Larry Gene Bell
(1948 October 4, 1996) was a double murderer in Lexington County,
South Carolina, who was electrocuted on October 4, 1996 for the murders
of Sheri Fay Smith and Debra May Helmick. Bell was especially infamous
because he forced his victims to write a "Last Will and Testament"
before they were murdered, and taunted their parents by telephone.
Larry Gene Bell was born in Ralph, Alabama and had
three sisters and one brother. The family reportedly moved around a lot,
with Bell attending Eau Claire High School in Columbia, South Carolina
from 1965 to 1967. The Bell family moved to Mississippi, where Larry
Gene Bell graduated high school and took training as an electrician. He
returned to Columbia, South Carolina, married and had one son.
Bell joined the Marines in 1970, but was discharged
the same year due to a knee injury suffered when he accidentally shot
himself when cleaning a gun. The following year, he worked as a prison
guard at the Department of Corrections in Columbia for one month. Bell
and his family moved to Rock Hill, South Carolina in 1972 and the couple
divorced in 1976.
Bell kidnapped 17-year-old Sharon "Shari"
Faye Smith at gunpoint from the end of her driveway on Platt Springs
Road on May 31, 1985. Her car was found running, with the door open. Her
body was later found in Saluda County, South Carolina.
He then kidnapped ten-year-old Debra May Helmick near
Old Percival Road in Richland County, South Carolina. Bell was also a
suspect in the 1984 disappearance of Sandee Elaine Cornett from
Charlotte, North Carolina. Cornett was a girlfriend of one of Bell's
Arrest and Trial
A day after her
funeral, Larry Gene Bell was arrested. Throughout the largest manhunt in
South Carolina history, Bell made eight telephone calls to the Smith
family, often speaking with Dawn. Bell eventually gave exact directions
to the locations of both of the bodies.
During his 6 hour
testimony at his trial, Bell continuously blurted out bizarre comments
and carried on nonstop theatrics. He refused to give answers by just
rambling on and on. "Silence is Golden" was his favorite when he didn't
want to answer a question. At one time he even yelled out, "I would like
Dawn E. Smith to marry me".
Bell claimed he was
Jesus Christ even to his death. Bell chose to die by the electric chair
instead of lethal injection. Bell was also a suspect in the 1984
diappearance of Sandee Elaine Cornett from Charlotte, North Carolina.
Cornett was a girlfriend of one of Bell's coworkers.
Bell was the last
prisoner in South Carolina executed by electrocution until James Neil
Tucker was executed in 2004 for the double murders of Rosa Lee Dolly
Oakley and Shannon Lynn Mellon.
The CBS television
movie Nightmare in Columbia County portrayed the events of the Shari
Shuler, Rita Y.
(2007). Murder in the midlands : Larry Gene Bell and the 28 days of
terror that shook South Carolina. The History Press. ISBN 1-5962-9250-4.
Shuler, Rita Y.
(2006). Carolina Crimes : Case Files of a Forensic Photographer. The
History Press. ISBN 1-5962-9166-4
Survivers of Capital Crimes Don't Want the Victims to be Forgotten
By Becky Beane - PFM.org
When the state of South Carolina executed convicted
murderer Larry Gene Bell in 1996, Hilda and Bob Smith sat alone in their
living room watching the news on TV. "We prayed for him," Bob says of
the man who had abducted and killed their teenage daughter 11 years
earlier. "And I felt sympathy for his parents, because he was their
child. But there was no closure when they executed him. It couldn't
bring Shari back."
What touched the Smiths as they watched the news
coverage was the sight of their daughter's friends gathered outside
the prison gates. Not protesting for or against the death penalty,
but simply holding lighted candles in Shari's memory. "That meant so
much to us," Hilda says softly. "We just want Shari to be remembered,
Bob brings out Shari's senior picture, taken just
months before the high-schooler's premature death at 17and locking into
memory forever the laughing eyes and radiant smile that so perfectly
reflected her chipper, lively spirit. "She was voted the 'wittiest' in
her senior class," says Hilda. Also the "most talented," adds Bob. "She
had a gorgeous voice." Hilda adds her own superlative to the mix: "a
most loving child."
