S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Joseph M.L. Gardner, Appellant.
Appeal From Dorchester County
Ralph King Anderson, Jr., Judge
Opinion No. 24837
Heard March 3, 1998 - Filed September 14, 1998
AFFIRMED
Deputy Chief Attorney Joseph L. Savitz, III, of The
South Carolina Office of Appellate Defense, of
Columbia, for appellant.
Attorney General Charles M. Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, Senior
Assistant Attorney General William Edgar Salter,
III, all of Columbia, and Solicitor Walter M. Bailey,
Jr., of Summerville, for respondent.
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.
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STATE v. GARDNER
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 Berkeley
County.1
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
1This crossing of county and judicial circuit boundaries explains why
appellant was not charged with CSC in this case.
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STATE v. GARDNER
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 (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
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STATE v. GARDNER
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, 116 S.Ct. 160 (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.
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STATE v. GARDNER
C.J.
A.J.
A.J.
A.J.
A.J.
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