Summary:

Gardner was convicted of the murder of 25 year old Melissa Ann McLaughlan, who was raped, tortured, shot five times in the face, and left to die by the side of a road.

Gardner and some friends made a New Year's resolution to rape and kill a white woman as retribution for 400 years of oppression. McLaughlan had an argument with her fiancé at a nightclub, stormed out, and began to walk home. Police gave her a ride home, but she apparently set out on foot for another club.

Three black men, Matthew Carl Mack, Matthew Williams, and Joseph Gardner pulled up alongside in a car and started a conversation. They returned with Missi to the trailer where the men lived and raped her. They put out the word within the trailer park that they had “captured a white woman,” and three other black men arrived and raped her.

Two black women, girlfriends of some of the rapists, were present in another room of the trailer, but did nothing to stop the attack. They soaked her in bleach and hydrogen peroxide, and scrubbed her under the shower with a nylon brush. They forced her to scrub out her vagina with the same chemicals. The men handcuffed her, blindfolded her, and put a heavy coat over her head.

They then took her to a car, and forced her down onto the floorboards in the back. After they had driven for some time, she managed to get out of the handcuffs and began to struggle. Joseph Gardner, who was sitting in the front passenger seat, reached over the seat, held back her head, and shot her twice in the face. The driver pulled over to the shoulder 14 miles outside Charleston, where Gardner shot her three more times in the face and once in the arm. The men then dumped her on the side of the road. Gardner, who was AWOL from the Navy, eluded police for nearly two years.

Joseph Martin Luther Gardner (triggerman)(death). Matthew Carl Mack (life) eligible for parole 30 years. Matthew Paul Williams (life) eligible for parole 30 years. Danny DeWayne McCall (6 years). Roger Williams (5 years). Craig Rice (accomplice) did not participate, but learned about crime, did nothing. Edna Lee Jenkins (7 years; suspended for time served). Indira Simmons (7 years; suspended for time served).

Citations:

State v. Gardner, 332 S.C. 389, 505 S.E.2d 338 (S.C. 1998) (Direct Appeal).
Gardner v. Ozmint, 511 F.3d 420 (4th Cir. 2007) (Habeas).

Final Meal:

Declined.

Final Words:

Written statement only: "I would like to apologize to the family and loved ones of Melissa McLauchlin for taking her from them and causing them so much pain. I was 22 years old then, and I am 38 now. While I have always been sorry for what I did, the passage of time has allowed me to mature, reflect and experience spiritual growth in ways that were foreign to me as a young man. I have repented for what I have done, and I am very grateful to the many people who have prayed with me and for me over the years and in my final days. I deeply regret that my actions deprived Ms. McLauchlin of the chance to marry, have children and experience life with God. I have spent years praying for her, and I encourage all people of faith to do the same."

ClarkProsecutor.org

South Carolina Department of Corrections

Inmate: Gardner, Joseph
DOC#: 5027
DOB: 01/15/70
County: Dorchester
Date Received: 12/13/95
Race: Black
Trial Judge: Ralph King Anderson

Killer Gardner executed; Woman was raped, tortured, shot to death

S.C. executes man who raped, killed woman

"He's getting off free in a way," father says

Killer scheduled to die Friday for murder but slain woman's parents say pain will always haunt them

16 years later, killer of couple's daughter faces execution

By Vanessa Fultz - Suwannee Democrat

December 03, 2008

When an 11-year-old girl in their hometown of Belding, Mich., was raped and murdered, her body dumped along the roadside, Clair and Pat McLauchlin responded by helping start a neighborhood watch program in the community.

The McLauchlins gave presentations at civic clubs and other organizations. Their daughter Missy, 10 at the time, helped get the word out. They'd use a slide show of Missy and her friend Daphney to illustrate different forms of unsafe behavior. "I'd get to the one where they were playing on a railroad trestle and I'd say, 'And then you'll notice these kids on the railroad trestle,'" Missy's mother, Pat said. "I'd do a double take and say, 'That's my daughter up there.' I'd get a laugh from the audience and I would say, 'I've got to talk to her.'"

Fifteen years later Missy would suffer the same fate as the young girl whose death prompted the McLauchlins to start the program. On Dec. 30, 1992, Melissa Ann McLauchlin was raped by five men in North Charleston, then taken to Summerville, S.C., where she was shot six times and left for dead along the roadside. Joseph Gardner, the gunman, has been on death row since 1995. Barring last minute appeals, he will be executed Friday at 6 p.m. by lethal injection.

The McLauchlins, now of Live Oak, remember well the day a sheriff's deputy came to their Detroit home with the news. It was New Year's Day and Clair and Pat were watching the Rose Parade together on television. It was a family tradition. Their daughter Mandy, 12, was watching at a friend's house, and their son Richard, 21, was surely watching as well. After what happened next, it would be years before Pat could watch the Rose Parade again.

Pat said when the deputy entered her home he said, "I would rather be watching that parade." "I said ’I'm not going to like what you have to tell us,' and he said, 'I just wish you'd get your husband out here,'" she recalls. The deputy handed the couple a card with the name and number of a coroner in South Carolina.

Pat wanted to see her daughter. "'No, identification is definite and you really don't want to see her,'" Pat remembers the deputy saying. Missy's father, Clair, recalls the coroner recommended cremation. The McLauchlins were in disbelief. "I wanted to hit that deputy. I knew it wasn't his fault but I wanted to hit him," Pat said.

Details of the case unfolded over the course of several days. "Every time the phone rang it was a little more gruesome," Clair said. Missy had been shot five times in the face and once in the shoulder. During an interview with a news reporter, Pat was interrupted by a phone call. It was the girl who had identified the body. She was relaying even more details about Missy. "I got up. I raced to the bathroom and started throwing up," Pat said. "I think that's when it finally hit me." Pat collapsed and her husband took her to the emergency room.

The McLauchlins worked closely with law enforcement and the news media in an effort to locate the suspects. They were interviewed by every major TV station in their area and also got invitations to Oprah, Montel Williams, Inside Edition and America's Most Wanted.

Matthew Carl Mack, a co-defendant in the case, fled to Detroit but was captured six days later. Gardener remained a fugitive. The case quickly took on racial overtones. Gardner, Mack and another defendant ’ all black men ’ had been watching movies about murder and interracial sex the night before the crime.

As details of the case emerged, racial tensions rose. Black churches in South Carolina were threatened and the KKK petitioned the McLauchlins to lead a protest. Nonetheless, the McLauchlins urged residents to remain calm and refrain from any violence or retaliation.

