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Supreme Court Seal
South Carolina
Judicial Department
24837 - State v. Gardner

Davis Adv. Sh. No. 31
S.E. 2d


In The Supreme Court

The State, Respondent,


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


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.



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


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


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.



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



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