was welcome to be there. The trial judge merely placed a limitation on when the spectators could enter or leave the courtroom. Limitation on public access to a criminal trial is not subject to the same scrutiny given denial of access. United States v. Kerley, 753 F. (2d) 617 (7th Cir. 1985). “[A] limitation can withstand constitutional scrutiny so long as it is reasonable and neutral, as with time, place and manner restrictions generally.” Id. at 621.
We cannot conclude the trial judge’s limitation infringed upon appellant’s constitutional rights in any manner. Cf., People v. Venters, 124 A. D. (2d) 57, 511 N. Y. S. (2d) 283 (1987) (closure of criminal trial during jury charge violated constitution where purported justification — preventing possible distraction for the jurors — applied equally to other parts to trial which were not closed).
Appellant next argues the evidence fails to support the jury’s verdict that appellant was guilty, rather than guilty but mentally ill. Essentially, he argues the trial judge should have directed a verdict in his favor on the issue of guilt, and should have submitted to the jury possible verdicts of guilty but mentally ill, or not guilty. In reviewing the denial of the motion for directed verdict, this Court must view the evidence in a light most favorable to the State. Any evidence, direct or circumstantial, reasonably tending to prove the guilt of the accused creates a jury issue. State v. Dobson, 281 S. C. 36, 314 S. E. (2d) 310 (1984). Thus, if there was evidence of appellant’s guilt, as well as evidence that he was guilty but mentally ill, the trial judge properly submitted both possible verdicts to the jury.
“A defendant is guilty but mentally ill if, at the time of the commission of the act constituting the offense, he had the capacity to distinguish right from wrong and to recognize his act as being wrong ..., but because of mental disease or defect he lacked sufficient capacity to conform his conduct to the requirements of the law.” S. C. Code Ann. § 17-24-20(A) (1985). The burden of proof is on the State to show the defendant committed the crime, and the burden is on the defendant to show he was mentally ill at the time the crime was committed. S. C. Code Ann. S. C. § 17-24-20(B) (1985).
The State’s case-in-chief contained evidence from which a jury could conclude appellant was guilty of the charges against him. Appellant introduced lay and expert evidence during his case that he was mentally ill, as defined by § 17-24-20(A), at the time the crime was committed. In reply, the State presented expert testimony that appellant was not mentally ill at the time the crime was committed. Thus, the issue of appellant’s mental illness was a disputed fact which was properly submitted to the jury.
Appellant asserts the trial judge erred in failing to instruct the jury that a sentencing proceeding would follow even if appellant was found guilty but mentally ill. At trial, the State asserted the only time appellant sought professional assistance for his mental illness was after he had been accused of a crime, and that his mental illness was feigned for purposes of avoiding punishment. The solicitor argued to the jury that a verdict of guilty but mentally ill would be a prize for appellant. The trial judge refused appellant’s request to instruct the jury that even if it found appellant guilty but mentally ill it would still be permitted to determine whether life or death was the appropriate sentence.
The function of a jury is to determine whether a defendant is guilty or not guilty. Information as to penalty is of no aid to the jury in determining whether the defendant committed the crime charged. State v. Brooks, 271 S. C. 355, 247 S. E. (2d) 436 (1978).
In Brooks, this Court also said where the right to fix punishment or make a recommendation regarding punishment rests with the jury, it is error to refuse to instruct the jury in that respect. That statement, however, was made in the context of a proceeding in which the jury’s determination of guilt and its recommendation regarding sentence were made at the same time. It has no application in a bifurcated proceeding, when the jury’s determinations regarding guilt and punishment are made separately.
The subsequent progress of a trial is not relevant to the jury’s determination of whether a defendant is guilty, guilty but mentally ill, or not guilty, and it is not error to refuse to instruct the jury regarding punishment at the guilt phase. See e.g., State v. Huiett, 271 S. C. 205, 246 S. E. (2d) 862 (1978) (it is error to instruct the jury that a verdict of not guilty by reason of insanity may lead to the defendant’s discharge from custody). See also State v. Valenti, 265 S. C. 380, 218 S. E. (2d) 726 (1975).
Appellant asserts the trial judge should have granted a mistrial after the judge’s comments in the presence of the jury suggested his opinion that appellant was not mentally ill. Appellant’s testimony was rambling, full of free association, and oftentimes directionless. He would begin to answer a question, then his testimony would wander into unrelated areas. The trial judge occasionally attempted to refocus appellant’s attention to the question in order to keep his answers responsive. During cross-examination by the solicitor, appellant began to argue with the solicitor, and to ask questions himself. The judge admonished appellant to answer the questions, and appellant responded by questioning the solicitor’s own mental competence. The judge then stated:
“Mr. Bell, I am telling you. I know Mr. Bell that you understand the question, you hear the question, answer it — then you explain in any way you want ...”
Defense counsel requested a bench conference, after which the trial judge carefully instructed the jury he had not commented on the facts, and that they should completely disregard the remark. Appellant argues this curative instruction was insufficient.
A trial judge should never intimate to the jury his opinion on the credibility of the witnesses, the weight of the evidence, or the guilt of the accused. State v. Sosebee, 284 S. C. 411, 326 S. E. (2d) 654 (1985). However, remarks made by a trial judge in ruling on the admissibility of evidence or ruling on other matters during the trial do not fall within the prohibition against judges charging juries on issues of fact. State v. Mishoe, 198 S. C. 215, 17 S. E. (2d) 142 (1941).
In any event, even if the judge’s remark was error, the curative instruction was sufficient. An instruction to disregard incompetent evidence is usually deemed to have cured the error unless on the facts of the particular case it is probable that, notwithstanding the instruction, the accused was prejudiced. State v. Craig, 267 S. C. 262, 227 S. E. (2d) 306 (1976). See also State v. Smith, 290 S. C. 393, 350 S. E. (2d) 923 (1986); State v. Lynn, 277 S. C. 222, 284 S. E. (2d) 786 (1981). This argument is without merit.
Appellant asserts the trial judge erred in ejecting him from the courtroom during closing argument and in refusing his counsel’s request to provide an audio hookup in the holding cell after he was ejected.
Twice during defense counsel’s closing argument, appellant stood and objected to the trial proceeding on the Sabbath. The trial judge excused the jury, and explained to appellant his right to be present in the courtroom as well as the limits on the right. He took a recess to provide defense counsel an opportunity to further discuss the matter with his client.
When trial resumed, appellant again interrupted defense counsel’s argument, with complaints of fatigue and hunger. The trial judge excused the jury, and discussed appellant’s right with him again. Appellant told the trial judge he could not sit quietly if trial resumed and he would insist on obstructing the trial in one way or another. Based on appellant’s unequivocal statements, the trial judge removed appellant from the courtroom, and denied defense counsel’s request for an audio hookup in the holding cell. When trial resumed, the jury was instructed they should not draw any inference at all from appellant’s absence from the courtroom.
An accused has the right to be present at every stage of his trial. Illinois v. Allen, 397 U. S. 337, 90 S. Ct. 1057, 25 L. Ed. (2d) 353 (1970). This right, however, may be waived. Ellis v. State, 267 S. C. 257, 227 S. E. (2d) 304 (1976). A defendant may properly be excluded when his conduct is disruptive or is interfering with the progress of the trial. In re: Dwayne M., 287 S. C. 413, 339 S. E. (2d) 130 (1986). Although the right to be present is a substantial one, no presumption of prejudice arises from a defendant’s exclusion. State v. Whaley, 290 S. C. 463, 351 S. E. (2d) 340 (1986); State v. Smart, 278 S. C. 515, 299 S. E. (2d) 686 (1982).
The trial judge was generous and patient in accommodating appellant’s outbursts prior to excluding him from the courtroom. Even without appellant’s candid admissions that he would impede the trial if he remained in the courtroom, his disruptive conduct clearly constituted a waiver of his right to be present at trial. Since appellant intentionally waived his right to be present, he was not entitled to audio access to the proceedings which transpired in his absence. See, e.g., State v. Logan, 279 S. C. 345, 306 S. E. (2d) 622 (1983) (a defendant cannot complain of an error which results from his own conduct, or to which his conduct has contributed).
SENTENCING PHASE
Appellant asserts error in admitting testimony regarding the social worth of the victim and in allowing the solicitor to compare the victim’s social worth to appellant’s social worth. In the course of describing the events surrounding the abduction of Shari Smith, several witnesses testified to facts surrounding Shari’s moderately affluent lifestyle and her plans for her future. Each of these facts were related to the events surrounding the crime. Most were critical for the jury’s understanding of why Shari was in the various places she was on the day of her abduction.
Appellant argues this Court’s decision in State v. Gaskins, 284 S. C. 105, 326 S. E. (2d) 132 (1985) requires reversal on this issue. There, Gaskins, who was a prison inmate at the time of his crime, was convicted of killing another prison inmate. The trial judge denied Gaskins’ request to introduce the victim’s confession to murder. This Court affirmed, stating the victim’s death row status did not entitle Gaskins to kill him.
In Gaskins, the proffered evidence was intended to directly illustrate the victim’s status, ostensibly in mitigation. Here, however, the references to the victim’s lifestyle were directly related to competent, relevant testimony concerning the crime.
Subsequent to argument in this case, the United States Supreme Court held it constitutionally impermissible for a capital sentencing determination “to turn on the perception that the victim was a sterling member of the community rather than someone of questionable character.” Booth v. Maryland, 482 U. S__,_, 107 S. Ct. 2529, 2534, 96 L. Ed. (2d) 440, 450 (1987). In so holding, however, the Court specifically stated that evidence of the victim’s personal characteristics “may well be admissible because they relate directly to the circumstances of the crime.” 107 S. Ct. at 2535 n. 10. Thus, Booth supports our conclusion.
Appellant similarly argues the trial judge erred in allowing testimony regarding the effects of the crime on the victim’s sister, and the effect of a prior crime on that victim’s family. During the penalty phase, Dawn Smith testified she never went out of the house alone after her sister’s abduction and murder. The mother of a young girl who had been threatened by appellant when he lived in North Carolina stated she had become anxious about her daughter’s safety since that crime.
The function of a capital sentencing jury is to “express the conscience of the community on the ultimate question of life or death.” Witherspoon v. Illinois, 391 U. S. 510, 519, 88 S. Ct. 1770, 1775, 20 L. Ed. (2d) 776, 783 (1968). In so doing, the jury is required to focus on the defendant as a “uniquely individual human being.” Booth v. Maryland, supra, citing Woodson v. North Carolina, 428 U. S. 280, 96 S. Ct. 2978, 49 L. Ed. (2d) 944 (1976). In Booth, the Court vacated a death sentence in which the jury had been permitted to consider a Victim Impact Statement containing graphic, detailed, and articulate descriptions of the family’s grief over the victim’s death. “[T]he degree to which a family is willing and able to express its grief is irrelevant to the decision whether a defendant ... should live or die.” Booth, 107 S. Ct. at 2534.
This case is clearly distinguishable from Booth. Here, the jury was not given, nor even made aware of, a Victim Impact Statement. See S. C. Code Ann. § 16-3-1150 (1985). In addition, it is unclear whether Dawn Smith’s testimony related to appellant’s threats toward her, or to the murder of her sister. In telephone calls to the Smith home after Shari’s murder, appellant threatened Dawn that she was his next victim.