During the broadcast of the Montel Williams show, Williams asked Missy's sister Mandy, 13 at the time, how she and her friends felt about her sister having been murdered by a black man. "She said, 'We've been brought up to understand people are people, that color doesn't make any difference,'" Clair recounted his younger daughter saying. A few days before he turned 62, Pat asked Clair what he wanted for his birthday. "He said, 'The only thing I want for my birthday is news that they caught this man,'" Pat recalls Clair saying.

The Dorchester County sheriff called the day after Clair's birthday with news that Gardner had been apprehended. He was arrested in Philadelphia in 1994 after a woman at a post office saw his photograph. Gardner was arrested the Wednesday before a segment they had taped for America's Most Wanted was to air.

The McLauchlins sat through two trials -- Gardner's and Mack's. Other co-defendants were given plea deals for their roles in the crime. "I've still got fingernail prints in my hand," Clair said of Pat's clenching his hand during trial.

Pat remembers when the jury returned a guilty verdict for Gardner. "It had been raining," she said. "We were sitting in court waiting for the verdict. The minute the jury came in and (read the verdict), it stopped raining and the sun started shining through the courtroom."

Gardner eventually received the death penalty for his crimes. "He was given a death sentence ... but when he took Missy’s life, he gave us a life sentence because it will never be over for us," Pat said.

The McLauchlins have lasting memories of their daughter. Clair remembers Missy's boredom on camping trips in northern Michigan. "She would say, 'Another dirt road? When are we going to get off this dirt road?'" he remembers. Pat recalls Missy’s taking her grandfather literally when he told her to shake a leg. They were at her aunt's house playing cards. "She stood there and started shaking her leg," Pat said of Missy, who was 7 at the time.

Pat said though Missy didn't like to cook, she enjoyed guiding her brother Richard through the kitchen. "She'd be standing around in the kitchen and saying 'You need to do this,' or 'You need to do that,'’ Richard, who lives in North Port, Fla., remembered. ’Though she didn't like to cook, she'd say 'Make me something,' then tell me how to do it." Missy loved to sing in the choir and she wanted to be a beautician.

Gardner, 38, will be put to death at Broad River Correctional Institution in Columbia, S.C. Clair and Pat will not attend the execution, but will be represented by one of the lead detectives in the case.

"Once the execution is over,’ said Clair, ’justice will have been served."

Joseph Martin Luther Gardner was convicted of the Dec. 30, 1992, killing of Melissa Ann McLauchlin, who was raped, tortured, shot five times in the face and left to die by the side of a road in Summerville. At the time of the shooting, police said Gardner and some other men made a New Year's resolution to rape and kill a white woman as retribution for 400 years of oppression of black people. Gardner, who was later arrested in Philadelphia, was the trigger man. Gardner was sentenced to death in December 1995.

Missi McLauchlin, 25, was a native of Wixom, Michigan, living with her fiancé’s family in North Charleston, South Carolina. On the night she died, she had an argument with her fiancé at a nightclub. She stormed out of the club and began to walk home. Police spotted her, obviously drunk, and gave her a ride home, but she apparently set out on foot for another club.

Three black men, Matthew Carl Mack, Matthew Williams, and Joseph Gardner pulled up alongside in a car and started a conversation. The men had spent most of the day drinking and watching pornographic videos of black men having sex with white women. At one point Mack had exploded in anger at his white girlfriend, saying he wanted to “stab her,” but that “it ain’t got to be her, any white” would do. Williams said he wanted to have sex with a white woman. Two hours later, the group watched a television news account of the biggest stories of 1992. When the videotaped beating and arrest of Rodney King came on the air, the third man, Gardner, spoke of “four hundred years of oppression,” and made a “New Year’s resolution” to “kill a white bitch.”

It was in this state of mind that they returned with Missi to the trailer where the men lived. The men soon began raping her. They put out the word within the trailer park that they had “captured a white woman,” and three other black men arrived and raped her. Two black women, girlfriends of some of the rapists, were present in another room of the trailer, but did nothing to stop the attack.

After they had enough, the men decided to get rid of the evidence—including Missi McLauchlin. They soaked her in bleach and hydrogen peroxide, and scrubbed her under the shower with a nylon brush, in the hope of ridding her skin of sperm or other evidence that could be linked to them. They forced her to scrub out her vagina with the same chemicals. They also talked openly of killing her. The men handcuffed her, blindfolded her, and put a heavy coat over her head. They then took her to a car, and forced her down onto the floorboards in the back. After they had driven for some time, she managed to get out of the handcuffs and began to struggle. Joseph Gardner, who was sitting in the front passenger seat, reached over the seat, held back her head, and shot her twice in the face. The driver pulled over to the shoulder 14 miles outside Charleston, where Gardner shot her three more times in the face and once in the arm.

The men dumped her on the side of the road, drove back to Charleston, and went nightclubbing. A passing driver found Missi McLauchlin, miraculously alive, and he left to get help but she died before the ambulance arrived. Missi had a blood alcohol level of .25 at the time of her autopsy. There were no traces of drugs. It took police four days to identify the body, and a day later they located the trailer where Missi McLaughlin was raped.

By January 9, 1993, police had arrested seven people including two of the ringleaders—Matthew Mack and Matthew Williams—and two women, Edna Williams and Indira Simmons, who were charged with being accessories to murder and sexual assault. Three of the rapists were sailors stationed at nearby Charleston Naval Base. The only suspect not in custody was the triggerman, Joseph Gardner, who had carried out his New Year’s resolution. Gardner, who was AWOL from the Navy, eluded police for nearly two years, and might never have been caught had the FBI not put him on the “ten most wanted” list. He was living in Philadelphia when someone saw his picture in the post office and tipped off the police. He was arrested on October 20, 1994.

Police suspected a racial motivation from the start, since they found a “crudely-written racial diatribe” in the trailer, complete with racial epithets about white oppression, which claimed blacks were “justified in seeking revenge.” Walter Bailey, the chief prosecutor in the case, said "It was the absolutely most brutal and senseless crime, one of the worst things I have ever seen. Totally unprovoked."

Before his sentencing, Gardner told the jury, "Do what you think is best." Before that, Joe Gardner apologized to Missi's parents. "I hope it gives you some sense of closure so you can put this behind you and move on. Yesterday when I was listening to you talk, it really hurt me. I really hurt you." The seven women and five men that found him guilty of kidnapping and murdering Missi thought about it for two hours and decided that the 25-year-old Detroit native should die in the electric chair or by lethal injection. "When it came down, the picture in my mind was my daughter's grave and roses starting to bloom and that she was finally resting in peace," said Missi's mother, Patricia McLauchlin.

