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, you know?"

Vanished

Bob brings out Shari's senior picture, taken just months before the high-schooler's premature death at 17—and 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 dread.

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.

Losing Control

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 basketball game.

"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."

When 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."

Unaccustomed to 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."

Interrupted Summer

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 theatrical value.

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 trial—having 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."

Approaching Death

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 Him publicly."

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,
v.
PARKER EVATT, Commissioner, South Carolina Department of Corrections; T. TRAVIS MEDLOCK, Attorney General, State of South Carolina, Respondents-Appellees.

No. 94-4016

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.

OPINION

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. 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 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.

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 (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 closing arguments:

Now, there has been a lot of talk here about what the defense is going to say. I will tell you what I am going to say. I am going to do something that probably hasn't been done before, pretty novel way to approach your final argument when you are representing your client, but I am not here to insult your intelligence. I am not here to make you think that [defense counsel] is trying to blow smoke at you.

I will tell you right now that the State has proved beyond a reasonable doubt that Larry Gene Bell is guilty of kidnapping. That is his lawyer talking to you. That is his lawyer telling you what the State has proved or not proved. We haven't come in here and tried to create any kind of illusion.

We haven't come in here and tried to create any evidence, blow smoke in your face so that you don't see the truth.

During this trial think about how much I tested the allegations made by the State of South Carolina. Did we really contest the guilt of the kidnapping? We contested a witness' identification, we contested identification of the car, because Mr. Bell believes that was not him. And for that 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 don't know.

Nobody from the state knows either. That is why you were given an alternative of whether [Shari's death] was by suffocation or dehydration. . . . And you will have to use your good common sense and go back and find out and determine and figure out whether or not the state has proved guilt beyond a reasonable doubt as to the homicide. . . .

By conceding Bell's guilt to the kidnapping, trial counsel attempted to down-play the inference that Bell was also guilty of murder and, instead, tried to promote the conclusion that Bell was mentally ill.

Trial counsel frequently reminded the jury of the abundance of psychiatric testimony they had heard and witnessed first-hand in Bell's own behavior during trial. Trial counsel was obviously attempting to persuade the jury to pity a man in Bell's mental condition.

Bell fails to acknowledge that his trial counsel confronted a difficult situation. The State had overwhelming evidence of Bell's involvement in the kidnapping, and the State's theory of the case was that Bell contrived his mental illness for the sole purpose of evading the death penalty and receiving a lighter sentence. Bell even testified that feigning mental illness was a common practice known to him, and that manipulating doctors "can save a person from the electric chair."

Additionally, Bell admitted on cross-examination that he had previously fabricated stories of blackouts and visions simply to avoid harsher penalties. Trial counsel's strategy, to which Bell consented, was undoubtedly targeted toward saving Bell from a death sentence.

We emphasize, therefore, that neither Bell nor any other aggrieved defendant can manipulate this forum to construe a reasonable, but ultimately unsuccessful strategy in his favor. Standing alone, unsuccessful trial tactics neither constitute prejudice nor definitively prove ineffective assistance of counsel.

The Supreme Court has recognized that strategies devised after extensively investigating the law and facts relevant to any and all probable options are virtually unchallengeable. Strickland, 466 U.S. at 690. 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 1099-1100.

Trial counsel's remarks constituted tactical retreats. Conceding Bell's guilt on the kidnapping charge did not preclude Bell from maintaining his innocence on the murder charge. Furthermore, a GBMI verdict would have increased Bell's chances of receiving a life sentence rather than a death sentence.

In light of the evidence against Bell, trial counsel's actions were realistic: Bell's alibi was flawed; Bell had been identified as the man who had repeatedly called Shari's family; the State had an abundance of forensic evidence identifying Bell as the perpetrator; and Bell made incriminating statements to the police after his arrest. Given the situation at hand, the defense had few alternatives.

Trial counsel urged the jury to reject the State's evidence and find his client GBMI under South Carolina law. As the state PCR judge recognized, trial counsel feared he would lose credibility with the jurors at the trial's sentencing phase if he tried to convince them during the guilt phase that Bell was innocent. In a federal habeas corpus proceeding, we presume that the state court findings are correct. 28 U.S.C. § 2254(d); Sumner v. Mata , 449 U.S. 539 (1981); Roasch v. Martin , 757 F.2d 1463 (4th Cir. 1985).