Lastly, Dawn’s reference to her fear was vague and brief. In Booth, the Victim Impact Statement was five pages long and contained clearly irrelevant facts: i.e., the victim’s son wakes up each night at the precise time of the murders, has visions of his parents, and thinks of them constantly; the victim’s daughter cries every day, and cannot look at kitchen knives (the murder weapon) without thinking of the murders; the funeral was the largest ever recorded in the history of the funeral home and the family received more than 1,000 sympathy cards; and other similar facts. Clearly, the facts in this case are distinguishable.
In addition, the testimony of the mother of appellant’s North Carolina victim was admitted in the course of referencing appellant’s prior crime. See, e.g., State v. Gaskins, supra, (details of prior murders in defendant’s confession). The reference to the mother’s fear for her daughter’s safety was not admitted to dramatize the prior crime, but related only to the existence of the prior crime. Booth, supra.
Appellant next asserts error in the solicitor’s closing argument in the penalty phase of the trial. The solicitor (1) referred to appellant as “different from the rest of us”; (2) suggested he was appearing on behalf of Shari Smith; (3) referred to Shari Smith as the only witness from whom the jury would not be able to hear; and, (4) referred to the protections of the legal process being afforded appellant and said appellant gave Shari Smith no similar protections.
A trial judge is vested with broad discretion in dealing with the range of propriety of closing argument, and ordinarily his rulings on such matters will not be disturbed. State v. Patrick, 289 S. C. 301, 345 S. E. (2d) 481 (1986). The solicitor’s argument must be carefully tailored so as not to appeal to the personal bias of a juror, nor calculated to arouse his passion or prejudice. State v. Livingston, 282 S. C. 1, 317 S. E. (2d) 129 (1984). Here, the solicitor’s argument was eloquent, but we believe it was within acceptable limits.
Appellant next argues the jury failed to give adequate consideration in mitigation to the overwhelming evidence appellant was mentally ill at the time of the crime. The burden is on the jury to consider the evidence presented and determine whether the mitigating factors exist and if so, the significance to be afforded those mitigating factors. State v. Patrick, supra. Whether appellant’s evidence of mental illness obviated in favor of a sentence of life imprisonment was for the jury to determine.
Lastly, appellant argues the trial judge erred in failing to instruct the jury appellant did not bear the burden of establishing his mitigating circumstances by a preponderance of the evidence. There is no burden of proof on a capital defendant with regard to evidence of mitigating circumstances. Rather, the jury is to consider the evidence presented and determine whether the mitigating factors exist and, if so, the significance to be accorded them. State v. Patrick, supra. The trial judge’s charge was consistent with Patrick and was therefore not erroneous.
PROPORTIONALITY REVIEW
We have reviewed the entire record and conclude the death sentence was not the result of passion, prejudice or other arbitrary factor, and the evidence supports the jury’s finding of aggravating circumstances. S. C. Code Ann. § 16-3-25(C)(1)-(2) (1985). The death sentence is not excessive or disproportionate to the penalty imposed in similar cases. S. C. Code Ann. § 16-3-25(C)(3) (1985). See State v. Owens, 359 S. E. (2d) 275 (S. C. 1987); State v. Elmore, 286 S. C. 70, 332 S. E. (2d) 762 (1985); State v. Plath, 281 S. C. 1, 313 S. E. (2d) 619 (1984); State v. Adams, 279 S. C. 228, 306 S. E. (2d) 208 (1983); State v. Copeland, 278 S. C. 572, 300 S. E. (2d) 63 (1982); State v. Shaw, 273 S. C. 194, 255 S. E. (2d) 799 (1979).
The conviction and sentence are
Affirmed.
Gregory, Harwell and Finney, JJ., and Littlejohn, Acting Associate Justice, concur.
This opinion also addresses appellant’s appeal from a pretrial contempt sentence imposed by Judge Long arising out of appellant’s refusal to provide voice and body fluid samples. Appellant has not argued any of his exceptions relating to this appeal and it is therefore deemed abandoned. State v. Sullivan, 277 S. C. 35, 282 S. E. (2d) 838 (1981).
It is not necessary to decide whether the State is required to produce evidence that a defendant is not mentally ill after a defendant has introduced testimony that he is mentally ill. Cf., State v. Milian-Hernandez, 287 S. C. 183, 336 S. E. (2d) 476 (1985) (once a defendant introduces evidence of insanity, the presumption of sanity disappears and it is incumbent of the State to present evidence of sanity). The State does not address this, and the facts of this case do not require a resolution of this issue.
Appellant’s testimony covers approximately 500 pages in the transcript.
The South Carolina procedure for use of Victim Impact Statement differs significantly from the Maryland procedure at issue in Booth. It is clear from S. C. Code Ann. § 16-3-1550(E) (1985) that only sentencing judges, not juries, are to have access to the statement. In Maryland, a capital jury is required to consider the Victim Impact Statement during the sentencing proceeding. Md. Ann. Code Art. 41, § 4-609(d) (1986).
23163
STATE of South Carolina, Respondent v. Larry Gene BELL, Appellant.
(393 S.E. (2d) 364)
Supreme Court
Jack B. Swerling, S.C. Office of Appellate Defense, John H. Blume and David I. Bruck, both of Bruck & Blume, Columbia, for appellant.
Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Asst. Attys. Gen. Harold M. Coombs, Jr. and Norman Mark Rapoport, Columbia, and Sol. Donald V. Myers, Lexington, for respondent.
Heard May 3, 1988.
Decided Feb. 26, 1990.
[OPINION BY Toal, Justice: type=majority]
Toal, Justice:
A jury convicted appellant, Larry Gene Bell, of the murder and kidnapping of Debra Mae Helmick. For these crimes, Bell was sentenced to death. We consolidate Bell’s direct appeal with our mandatory review of his death sentence pursuant to S.C. Code Ann. § 16-3-25 (1985). We affirm his conviction and sentence.
The facts of the instant case must be considered together with the facts surrounding the abduction and murder of Shari Faye Smith (hereinafter Shari). On the afternoon of Friday, May 31, 1985, Bell abducted seventeen year old Shari from beside the mailbox in front of her home in Lexington County. On June 3,1985, the Smith family began to receive a series of phone calls from Bell concerning Shari. After Bell related the precise whereabouts of Shari’s body in one telephone call to the Smiths, he called again to describe how Shari died. Bell explained to Dawn Smith, Shari’s sister, that he “took duct tape and wrapped it all the way around [Shari’s] head.” Bell also insisted that Dawn report the information concerning the duct tape and the suffocation to the coroner so he could accurately determine the cause of death.
Two weeks after Shari’s abduction, at a time after Shari’s body had been found but while Bell was still at large, Bell abducted and murdered another young girl. This victim was nine and a half year old Debra Mae Helmick. Debra Mae, her three year old brother, and her parents lived in a rented trailer in the Shiloh Trailer Park in Richland County. On June 14,1985, at 4:00 p.m., Debra Mae and her brother were playing in the front yard beneath their trailer’s front window. A neighbor, looking out of the window of his trailer, observed what he described as a “silver” car drive rapidly into the trailer park, past the Helmick trailer and his trailer. The car turned around and stopped near the children. The neighbor saw a man he later identified as defendant Bell get out of the car with what appeared to be a white bag in his hand. Bell walked toward the children, grabbed Debra Mae around her waist and ran back to his car. Debra Mae was screaming and kicking. Bell threw her into his car. She continued to struggle and scream, kicking the inside roof of the car. The neighbor ran out of his trailer and attempted to stop the car. Bell accelerated the car and exited the trailer park. The neighbor got within 40 feet of the Bell automobile. He observed that the license was a South Carolina tag, first letter “D.” The neighbor then ran to the Helmick trailer to alert Mr. Helmick.
Eight days after the abduction of Debra, Bell again called the Smith family to give them precise directions to find Debra’s body. Following the directions given by Bell, the police located Debra’s severely decomposed body in Lexington County on June 22, 1985. Debra’s body was clothed in a tank top, shorts, her cotton panties, and over her panties, a pair of silk adult bikini briefs. Adhesive material, not inconsistent with duct tape, was found in Debra’s hair, suggesting that she, like Shari, had been suffocated. Bell was apprehended by the police on June 27,1985, while driving a grayish 1978 Riviera. Although the car’s affixed license plate read “OCH 241,” a search of the car’s trunk revealed the existence of a second license plate. This plate read “DCE 604.” Also found in the trunk was the registration card for the car, which indicated that “DCE 604” was the Riviera’s license plate number.
In June of 1986, Bell was tried for the murder and kidnapping of Shari Smith, found guilty of these crimes and sentenced to death. In March of 1987, Bell was tried, convicted and sentenced to death for the murder and kidnapping of Debra Mae Helmick. Bell now appeals from the 1987 conviction and sentence.
I. GUILT PHASE
A. JURY QUALIFICATION
Bell alleges that the judge erred in the jury qualification. First, Bell maintains that the trial judge erred in qualifying nine jurors who knew the appellant had previously been sentenced to death for the murder and kidnapping of Shari Faye Smith. Such knowledge, Bell submits, rendered his conviction and sentence of death constitutionally unreliable. Second, Bell contends that the judge abused his discretion in not striking three jurors who purportedly equivocated concerning their views on the death penalty.
The determination of whether a juror is qualified to serve on a death penalty case is within the sound discretion of the trial judge, and is not reviewable on appeal unless wholly unsupported by the evidence. State v. Spann, 279 S.C. 399, 308 S.E. (2d) 518 (1983), appeal dismissed, cert. denied, 466 U.S. 947, 104 S. Ct. 2146, 80 L. Ed. (2d) 533 (1984). A voir dire examination must be reviewed in its entirety to determine whether the trial judge erred in his qualification or disqualification of prospective jurors. State v. Drayton, 293 S.C. 417, 361 S.E. (2d) 329 (1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1060, 98 L. Ed. (2d) 1021 (1988).
The constitutional standard of fairness requires that a defendant have a panel of impartial, indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. (2d) 751 (1961). In Irvin, the United States Supreme Court addressed the issue of pretrial knowledge of facts by jurors where the appellant had been sentenced to death. The Court found that it was not required that jurors be totally ignorant of the facts and issues involved in a case. The Court opined that “it [was] sufficient if the juror [could] lay aside his impression or opinion and render a verdict based on the evidence presented in Court.” Irvin, 366 U.S. at 723, 81 S. Ct. at 1643. Here, each of the jurors at issue stated that they could set aside any opinions garnered from their prior knowledge of the appellant's conviction and/or sentence of death for the murder of Shari Smith and would be able to give the appellant a fair and impartial trial.
In Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. (2d) 589 (1975), the defendant, “Murph the Surf,” notorious for his involvement in the 1964 theft of the Star of India sapphire, claimed that the jurors were biased because they knew about his previous convictions. The Court held that juror exposure to information about a defendant’s prior convictions or to news accounts of the crime with which he is charged does not alone presumptively deprive the defendant of due process. The Court declined to find that the setting of the trial was inherently prejudicial, and declined to find prejudice in the jury selection process. Murphy, 421 U.S. at 803, 95 S. Ct. at 2038.
Our Court considered whether the trial court erred in not excusing four jurors who had heard of the case and some of its details in DeLee v. Knight, 266 S.C. 103, 112, 221 S.E. (2d) 844, 847 (1975) cert. denied, 426 U.S. 939, 96 S. Ct. 2658, 49 L. Ed. (2d) 392 (1976). Even though the jurors had some knowledge of the case, we found that each juror had not formed a conclusive opinion as to the guilt or innocence of the accused, and could render a just verdict based solely on the evidence presented at trial.