Gardner was the only person sentenced to death in the case. Mack received a life sentence plus 30 years, which will allow parole eligibility after 30 years. Williams pleaded guilty to murder and was sentenced to life in prison with parole eligibility after 30 years. However, 1st Circuit Solicitor Walter Bailey agreed that if Williams would help prosecute Gardner, Williams could be sentenced again under circumstances that would cut parole eligibility to 20 years.

Another man involved, Roger Williams, served half of a five-year sentence for third-degree criminal sexual conduct and being present during the commission of a felony and not reporting it. He was scheduled to be released in December 1995. Danny Dwayne McCall was sentenced to nine years for the same charges as Roger Williams, suspended upon service of six years followed by five years of probation. He was denied parole in June 1995.

Edna Jenkins, who was dating Gardner at the time, pleaded guilty to being an accessory after the fact of murder, illegally buying two handguns within 30 days and lying on a firearms application. She served 554 days in jail. Indira Simmons, who was living in the trailer with Matthew Williams, pleaded guilty to failing to report a felony. She served 572 days, partly in jail and the remainder under house arrest.

Joseph Martin Luther Gardner

A man who had been scheduled to die on April 8, 2005, for the kidnapping and murder of a Charleston woman 12 years ago, has been granted a stay of execution so he can pursue federal appeals. The stay for Joseph Gardner was granted U.S. District Judge Henry Herlong, according to the South Carolina attorney general's office.

Gardner was convicted of the Dec. 30, 1992, killing of Melissa "Missi" McLauchlin, who was raped, tortured, shot five times in the face and left to die by the side of a road in Summerville.

At the time of the shooting, police said Gardner and some other men made a New Year's resolution to rape and kill a white woman as retribution for 400 years of oppression of black people. Gardner, who was later arrested in Philadelphia, was the trigger man.

Gardner was sentenced to death in December 1995 by a jury of 10 whites and two blacks. In March 1999, the U.S. Supreme Court turned aside without comment an appeal by Gardner. Gardner said his trial should have been moved elsewhere because of pretrial publicity.

Missy McLauchlin, 25, was a native of Wixom, Michigan, living with her fiancé’s family in North Charleston, South Carolina. On the night she died, she had an argument with her fiancé at a nightclub. She stormed out of the club and began to walk home. Police spotted her, obviously drunk, and gave her a ride home, but she quickly set out on foot for another club.

Three black men, Matthew Mack, Matthew Williams, and Joseph Gardner pulled up alongside in a car and started a conversation. They offered her drugs if she would come back to their trailer and have sex with them. Missi McLauchlin, who had a history of drug problems, foolishly accepted their offer.

The men had spent most of the day drinking and watching pornographic videos of black men having sex with white women. At one point Mack exploded in anger at his white girlfriend, saying he wanted to “stab her,” but that “it ain’t got to be her, any white” would do. Williams said he wanted to have sex with a white woman.

Two hours later, the group watched a television news account of the biggest stories of 1992. When the videotaped beating and arrest of Rodney King came on the air, the third man, Gardner, spoke of “four hundred years of oppression,” and made a “New Year’s resolution” to “kill a white bitch.”

It was in this state of mind that the four returned to the trailer where the three blacks lived. The men offered Missi McLaughlin no drugs, but she willingly had sex with them—at first. She began to resist, especially when the men wanted to sodomize her, and soon the men were raping her.

They put out the word within the trailer park that they had “captured a white woman,” and three other blacks arrived and raped her. Two black women, girlfriends of some of the rapists, were present in another room of the trailer, but did nothing to stop the attack.

After they had enough, the men decided to get rid of the evidence—including Missi McLauchlin. They soaked her in bleach and hydrogen peroxide, and scrubbed her under the shower with a nylon brush, in the hope of ridding her skin of sperm or other evidence that could be linked to them.

They forced her to scrub out her vagina with the same chemicals. They also talked openly of killing her. The men handcuffed her, blindfolded her, and put a heavy coat over her head. They then took her to a car, and forced her down onto the floorboards in the back.

After they had driven for some time, she managed to get out of the handcuffs and began to struggle. Joseph Gardner, who was sitting in the front passenger seat, reached over the seat, held back her head, and shot her twice in the face.

The driver pulled over 14 miles outside Charleston, where Gardner shot her three more times in the face and once in the arm. The men dumped her on the side of the road, drove back to Charleston, and went nightclubbing.

A passing driver found Missi McLauchlin, miraculously alive, but she died before the ambulance arrived. It took police four days to identify the body, and a day later they located the trailer where Missi McLaughlin was raped.

By January 9, 1993, police had arrested seven people including two of the ringleaders—Matthew Mack and Matthew Williams—and two women, Edna Williams and Indira Simmons, who were charged with being accessories to murder and sexual assault.

Three of the rapists were sailors stationed at nearby Charleston Naval Base. The only suspect not in custody was the triggerman, Joseph Gardner, who had carried out his New Year’s resolution.

Gardner, who was AWOL from the Navy, eluded police for nearly two years, and might never have been caught had the FBI not put him on the “ten most wanted” list. He was living in Philadelphia when someone saw his picture in the post office and tipped off the police. He was arrested on October 20, 1994, and is now on death row.

Gardner gets death

By Richard Green Jr. - Charleston Post Courier

December 12, 1995

"Do what you think is best," Joe Gardner told a jury Wednesday after apologizing to Melissa Ann "Missi" McLauchlin's parents. The seven women and five men that found him guilty Sunday of kidnapping and murdering Missi on Dec. 30, 1992, thought about it for two hours and decided it was best that the 25-year-old Detroit native die in the electric chair or by lethal injection.

"When the (sentence) came down, the picture in my mind was my daughter's grave and roses starting to bloom and that she was finally resting in peace," said Missi's mother, Patricia McLauchlin. Gardner's mother sobbed vehemently as Circuit Judge Ralph King Anderson imposed the sentence. She was escorted from the Dorchester County Courthouse under guard. Gardner himself was whisked away from St. George to an undisclosed location, but Death Row is located in Columbia at Broad River Correctional Institution.

First Circuit Solicitor Walter Bailey, who has been working on the case since he took office just days after Missi's death, said he was relieved to succeed in prosecuting the last and most serious defendant in the case. "This kind of case is why you have the death penalty in South Carolina," Bailey said.

Like Bailey, Gardner's court-appointed lawyers, Tim Kulp and Norbert Cummings, were visibly drained after the trial, which included two days of jury selection and a dozen days of testimony. "Tragedies have a way of reproducing themselves," Kulp said.

"What makes (Gardner) human like you and me burst through when he was listening to Mr. McLauchlin during the penalty phase," Kulp said. "We had every hope that the jury would recognize that to offset the animal that the prosecution argued this man was."