A break in Shari's loving routine is what tipped Bob
off that something might be wrong on that last day of May in 1985. In
his home office on the rural outskirts of Columbia, South Carolina, Bob
glanced briefly out the window and noticed Shari just pulling up to
their 750-foot tree-lined driveway. A few minutes later he realized she
hadn't come in yet. "She always came and gave her Daddy a big hug," Bob
explains. "She was the most affectionate little thing in the world!" He
looked out the window again to see her car still by the roadside mailbox:
motor running, driver's door open . . . and Shari nowhere in sight. "At
first I thought she had just run across the street into the woods,"
recalls Bob, because Shari with a rare form of diabetes sometimes
downed large amounts of water and then quickly had to find relief. But
when he went up to look for her and couldn't find her, Bob trembled with
Forty-two minutes later, police officers sat in the
Smith's living room, suggesting that Shari like so many other vanished
teens had simply run away from home. But her parents dismissed that
notion at once. "I'm her Mama," Hilda insisted. "I know my child!"
And so a parent's worst nightmare began in a community where they had
expected to "bring up the children in fresh air and safety."
What should have been a festive high-school
graduation party turned into a grim search party, pulling in hundreds of
volunteers and local, state, and federal law enforcement. The kidnapper
called the terrified Smiths several times never asking for ransom,
just coldly teasing with details about Shari's clothing to prove he
really had her. Then came Shari's letter, a handwritten "last will and
testament" filled with love and courage. "I'll be with my Father now,"
she consoled her family. "Please do not become hard or upset. Everything
works out for the good for those that love the Lord." Romans 8:28 the
same verse Bob and Hilda immediately claimed when they realized Shari
was missing. But on June 5 they received the call that gave directions
to a spot 16 miles away, where the killer had left her body. And they
admit they challenged God's goodness.
Shari's abduction hurtled the Smiths into an
unplumbed well of loss not just the horrible helplessness. "For the
first time in my life as the father and protector of my household, I was
not in charge of my home," says Bob. For 28 days from Shari's
disappearance until Bell's capture police officers and FBI agents took
over the Smiths' house and yard: coordinating the manhunt, tapping phone
calls, escorting Hilda to the grocery store or son Robert to a
"The police were great," Bob stresses. Still, he adds,
"for 28 days we lived in fear." Bell's ripping out a part of their
family left a searing wound in Hilda's soul. "I prayed to die," she
confesses. "The pain was so bad, I just couldn't live with it. I pleaded
with the Lord, 'I know I'm going to be with You, so please,
please, please let me die!' " But it was forgiveness, not death, that
opened the blocked portals to healing.
After Bell was arrested, officers brought in Hilda
and older daughter Dawn to confront him hoping to elicit a spontaneous
confession. "I prayed about going," recalls Hilda. "Inside I was
screaming as hard as I could, trying to get the pain out, the pain of
losing my daughter. And I said, 'God, I can't hate this man; there's no
more room in my heart for more pain!' And God took the hate away."
Hilda met Bell at the jail, "she forgave him to his face," says Bob,
still amazed at his wife's strength and mercy. It took Bob another seven
months to reach his own point of forgiveness. At the urging of a friend,
he went behind a secluded barn "and just blasted out," he describes. "I
was really, really mad, and I wanted to scream and holler at God. My
friend said, 'Go ahead. He can take it.' And it was such a relief to do
that physical thing and get all those emotions out." Once he let them
out, he was able to let them go. Bob's forgiveness of Bell dovetailed
with his forgiveness of himself. "I was supposed to take care
of my children, and in my mind I had failed," he explains. "Maybe I
needed to forgive myself before I could forgive him. It happened almost
at the same time."
But forgiveness didn't instantly abolish the pain
particularly when recurring media coverage and court proceedings forced
Bob and Hilda to relive the events and exposed discrepancies in
treatment. "The trial is a cruel, cruel thing to the victims, because
the criminal has all the rights," Bob accuses.