Consistent with the holdings in DeLee and Murphy, we conclude here that each juror who had knowledge of Bell’s prior conviction and death sentence stated that he could set aside his impression or opinion and render a verdict based on evidence presented in the courtroom. In response to the questions by the attorneys and the Court, each juror expressed his belief that he could set aside any prejudice, passion or bias that he/she might harbor. Hence, we hold that the judge did not abuse his discretion in qualifying the challenged jurors.
In so holding, we also reject Bell’s argument that the jurors’ knowledge of the previous death sentence diminished their sense of responsibility in deciding what sentence to impose. Bell relies, by analogy, on the United States Supreme Court’s decision in Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. (2d) 231 (1985). In Caldwell, the prosecutor urged the jury not to view itself as the final determiners of whether the petitioner would die, since a death sentence would be reviewed for correctness by the Missisippi Supreme Court. The Court concluded that this invitation to rely on the Mississippi Court’s review would generate a bias toward returning a death sentence. Caldwell, 472 U.S. at 333, 105 S. Ct. at 2642.
We find that the reasoning of Caldwell does not control the case at bar. The jurors have disavowed themselves prior to their qualification of any bias or prejudice against the appellant, specifically with respect to his previous sentence of death.
Likewise, we find that the judge did not abuse his discretion in qualifying three jurors because of their views concerning the death penalty. In Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. (2d) 841 (1985), the United States Supreme Court held that if a venireman’s views regarding capital punishment would prevent or substantially impair the performance of his duties as a juror, then he should be excluded for cause. Wainwright, 469 U.S. at 420, 105 S. Ct. at 850.
The decision as to whether a venireman’s views would substantially impair the performance of his duties as a juror rests with the sound discretion of the judge, and no reversal shall occur unless the record establishes an abuse of discretion. DeLee v. Knight, 266 S.C. at 112, 221 S.E. (2d) at 847. Here, all three jurors indicated that they would be able to give a sentence of life or death depending on the facts and circumstances. Reviewing the entire voir dire of the first juror challenged, we conclude that the judge properly found that the juror would consider the case on its merits. The other two jurors initially misunderstood the bifurcation of the trial, but later, after clarification, responded that they could impose either the death penalty or a life sentence. The trial judge, therefore, did not abuse his discretion in qualifying the challenged jurors.
B. ADMISSIBILITY OF EVIDENCE
Bell contends that the trial court abused its discretion in admitting evidence of other crimes and bad acts. Specifically, Bell submits that the trial court erred in two ways: first, by admitting several recordings of telephone calls made by Bell to Shari Smith’s mother and sister, and second, by admitting a bag containing women’s underwear.
We will first consider whether the judge erred in admitting the redacted tapes of the telephone conversations between Bell and the Smith family. As previously discussed, two weeks before the kidnapping of Debra Mae Helmick in Rich-land County, teenager Shari Smith was kidnapped from Lexington County and murdered. Bell was convicted and sentenced to death for this murder. State v. Bell, 298 S.C. 391, 360 S.E. (2d) 706 (1987).
During the time Shari was missing, members of the Smith family received a series of phone calls from Bell. All of the telephone conversations, except one, were recorded by the police. The trial judge, over objection, decided to admit certain portions of the tapes, excising portions he believed to be prejudicial.
The judge admitted portions of five conversations between Bell and the Smiths. In the first tape, Bell disclosed the time and manner of the abduction, and said that Shari had “the fear of God in her.” In the second tape, admitted in its entirety, Bell gave the following directions which led police to Shari’s body:
Listen carefully. Take Highway 378 West to Traffic Circle. Take Prosperity Exit, go one and a half miles, turn right at sign, Moose Lodge Number 103, go one quarter mile, turn left at white framed building, go to backyard, six feet beyond we’re waiting. God chose us.
In the third tape, Bell described Shari’s death to her sister, Dawn Smith:
THE CALLER: Okay. And I did make love to her and we had oral sex for uh — three different times and uh— she died — can you handle this now?
D. SMITH: Yes.
THE CALLER: Okay. I tied her up to the bed post and uh — with electric cord and uh — she didn’t struggle, cry or anything. She let me voluntarily, from her chin to her head — oh, yeah, and be sure to tell — okay, I’ll go ahead and tell you. And I took duct tape and wrapped it all the way around her head and suffocated her and tell the coroner or get the information out how she died____
In the fourth tape, Bell reiterated that Shari died by suffocation with duct tape. In the fifth tape, Bell, in his final call to the Smith’s residence, directed the Smiths and the police to Debra’s body. The directions were as follows:
Listen carefully. Go One North — well, One West, turn left at Peach Festival Road or Bill’s Grill, go three and a half miles through Gilbert, turn right, last dirt road before come to stop sign at Two Notch Road. Go through chain and no trespassing sign. Go 50 yards and to the left, go 10 yards. Debra Mae is waiting. God forgive us all.
Bell objects to the admission of the evidence of other crimes as found on the redacted tapes.
In order for this Court to reverse a case based on erroneous admission or exclusion of evidence, error and prejudice must be shown. State v. McElveen, 280 S.C. 325, 313 S.E. (2d) 298 (1984).
In State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), we articulated the exceptions to the general rule that evidence of other crimes is not admissible to prove the crime charged. Our Court found that evidence of other crimes was competent to prove the specific crime charged when it tends to establish the following: (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; and (5) the identity of the person charged with the commission of the crime on trial. Lyle, 125 S.C. at 416, 118 S.E. at 807. The evidence must be logically relevant to the particular purpose or purposes for which it is sought to be introduced. Id. Additionally, the other acts evidence must also be established by clear and convincing evidence. Id.
Bell requests that this Court limit the Lyle rule by finding that other acts evidence is admissible only if necessary. Relying mainly on State v. Johnson, 293 S.C. 321, 360 S.E. (2d) 317 (1987), Bell argues that the trial judge erred in admitting the other acts evidence because it was not needed. Bell notes that the State had the testimony of an eyewitness who identified Bell as the abductor as well as other evidence linking him to the crime. In Johnson, we stated that “evidence of other crimes is never admissible unless necessary to establish a material fact or element of the crime charged.” 293 S.C. at 324, 360 S.E. (2d) at 319. Consistent with our rulings since Lyle, we define “necessary” as synonymous with “relevant.” Thus, evidence of other crimes is never admissible unless relevant to establish a material fact or element of the crime charged. The evidence contained on the tapes was relevant here. It connected Bell to the commission of the murder of Debra by demonstrating the similarities between the Helmick and Smith murders. It was also relevant because the Smith and Helmick murders were so intertwined.
The State, however, must also show that the evidence sought to be introduced fits into one of the Lyle exceptions. The evidence of the details of the kidnapping and murder of Shari Smith, we conclude, was properly admitted as evidence of a larger plan or scheme of which the crime on trial was a part. In State v. Anderson, 253 S.C. 168, 169 S.E. (2d) 706, cert. denied, 396 U.S. 948, 90 S. Ct. 386, 24 L. Ed. (2d) 253 (1969), we espoused the following test for the admissibility of evidence to show a common plan or scheme:
The question is whether the particular item of evidence tends to show the existence, the nature or the content of the plan. Much of the showing is evidence of the conduct of the defendant, and the specific question becomes whether the particular conduct circumstantially tends to prove the design or plan.
Anderson, 253 S.C. at 181-82, 169 S.E. (2d) at 712. See also, State v. Woomer, 276 S.C. 258, 277 S.E. (2d) 696 (1981) (Evidence of other killings committed prior to the crime on trial was admissible to show the existence and commission of a preconceived plan which tended strongly to implicate the defendant as a participant).
In the present case, the tape recorded conversations concerning Shari Smith’s murder and kidnapping show the existence and the nature of Bell’s plan. The State demonstrated that Bell devised a plan to kidnap and murder young, blonde girls and then utilize the Smith family as a platform to disclose the crimes. Bell’s plan surrounding the murders of Shari and Debra implicated him as the murderer. The murders of Shari and Debra were joined together through Bell’s own actions. The plan and commonality of the two crimes, such that the first crime tends to prove the second crime, is disclosed throughout the tapes.
In the first tape, the link between the two crimes can be seen: both blonde girls were kidnapped in broad daylight in late afternoon, on a Friday, from in front of their respective homes. Moreover, in the second tape, the precise directions given by Bell to Shari Smith’s body are echoed in the directions he gave to lead the police to Debra Helmick’s body. Bell commenced both calls with the phrase “listen carefully.” He ends the directions by referring to God. He also ominously stated in both tapes that Shari and Debra are waiting. In the third tape, Bell recounted how Shari Smith died. He told Dawn Smith that Shari died by suffocation. The manner of Shari Smith’s death — suffocation by duct tape — was consistent with the way Debra died. A SLED analyst testified that residue found in Debra’s hair was consistent with the type of adhesive found on duct tape. Thus, it could be concluded that Debra suffered death in a manner identical to that of Shari.
Similarly, the sexual activity with Shari disclosed by Bell was also probative of a common scheme because Debra was found with a pair of silk underwear pulled over her cotton underwear, inferentially connoting sexual activity. The circumstances surrounding the murder of Shari Smith were so blended with the murder of Debra that the proof of Shari’s murder established the material fact that Bell murdered and kidnapped Debra. Furthermore, the proof of the common scheme — the kidnapping, murder and contact with the Smith family — strongly implicated Bell as the person who committed the crimes. By his own actions, Bell linked the two crimes together, and consequently, the evidence on the tapes was probative of his conduct.
9 The conversations between the Smith family and Bell were also admissible to show Bell’s motive and state of mind when he kidnapped and murdered Debra. Evidence of prior acts which demonstrates motive is admissible. See State v. Grainger, 275 S.C. 417, 272 S.E. (2d) 175 (1980) (Evidence that defendant was a drug dealer was admissible to establish motive for flight which resulted in the death of a police officer).
Bell recounted to Dawn Smith his sexual experiences with Shari during one of the telephone conversations. The trial judge properly admitted the conversation because it demonstrated a possible sexual motive for the kidnapping of Debra. As discussed earlier, Debra’s body was discovered with an extra pair of adult female silk bikini underwear on top of her cotton children’s underwear. Although Debra’s body was too decomposed to ascertain whether sexual intercourse or the like had occurred, the existence of the adult underwear on the child was evidence that Bell was impelled to kidnap her for bizarre sexual reasons. Evidence of Bell’s sexual motivations was properly considered by the jury.
Although we find that the evidence is admissible under two of the Lyle exceptions, we must also determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. If the prejudicial effect outweighs its probative value, such evidence should be excluded. Whether prejudicial error has been committed must be determined on the basis of the record in its entirety and the result will generally turn on the facts of each case. U.S. v. Johnson, 610 F. (2d) 194 (4th Cir. 1979), cert. denied 446 U.S. 911, 100 S. Ct. 1840, 64 L. Ed. (2d) 264 (1980).
We reversed the appellant’s conviction in State v. Johnson, 293 S.C. 321, 360 S.E. (2d) 317 (1987) because the admission of prior acts evidence was prejudicial. The case at bar, however, is unlike Johnson. Here, the redacted telephone conversations between Bell and the Smith family were highly probative of the State’s contention that Bell also kidnapped and murdered Debra. In Johnson, most of the other crime evidence had little probative value, and instead served merely to “prejudice the jury by focusing its attention on appellant’s propensity to commit criminal acts.” Johnson, 293 S.C. at 326, 360 S.E. (2d) at 320. Therefore, we hold that because of the highly probative nature of the tapes here, their prejudicial impact did not outweigh their probative value.