Gardner broke down and sobbed Tuesday when Clair McLauchlin refused to extend or deny mercy from the witness stand, leaving that to the jury. After the trial, McLauchlin said, "I can have sympathy (for Gardner and his mother) because they are human. ... No, I'll never forgive him." Mrs. McLauchlin didn't believe that Gardner was really sorry. "Maybe he finally realized how serious this was," she said.

Testimony showed that Missi - who is white - was taken to a trailer and had sex with several black men after Gardner yelled at her while holding a gun. Afterward, she was handcuffed and blindfolded and driven to Summerville, where Gardner fired five .25-caliber bullets into her mouth. Gardner made a last tearful argument to the jury Wednesday before it decided his fate, but he never admitted being the triggerman that two co-defendants said he was. "I don't want to die. What happened shouldn't have happened, but I don't want my kids to grow up without me," Gardner told the jury, referring to his two young sons who live in Detroit.

Turning from the jury to face Missi's parents, Gardner said he was sorry. "I hope it gives you some sense of closure so you can put this behind you and move on. Yesterday when I was listening to you talk, it really hurt me. I really hurt you."

In his closing argument, Bailey made sure the jurors considered the McLauchlins when choosing a sentence. "Their lives were ruined too by Joe Gardner. You've got to look into the eyes of the McLauchlins and let them know justice has been done."

"You cannot show Joe Gardner mercy and do justice in this case," Bailey said. The prosecutor held up a bloody photograph of Missi lying on the side of U.S. Highway 78 where Gardner and two co-defendants left her to die. "This is Joe Gardner's handiwork. What does he deserve? A life prison sentence or the death penalty?"

Several of Gardner's co-defendants claimed during the trial that Missi voluntarily had sex with them in return for the promise of drugs. But Bailey argued that the only reason she went along is because Gardner had threatened her. Two of the men who had sex with her pleaded guilty last year to third-degree criminal sexual conduct in Charleston County, where those crimes occurred. Gardner couldn't be tried for rape in Dorchester County where the kidnapping and murder occurred, but Bailey was allowed to argue rape as one of the aggravating circumstances required before the death penalty can be sought.

McLauchlin said he hoped the jury's finding of criminal sexual conduct would lay to rest allegations that his daughter voluntarily had sex the night she was killed. There was testimony that she also got into a car with Gardner of her own free will. "I'll go to my grave believing that she did not voluntarily get into that car," McLauchlin said.

State v. Gardner, 332 S.C. 389, 505 S.E.2d 338 (S.C. 1998) (Direct Appeal).

Defendant was convicted in the Circuit Court, Dorchester Count, Ralph King Anderson, Jr., J., of murder and kidnaping. Death sentence was imposed after jury found aggravating circumstances of criminal sexual conduct (CSC), kidnaping, and physical torture. Defendant appealed. The Supreme Court held that: (1) defendant was not entitled to change of venue on ground of pre-trial publicity; (2) close-up color photograph of victim's face was admissible in sentencing phase; and (3) evidence supported submission to jury of aggravating circumstance of physical torture. Affirmed.

PER CURIAM.

This is a death penalty case. Appellant was convicted of murder and kidnaping and received a death sentence after the jury found the aggravating circumstances of criminal sexual conduct (CSC), kidnaping, and physical torture. This opinion consolidates the direct appeal and our mandatory review pursuant to S.C.Code Ann. § 16-3-25 (1985). We affirm.

The events leading to these crimes began on the evening of December 30, 1992, when the victim, an intoxicated young woman, got into an automobile with three men she did not know. The men drove to a trailer, where the victim engaged in sex acts with several different men. While the victim initially voluntarily participated in these acts, she soon objected, but the assaults continued. Appellant attempted to sodomize the victim over her protests. When the men were finished, the victim was instructed to bathe. She was then placed in handcuffs, blindfolded, and taken from the trailer to a waiting car with a heavy coat placed over her head. Three men got in the car: the victim was forced onto the floorboard area in the backseat, one man sat beside her, and appellant took the front passenger's seat. The men drove for a period of time, leaving the county where the trailer was located and entering Dorchester County.FN1

FN1. This crossing of county and judicial circuit boundaries explains why appellant was not charged with CSC in this case.

The victim freed herself from the handcuffs, and began to struggle. Appellant turned towards the back of the car, pushed the victim's head back, and shot her twice in the face. The driver pulled the car onto the shoulder, and appellant shot the victim three more times. The men then dumped the victim out of the car, and left her on the roadside. The men returned to the trailer, and went out nightclubbing. Passersby saw the body on the side of the highway, and called for help. While the victim was still alive when the first people stopped, she soon died.

The victim was picked up on December 30, and killed on December 31, 1992. All persons involved fled the State; some were arrested in January 1993, but appellant remained at large until October 1994, when he was arrested in Philadelphia. This case was tried in December 1995. There was a good deal of publicity surrounding this trial.

As a result of the pretrial publicity, appellant made a change of venue motion. He now contends the trial judge erred in denying this request. We disagree. When a change of venue motion is predicated on pre-trial publicity, the relevant inquiry is whether potential jurors have “such fixed opinions that they could not judge impartially the guilt of the defendant.” State v. Manning, 329 S.C. 1, 495 S.E.2d 191 (1997). The moving party bears the burden of proving actual juror prejudice, and the trial court's ruling on the venue motion will not be reversed on appeal absent an abuse of discretion. Id.

Appellant's argument is that the trial court erred in finding credible the potential jurors' statements on voir dire that they could act impartially. We defer to the trial judge's view of the potential jurors' credibility, since he had the opportunity to view their demeanor. e.g., Solomon v. State, 313 S.C. 526, 443 S.E.2d 540 (1994). There is no showing of actual juror prejudice, nor is there a lack of evidentiary support for the trial judge's ruling. Appellant has failed to demonstrate an abuse of discretion in the denial of his motion for a change of venue. State v. Manning, supra.

Appellant next contends the trial judge committed reversible error in admitting a close-up color photograph of the victim's face in the sentencing phase of this trial. The photo accurately depicts the victim's condition after appellant left her, having shot her in the lower part of her face five times. Photographs of the victim's body are admissible in the sentencing phase of a capital trial to show the circumstances of the crime and the defendant's character. State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987). While the trial judge is required to balance the prejudicial effect of a photo against its probative value, the scope of probative value is much broader in the sentencing phase of a capital trial than in other proceedings. Id. We find no abuse of discretion here.

