PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PAUL MAZZELL,
Petitioner-Appellee,

v.

PARKER EVATT, Commissioner,
                                                                        No. 95-6996
South Carolina Department of
Corrections; TRAVIS MEDLOCK,
Attorney General, State of South
Carolina,
Respondents-Appellants.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-90-2651-3-19BC)

Argued: May 10, 1996

Decided: July 1, 1996

Before WILKINSON, Chief Judge, and HALL and ERVIN,
Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Hall and Judge Ervin joined.

_________________________________________________________________

COUNSEL

ARGUED: Donald John Zelenka, Assistant Deputy Attorney Gen-
eral, Columbia, South Carolina, for Apellants. John Henry Blume, III,
Columbia, South Carolina, for Appellee.
OPINION

WILKINSON, Chief Judge:

A South Carolina jury convicted Paul Mazzell in 1983 of criminal
conspiracy, conspiracy to kidnap, murder, and kidnapping. He was
sentenced to life in prison. After his conviction was affirmed on direct
appeal and his request for state post-conviction relief was denied,
Mazzell petitioned for a writ of habeas corpus. He contended, inter
alia, that his trial counsel was ineffective under the Sixth Amendment
because he failed to object to allegedly erroneous jury instructions.
The district court granted the writ, and the state of South Carolina
now appeals. Because we find that Mazzell's attorney was not consti-
tutionally ineffective, we reverse the judgment of the district court.

I.

Paul Mazzell and a co-defendant, Edward Merriman, were con-
victed in 1983 for crimes arising from the abduction and murder of
Ricky Seagraves. Seagraves had been abducted and murdered near
Charleston, South Carolina in October of 1978. The police did not
recover his body until 1981, however, when one Danny Hogg led
them to it. Hogg admitted that he participated in Seagraves' abduc-
tion, and he implicated Mazzell and Merriman in the crime as well.
In exchange for immunity from prosecution, Hogg agreed to testify
against Mazzell and Merriman. Mazzell was thereafter charged with
criminal conspiracy, conspiracy to kidnap, murder, and kidnapping.

At trial, the state and defense differed sharply over the events that
led to Seagraves' murder. According to the state, the victim (Sea-
graves) and the perpetrators (Mazzell, Hogg, and Merriman) were all
connected to the Charleston drug trade; Hogg and Merriman report-
edly worked for Mazzell. The state's theory of the case was that Maz-
zell wanted Seagraves killed; he instructed Hogg and Merriman to
abduct and deliver Seagraves to him, and he then killed Seagraves.

In support of its theory, the state presented a number of witnesses.
These witnesses testified that in late 1978 friction mounted between
Seagraves and Mazzell. One witness testified to having been seized

                    2
from his job site by Mazzell, Hogg, and Merriman, then forced into
a car and questioned about Seagraves' whereabouts; Mazzell
informed this witness that he "would never have to worry about Ricky
[Seagraves] anymore." Another witness reported being asked by Maz-
zell, through Danny Hogg, to kill Seagraves in exchange for drugs.

Hogg testified that Mazzell was so angry with Ricky Seagraves that
he put out a contract on Seagraves' life in late 1978. According to
Hogg, on the evening of October 30, 1978, Mazzell summoned him
and Merriman and instructed them to "Go get Ricky. Bring him to
me. I'm going to kill him." Hogg and Merriman located Seagraves at
a convenience store, the Majik Market, near Charleston. Witnesses at
the market testified that Hogg or Merriman fired shots, chased Sea-
graves into the store, beat him, dragged him back to the truck, and
sped off. Then, according to Hogg, they delivered Seagraves to Maz-
zell, who killed and buried Seagraves out of their presence. Two other
witnesses corroborated Hogg's version of these events. Carl Hines
testified that Mazzell declared in late 1978 that he intended to kill
Seagraves, and Mazzell later boasted that he had indeed killed him.
And Harold Behrens testified that Merriman recounted the abduction
and murder to him, giving a description that was consistent with
Hogg's testimony.

Mazzell presented a vigorous defense. His lawyer attacked the
credibility of most of the state's witnesses. He brought out the past
criminal activity of Hines and Behrens and he noted that numerous
prosecution witnesses had received special treatment from the state.
Mazzell's attorney particularly assailed Danny Hogg's credibility. He
presented witnesses who testified that Hogg and Mazzell had a falling
out, and that Hogg had said he would get back at Mazzell by killing
him, or by putting him in jail for a long time. Two defense witnesses
specifically claimed that Hogg admitted to them that he, not Mazzell,
shot Seagraves. In his closing argument, Mazzell's attorney argued
that Hogg killed Seagraves by shooting him at the Majik Market.