Bell also contends that the judge abused his discretion in admitting into evidence a bag of women’s underwear seized by investigators from Bell’s bedroom. The women’s silk bikini underwear were similar to the extra pair of adult underwear found on Debra’s body. Since the police seized the bag of underwear from Bell’s bedroom, and because the seized underwear were similar to the kind the victim was wearing, the panties were admissible since they tended to make Bell’s guilt more probable. State v. Schmidt, 288 S.C. 301, 342 S.E. (2d) 401 (1986) (Evidence is relevant if it tends to establish or to make more or less probable some matter at issue upon which it directly or indirectly bears). We therefore hold that the admission of the bag of women’s underwear was proper.
C. STATUTORY WAITING PERIOD
Bell further contends that he was prejudiced when he was required to exercise his right to the statutory waiting period between the guilt phase and the sentencing phase of his bifurcated trial in the presence of the jury. The judge, after inquiring whether the appellant desired to exercise his right to the statutory waiting period, explained to the jury that there existed a “statutorily provided for” waiting period of twenty-four hours before the sentencing phase could commence. Since the verdict was rendered on a Friday, the judge informed the jury that the trial would not commence again until Monday. The jury was sequestered through the weekend.
Bell asserts that the judge’s actions prejudiced him because the jury was told that it would have to be sequestered for an additional two days solely due to his decision to rely on his statutory right. Since the judge explained that the trial would be lengthy during the voir dire, we believe all the jurors understood the projected length of the proceedings. Moreover, the judge clearly articulated that the right to a twenty-four hour waiting period was statutorily mandated, and the defendant’s right. We hold, therefore, that the trial judge did not err in asking Bell whether he desired to exercise his statutory waiting period in the presence of the jury.
II. SENTENCING PHASE
A. TESTIMONY OF ASSISTANT SOLICITOR
In the penalty phase, the State presented testimony from a former Assistant Solicitor who represented the State in a guilty plea proceeding involving Bell. Bell pled guilty to assault and battery of a high and aggravated nature in 1976. The Solicitor testified that Bell attempted to abduct a young woman at gunpoint in 1975. The victim of the crime did not testify concerning the assault.
Although Bell agrees that the information concerning the details of prior offenses could be introduced during the penalty phase, see State v. Plath, 281 S.C. 1, 313 S.E. (2d) 619 (1984), he maintains that such evidence in the form of the Solicitor’s testimony was inadmissible hearsay. We need not address this issue, since Bell was clearly not harmed by the admission of this evidence.
Bell cannot show prejudice because he also presented numerous witnesses in mitigation who testified generally about his propensity to assault women, and specifically about the assault the Solicitor recounted. Indeed, we perceive Bell’s trial strategy as one which sought to draw the jury’s attention to his bizarre sexually deviant behavior in order to support his contention in mitigation that he was mentally ill. Having failed to show prejudice, Bell cannot complain about the Solicitor’s testimony. Cf. State v. Blackburn, 271 S.C. 324, 247 S.E. (2d) 334 (1978) (it is a settled rule that the admission of improper evidence is harmless where it is merely cumulative to other evidence).
B. SOLICITOR’S CLOSING ARGUMENT
Bell asserts that the Solicitor’s closing argument in the sentencing phase contained three areas of prejudicial comment. First, Bell contends that the Solicitor and Assistant Solicitor injected their opinions as to the appropriateness of the death penalty into their arguments. Second, Bell maintains that the Solicitor implied that the imposition of anything less than a death sentence would indicate the jurors’ weaknesses. Third, Bell asserts that the Solicitor made improper references to the victim.
A trial judge is vested with broad discretion in dealing with the range of propriety of closing argument, and ordinarily his rulings on such matters will not be disturbed. State v. Patrick, 289 S.C. 301, 345 S.E. (2d) 481 (1986). The Court must review the argument in the context of the entire record. State v. Linder, 276 S.C. 304, 278 S.E. (2d) 335 (1981). The appellant has the burden of showing that any alleged error in argument deprived him of a fair trial. Id. The Solicitor’s argument, however, must be carefully tailored so as not to appeal to the personal bias of a juror, and may not be calculated to arouse the juror’s passion or prejudice. Id.
Bell complains that the Solicitors injected their personal opinions into their summations. As an example, one Solicitor stated during his closing argument that if “this [wasn’t] a case in which a jury should impose the death penalty, if this [wasn’t] the type of case in which the State should seek the death penalty and expect the death penalty, then there is none.” The Solicitor also implored the jury “to do what’s right.” He stated that if “it was not right in this case, it was never right.”
Bell relies on State v. Woomer, 277 S.C. 170, 284 S.E. (2d) 357 (1981) and State v. Butler, 277 S.C. 543, 290 S.E. (2d) 420 (1982) to support his proposition that the Solicitors injected their personal opinions into their closing arguments. In Woomer, we held that the Solicitor minimized the juror’s responsibility for the appellant’s fate by stressing that he had already made the same decision he was asking them to make. The Solicitor there commented as follows:
You know, the initial burden in this case is not on you all. It was on me. I am the only person in the world that can decide whether a person is going to be tried for his life or not. I mean I did the same thing you all did. I had to make up my mind in regards to this and under the law, if there is any question about it, you ask the judge, I have to make the first decision as to whether or not a person is going to be tried for the electric chair.
277 S.C. at 175, 284 S.E. (2d) at 359. Because the Solicitor injected his personal opinion into the jury’s deliberation, we reversed the defendant’s sentence.
In Butler, we held that:
When a solicitor’s personal opinion [was] explicitly injected into the jury’s determinations as though it were in itself evidence justifying the sentence of death, the resulting death sentence may not be free from the influence of any arbitrary factor as required by S.C. Code Ann. § 16-3-25(c)(l) and the Eighth Amendment to the Constitution.
277 S.C. at 546, 290 S.E. (2d) at 421.
We find that the Solicitor’s comments in Woomer and Butler are easily distinguishable from the instant case. Here, the Solicitor did not inject his personal opinion concerning the death penalty into the proceedings. Nor did the Solicitor comment on his involvement in deciding whether or not to prosecute for the death penalty. The Solicitor’s comments did not diminish the role of the jury to decide Bell’s fate, thus, we hold that the argument was proper.
Similarly, Bell’s reliance on State v. Plath, 277 S.C. 126, 284 S.E. (2d) 221 (1981) and State v. Davis, 239 S.C. 280, 122 S.E. (2d) 633 (1961) is misplaced. In Plath, the Solicitor stated in closing argument that he would never ask for the death penalty again if the jury did not return with a recommendation that the death penalty be imposed. In Davis, the same Solicitor commented that if the jury turned the defendant accused of rape loose, he would have to turn loose all others accused of rape.
The Solicitor’s comments here are distinguishable from the erroneous ones in Davis and Plath. Here, the Solicitor did not challenge the jury by telling them what he would do if the jury failed to impose a death sentence. We conclude that the Solicitor’s argument was proper.
Bell next maintains that the Solicitor improperly implied to the jury that their imposition of a life sentence would be a “cop out.” We reject Bell’s argument.
In State v. Reed, 293 S.C. 515, 362 S.E. (2d) 13 (1987), the Solicitor argued that any recommendation of less than death would be evidence the jurors lacked courage and had “copped out.” The Solicitor also referred to those “bad life sentences” and attempted to pressure the jury into rejecting appellant’s evidence in mitigation by referring to public opinion. We con-eluded that the Solicitor’s final argument was not carefully tailored to avoid appealing to the personal bias of a juror. We also found that the argument was calculated to arouse the jurors’ passion or prejudice. See also, State v. Cockerham, 294 S.C. 380, 365 S.E. (2d) 22 (1988) (Solicitor commented that defendant depended on the jurors’ “soft underbellies], lack of courage,” and “lack of commitment” to not give him the death penalty).
The Solicitor here did not attack the courage or lack thereof of the jury to impose the death sentence in his closing argument. In Cockerham and Reed, the Solicitors launched personal attacks against the jury. The Solicitor did not bully the jury as the Solicitors did in Reed and Cockerham. The only similarity between Reed, Cockerham and the instant case is the use of the colloquialism, “cop-out.” Reviewing the Solicitor’s comments in the context of the entire record as we are required to do, State v. Lindner, 276 S.C. 304, 278 S.E. (2d) 335 (1981), we hold that the comments did not “so infect the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871, 40 L. Ed. (2d) 431, 437 (1974).
Bell also contends that the Solicitor’s comments improperly referred to the victim. We disagree. The Solicitor, at the beginning of his summation, remarked that his voice would be the last one heard on behalf of the State and Debra Helmick. The Solicitor suggested to the jury that imposing a sentence less than the death penalty would be a “blight on the memory” of Debra Helmick. He also commented:
I sat in my chair before you came out this morning and I tried to imagine what Debra Mae Helmick would look like sitting on that witness stand today. Well, we know she’s not here and we know why she’s not here.
In State v. Middleton, 295 S.C. 318, 323, 368 S.E. (2d) 457 459 (1988), cert. denied — U.S. —, 109 S. Ct. 189, 102 L. Ed. (2d) 158 (1988), this Court upheld the argument of the Solicitor wherein he stated: “To sentence [appellant] other than to death would be a mockery of the memory of Shirley Mae Mack.” Hence, we have already addressed and disposed of such an argument in Middleton.
The appellant also argues that the Solicitor suggested he was appearing on behalf of Debra. In State v. Bell, 293 S.C. 391, 360 S.E. (2d) 706 (1987), cert. denied 484 U.S. 1020, 108 S.Ct. 734, 98 L. Ed. (2d) 682 (1988), we upheld a similar Solicitor’s argument. We thus find no error in the Solicitor’s comment that he was appearing on behalf of the State and Debra Mae Helmick.
In reviewing the Solicitor’s comments in the context of the entire record, we find no errors in the Solicitor’s closing arguments.
C. JURY INSTRUCTIONS
Bell asserts that the trial court erred in instructing the jury during the penalty phase. First, Bell maintains that the penalty phase instructions improperly restricted the jury’s ability to consider all mitigating evidence by suggesting that only statutory mitigating circumstances were relevant.
The trial judge charged the jury as follows:
In arriving at your recommendation you may consider any mitigating circumstances otherwise authorized or allowed by law and you may consider certain so-called statutory aggravating and mitigating circumstances which are supported by the evidence.
After defining mitigating circumstances, the judge stated:
As a matter of fact, you may recommend that the defendant receive a life sentence irrespective of whether you find the existence in the evidence of an alleged statutory mitigating circumstance or not. In fact, you may recommend a sentence of life imprisonment for any reason you can think of or for no reason at all.
The issue presented is whether the trial judge properly presented nonstatutory mitigating circumstances to the jury. We have previously upheld the contested charge as sufficient to instruct a nonstatutory mitigating circumstance. State v. Singleton, 284 S.C. 388, 326 S.E. (2d) 153 (1985), cert. denied, 471 U.S. 1111, 105 S. Ct. 2346, 85 L. Ed. (2d) 863 (1985).
Bell’s contention that Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. (2d) 347 (1987) supports his argument is without merit. In Hitchcock, the Supreme Court held that a sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence. Here; the trial court referred implicitly and explicitly to nonstatutory mitigating circumstances at least twice. The trial court instructed the jury that they could give a life sentence for any reason or for no reason at all. The trial court also stated that the jurors could consider any mitigating circumstances otherwise authorized or allowed by law. Thus, based on our prior case law and because Hitchcock does not control here, we hold that the Court properly charged the jury on mitigating circumstances.