The third issue appellant raises concerns the solicitor's cross-examination of two witnesses and his closing argument. Appellant's misconduct in the local jail while awaiting trial led to his transfer to Broad River Correctional Institution where he was placed on safe-keeping status, and housed in the death row area. In an effort to show appellant's adaptability to prison life, he called two correctional officers to testify to his good conduct while housed as a safe-keeper. The solicitor rebutted this evidence by presenting testimony from the jail officials who had dealt with appellant prior to his transfer to Broad River, and cross-examined the two correctional officers called by appellant.

The cross-examination focused on two points: (1) the difference in prison rules and regulations between safe-keepers, whose daily routine is like those serving a death sentence, and those in the general prison population, whose routine is more like appellant's jail experience, to demonstrate appellant was not really adaptable to prison life; and (2) the “good life” available to those in the general population, such as access to educational opportunities, libraries, gyms, and television.

Appellant contends the trial court erred in permitting the officers to be cross-examined on the particulars of the “easy life” afforded an inmate housed in the general population, and in allowing the solicitor to argue in his closing argument that this easy life was not an appropriate punishment for appellant's crimes. There was no objection to the closing argument, and therefore no issue is preserved for our review. State v. Franklin, 318 S.C. 47, 456 S.E.2d 357, cert. denied, 516 U.S. 856, 116 S.Ct. 160, 133 L.Ed.2d 103 (1995).

Further, appellant interposed no objection to the cross-examination of the first officer, and initially interposed only a general objection to the cross of the second officer. When he finally did object, appellant raised different grounds than those he now asserts on appeal. Appellant simply failed to preserve any meaningful objection to this line of cross-examination, and we cannot review it. State v. Motley, 251 S.C. 568, 164 S.E.2d 569 (1968) (no prejudice shown where a different witness testified to same matter without objection); State v. Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997) (general objection insufficient to preserve issue for appellate review); State v. Byram, 326 S.C. 107, 485 S.E.2d 360 (1997) (appellant cannot change grounds for objection on appeal).

Finally, appellant contends the trial court erred in denying his motion to direct a verdict on the aggravating circumstance of physical torture. We find no error, given the graphic testimony that the victim was subjected to repeated sexual assaults, including appellant's attempts to sodomize her. There was sufficient evidence that the victim was intentionally subjected to aggravated battery to warrant submission of the aggravating circumstance of physical torture to the jury. State v. Davis, 309 S.C. 326, 422 S.E.2d 133 (1992); State v. Smith, 298 S.C. 482, 381 S.E.2d 724 (1989).

We have conducted the proportionality review mandated by S.C.Code Ann. § 16-3-25, and find the sentence in this case is not the result of passion, prejudice or any other arbitrary factor, and is neither excessive nor disproportionate. State v. Davis, supra; State v. Truesdale, 301 S.C. 546, 393 S.E.2d 168 (1990) facts reported in 285 S.C. 13, 328 S.E.2d 53 (1984). Accordingly, appellant's conviction and sentence are

AFFIRMED.

Gardner v. Ozmint, 511 F.3d 420 (4th Cir. 2007) (Habeas).

Background: Following affirmance, 505 S.E.2d 338, of state murder and kidnapping convictions and sentence of death, and exhaustion of state post-conviction remedies, state prison inmate sought federal habeas relief. The United States District Court for the District of South Carolina, Terry L. Wooten, J., denied petition, and inmate appealed.

Holdings: The Court of Appeals, Motz, Circuit Judge, held that: (1) defendant's right to trial by impartial jury was not violated by seating of juror who failed to reveal during voir dire her belief that her son had been murdered; (2) defense counsel's decision not to exercise peremptory challenge against venireperson whom defendant believed to be biased was not ineffective assistance; (3) defense counsel did not provide ineffective assistance by failing to present additional mitigation evidence during penalty phase; (4) defense counsel's failure to object to opinion testimony concerning racial motivation for crime was reasonable trial strategy; (5) defense counsel performed deficiently by allowing admission of codefendant's pretrial statements that related racial motivation for crime; but (6) defense counsel's deficient performance did not prejudice defendant. Affirmed.

DIANA GRIBBON MOTZ, Circuit Judge:

Joseph Gardner, convicted of murder and kidnapping and sentenced to death by a South Carolina court, appeals the district court's denial of his petition for federal habeas relief. We granted a certificate of appealability on four issues: (1) did Gardner suffer a violation of his right to a fair trial before an impartial jury; and was Gardner denied effective assistance of counsel by the failure of his trial attorneys to (2) exercise a peremptory challenge to remove a juror; (3) present his mitigation evidence in a more accurate and compelling manner during sentencing; or (4) object to, rather than facilitate, the admission of highly inflammatory testimony that racial animus motivated Gardner's crimes. For the reasons that follow, we affirm the district court's denial of habeas relief.

I.

On the basis of strong evidence, including the detailed testimony of co-defendants, a South Carolina jury convicted Gardner, an African-American man, of the December 30, 1992, kidnapping and brutal murder of Melissa McLaughlan, a Caucasian woman. The jury also found the aggravating circumstances of criminal sexual conduct, kidnapping, and physical torture and recommended that Gardner receive a death sentence, which the state court then imposed. Following Gardner's unsuccessful direct appeal, State v. Gardner, 332 S.C. 389, 505 S.E.2d 338, 339 (1998), the Supreme Court denied certiorari, Gardner v. South Carolina, 526 U.S. 1022, 119 S.Ct. 1260, 143 L.Ed.2d 356 (1999).

Gardner next petitioned for post-conviction relief in state court. The state post-conviction relief court (“PCR court”) denied his claims for relief, as did the Supreme Court of South Carolina. Gardner then filed this petition for a writ of habeas corpus in federal court, pursuant to 28 U.S.C.A. § 2254 (West 2006 & Supp.2007). The district court denied relief without ruling on Gardner's application for a certificate of appealability. We granted Gardner a certificate of appealability on the four issues enumerated above.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.A. § 2254(d), requires a federal court to defer to a state court judgment on the merits when considering a petition for habeas relief. Thus, a federal court cannot grant habeas relief on any claim adjudicated on the merits by the state court unless the state decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id.

II.

Gardner contends initially that the seating of a juror, who he claims knowingly withheld disqualifying information, violated his right to a fair trial before an impartial jury, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Gardner asserts that during voir dire the juror intentionally withheld her belief that her son had been murdered, because she knew that disclosure of that belief might have established cause for her removal from the jury.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” U.S. Const. amend. VI; see Irvin v. Dowd, 366 U.S. 717, 721-22, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (holding that the Fourteenth Amendment requires that States guarantee a fair trial by a panel of impartial jurors). The Supreme Court has interpreted this text to mean that a criminal defendant has a constitutional right to a jury free from prejudice and “capable and willing to decide the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). To protect that right, a trial judge must be “ever watchful to prevent prejudicial occurrences,” id., and therefore must conduct voir dire in a manner that adequately identifies unqualified or potentially biased jurors, see Morgan v. Illinois, 504 U.S. 719, 729-34, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).