Because of excessive
publicity in Columbia, the trial took place 100 miles away in Moncks
Corner, where the Smiths had to spend two weeks in an "awful" motel room
detached from familiar surroundings and supportive friends. During Bob's
testimony, the judge and defense attorney often curtly cut him off in
mid-answer. "They reprimanded me: 'You can't say that!' And I'm thinking,
But what did I do? I'd just lost my daughter, and I felt like I
was on trial! I couldn't tell the whole truth as I knew it." Again, he
felt helpless "like I was a nobody." After the jury convicted Bell, "we
were rushed out to the police car, and I just cried and cried," Hilda
remembers. "They said it was all over, but Shari wasn't coming back. And
I still wanted Shari back."
Through 11 years of appeals and since the execution,
the Smiths have resisted efforts to get them involved in either
championing or opposing the death penalty. "I won't give an opinion,"
Bob says emphatically "other than to say that it doesn't bring closure"
something victims often long for and death-penalty proponents often
promise. What the whole tragedy has brought them is compassion
for and connection with other victims of violence, particularly parents
who have lost children.
A few years after Shari's much-publicized homicide,
Bob who serves as chaplain for the local sheriff's department
accompanied officers to notify another couple about their daughter's
murder. Distressed by the news, the parents wanted nothing to do with
the messengers until Bob reintroduced himself, not as a chaplain but
as "Shari Smith's daddy."
Instantly the other father wrapped his brawny
arms around the one man in the room who could truly understand the agony
he was feeling. "He crushed me like a bear," recalls Bob, tears clouding
his eyes. "The mother did also. God had me there for that reason; there
was an immediate bond." Hilda, too, has responded to the need to
minister to grieving families. "It's a tough assignment," she admits, "but
it's one I can't say no to, because I have been there."
the limelight, Hilda has accepted several invitations to speak to
women's groups and church audiences about her spiritual journey. She is
currently writing a book called The Rose of Shari. The Smiths
also serve on the advisory board of the South Carolina chapter of
Neighbors Who Care (NWC), Prison Fellowship's ministry to crime victims.
"When this happened to us, we had neighbors who cared," says
Hilda. "But there are so many people who don't have a church family. And
we need this organization to give them the support and help they need."
In April the Smiths participated in a Neighbors Who
Care banquet in Columbia, featuring guest speaker Debbie Morris. For
years, Debbie was widely known only as the unnamed "16-year-old from
Madisonville, Louisiana," who had been kidnapped and repeatedly raped by
Robert Lee Willie and Joseph Vaccaro during a summer weekend in 1980.
Another woman immortalized the crime: Sister Helen Prejean, author of
Dead Man Walking, who offered spiritual guidance to Willie before
his execution. Prejean's book became an Academy Award-winning film,
though the offenders' names and some facts were changed to heighten the
Then in 1998 Debbie wrote her own book, Forgiving
the Dead Man Walking, giving a victim's gripping perspective of pain
and pardon missing from Prejean's account. Today Debbie shares her story
with various audiences. Debbie explains, "If someone had said to me, 'You
are precious in God's sight; He has not forsaken you,' that could have
made a big difference for me." Instead, the trauma of the crime turned a
vivacious honor student, cheerleader, and committed Christian into a
depressed, embittered dropout and alcoholic who cut herself off from God.
At the beginning of her crisis, Debbie tenaciously
retained control. Immediately after the two assailants abducted her and
her boyfriend, Mark, "I vowed I would remember every single detail of
what happened to me," she explains. "Already I was thinking about
revenge I wanted these two men to pay for what they did."
Eventually they let Debbie go; they dragged Mark into the woods and
stabbed, burned, and shot the 20-year-old before leaving him for dead.
Debbie's acute attention to detail enabled the police to find Mark who
amazingly survived the assault and to capture Willie and Vaccaro.
Police also connected the two men with the brutal murder of another
young woman, Faith Hathaway.
"I remember thinking, Finally this is over,"
shares Debbie. But then she realized that she would be a key witness at
trialhaving to face her rapists again in the courtroom. While news
reporters, police officers, and the district attorney praised her as
brave and strong, Debbie mostly "wanted to crawl under a rock somewhere
and hide because I was surrounded by pain." One newspaper columnist
predicted that it was her testimony that "was going to put Robert Lee
Willie in the [electric] chair," Debbie recalls. "And that's a huge
burden for a 16-year-old girl."