Bell next asserts that the trial court erred by implying in his instruction that the jury could not consider “sympathy” arising from the case in mitigation.
The trial judge charged:
In considering whether to recommend that the defendant be sentenced to death or to life imprisonment, I charge you that you are not to allow any passion, prejudice, or any other arbitrary factor to influence your judgment. As jurors, you must decide the issues involved in this proceeding without bias and without prejudice to any party. You cannot allow yourselves to be governed by sympathy, by prejudice, by passion, or by public opinion. Both the State and the defendant have the right to expect that each of you will carefully and impartially consider all the evidence in the case and you will follow the law as I have given it to you in determining your recommendation.
Bell contends that this instruction is erroneous in light of California v. Brown, 479 U.S. 538, 107 S. Ct. 837, 93 L. Ed. (2d) 934 (1987), and that it diverts the jury from its constitutional duty to consider mitigating factors in favor of the defendant. In Brown, the United States Supreme Court held that an instruction informing jurors that they “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling” during the penalty phase did not violate the Eighth and Fourteenth Amendments of the United States Constitution.
The Court fashioned a two-pronged analysis to guide us in our review of Bell’s contention. The initial focus is on the “specific language challenged.” If the specific instruction fails constitutional muster, we are told next to “review the instructions as a whole to see if the entire charge delivered a correct interpretation of the law.” Brown, 107 S. Ct. at 839. In Brown, the Court noted that it need not reach the second step of analysis, since “a reasonable juror would not interpret the challenged instruction in a manner that would render it unconstitutional.” Id. at 839-40.
Bell argues that the instruction given in his trial constitutionally differs from the one approved in Brown. He points out that the word “sympathy” is the first word in the string of nouns in the instant instruction, while it is third in the Brown instruction. He also notes that the word “mere” is missing from the instant instruction, unlike the instruction in Brown.
The Brown Court stated:
We also think it highly unlikely that any reasonable juror would almost perversely single out the word “sympathy” from the other nouns which accompany it in the instruction: conjecture, passion, prejudice, public opinion, and public feeling. Reading the instruction as a whole, as we must, it is no more than a catalog of the kind of factors that could improperly influence a juror’s decision to vote for or against the death penalty.
Id. at 840. This analysis applies with equal force to the instant instruction. We therefore reject Bell’s argument that the exact position of the word “sympathy” in a string of nouns is of constitutional import.
This same excerpt from Brown disposes of Bell’s complaint about the absence of the word “mere.” As well-reasoned by the Court, the word “sympathy” is listed among other factors (prejudice, passion, etc.) which are clearly improper bases for a jury decision. Hence, as the Court stated, “a rational juror could hardly hear this instruction without concluding that it was meant to confine the jury’s deliberations to considerations arising from the evidence presented, both aggravating and mitigating.” Id.
Even if we assume arguendo that Bell overcomes the first step in the Brown analysis, he surely fails at step two. Reviewing the judge’s instructions as a whole, Bell’s jury was told that they could recommend a “sentence of life imprisonment for any reason you can think of or for no reason at all.” (Tr. at 2145-46). They were also told that they were allowed to consider mitigating circumstances, both statutory ones and those “otherwise authorized or allowed by law.” Further, the instant “sympathy” instruction about which Bell complains was given at the end of the penalty phase, after Bell had finished putting forth all of his evidence in mitigation. A reasonable juror would simply not isolate the word “sympathy,” disregard all of Bell’s evidence and all of the trial judge’s previous instructions, and refuse to consider mitigating evidence. We therefore hold that Bell’s complaints regarding the “sympathy” charge are without merit.
Lastly, Bell asserts that the trial judge erred in rejecting his attempt to waive any ex post facto objection to the application of the thirty year provision of the Omnibus Criminal Justice Improvement Acts of 1986. Additionally, Bell argues that the trial judge erred in failing to charge the jury that a person sentenced to life imprisonment for murder would not be eligible for parole until after service of twenty years. We rejected both these arguments in State v. Matthews, 296 S.C. 379, 373 S.E. (2d) 587 (1988), cert. denied — U.S. —, 109 S. Ct. 1559, 103 L. Ed. (2d) 861 (1989). We, therefore, hold that these arguments are without merit here.
D. PROPORTIONALITY REVIEW
We have reviewed the entire record and conclude the death sentence was not the result of passion, prejudice or any other arbitrary factor, and the evidence supports the jury’s finding of aggravating circumstances. S.C. Code Ann. § 16-3-25(C)(1)-(2). The death penalty is not excessive or disproportionate to the penalty imposed in similar cases. S.C. Code Ann. § 16-3-25(C)(3). See, State v. Bell, 293 S.C. 391, 360 S.E. (2d) 706 (1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 734, 98 L. Ed. (2d) 682 (1988); State v. Adams, 279 S.C. 228, 306 S.E. (2d) 208 (1983) cert. denied, 464 U.S. 1023, 104 S. Ct. 558, 78 L. Ed. (2d) 730 (1983); State v. Copeland, 278 S.C. 572, 300 S.E. (2d) 63 (1982), cert. denied 460 U.S. 1103, 103 S. Ct. 1802, 76 L. Ed. (2d) 367 (1983).
We therefore affirm Bell’s conviction and sentence.
Affirmed.
Gregory, C.J., and Harwell, Chandler and Finney, JJ., concur.
This conviction and sentence was affirmed in State v. Bell, 293 S.C. 391, 360 S.E. (2d) 706 (1987); cert. denied 484 U.S. 1020, 108 S.Ct. 734, 98 L. Ed. (2d) 682 (1988).
We note that venue in this case, which originally lay in Lexington County, was changed to the upstate county of Pickens.
Proof of an actual conviction, of course, is one way in which a proponent of the evidence can establish bad acts and satisfy the “clear and convincing” standard. State v. Drew, 281 S.C. 440, 316 S.E. (2d) 367 (1984).
S.C. Code Ann. § 16-3-20(C).
Larry Gene BELL, Petitioner-Appellant, v. Parker EVATT, Commissioner, South Carolina Department of Corrections; T. Travis Medlock, Attorney General, State of South Carolina, Respondents-Appellees.
No. 94-4016.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 25, 1995.
Decided Dec. 18, 1995.
ARGUED: Stephen G. Morrison, Columbia, South Carolina, for Appellant. Donald John Zelenka, Assistant Deputy Attorney General, Lauri J. Soles, Assistant Attorney General, Columbia, South Carolina, for Ap-pellees. ON BRIEF: Elizabeth Scott Moise, Daniel J. Westbrook, Columbia, South Carolina; John D. Delgado, Columbia, South Carolina; John H. Blume, Post-Conviction Defender Organization of South Carolina, Columbia, South Carolina, for Appellant.
Before RUSSELL, MICHAEL, and MOTZ, Circuit Judges.
[OPINION BY DONALD RUSSELL, Circuit Judge: type=majority]
Affirmed by published opinion. Judge RUSSELL wrote the opinion, in which Judge MICHAEL and Judge MOTZ joined.
OPINION
DONALD RUSSELL, Circuit Judge:
Larry Gene Bell, awaiting execution in South Carolina for kidnapping and brutally murdering Sharon Faye Smith, appeals the district court’s denial of his final petition for writ of habeas corpus. The question before this Court, is whether any of Bell's numerous “eleventh-hour” complaints warrant habeas relief. The district court concluded that Bell’s challenges to his conviction and death sentence were meritless. We affirm.
I.
On Friday, May 31,1985, at approximately 3:15 p.m., while most of her friends and classmates were packing for their high school graduation trip, seventeen-year-old Sharon Faye Smith (“Shari”) was abducted from the driveway of her Lexington County, South Carolina home. Discovering Shari’s car— unattended and still running — Shari’s father started searching for her. When his efforts failed, Mr. Smith contacted the police. State officials and local F.B.I. agents soon initiated a massive manhunt for Shari, which lasted until her body was found on June 5, 1985.
While Shari was still missing, someone identifying himself as Shari’s abductor made the first in a series of harassing phone calls to the Smiths. Because the caller' knew details that would have been known to only Shari or her kidnapper, the Smiths made notes of the calls. Authorities eventually traced and recorded all later calls. During the first conversation, the abductor told Shari’s family they would be receiving a letter from Shari. State officials intercepted her letter, entitled “Last Will and Testament,” from the mail. Apparently, her abductor had Shari draft it shortly before her death. On June 5, 1985 the caller — later identified as Bell — provided directions leading to Shari’s body. Unfortunately, by the time Shari’s body was located, the pathologist could not ascertain either the cause of her death or whether or not she had been sexually assaulted. The pathologist believed, however, that Shari either suffocated or died from dehydration (resulting from a rare form of diabetes from which Shari suffered).
Following the discovery of Shari’s body, Bell made harassing phone calls to the Smiths for the next three weeks. During these calls, Bell callously depicted how he abducted Shari at gun point, raped and sodomized her, wrapped her head in duct tape, and suffocated her. He even malevolently discussed Shari’s funeral arrangements with Shari’s sister. In one call, Bell identified the location of the body of ten-year-old Debra May Helmick, a little girl he kidnapped exactly two weeks after he kidnapped Shari.
Authorities finally arrested Bell on June 27, 1985. They tracked him down through an anonymous tip and by raising a telephone number imprinted on the paper on which Shari wrote her “Last Will & Testament.” Evidence later found in his parent’s home and in the. house where Bell was housesitting confirmed Bell’s involvement in Shari’s disappearance and murder.
In February 1986, Larry Gene Bell was convicted of murdering and kidnapping Shari. The jury recommended the death sentence and the trial judge imposed the sentence in accordance with the jury’s findings. Bell’s conviction and sentence were affirmed by the South Carolina Supreme Court. State v. Bell, 293 S.C. 391, 360 S.E.2d 706 (1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 734, 98 L.Ed.2d 682 (1988). A petition for rehearing was denied on September 15, 1987. Bell’s later petition for writ of certiorari in the United States Supreme Court was also denied. Bell v. South Carolina, 484 U.S. 1020, 108 S.Ct. 734, 98 L.Ed.2d 682 (1988).
On March 4, 1988, Bell filed an application for post-conviction relief (“PCR”) in South Carolina State Court. The court held two hearings on the matter after respondents filed a return to Bell’s PCR application. On August 22, 1991, the PCR court dismissed the application, but on September 9th the PCR court permitted a motion to alter or amend judgment and heard arguments on November 20th. The order denying the motion was issued January 18, 1992. Bell appealed his PCR application to the South Carolina Supreme Court, which denied his request in November 1992. Bell subsequently filed a second petition for writ of certiorari in the Supreme Court of the United States. This second petition was denied. Bell v. South Carolina, 507 U.S. 1022, 113 S.Ct. 1824, 123 L.Ed.2d 454 (1993).
Having exhausted all state relief, Bell initiated this petition for a writ of habeas corpus, citing the numerous grounds for relief detailed below. In September 1993, the State filed a return and motion for summary judgment, contending Bell’s requests for relief did not entitle him to habeas relief. In December 1993, following two extensions to respond to the State’s motion for summary judgment, Bell filed his response, in which he argued additional details in support of his many claims.
Bell filed a motion for an evidentiary hearing on his petition for writ of habeas corpus on May 25, 1994. The magistrate judge denied Bell’s motion in his Report and Recommendation. The magistrate judge subsequently recommended granting the State’s motion for summary judgment. Bell filed objections to the Report and Recommendation.