To establish entitlement to a new trial because of alleged juror dishonesty during voir dire, a defendant “must first demonstrate that a juror failed to answer honestly a material question ... and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). This test applies “equally to deliberate concealment and to innocent non-disclosure.” Conner v. Polk, 407 F.3d 198, 205 (4th Cir.2005).

The PCR court rejected Gardner's claim of juror deceit. The court found that defense counsel could have questioned the juror about the impact of violent crimes on her life, but did not do so.FN1 Thus, the juror never “failed to answer honestly a material question,” as required by McDonough, 464 U.S. at 556, 104 S.Ct. 845. Moreover, relying on the juror's affirmation during voir dire that she could grant a fair trial to both sides, the PCR court found her not to be biased against any party. At the PCR hearing, the juror also testified regarding her earlier statement to defense investigators that “if [she] had told [the court] about [her] son's killing ... [she] would not have been allowed on [the] jury.”

Based on her subsequent testimony at the post-conviction relief hearing and the context of her earlier statement, the PCR court found that her statement did not “reflect bias or intentional concealment,” but only “after-the-fact ... surprise” that defense counsel did not question her on this point. The PCR court found that the juror's truthful demeanor supported this conclusion. The PCR court also noted that the juror credibly testified at the PCR hearing that, if asked, she would have disclosed her views regarding her son's death at voir dire, but she did not volunteer them because she did not believe them “important,” as she had no proof to back them up. On the basis of these findings, the PCR court concluded that Gardner failed to satisfy the first prong of the McDonough test and so denied Gardner's request for a new trial.

FN1. The PCR court also denied relief on a claim of ineffective assistance based on counsel's failure to inquire about potential bias because Gardner suffered no prejudice from this failure. Gardner does not appeal that ruling.

We cannot conclude that, in rejecting Gardner's claim, the PCR court acted contrary to, or unreasonably applied, clearly established Supreme Court precedent. See 28 U.S.C.A. § 2254(d). Like the state court, we do not believe that the record demonstrates that the juror failed to answer honestly any voir dire question. See McDonough, 464 U.S. at 556, 104 S.Ct. 845. Nor does the record suggest that the juror held any actual or implied bias against any party such that a “correct response would have provided a valid basis for a challenge for cause.” Id.; see also Phillips, 455 U.S. at 222, 102 S.Ct. 940 (O'Connor, J., concurring) (explaining that the doctrine of implied bias should be applied only in limited and “extreme” circumstances); United States v. Fulks, 454 F.3d 410, 432-33 (4th Cir.2006) (rejecting a claim of implied bias when a juror inadvertently failed to disclose her husband's murder).

Thus, we must reject Gardner's contention that the state court unreasonably applied or acted contrary to established federal law in concluding that Gardner failed to demonstrate juror bias or partiality.

III.

Gardner's remaining claims all rest on an asserted denial of his Sixth Amendment right to effective assistance of counsel.

To prove a Sixth Amendment violation and succeed on a claim of ineffective assistance, a defendant must first demonstrate “that counsel's performance was deficient” in that it “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must next establish that the “deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. To demonstrate prejudice, he must show that there is a “reasonable probability” that, absent the alleged deficiency, “the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

Gardner raises three ineffective assistance contentions. He challenges the conduct of his lawyers during voir dire, their preparation of mitigation evidence during the sentencing phase of his trial, and their handling of the testimony of two prosecution witnesses who stated that racial animus motivated Gardner's crimes. The state PCR court adjudicated each of these claims on the merits and determined in each instance that Gardner had failed to establish ineffective assistance. We consider each of these ineffective assistance claims in turn.

A.

The first claim concerns the alleged bias of a second juror. Gardner contends that defense counsel rendered constitutionally ineffective assistance by failing to exercise a peremptory strike to remove this juror after the juror “twice admitted during voir dire that she could not be completely impartial.” Brief of Appellant at 32. He characterizes the juror's ultimate assertion that she could decide the case impartially as mere “acquiescence” to the demands of the court and trial counsel that she issue a firm statement of impartiality. Id. at 34.

Although this juror admitted early in voir dire that she had, “to a certain extent,” formed an opinion about the case based on television coverage, after apparent hesitation, she also averred that she could “lay aside any opinion [she had] formed and decide this case based solely on the evidence and testimony presented in this courtroom.” When questioned by defense counsel regarding her initial hesitation, the juror answered, “I can tell you I would try and I feel like that I could be open-minded, but as far as 100 percent, I can't.” Defense counsel asked once more whether the juror could “render a fair and impartial verdict” based on only the evidence presented in court, to which the juror then replied, “I feel that for certain that I could.” Following this exchange, defense counsel challenged that juror for cause, but the trial judge denied the challenge and held the juror qualified to serve. Defense counsel did not exercise a peremptory challenge; the juror therefore served on the jury that convicted Gardner and recommended the death penalty.

The PCR court examined Gardner's allegations of counsel's deficiency for failure to exercise a peremptory challenge to strike the juror and concluded that Gardner had not made the showing required by Strickland. The court found that counsel's decision not to use a peremptory challenge “was a tactical decision,” which neither demonstrated counsel's deficiency nor prejudiced Gardner. The court noted that only two jurors had been seated when defense counsel had to decide whether to exercise a peremptory challenge with respect to this juror, and the defense already had used three of its ten allotted peremptory challenges. The PCR court concluded that counsel could reasonably have decided to forego the peremptory challenge of this juror and reserve its remaining peremptory challenges for other, potentially more problematic, jurors.

On habeas review, federal courts generally accord “particular deference” to the judgment of trial counsel during voir dire. Hughes v. United States, 258 F.3d 453, 457 (6th Cir.2001). The record in this case well supports the state PCR court's determination that Gardner did not satisfy the performance prong of Strickland. We find entirely plausible the state court's characterization of defense counsel's choice as “tactical.” Defense counsel's conduct easily falls within “an objective standard of reasonableness” and conforms with “prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

The PCR court also determined that removal of this juror would not have changed the outcome of the case. The record provides equally strong support for this finding. The trial transcript offers no evidence that counsel's actions resulted in the seating of a juror biased or otherwise prejudiced against Gardner. The juror in question unequivocally told the trial judge at voir dire that she could decide the case based solely on the evidence presented in court, that she held no bias for or against either party, and that she would give both sides a fair and impartial trial.