Mazzell did not take the stand, but his wife, Colleen, testified that
her husband was home watching television with her the entire evening
of the abduction and murder. In fact, she stated that Hogg visited the
Mazzells that very evening and announced that he was going to find
Seagraves. According to Colleen, Paul Mazzell responded by warning

                    3
Hogg to stay away from Seagraves. Her husband, she testified, was
very close to Seagraves.

At the close of evidence, the judge charged the jury. The judge's
instructions included discussion of the four crimes that Mazzell was
accused of, the alibi defense that he raised (through his wife's testi-
mony) at trial, and the principles of co-conspirator and accomplice
liability. Spanning thirty transcript pages, the instructions were
lengthy and elaborate. It is alleged errors in these instructions that
form the basis of Mazzell's ineffectiveness claim.

Following deliberations, the jury convicted Mazzell of both con-
spiracy counts and murder and kidnapping. Although the state sought
the death penalty, the jury recommended life in prison. On direct
appeal, Mazzell raised numerous assignments of error, but the South
Carolina Court of Appeals affirmed his conviction. State v. Merriman,
337 S.E.2d 218 (S.C. App. 1985). The South Carolina Supreme Court
declined to review Mazzell's conviction.

Mazzell then sought state post-conviction relief. In his application,
he raised a number of claims, including the one now before this court.
Specifically, he argued that the trial judge's jury instructions were
contrary to South Carolina law because they permitted the jury to
convict Mazzell as a principal in the crimes of murder and kidnapping
even if the jury was not convinced that he was present at the scene
of the crime. Mazzell asserted that his attorney's failure to object to
the instructions constituted ineffective assistance of counsel. The state
post-conviction court, however, rejected this claim.

Mazzell thereafter sought federal habeas relief. He asserted, inter
alia, that his counsel was ineffective for failing to object to the dis-
puted jury instructions. A federal magistrate recommended that Maz-
zell's petition be denied. The district court, however, granted the writ,
finding that Mazzell's trial counsel was ineffective. The court
reserved judgment on the other issues raised in Mazzell's petition.
The state of South Carolina now appeals.

II.

The components of an ineffective assistance of counsel claim are
by now well-established. Under the test set forth by the Supreme

                     4
Court in Strickland v. Washington, 466 U.S. 668 (1984), a defendant
must show that his counsel's performance "fell below an objective
standard of reasonableness" and that "the deficient performance preju-
diced the defense." Id. at 687-88. In addressing Mazzell's claim, we
bear in mind that "[t]he benchmark for judging any claim of ineffec-
tiveness must be whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on
as having produced a just result." Id. at 686.

A.

Mazzell first contends that his attorney failed the performance
prong of Strickland because he did not object to jury instructions that
allegedly misstated South Carolina law. After reviewing the pertinent
state law, the instructions in their entirety, and the trial itself, we con-
clude that Mazzell's trial counsel did not render deficient perfor-
mance by failing to object to the trial judge's instructions.

Review of Mazzell's argument requires an examination of South
Carolina criminal law. South Carolina continues to recognize the
common law distinction between an accessory before the fact and a
principal. State v. Collins, 225 S.E.2d 189, 192 (S.C. 1976); State v.
Brazzell, 74 S.E.2d 573 (S.C. 1953); State v. Sheriff, 110 S.E. 807
(S.C. 1922). A principal must be actually or constructively present at
the scene of the crime, while an accessory before the fact cannot be
present at the scene. State v. Prince, 447 S.E.2d 177, 181 (S.C. 1993)
(accessory before the fact urged another to commit crime but was not
present when the offense was committed); State v. Chavis, 290 S.E.2d
412 (S.C. 1982) ("[g]uilt as a principal is established by presence at
the scene as a result of prearrangement to aid, encourage, or abet in
the perpetration of a crime."); State v. Gilbert, 93 S.E. 125 (S.C.
1917) (same). A defendant in South Carolina cannot be convicted as
a principal if the evidence could support conviction only as an acces-
sory before the fact. Collins, 225 S.E.2d at 192; Sheriff, 110 S.E. 807;
see also State v. Good, 432 S.E.2d 463, 465-66 (S.C. 1993). Hence,
in a limited class of cases, a defendant indicted and tried as a principal
may be entitled to a jury instruction regarding the distinction between
an accessory and a principal. Good, 432 S.E.2d at 465-66; Collins,
225 S.E.2d at 192. A jury finding that such a defendant acted only as

                      5
an accessory "is the equivalent to a finding of not guilty." Good, 432
S.E.2d at 465.