Citing Townsend v. Sain, the United States District -Court for the District of South Carolina supported the magistrate judge’s denial of Bell’s motion for an evidentiary hearing. The district court found that Bell had simply reargued the same issues that he had made before the magistrate judge, and it concluded that Bell’s objections to the magistrate judge’s analysis of the grounds upon which Bell claims relief were meritless.
II.
We turn first to Bell’s ineffective assistance of counsel claim. Bell contends that he was denied his right to effective assistance of counsel when, during the guilt phase of his trial, his trial counsel conceded his guilt to the kidnapping charge and pursued a verdict of guilty but mentally ill (“GBMI”) for both the murder and the kidnapping charge. Bell argues that he was prejudiced because his trial counsel ignored Bell’s plea of not guilty.
To prove that he was deprived of his Sixth Amendment right to effective assistance of counsel, Bell must show that (1) his counsel’s performance fell below an objective standard of reasonableness in light of the prevailing professional norms, and (2) “there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688 & 694, 104 S.Ct. 2052, 2064-65 & 2068, 80 L.Ed.2d 674 (1984). We shall review the reasonableness of trial counsel’s performance under the first prong of Strickland.
This court defines effective assistance of counsel as that which is “within the range of competence demanded of attorneys in criminal cases.” Marzullo v. Maryland, 561 F.2d 540, 543 (4th Cir.1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (citing McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970)). And when reviewing counsel’s performance under Strickland, this court must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. To prevail, therefore, Bell “must overcome the presumption that under the circumstances, the challenged actions might be considered sound trial strategy.” Id.
According to the record, Bell’s' retained trial counsel — a well-known and experienced defense attorney from South Carolina — spent the seven months before trial extensively investigating the facts of the case and formulating a trial strategy. In light of the overwhelming evidence against Bell, trial counsel and Bell agreed to pursue a GBMI verdict. Trial counsel’s PCR testimony reveals that the defense team, which included Bell, reasoned that pursuing a GBMI plea was consistent with Bell’s testimony and behavior. Furthermore, they feared that denying all involvement in this heinous crime, given the abundant evidence against him, would inflame the jury and incite it to render the death sentence. They reasoned that pursuing the lesser verdict of GBMI would dramatically reduce Bell’s chances of receiving a death sentence.
It was important for the defense to retain some credibility so that the jury would be sympathetic to the defense witnesses testifying that Bell deserved mercy. Thus, as the state trial court expressly found the decision to pursue a GBMI verdict was a strategic one that Bell and his trial counsel “agreed to”; it was made after consulting with other lawyers, mental health experts, investigators, and Bell’s family. All indications lead us to conclude that the decision to concede his guilt was a rational one, formulated after a thorough examination of every viable option and obstacle.
Bell alleges, however, that his trial counsel’s concessions of guilt during closing argument prejudiced his case and violated his right to plead not guilty. As one example of how trial counsel’s concessions of guilt to the kidnapping inferred guilt to both offenses, Bell cites the following passage from his trial counsel’s closing arguments:
Now, there has been a lot of talk here about what the defense is going to say. I will tell you what I am going to say. I am going to do something that probably hasn’t been done before, pretty novel way to approach your final argument when you are representing your client, but I am not here to insult your intelligence. I am not here to make you think that [defense counsel] is trying to blow smoke at you. I will tell you right now that the State has proved beyond a reasonable doubt that Larry Gene Bell is guilty of kidnapping. That is his lawyer talking to you. That is his lawyer telling you what the State has proved or not proved. We haven’t come in here and tried to create any kind of illusion. We haven’t come in here and tried to create any evidence, blow smoke in your face so that you don’t see the truth. During this trial think about how much I tested the allegations made by the State of South Carolina. Did we really contest the guilt of the kidnapping? We contested a witness’ identification, we contested identification of the car, because Mr. Bell believes that was not him. And for that pur-pose we contested it. And the fact of the matter is ladies and gentlemen, they got the right guy, they got Mr. Bell for the abduction....
Bell’s excising this particular passage from trial counsel’s entire closing argument (and the entire trial) misrepresents the totality of trial counsel’s defense. After these remarks, trial counsel emphasized that, although it was Bell’s voice on the telephone recordings, that fact did not conclusively prove that Bell murdered Shari. Bell’s trial counsel argued:
The tapes suggest that he gave Miss Smith this awful alternative, but Dr. Sexton and the other witnesses for the state have really never proved how Miss Smith died. Was Mr. Bell’s revelations on that tape the result of what really happened? Or was it the ravings of a lunatic who is out of his mind, who didn’t know what was happening? I don’t know. Nobody from the state knows either. That is why you were given an alternative of whether [Shari’s death] was by suffocation, or dehydration. ... And you will have to use your good common sense and go back and find out and determine and figure out whether or not the state has proved guilt beyond a reasonable doubt as to the homicide....
By conceding Bell’s guilt to the kidnapping, trial counsel attempted to down-play the inference that Bell was also guilty of murder and, instead, tried to promote the conclusion that Bell was mentally ill. Trial counsel frequently reminded the jury of the abundance of psychiatric testimony they had heard and witnessed first-hand in Bell’s own behavior during trial. Trial counsel was obviously attempting to persuade the jury to pity a man in Bell’s mental condition.
Bell fails to acknowledge that his trial counsel confronted a difficult situation. The State had overwhelming evidence of Bell’s involvement in the kidnapping, and the State’s theory of the case was that Bell contrived his mental illness for the sole purpose of evading the death penalty and receiving a lighter sentence. Bell even testified that feigning mental illness was a common practice known to him, and that manipulating doctors “can save a person from the electric chair.” Additionally, Bell admitted on cross-examination that he had previously fabricated stories of blackouts and visions simply to avoid harsher penalties. Trial counsel’s strategy, to which Bell consented, was undoubtedly targeted toward saving Bell from a death sentence. We emphasize, therefore, that neither Bell nor any other aggrieved defendant can manipulate this forum to construe a reasonable, but ultimately unsuccessful strategy in his favor. Standing alone, unsuccessful trial tactics neither constitute prejudice nor definitively prove ineffective assistance of counsel.
The Supreme Court has recognized that strategies devised after extensively investigating the law and facts relevant to any and all probable options are virtually unchallengeable. Strickland, 466 U.S. at 690, 104 S.Ct. at 2065-66. A reviewing court may not permit the benefit of hindsight to impact its review. Id. at 689, 104 S.Ct. at 2065; see Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). To succeed in his ineffective assistance of counsel claim, Bell must overcome the presumption that the challenged action may be considered an appropriate and necessary trial strategy under the circumstances. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
We have previously distinguished statements that amount to mere tactical retreats from those that parlay a complete surrender. See Clozza v. Murray, 913 F.2d 1092, 1099 (4th Cir.1990). Some remarks of complete concession may constitute ineffective assistance of counsel, but tactical retreats may be reasonable and necessary within the context of the entire trial, particularly when there is overwhelming evidence of the defendant’s guilt. Id. at 1099-1100.
Trial counsel’s remarks constituted tactical retreats. Conceding Bell’s guilt on the kidnapping charge did not preclude Bell from maintaining his innocence on the murder charge. Furthermore, a GBMI verdict would have increased Bell’s chances of receiving a life sentence rather than a death sentence. In light of the evidence against Bell, trial counsel’s actions were realistic: Bell’s alibi was flawed; Bell had been identified as the man who had repeatedly called Shari’s family; the State had an abundance of forensic evidence identifying Bell as the perpetrator; and Bell made incriminating statements to the police after his arrest. Given the situation at hand, the defense had few alternatives.
Trial counsel urged the jury to reject the State’s evidence and find his client GBMI under South Carolina law. As the state PCR judge recognized, trial counsel feared he would lose credibility with the jurors at the trial’s sentencing phase if he tried to convince them during the guilt phase that Bell was innocent. In a federal habeas corpus proceeding, we presume that the state court findings are correct. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Roach v. Martin, 757 F.2d 1463 (4th Cir.1985). Trial counsel’s pursuit of a GBMI verdict conformed to a reasonable pattern of trial strategy and advocacy by one familiar with the intricacies of a death penalty case and the impact psychiatric testimony has on those eases. Because this was a reasonable and consented to strategy, there was not, in the total context of Bell’s trial, deficient performance by counsel. See Berry v. King, 765 F.2d 451 (5th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2290, 90 L.Ed.2d 731 (1986).
We are not holding that a defendant’s consent to trial strategy in itself, vitiates all claims of ineffective assistance of counsel. Rather, we recognize consent as probative of the reasonableness of the chosen strategy and of trial counsel’s performance. We conclude that Bell has failed to rebut Strickland’s presumption that counsel’s conduct fell within the range of reasonable trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Bell’s trial counsel was an experienced defense lawyer in South Carolina, he employed psychiatric experts on Bell’s behalf and his efforts indicate he zealously represented Bell. Trial counsel’s pursuit of a GBMI verdict was integral to a trial scheme to avoid a death sentence where evidence of guilt of a gruesome murder was overwhelming and legitimate factual defenses were non-existent for Bell. Trial counsel confronted the difficult reality that the jury would undoubtedly determine Bell abducted and murdered Shari Smith, heinous acts exacerbated by the emotional torture he inflicted upon Shari and her family. Clearly, trial counsel’s representation fell within the bounds of objective standards of reasonableness.
Because we have found that trial counsel’s actions were reasonable, we need not evaluate trial counsel’s actions under the second prong of Strickland.
III.
We next turn to Bell’s due process claim. Bell argues that he was denied due process under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), because his trial counsel’s repeated concessions of Bell’s guilt to the kidnapping, essentially waived Bell’s right to plead not guilty without an on-the-record showing the waiver was made knowingly and voluntarily. Despite the fact that Boykin requires affirmatively showing that a guilty plea was made knowingly and voluntarily, Boykin, 395 U.S. at 242-44, 89 S.Ct. at 1711-13; Bell insists he was entitled to an “on-the-record” showing that he and his trial counsel agreed to a trial strategy conceding guilt.
Due process does not require such an on-the-record showing. In Boykin, the Court emphasized that a guilty plea entered by the accused is more than a confession which admits that the defendant committed various criminal acts; a guilty plea, in essence, constitutes a conviction, and it relieves the prosecution of its burden of proving its case. Id: at 242, 89 S.Ct. at 1711-12. Because a guilty plea is a self-imposed verdict, the trial court must ensure the accused made a knowing and voluntary waiver of his constitutional right against self-incrimination and his right to confront one’s accusers. Id. at 243, 89 S.Ct. at 1712. Boykin's concerns and safeguards, however, do not apply to Bell because Bell did not enter a guilty plea. His consent to a trial strategy in which he admitted some of his guilt did not foreclose the jury from finding him not guilty on either count, nor did it relieve the State from the burden of proving its case. Bell was provided a fair jury trial, one in which he confronted his accusers and took the stand on his own behalf. An informed and impartial jury ultimately determined his guilt.
We therefore reject Bell’s due process claim because Bell had no constitutional right to a contemporaneous, on-the-record inquiry of whether he consented to trial counsel’s strategic decisions.
TV.
Next, Bell contends that the court-appointed competency examiners were partisan agents of the State, and, therefore, he was denied his right to due process and effective assistance of counsel.
Bell cites Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), in an attempt to expand the parameters of procedural due process competency hearings, so that they be conducted by neutral, independent examiners. We do not believe that Ake is applicable in this instance as the facts in Ake are distinguishable from Bell’s ease.