Moreover, in the post-conviction hearing, Gardner failed to offer any evidence of asserted prejudice resulting from the juror's service. He simply averred then, as he does before us now, that the participation of a biased juror is presumptively prejudicial. FN2 Because we hold that the state court did not err in concluding that the juror was not biased, Gardner's presumptive prejudice argument must fail.

FN2. At least one of our sister circuits has so held. See Hughes, 258 F.3d at 463. We have never reached this question, and we need not do so here because nothing in the record indicates that the challenged juror was actually biased.

In sum, we agree with the state court that counsel's conduct in not exercising a peremptory strike to prevent service by this juror neither constituted deficient representation nor resulted in prejudice to Gardner. The state court neither unreasonably applied nor acted contrary to clearly established Supreme Court precedent. 28 U.S.C.A. § 2254(d). Therefore, this claim too fails.

B.

Gardner next contends that his attorneys presented inadequate mitigation evidence during the sentencing phase of his trial and that this asserted failure constituted constitutionally ineffective assistance of counsel. He argues that his attorneys presented vague and inconsistent mitigation evidence and expert testimony that inadequately and inaccurately described his mental condition. He also maintains that defense counsel failed to present evidence that would have provided a more accurate and compelling account of his background and mental state.

Criminal defendants have a constitutionally protected right to provide the jury with mitigating evidence that may affect the jury's assessment of whether a sentence is “just” and “appropriate.” See Williams v. Taylor, 529 U.S. 362, 396-97, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). For this reason, defense counsel have an obligation to “conduct a thorough investigation of the defendant's background” in order to identify and produce mitigation evidence; failure to do so renders an attorney's performance deficient. Id. at 395-96, 120 S.Ct. 1495. But when determining whether counsel has delivered a constitutionally deficient performance, a state court also may consider a defendant's own degree of cooperation, even in a capital case. See Frye v. Lee, 235 F.3d 897, 904-05 (4th Cir.2000).

The PCR court rejected Gardner's contention that his counsel did not adequately investigate and present evidence of his background for mitigation purposes. The court found that despite Gardner's lack of cooperation, counsel made diligent attempts to obtain mitigating information. The court further determined that virtually all of the evidence that Gardner contends counsel should have presented to the jury, counsel did in fact present. For example, the court found that the additional experts who testified at the PCR hearing offered essentially the same evidence as those who testified at trial, albeit in a more compelling form.

The state court's holding that defense counsel investigated and presented mitigation evidence in an objectively reasonable manner is not unreasonable or contrary to clearly established Supreme Court precedent. Both defense attorneys testified before the PCR court, without contradiction, that Gardner advised his family members not to cooperate with counsel's efforts to develop mitigating evidence. They also testified that Gardner refused, until shortly before the beginning of his trial, to provide medical releases that might have aided counsel in developing mitigation evidence. Nevertheless, defense counsel continued to seek mitigating information from Gardner's family, even traveling to Gardner's home in Detroit to obtain that information. They also consulted with two medical experts regarding Gardner's mental condition. In sum, the record reveals that, although burdened by an uncooperative client, defense counsel made significant efforts to develop and present mitigation evidence. Given these facts, we cannot say that the state court acted unreasonably in concluding that counsel's actions did not fall “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

The PCR court also concluded that even if Gardner had established that defense counsel presented a constitutionally deficient mitigation case, he still could not demonstrate that this deficiency prejudiced him. In support of this conclusion, the court found that the abundant evidence introduced during the liability phase strongly indicated Gardner's guilt, and since the sentence in a death penalty trial depends “in large part ... [on] what occurred in the guilt phase,” the strength of this evidence likely provided the critical reason for the jury's conclusion that Gardner's conduct warranted a death sentence.

The court also reiterated its prior conclusion that, during the penalty phase, the defense presented the jury virtually the same evidence that Gardner believes essential to his mitigation case, although counsel did so in a less dramatic form than Gardner now claims was required. The court further found that even if the defense had offered marginally more persuasive mitigating evidence, for example, testimony of physicians who could provide a more dire and detailed portrait of Gardner's mental state, such evidence would not have materially helped Gardner's mitigation case.

Finally, the PCR court observed that during the sentencing phase, the jury found three aggravating factors-kidnapping, criminal sexual conduct, and physical torture-and the court concluded that the very substantial evidence establishing these factors would have outweighed even the more detailed mitigation evidence now proposed by Gardner.

On the basis of these findings, the state court held that there was no reasonable probability that, if the jury had heard the additional, more detailed mitigating evidence now proposed by Gardner, the jury would have determined that the balance of aggravating and mitigating factors did not warrant death. Given the record evidence in this case, we cannot conclude that in so holding the state court acted unreasonably or contrary to clearly established Supreme Court precedent. See 28 U.S.C.A. § 2254(d). Accordingly, this ineffective assistance claim also provides Gardner no basis for habeas relief.

C.

Finally, Gardner contends that defense counsel mishandled trial testimony that racial animus motivated his crimes and thus denied him constitutionally effective assistance of counsel. Specifically, Gardner asserts that his counsel should have objected to the admission of testimony by prosecution witness Jerry Ward and the introduction of out-of-court statements by prosecution witness Matthew Mack. Gardner claims that the admission of this evidence left the jurors to conclude that racial animus motivated him to commit these crimes, and, for this reason, that he deserved more severe punishment than perpetrators of comparable, non-racially motivated crimes.

1.

Ward, a jailhouse lawyer, advised Gardner while Gardner was in jail awaiting trial. At trial, Ward testified that Gardner “didn't want me to think that it [the murder and kidnapping] was racially motivated, because he needed my help,” but “obviously it was.” Ward also testified that he learned from Gardner that either Gardner or a co-defendant “had problems with a white girlfriend” and so decided “to kill, torture and rape a white woman for a New Year's resolution.” Defense counsel did not object to these statements but did examine Ward effectively with respect to other aspects of his testimony.

The PCR court found that defense counsel's failure to object to Ward's testimony reflected a reasonable effort to avoid drawing attention to the testimony. Such a strategic decision, reasoned the PCR court, accorded with the defense's stated trial objective of allowing in much of Ward's testimony so that counsel could use it to “impeach[ ] him across the board” and thereby undermine his credibility. For this reason, the state court found defense counsel did not provide deficient representation with regard to Ward's testimony.