Rather than feeling brave, "I felt
terrified," she adds. "I felt ashamed of what had happened to me" and
appalled that friends and family might think of her rape whenever they
looked at her. But during the trial she mustered the courage to testify
and as she did so, the reality that she could help send a man to death
"really began sinking in. But I was so full of hate, that was OK."
Not knowing how to release her rage or shame in a
healthy way, Debbie ambushed herself. Turning away from the Christ she
had known as Savior for two years, she grabbed onto alcohol to try to
ease the inner turmoil. "It was like I was trying to finish off what
Robert Lee Willie and Joseph Vaccaro started," she explains. A few times
"I was able to pull my life back together" enough to get her GED and
go on to college. "But anger was seeping into every aspect of my life."
In 1984, during her first year at Louisiana State
University, Debbie learned that Willie's execution date had been set for
December 28. "I kept thinking I should feel happy or excited," she says.
"But all I wanted was to get on with my life; I wanted my life to be
like it was before. And finally I needed to accept that life was never
going to be the way it was before." As the date approached, "I began to
feel sick about it" a feeling she kept to herself. "Most people were
saying the only thing wrong with this execution was that it wasn't going
to cause Robert Lee Willie as much pain as he had caused his victims.
But I just wanted the pain to be over."
The night before the execution, Debbie finally
realized that even Willie's death would not end the debilitating torment
that her ability to "move on" was tied to something beyond her
offender's punishment. "God was saying to me, 'You've got to deal with
your hate.' " So after years of ignoring God, "I turned back to
Him that night. And I prayed that God would take away this burden of
hate and anger I'd been carrying. I even prayed for Robert Lee Willie; I
prayed that his execution would be fast and painless if that's what God
chose to do."
Having taken that first step of forgiveness, she
finally slept. The next morning, learning that Willie's electrocution
had occurred just after midnight, "I felt numb," Debbie describes.
"There was no joy in it. But I'd be lying if I didn't say there was a
little bit of relief." After she'd testified against him, Willie had
threatened to retaliate. "For the first time in four and a half years, I
would be able to go to sleep knowing I would never have to see that
man's face again."
But Debbie was wrong: Willie's face still invaded her
dreams. She still battled anger and resentment directed toward God.
She needed to forgive Him, too. "Not because He had done anything
wrong," she points out, but because she needed a way to release the
resentment that had built up from years of accusing God for abandoning
her, for not protecting her from the abduction and rape. She finally
realized He had never left her at all, but had uniquely equipped her to
survive what she had been through.
Debbie talks openly about the crime and its aftermath
"because I think it's so important to understand the kinds of evils and
the kinds of pain that Jesus can heal," she says. For many years, "I
wanted to put all of this behind me. But now it's very clear that God's
message to me is that I'm not meant to put this behind me; I'm to use
this in my life, whether it's to bring comfort to others or to glorify
The story of her life, Debbie summarizes, is a story
of God's grace. While her assailants' crimes certainly warranted
punishment, she believes, "justice didn't heal me. Forgiveness
did." She has another reason for sharing publicly. "As long as I have
the chance to speak to audiences, I will continue to talk about [murder
victim] Faith Hathaway," says Debbie. "I think that her parents' worst
fear is that Faith would be forgotten."
In the audience, Bob and Hilda Smith nod knowingly.
For those left behind, memory is the enduring connection to their loved
ones. "People think you don't want to be reminded of the person," says
Hilda. "But that's not true. The fact that you still remember, that
means the world to us."
UNITED STATES COURT OF APPEALS
For the Fourth Circuit
LARRY GENE BELL, Petitioner-Appellant,
South Carolina Department of Corrections; T. TRAVIS
MEDLOCK, Attorney General, State of South Carolina, Respondents-Appellees.
Argued: September 25, 1995
Decided: December 18, 1995
Appeal from the United States District Court for the
District of South Carolina, at Columbia.