Unlike Bell, Ake was indigent and was refused a state-funded psychiatric examination that would have aided his defense in establishing Ake was mentally ill at the time he committed the offense he was charged with. The Supreme Court reversed Ake’s death sentence on the ground that he was denied such an examination. The Court held that where an indigent defendant’s sanity is at issue, the state must provide funds for the defendant to obtain an independent examiner to “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake, 470 U.S. at 83, 105 S.Ct. at 1096.
Ake established a due process right to a mandatory competency hearing when the. defendant is indigent and an examination is necessary to determine the defendant’s criminal responsibility at the time of the crime. In sharp contrast, Bell was neither indigent, nor unable to hire his own mental experts. Furthermore, Bell’s examination differed from Abe’s, in that Bell’s examinations determined his competency to stand trial. See Pate v. Robinson, 383 U.S. 375, 384-86, 86 S.Ct. 836, 841-43, 15 L.Ed.2d 815 (1966).
It is established that a criminal defendant must be competent to stand trial. Medina v. California, 505 U.S. 437, 439, 112 S.Ct. 2572, 2574, 120 L.Ed.2d 353 (1992). In the case at hand, Bell underwent three competency hearings throughout the course of his trial and each time the trial judge found him competent to proceed. During Bell’s hearings, Bell was evaluated by both Dr. Dunlap (a consultant to the state hospital, appointed by the trial court in accordance with the S.C.Code Ann. § 44—23^410), as well as by several experts Bell hired to assist in the preparation of his defense..
After each of the hearings, the trial court made specific findings on the record that Bell was competent to stand trial. The findings included the testimony of both the state experts and Bell’s experts, as well as the court’s observations of Bell before, during, and after the hearings. Furthermore, the state PCR judge made specific findings that Dr. Dunlap was neutral and impartial. These findings are entitled to a presumption of correctness. Sumner, 449 U.S. at 547-550, 101 S.Ct. at 769-71. And Bell fails to satisfy his burden of establishing by convincing evidence that these findings are erroneous. See 28 U.S.C. § 2254(d). Accordingly, we conclude, Bell was neither denied his constitutional right of due process nor his constitutional right of effective assistance of counsel.
V. •
Bell further maintains that the trial judge’s findings of competency were unsupported by the record as a whole. We disagree.
As the district court noted, findings of fact made by a state court in PCR proceedings enjoy a presumption of correctness, see Sumner, 449 U.S. at 550, 101 S.Ct. at 770-71, and questions of a defendant’s competency are entitled to the same presumption, see Adams v. Aiken, 965 F.2d 1306, 1313 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2966, 125 L.Ed.2d 666 (1993). To overcome this presumption, Bell must show by convincing evidence that the findings of the state court were erroneous. See Sumner, 449 U.S. at 550, 101 S.Ct. at 770-71. The standard for evaluating competency is whether the defendant understands the nature and object of the proceedings against him, and is able to consult with his counsel and assist in the preparation of his defense. Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903-04, 43 L.Ed.2d 103 (1975); Pate, 383 U.S. at 375, 86 S.Ct. at 836; Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Despite the fact that the district court determined that the trial judge properly concluded that Bell was competent, Bell insists that the trial judge (1) misapplied the competency standard, and (2) ignored Bell’s trial counsel’s statements that Bell was neither cooperating nor communicating with him. We reject both of Bell’s arguments.
The trial judge held three competency hearings. The first hearing was held before trial. The second hearing, was held-specifically at trial counsel’s request; and the third was held during the penalty phase. At each hearing, the trial judge was only required to ensure that Bell had the capacity to understand, the capacity to assist, and the capacity to communicate with his counsel. Drope, 420 U.S. at 171, 95 S.Ct. at 903-04. The trial judge was not required to police whether Bell was acting in accordance with his capacity. Bell has failed to rebut the presumptions of correctness accorded the trial judge’s findings. We therefore hold that Bell has failed to establish a due process violation.
VI.
We next turn to Bell’s claim that his Sixth Amendment right to be present during his trial was violated by his ejection from the courtroom during a portion of his trial counsel’s closing argument at the guilt phase. Bell makes the innovative argument that despite the fact that his own insolence forced the trial judge to eject him from the courtroom, he had a constitutional right to an audio hook-up from the courtroom to his holding cell.
The Sixth Amendment guarantees a defendant’s right to be present in the courtroom during the trial of his case. See Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892). But, there are recognized limitations to this right. “A defendant can lose his right to be present at trial if, after he has been warned by the trial judge that he will be removed if he continues his disruptive behavior, he nevertheless insists upon conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be earned on with him in the courtroom.” Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1060-61, 25 L.Ed.2d 353 (1970).
Bell was properly removed from the courtroom under Allen. The record reflects both Bell’s continuous interruptions of his own counsel during closing argument and the numerous warnings the trial judge gave Bell regarding his behavior. When the trial judge warned Bell he would be removed from the courtroom if he continued his antics, Bell disregarded the trial judge and refused to remain quiet.
We have never held, nor does Allen require that a defendant who has been removed from the courtroom because of his disruptive behavior has a right to an audio hook-up. We see no reason to create such a right. The right to be present at one’s own trial serves two purposes: it gives the defendant an opportunity to face his accusers and it affords him the opportunity to help in his own defense. Bell both faced his accusers and helped in his own defense; his missing only a portion of his trial counsel’s closing arguments without an audio hook-up did not interfere with his ability to do either. The trial judge’s refusal, therefore, to provide the requested audio hook-up did not violate Bell’s Sixth Amendment right to be present during his trial.
VII.
Bell also contends that the trial judge abused his discretion by preventing ingress and egress to the courtroom during witness testimony. The Sixth Amendment provides that an individual accused of a criminal offense has the right to a public trial. Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). Bell asserts the trial judge’s restrictions amounted to partial closure.
Although there is a strong presumption in favor of openness, the right to an open trial is not absolute. The trial judge may impose reasonable limitations on access to a trial in the interest of the fair administration of justice. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 n. 10, 104 S.Ct. 819, 824 n. 10, 78 L.Ed.2d 629 (1984); see Richmond Newspapers, 448 U.S. at 581-82, n. 18, 100 S.Ct. at 2830, n. 18 (holding that the right of access to a trial may be curtailed where there are sufficiently powerful countervailing considerations). We have held however, that a defendant’s right to a public trial is not implicated by temporary limitation of ingress and egress to the courtroom to prevent disturbance of the proceedings. Snyder v. Coiner, 510 F.2d 224 (4th Cir.1975).
In the instant case, the trial judge was merely maintaining order in his courtroom and ensuring a non-disruptive atmosphere for jury members, the litigants, the members of the press, and any members of the public who chose to attend. The trial judge neither ordered anyone to leave the courtroom nor closed any portion of the trial from the public altogether. Furthermore, the record does not reveal that anyone interested in the ease was excluded from the courtroom. We conclude that Bell’s right to an open and public trial was not violated, and that the trial judge exercised the discretion afforded him to preserve order in his courtroom and ensure that justice was unobstructed.
VIII.
Bell also insists he was denied his right to a proper trial conducted in conformity with the Sixth, Eighth, and Fourteenth Amendments because the trial judge did not issue a clarifying instruction following the State’s closing argument during the guilt phase when the State stressed Bell was feigning his mental illness so as to receive a lighter sentence. Bell maintains that the trial judge allowed the State to mischaracterize the GBMI verdict as a means of escaping punishment.
Following the State’s closing argument during the guilt phase, trial counsel sought curative instructions for the State’s recapitulation of Bell’s testimony that a GBMI could “save a person from the electric chair” and for the State’s remark that' a “trophy” or “reward” for Bell in light of his testimony and the psychiatric evidence presented. Trial counsel specifically requested that the jury instruction read:
I charge you that if your verdict be guilty as to murder or guilty but mentally ill as to murder, then the trial shall proceed so that the jury may determine punishment. The finding of either verdict still allows the jury to consider a sentence of life imprisonment or death.
Should you find the defendant guilty but mentally ill, then the sentence imposed will be carried out after the defendant receives treatment at a facility to be designated by the Department of Corrections, and the staff of said facility gives an opinion that the defendant can be returned to the Department of Corrections so that the sentence may be carried out.
The trial judge, initially, indicated that he would give the first paragraph of this instruction, but he later refused the entire request, reasoning that the jury should not be concerned with possible penalties at the guilt phase of trial. Bell argues that the trial judge should have issued clarifying instructions regarding the State’s final argument that Bell was evading punishment by seeking a GBMI verdict.
The South Carolina Supreme Court, however, has held that “information as to penalty is of no aid to the jury in determining whether the defendant committed the crime charged.” Bell, 360 S.E.2d at 710 (citing South Carolina v. Brooks, 271 S.C. 355, 247 S.E.2d 436 (1978)). But Bell believes that Simmons v. South Carolina, prohibits counsel from presenting the jury with a “false choice” in its sentencing options. Simmons v. South Carolina, — U.S. -, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). We find however, that Simmons does not alter the holding in South Carolina v. Brooks.
In Simmons, the petitioner challenged the trial court’s refusal to inform the jury during the penalty phase of the trial that, under state law, the petitioner would be ineligible for parole should the jury decide to impose a life sentence rather than the death penalty. The Supreme Court held that the trial court’s failure to so instruct the jury violated Simmons’ due process rights because the state “conceal[ed] from the sentencing jury the true meaning of its non-capital sentencing alternative, namely that life imprisonment meant life without parole.” Id. at-, 114 S.Ct. at 2193. In Simmons, however, the trial court failed to give an instruction dealing with penalty at the penalty phase of the trial. In Bell’s case, the trial court failed to give an instruction dealing with penalty at the guilt phase of the trial.
Moreover, here unlike Simmons, the trial judge corrected any misleading impression that the State’s argument may have given to the jury. During jury instructions in the guilt/innocence phase, the trial judge informed the jury that “[t]here is another verdict in this case and that is not a defense. It is guilty, but mentally ill. As I said, that is not a defense, like not guilty by reason of insanity. Rather, it is a form of guilty verdict.” The jury was also instructed before deliberations in the guilt/innocence phase that it “was concerned only with the question of guilty or innocence. Your sole attention is to be focused on that determination and your decision is to be made completely aside from any consideration relative to punishment.” There is an “almost invariable assumption of the law that jurors follow their instructions.” Shannon, — U.S. at -, 114 S.Ct. at 2427 (quoting Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). The trial judge’s instructions to the jury that a GBMI verdict was a form of guilty verdict, in addition to his admonition that the jury should only concern itself with the verdict rather than the sentence, sufficiently dispelled any confusion that the Solicitor may have caused and did not present the jurors with a “false choice” in their verdict.
We conclude for these two reasons that the State’s argument did not deprive Bell of his Sixth, Eighth, and Fourteenth Amendment rights.
IX.
Bell next argues that the trial judge improperly denied a motion for mistrial after the trial judge made comments in the jury’s presence suggesting he disbelieved Bell’s defense. Bell asserts that the trial judge’s comments denied him his right to a fair and impartial trial under the Sixth, Eighth, and Fourteenth Amendments. On review of state proceedings, the question is whether the trial judge’s involvement rendered the trial fundamentally unfair. Gas-kins v. McKellar, 916 F.2d 941, 948 (4th Cir.1990), cert. denied, 500 U.S. 961, 111 S.Ct. 2277, 114 L.Ed.2d 728 (1991).
