Bell v. Evatt, 94-4016

• Decision Date: 18 December 1995
• Docket Number: No. 94-4016,94-4016
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 421

72 F.3d 421

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 Appellees. 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.

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. ¹

Authorities finally arrested Bell on June 27, 1985. They tracked him down through an anonymous tip ² 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. ³ 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. ⁴

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, ⁵ 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, 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. ⁷ 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...