Henry M. Herlong, Jr., District Judge.
Before RUSSELL, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge Russell wrote
the opinion, in which Judge Michael and Judge Motz joined.
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 "eleventhhour"
complaints warrant habeas relief. The district court concluded that
Bell's challenges to his conviction and death sentence were meritless.
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
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. 1
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 , 360 S.E.2d 706 (S.C.
1987), cert. denied , 484 U.S. 1020 (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 (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 , 113 S. Ct. 1824 (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.
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
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 (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 (1978) (citing McMann
v. Richardson, 397 U.S. 759, 770-71 (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 . 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, 6 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
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 purpose 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
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
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
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. A reviewing court may not permit the
benefit of hindsight to impact its review. Id . at 689; see
Lockhart v. Fretwell , 113 S. Ct. 838 (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 .
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
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
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 (1981);
Roasch v. Martin , 757 F.2d 1463 (4th Cir. 1985).
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 cases.
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 (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 .
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 .
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 (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; 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. 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.
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.
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
Bell cites Ake v. Oklahoma , 470 U.S. 68
(1985), in an attempt to expand the parameters of procedural due process
competency hearings, so that they be conducted by neutral, independent
We do not believe that Ake is applicable in
this instance as the facts in Ake are distinguishable from Bell's
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 .
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 Ake's, in that Bell's
examinations determined his competency to stand trial . See
Pate v. Robinson , 383 U.S. 375 , 384- 86 (1966).
It is established that a criminal defendant must be
competent to stand trial. Medina v. California, 505 U.S. 437,
439 (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. 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.
Bell further maintains that the trial judge's
findings of competency were unsupported by the record as a whole. We
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 , 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 , 113 S. Ct. 2966 (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.
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 (1975); Pate, 383 U.S. at 375; Dusky v. United States, 362 U.S. 402 (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 .
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
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 (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
carried on with him in the courtroom." Illinois v. Allen , 397
U.S. 337, 343 (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.
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 (1984); Richmond Newspapers, Inc. v.
Virginia , 448 U.S. 555 (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 (1984); see Richmond
Newspapers , 448 U.S. at 581 -82, 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 case 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
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
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
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
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, 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, 114 S. Ct. 2187
(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 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
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."
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."
Simmons , 114 S.Ct. at 2427 (quoting
Richardson v. Marsh , 481 U.S. 200 (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
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. Gaskins v.
McKellar , 916 F.2d 941, 948 (4th Cir. 1990), cert. denied ,
500 U.S. 961 (1991).
Throughout his testimony, Bell frequently rambled
giving non-responsive 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
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
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.
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 (1986).
We therefore conclude that Bell's trial counsel was
not ineffective and that Bell's Sixth Amendment rights were not violated.
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 (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
(1987) (holding that it is invariably assumed that jurors follow their
Next, Bell contends that the trial judge's failure to
clarify to the sentencing jury that Bell'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
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. Eddings v Oklahoma, 455
U.S. 104, 110 (1982); see Lockett v. Ohio , 438 U.S. 586, 604
(1982). 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
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 (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. We conclude, therefore,
that Bell's Sixth, Eighth, and Fourteenth Amendment rights were not
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 (1986) (quoting Donnelly v. DeChristoforo , 416 U.S.
637, 645 (1974)).
Although a prosecutor's closing argument may be
grounds for reversing a conviction, Berger v. United States , 295
U.S. 78, 85-89 (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 conclude
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
DeChristoforo , 416 U.S. at 635 . 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.
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 (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.
For the foregoing reasons, we affirm the district
court's denial of Bell's federal habeas petition.
1.- 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.
2.- Police later identified Bell as one of the
callers whose tips led to his own arrest.
3.- Bell subsequently filed two amended
applications for post-conviction relief.
4.- 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
5.- 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 (1963).
6.- 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.
7.- 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.
8.- 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.
9.- 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 ; Roach
v. Martin , 757 F.2d 1463 (4th Cir. 1985)
10.- 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
(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
11.- 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.
12.- 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
Sharon "Shari" Faye Smith, 17
Debra May Helmick, 10