Throughout his testimony, Bell frequently rambled giving nonresponsive answers. His behavior prompted the trial judge to intervene and instruct Bell to answer in a lucid manner. Bell charges that the trial judge’s intervention detrimentally affected the jury’s impartiality. Bell cites the following remark as the most egregious example demonstrating his belief that the trial judge improperly commented on the validity of Bell’s mental state. The trial judge said: “Mr. Bell, I am telling you. I know, Mr. Bell, that you understand the question. ” This remark was made, however, after Bell had repeatedly not answered the questions posed to him. We find that the trial judge’s comment did not render Bell’s trial fundamentally unfair. As this court articulated in Gaskins, a trial judge’s comments should not be reviewed in isolation but in the context of the whole trial. Id. When examined under this standard, it is evident that the trial judge was simply maintaining order in his courtroom and keeping the proceedings moving along. Furthermore, the trial judge, aware of how his comment could potentially be misconstrued, gave the following curative instruction:
Ladies and gentlemen of the jury panel, in addressing Mr. Bell I stated Mr. Bell, you understand the question. By that no juror should draw the inference that in any way I am commenting on the facts. That was not a comment or statement or opinion by me in regard to Mr. Bell’s mental capacity to understand anything at all. Those matters are solely left up to you ladies and gentlemen of the jury panel. I ask you please disregard [sic] that remark I made as being inadvertent and not an expression of opinion. Just simply my manner of addressing Mr. Bell in that particular. So disregard it.
On the evidence of record, this instruction clearly corrected any bias or prejudice the jury might have inferred from the trial judge’s remark.
A trial judge is vested with broad discretion to control the taking of testimony, and in recognizing the trial judge’s efforts to do so, we conclude that the trial judge’s remark did not prejudice Bell nor render Bell’s trial fundamentally unfair. The remark was not noteworthy in the context of the entire trial and was neutralized by the trial judge’s subsequent curative instruction.
X.
Bell further argues that his sentence should be reversed on the grounds of ineffective assistance of counsel because he feels that his trial counsel failed to present, during both the guilt and sentencing phases, evidence of Bell’s dysfunctional family and history of chronic psychosis.
We need not go into the alleged details of his childhood that have surfaced only after Bell’s conviction. The record clearly demonstrates that Bell’s trial counsel did, in fact, exhaustively investigate Bell’s personal history. With this information, Bell’s trial counsel consulted with Bell and together they made knowing and informed decisions on how to proceed at trial. Bell’s trial counsel testified during the PCR hearing that they consciously chose to portray Bell’s mental illness by focusing on his increased mental disturbance during his adult life. Therefore, Bell’s contention that his trial counsel prejudiced his defense by failing to present evidence regarding his childhood is unfounded. This failure to introduce evidence regarding Bell’s family history was simply a strategic decision made with Bell’s consent. See Berry v. King, 765 F.2d 451 (5th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2290, 90 L.Ed.2d 731 (1986).
We therefore conclude that Bell’s trial counsel was not ineffective and that Bell’s Sixth Amendment rights were not violated.
XI.
We next turn to Bell’s argument that the trial court violated his Sixth, Eighth, and Fourteenth Amendment rights by failing to give certain jury instructions. First, Bell contends that the jury, during both the guilt phases and the sentencing phases of the trial, was confused as to the difference between the verdicts of guilty and GBMI. Second, Bell argues that the trial judge failed to instruct the sentencing jury that Bell did not have to establish mitigating factors by a preponderance of the evidence. Finally, Bell asserts that the trial judge failed to instruct the sentencing jury that it could not consider Bell’s mental illness as a factor in aggravation-of punishment. We find Bell’s claims meritless.
No evidence in the record supports Bell's conjecture that the jury was confused as to the difference between the verdicts of guilty and GBMI during either the guilt phase or the sentencing phase of his trial. Simply because the jury rejected the GBMI defense and rendered a guilty verdict during the guilt phase does not mean that the sentencing jury failed to reconsider Bell’s mental illness when they rendered his death sentence. The jury has the duty to decide what weight to give to the evidence adduced at trial. Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). In the instant case, both the magistrate judge and the district court found that the jury charge was proper in all respects, and that the trial judge properly instructed the jury as to the applicable South Carolina law at each juncture of the trial. There is no indication that the jury failed to follow the trial court’s instructions at both phases. See Richardson v. Marsh, 481 U.S. 200, 206-07, 107 S.Ct. 1702, 1706-07, 95 L.Ed.2d 176 (1987) (holding that it is invariably assumed that jurors follow their instructions).
Next, Bell contends that the trial judge’s failure to clarify to the sentencing jury that Bek’s burden of establishing statutory mitigating factors by a preponderance of the evidence during the guilt phase differed from his burden of establishing statutory mitigating factors during the penalty phase. We find Bell’s argument meritless. There is no constitutional requirement that a trial court instruct the jury specifically that the defendant does not bear the burden of proving mitigating circumstances. In the instant case, the trial judge stated that the jury could consider “whether the defendant has proven by any evidence the existence of mitigating circumstances.” Furthermore, after citing three specific examples of statutory mitigating circumstances, the trial judge instructed the jury that they should not limit their consideration of nonstatutory mitigating circumstances to the statutory examples and that they could consider any other circumstances as reasons for either imposing a life sentence or not imposing the death sentence. Additionally, the trial judge clarified that the jury did not “have to find the existence of a mitigating circumstance beyond a reasonable doubt.” We find that the sentencing jury was not precluded from considering as mitigating factors, any aspect of Bell’s character, or record; or any circumstances of the offense that Bell proffered as justifying a sentence other than death. Edings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982); see Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978). Therefore, the sentencing jury’s determination of Bell’s death sentence did not violate the Eighth Amendment.
Finally, Bell asserts that the trial judge failed to instruct the sentencing jury that it could not consider Bell’s mental illness as a factor in aggravation of punishment. In making this argument, Bell assumes the jury sentenced him to death because it believed Bell’s mental illness made him a greater risk to society. We disagree. Bell’s contention is purely speculative. He fails to present any evidence supporting his belief that the jury treated his mental illness as a nonstatutory aggravating circumstance, and not as a mitigating factor. Furthermore, the trial judge instructed the jurors that Bell’s mental illness was to be considered only as a statutory mitigating circumstance. Contrary to Bell’s assertion, the trial judge’s instructions did not treat Bell’s alleged mental illness as an aggravating factor instead of a mitigating factor. Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235 (1983). And, Bell presents no evidence that the jury interpreted Bell’s alleged mental illness as an aggravating factor. See Richardson, 481 U.S. at 206-07, 107 S.Ct. at 1706-07. We conclude, therefore, that Bell’s Sixth, Eighth, and Fourteenth Amendment rights were not violated.
XII.
Bell next contends that the State’s comments during the penalty phase injected an arbitrary factor into the determination of the jury’s verdict, thus denying him his Sixth, Eighth, and Fourteenth Amendment rights. Specifically, Bell argues the State implied (1) that the State was the personal lawyer of the victim’s family; (2) that Bell was less than human (ergo, more deserving of death); and (3) that Bell did not deserve the protection of the legislative and judicial systems. To prevail on these claims Bell must prove that the State’s comments “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974)).
Although a prosecutor’s closing argument may be grounds for reversing a conviction, Berger v. United States, 295 U.S. 78, 85-89, 55 S.Ct. 629, 632-33, 79 L.Ed. 1314 (1934), Bell fails to substantiate his objections to the State’s comments. Bell is attempting to extract unconstitutional implications from the State’s argument and use them to his advantage. Despite Bell finding the remarks distasteful to his case, we con-elude the remarks did not carry such implications or so infect Bell’s trial with unfairness as to make his resulting conviction a denial of due process. DeChristoforo, 416 U.S. at 643, 94 S.Ct. at 1871. Instead, we find that the State’s arguments were consistent with the record and were rationally inferred from the abundance of evidence that had been presented at trial.
XIII.
Finally, Bell contends that the evidence was insufficient to support the jury’s verdict that he was guilty. The standard of review for sufficiency of the evidence claims in criminal cases is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The record demonstrates overwhelming evidence supporting the jury’s guilty verdict. This argument is merely a last-ditch effort to plead that Bell was mentally ill at the time he committed the offenses, and that the trial court erred in failing to direct a verdict of GBMI when the jury returned a guilty verdict. We find that the defense had ample opportunity to establish at trial that Bell was mentally ill at the time of the crimes and could not conform his conduct to the requirements of the law. In fact, the defense made the strongest case possible that Bell was mentally ill. The State, simply presented contradicting evidence establishing Bell had the capacity to conform his conduct to the requirements of the law at the time Bell committed the crimes. We conclude that a rational trier of fact could have returned a verdict of guilty beyond a reasonable doubt instead of GBMI.
XIV.
For the foregoing reasons, we affirm the district court’s denial of Bell’s federal habeas petition.
AFFIRMED.
Bell is currently serving a death sentence for the kidnapping and murder of Debra Helmick; however, Bell has not appealed that sentence in this habeas action.
Police later identified Bell as one of the callers whose tips led to his own arrest.
Bell subsequently filed two amended applications for post-conviction relief.
The Magistrate Judge's Report and Recommendation contains a detailed account of both the evidence introduced during Bell's trial and the circumstances surrounding the trial.
A federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: if (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state court’s factual determination was not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there was a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963).
The State's case against Bell was devastating. First, the State had copies of the taped telephone conversations Bell had with the Smith family, in which he depicts sexually assaulting and sodomizing Shari and wrapping duct tape around her head. Several witnesses identified Larry Bell as the caller. Second, the paper on which Shari wrote her “Last Will and Testament” contained imprints of a telephone number that eventually led authorities to the residence where Bell was housesitting during the time of the crimes. Third, additional evidence found at the home of Bell's parents further solidified his involvement in the crime. Fourth, a witness identified Bell as the man she had seen near the Smith house around the time of Shari’s abduction. Finally, after Bell was arrested, he made statements linking himself to the murder.
Trial counsel felt that if Bell testified in his loose dissociated way, the jury would conclude from their first-hand observations that Bell was mentally ill.
The first hearing was held before trial started. On two other occasions during the trial, the proceedings were stopped to further evaluate Bell’s competency. Both of these hearings were requested by Bell's attorney, who indicated that Bell was becoming difficult to control and was not cooperating in the defense effort. After each exam, the trial judge made specific findings of fact on the record concluding that Bell was competent to stand trial.
The issue of Bell's competency was again raised in the state court proceeding on Bell’s PCR application. The PCR court found Bell mentally competent throughout his trial. Like the trial judge’s findings of fact, this finding is also entitled to presumption of correctness. See, Sumner, 449 U.S. at 550, 101 S.Ct. at 770-71; Roach v. Martin, 757 F.2d 1463 (4th Cir.1985).
The eight exceptions to the presumption of correctness for findings of fact are: (1) that the merits were not resolved; (2) that the state court's fact-finding procedure was inadequate; (3) that the material facts were not developed; (4) that the state court lacked jurisdiction; (5) that petitioner lacked counsel; (6) that petitioner was not given a "full, fair, or adequate hearing” on the competency issue; (7) that he was otherwise denied due process; and (8) that the factual determinations of the trial judge were unsupported by the record. 28 U.S.C. § 2254(d). Bell does not meet any of these exceptions.
Both Petitioner's brief and Respondent's brief cite numerous exchanges between the trial judge and Bell regarding Bell's behavior. The trial judge responded to Bell's refusal to curtail his antics in the only sensible manner, removal from the courtroom.
The trial judge instructed the sentencing jury that their consideration of mitigating circumstances should include, but not be limited to, the following statutory mitigating circumstances: (1)the murder was committed while the defendant was under the influence of mental or emotional disturbance; (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired; and (3) the mentality of the defendant at the time of the crime.