We cannot conclude that in so holding the PCR court acted unreasonably or contrary to clearly established Supreme Court precedent. 28 U.S.C.A. § 2254(d). Ward's two statements constituted just a small portion of his trial testimony. Moreover, the first statement simply contained Ward's opinion-not any fact-and the jurors would have understood from other trial testimony that the second statement referred not to Gardner but to his co-defendant, Matthew Mack, who had a white girlfriend. Furthermore, although defense counsel did not attempt to impeach these statements directly on cross examination, counsel did effectively damage Ward's overall credibility. Accordingly, the state court's holding that counsel's failure to object to these two statements constituted a strategic judgment, rather than ineffective assistance, finds sufficient support in the record.FN3

FN3. Having concluded that counsel's performance was not deficient under Strickland with regard to the Ward testimony, we need not decide whether that performance prejudiced the defense. United States v. Roane, 378 F.3d 382, 409 n. 15 (4th Cir.2004) (citing Williams v. Kelly, 816 F.2d 939, 946-47 (4th Cir.1987)). However, for the reasons stated regarding the asserted prejudicial effect of the Mack testimony, we doubt that counsel's handling of the Ward testimony prejudiced Gardner.

2.

The challenged statements of Matthew Mack present a more difficult question. In exchange for a sentence of life imprisonment with a possibility of parole, Mack testified at length as the chief prosecution witness against Gardner. Mack had previously provided three statements-two written and one audiotaped-to law enforcement authorities and had testified in his own trial. In those prior statements, Mack reported graphic remarks made to him by Gardner which revealed that a racial animus animated the crimes. At Gardner's trial, however, Mack did not testify on direct examination as to any of these remarks or to any racial animus on Gardner's part, and the prosecutor did not seek to admit Mack's graphic pretrial statements detailing this animus. On cross examination, however, defense counsel agreed to the admission of all of Mack's pretrial statements after the prosecutor objected to defense counsel's detailed cross-examination of Mack regarding one of those statements. In fact, Gardner's own defense counsel positively insisted that if the court were to admit into evidence any of Mack's pretrial statements, then it must admit all of those statements.

One of the statements contains, in Mack's handwriting, the following:

On the 28th or 29th of December, 1992, I was sitting in my trailer with Joe Gardner, Matthew Williams, drinking beer and talking. I was telling them that I had a fight with my girlfriend, who is white, and I was mad at her. I said I would like to “fuck her up.” I kept talking and said it could be any white bitch, I would fuck up any white bitch. I said I would like to fuck up a white girl right now. Matthew was saying, I'd be down for fucking a white girl. Joe said, I'd kill the white bitch. Joe said, before the end of the year. That's my New Years resolution, before the end of the year. I understood Joe to mean he meant to kill a white girl before the end of 1992. Nothing happened the rest of the night. (Emphasis added).

Mack goes on to recount that on the evening of December 30, 1992, he, along with Williams and Gardner, picked up a young white woman and brought her to their trailer. At that time, Mack relates:

I had already had it in my mind when she got into the car that she would be fucking us. I was thinking whether this bitch wants to or not she is giving up her pussy. I was thinking about the conversation we had on the 29th of December and I thought this is the white bitch we were going to fuck up, fuck, torture.

Mack then concludes his confession with this account:

On New Years Eve I asked Matt how many years do you think this takes off for oppression against the black race. Matt replied about ten years. I believe the killing of the girl by Joe was racially motivated due to the conversation we had just a few days before the incident. I believe the girl was killed to prevent the girl from testifying against us for what had occurred at the trailer that night. (Emphasis added).

The state PCR court found that defense counsel's agreement “to the introduction of prior statements ... in an effort to impeach [Mack's] credibility was ... entirely consistent with the strategy and tactics deployed throughout the entirety of Mr. Mack's cross-examination” to demonstrate “that Mr. Mack was adding and subtracting testimony as he saw fit.” The PCR court thus rejected Gardner's contention that counsel's decision to permit the admission of the Mack statements was one “born out of desperation” rather than strategy and concluded that defense counsel had not provided deficient representation.

This conclusion constitutes an unreasonable application of clearly established Supreme Court precedent, namely the Strickland command that counsel must perform at or above “an objective standard of reasonableness.” 466 U.S. at 687-88, 104 S.Ct. 2052. If defense counsel had not acquiesced in their admission, the jury would never have considered these inflammatory statements. Moreover, although allowing (indeed, causing) the admission of these statements, defense counsel did not actually use them to impeach Mack on cross-examination. That fact effectively undermines the PCR court's finding that defense counsel's acquiescence in the admission of the statements constituted a strategic decision. Mack may have been-as the PCR court concluded-“adding and subtracting testimony as he saw fit,” but defense counsel utterly failed to establish that this was so. An attorney's insistence upon the admission of evidence that significantly damages his client, without using that evidence in any manner to further his client's interests, cannot be considered “sound trial strategy” and certainly does not comport with “prevailing professional norms.” Strickland, 466 U.S. at 689, 688, 104 S.Ct. 2052. Thus, defense counsel was constitutionally deficient with respect to the admission of the Mack statements and testimony. See id. at 688-90, 104 S.Ct. 2052. The PCR court's opposite conclusion is an unreasonable application of the Supreme Court's holding in Strickland. See 28 U.S.C.A. § 2254(d).

The PCR court also found, however, that Gardner failed to establish that his lawyer's conduct with respect to the Mack statements and testimony prejudiced him. In support of this holding, the PCR court found that the prosecutor did not focus on race as an issue during the trial; that all jurors testified that they could view the case without reference to race; that the circumstances of the crime, even absent any reference to racial motivation, supported imposition of the death penalty; and that the jury found evidence of three aggravating circumstances-kidnapping, criminal sexual conduct, and physical torture-which were present without regard to any racial motivation. Accordingly, the PCR court concluded that Gardner failed to show a reasonable probability that the result of his sentencing proceeding would have been different if his counsel had handled Mack's testimony in a more effective manner.

We have carefully reviewed the trial record and find that the state PCR court's prejudice holding was not unreasonable, given the abundant and damaging evidence presented at Gardner's trial. See 28 U.S.C.A. § 2254(d); see also Strickland, 466 U.S. at 700, 104 S.Ct. 2052 (finding no prejudice in light of “overwhelming aggravating factors”). The prosecution placed before the jury overwhelming evidence of kidnapping, repeated rapes, sodomy, torture, and rampant disregard for human life, all prior to the actual murder of an unarmed twenty-five year old woman. Given this evidence, the state court did not act unreasonably in concluding that Gardner failed to demonstrate that there was a reasonable probability that the jury would have issued a more lenient sentence if counsel had properly handled the Mack testimony. This holding was neither contrary to, nor an unreasonable application of, established federal law. Accordingly, this claim for habeas relief also fails.

IV.

For all of these reasons, the judgment of the district court is AFFIRMED.