Trial counsel's pursuit of a GBMI verdict conformed to a reasonable pattern of trial strategy and advocacy by one familiar with the intricacies of a death penalty case and the impact psychiatric testimony has on those 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 .

III.

We next turn to Bell's due process claim. Bell argues that he was denied due process under Boykin v. Alabama , 395 U.S. 238 (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.

IV.

Next, Bell contends that the court-appointed competency examiners were partisan agents of the State, and, therefore, he was denied his right to due process and effective assistance of counsel.

Bell cites Ake v. Oklahoma , 470 U.S. 68 (1985), in an attempt to expand the parameters of procedural due process competency hearings, so that they be conducted by neutral, independent examiners.

We do not believe that Ake is applicable in this instance as the facts in Ake are distinguishable from Bell's case.

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.

V.

Bell further maintains that the trial judge's findings of competency were unsupported by the record as a whole. We disagree.

As the district court noted, findings of fact made by a state court in PCR proceedings enjoy a presumption of correctness,  see Sumner, 449 U.S. at 550 , 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 process violation.

VI.

We next turn to Bell's claim that his Sixth Amendment right to be present during his trial was violated by his ejection from the courtroom during a portion of his trial counsel's closing argument at the guilt phase. Bell makes the innovative argument that despite the fact that his own insolence forced the trial judge to eject him from the courtroom, he had a constitutional right to an audio hook-up from the courtroom to his holding cell.

The Sixth Amendment guarantees a defendant's right to be present in the courtroom during the trial of his case. See Lewis v. United States , 146 U.S. 370, 372 (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).

We have never held, nor does Allen require that a defendant who has been removed from the courtroom because of his disruptive behavior has a right to an audio hook-up. We see no reason to create such a right. The right to be present at one's own trial serves two purposes: it gives the defendant an opportunity to face his accusers and it affords him the opportunity to help in his own defense. Bell both faced his accusers and helped in his own defense; his missing only a portion of his trial counsel's closing arguments without an audio hook-up did not interfere with his ability to do either. The trial judge's refusal, therefore, to provide the requested audio hook-up did not violate Bell's Sixth Amendment right to be present during his trial.

VII.

Ladies and gentlemen of the jury panel, in addressing Mr. Bell I stated Mr. Bell, you understand the question. By that no juror should draw the inference that in any way I am commenting on the facts. That was not a comment or statement or opinion by me in regard to Mr. Bell's mental capacity to understand anything at all. Those matters are solely left up to you ladies and gentlemen of the jury panel. I ask you please disregard [sic] that remark I made as being inadvertent and not an expression of opinion. Just simply my manner of addressing Mr. Bell in that particular. So disregard it.

On the evidence of record, this instruction clearly corrected any bias or prejudice the jury might have inferred from the trial judge's remark.

A trial judge is vested with broad discretion to control the taking of testimony, and in recognizing the trial judge's efforts to do so, we conclude that the trial judge's remark did not prejudice Bell nor render Bell's trial fundamentally unfair. The remark was not noteworthy in the context of the entire trial and was neutralized by the trial judge's subsequent curative instruction.

X.

Bell further argues that his sentence should be reversed on the grounds of ineffective assistance of counsel because he feels that his trial counsel failed to present, during both the guilt and sentencing phases, evidence of Bell's dysfunctional family and history of chronic psychosis.

We need not go into the alleged details of his childhood that have surfaced only after Bell's conviction. The record clearly demonstrates that Bell's trial counsel did, in fact, exhaustively investigate Bell's personal history. With this information, Bell's trial counsel consulted with Bell and together they made knowing and informed decisions on how to proceed at trial. Bell's trial counsel testified during the PCR hearing that they consciously chose to portray Bell's mental illness by focusing on his increased mental disturbance during his adult life.

Therefore, Bell's contention that his trial counsel prejudiced his defense by failing to present evidence regarding his childhood is unfounded. This failure to introduce evidence regarding Bell's family history was simply a strategic decision made with Bell's consent. See Berry v. King , 765 F.2d 451 (5th Cir. 1985), cert. denied , 476 U.S. 1164 (1986).

We therefore conclude that Bell's trial counsel was not ineffective and that Bell's Sixth Amendment rights were not violated.

XI.

We next turn to Bell's argument that the trial court violated his Sixth, Eighth, and Fourteenth Amendment rights by failing to give certain jury instructions. First, Bell contends that the jury, during both the guilt phases and the sentencing phases of the trial, was confused as to the difference between the verdicts of guilty and GBMI. Second, Bell argues that the trial judge failed to instruct the sentencing jury that Bell did not have to establish mitigating factors by a preponderance of the evidence. Finally, Bell asserts that the trial judge failed to instruct the sentencing jury that it could not consider Bell's mental illness as a factor in aggravation of punishment. We find Bell's claims meritless.

No evidence in the record supports Bell's conjecture that the jury was confused as to the difference between the verdicts of guilty and GBMI during either the guilt phase or the sentencing phase of his trial. Simply because the jury rejected the GBMI defense and rendered a guilty verdict during the guilt phase does not mean that the sentencing jury failed to reconsider Bell's mental illness when they rendered his death sentence. The jury has the duty to decide what weight to give to the evidence adduced at trial. Blystone v. Pennsylvania , 494 U.S. 299 (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 instructions).

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 circumstances."

Furthermore, after citing three specific examples of statutory mitigating circumstances,  the trial judge instructed the jury that they should not limit their consideration of nonstatutory mitigating circumstances to the statutory examples and that they could consider any other circumstances as reasons for either imposing a life sentence or not imposing the death sentence.

Additionally, the trial judge clarified that the jury did not "have to find the existence of a mitigating circumstance beyond a reasonable doubt." We find that the sentencing jury was not precluded from considering as mitigating factors, any aspect of Bell's character, or record; or any circumstances of the offense that Bell proffered as justifying a sentence other than death. 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 mitigating circumstance.

Contrary to Bell's assertion, the trial judge's instructions did not treat Bell's alleged mental illness as an aggravating factor instead of a mitigating factor. Zant v. Stephens , 462 U.S. 862, 885 (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 violated.

XII.

Bell next contends that the State's comments during the penalty phase injected an arbitrary factor into the determination of the jury's verdict, thus denying him his Sixth, Eighth, and Fourteenth Amendment rights. Specifically, Bell argues the State implied (1) that the State was the personal lawyer of the victim's family; (2) that Bell was less than human (ergo, more deserving of death); and (3) that Bell did not deserve the protection of the legislative and judicial systems. To prevail on these claims Bell must prove that the State's comments "´so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright , 477 U.S. 168, 181 (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 process.

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.

XIII.

Finally, Bell contends that the evidence was insufficient to support the jury's verdict that he was guilty. The standard of review for sufficiency of the evidence claims in criminal cases is"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307 (1979).

The record demonstrates overwhelming evidence supporting the jury's guilty verdict. This argument is merely a last-ditch effort to plead that Bell was mentally ill at the time he committed the offenses, and that the trial court erred in failing to direct a verdict of GBMI when the jury returned a guilty verdict. We find that the defense had ample opportunity to establish at trial that Bell was mentally ill at the time of the crimes and could not conform his conduct to the requirements of the law.

In fact, the defense made the strongest case possible that Bell was mentally ill. The State, simply presented contradicting evidence establishing Bell had the capacity to conform his conduct to the requirements of the law at the time Bell committed the crimes. We conclude that a rational trier of fact could have returned a verdict of guilty beyond a reasonable doubt instead of GBMI.

XIV.

For the foregoing reasons, we affirm the district court's denial of Bell's federal habeas petition.

AFFIRMED

*****

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 trial.

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 inadequate;

(3) that the material facts were not developed;

(4) that the state court lacked jurisdiction;

(5) that petitioner lacked counsel;

(6) that petitioner was not given a "full, fair, or adequate hearing" on the competency issue;

(7) that he was otherwise denied due process; and

(8) that the factual determinations of the trial judge were unsupported by the record.

28 U.S.C. § 2254(d). Bell does not meet any of these exceptions.

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 crime.