Under these principles, according to Mazzell, his attorney should
have objected to the jury instructions given in his case. Mazzell was
charged as a principal to the crimes of murder and kidnapping. The
state acknowledged in oral argument before this court that the pres-
ence requirement applies to these two crimes. Mazzell points to the
judge's instruction that:

          If one combines with others to accomplish an illegal pur-
          pose, he is liable criminally for everything that is done by
          his confederates incidental to the execution of the common
          design as one of its probable and natural consequences. This
          is true though the defendant was not present when the act
          was committed. (Emphasis added).

This instruction, Mazzell asserts, misstated the elements of murder
and kidnapping under state law. This was reinforced, he claims, by
the judge's instructions on the murder count. Those instructions, he
notes, did not inform the jury that Mazzell had to be present at the
crime scene, but rather asked the jury to determine whether "his act
or his acts in concert with the acts of others can be said to be the
cause of death." (Emphasis added).

We are not persuaded that the failure to object to these instructions
was "outside the wide range of professionally competent assistance."
Strickland, 466 U.S. at 690. Our conclusion is informed by a basic
maxim: an allegedly erroneous "instruction `may not be judged in
artificial isolation,' but must be considered in the context of the
instructions as a whole and the trial record." Estelle v. McGuire, 502
U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147
(1973)); see also Gore v. Leeke, 605 F.2d 741 (4th Cir. 1979), cert.
denied, 444 U.S. 1087 (1980).

We note first that it is far from clear that the jurors would have
understood the disputed instruction to apply to the substantive counts
of murder and kidnapping, instead of the two conspiracy counts with
which Mazzell was charged. Under South Carolina law, of course, a
conspirator can be liable for the acts of co-conspirators even if he is

                    6
not present when those acts are committed. State v. Adams, 462
S.E.2d 308, 309 (S.C. App. 1995). The one sentence of the instruction
that Mazzell most vigorously contests was immediately followed by
a discussion relevant to conspiracy:

          This rule of criminal responsibility for the acts of others
          is subject to the reasonable limitation that the particular act
          must be shown to have been done in furtherance . . . of the
          common object and design for which the parties were com-
          bined; but, if one of a number of conspirators commit a
          fresh and independent act, wholly outside and foreign to the
          common design, the others are not held equally guilty of the
          act.

Even if we assume the jurors understood the disputed instructions
to be relevant to the crimes of murder and kidnapping, however, we
would still reject Mazzell's claim of deficient performance. The
judge's instructions occupied thirty transcript pages, and accurately
described the elements of four separate crimes with respect to two
defendants. Viewing the jury instructions in their entirety demon-
strates that Mazzell's attorney did not render deficient performance.
The instructions included repeated and accurate statements of the
applicable law. In the paragraph immediately preceding the chal-
lenged instruction, for instance, the judge explained to the jury that:

          [I]f a crime is committed by two or more persons who are
          acting together in the commission of an offense, the act of
          one is the act of both or all, if there are more than two. Two
          people can be guilty of killing another, of murder, when only
          one of the two had a pistol and only one shot, if both are
          together, acting together, assisting each other in the com-
          mission of the offense. The law says, under those circum-
          stances, the act of one is the act of all, the hand of one is
          the hand of all. (Emphasis added).

This description of the parties who can be held responsible for murder
conveys that they must be present when the crime is committed.

In addition, the judge explicitly instructed the jury that the state had
to prove that Mazzell was present at the scene of the crime. Early in

                     7
his charge to the jury, the judge explained that Mazzell had pled the
defense of alibi, and he thereafter noted that this did not relieve the
state of its burdens:

          Now the defendant, Mr. Mazzell, has pled in this case what
          we call the defense of alibi. That means he was not at the
          scene of the crime at the time it was committed, but that he
          was elsewhere and had nothing to do with it. Now the
          Defendant Mazzell does not have to prove that he was not
          at the scene of the crime. The burden is on the State of South
          Carolina to prove that he was actually present and that he
          actually participated in it, and that he was not elsewhere.
          (Emphasis added).

Aside from this alibi instruction, the presence requirement was noted
yet again just following the disputed instruction. Clarifying that pres-
ence was a necessary, but not sufficient requirement for conviction,
the judge stated:

          [M]ere presence at the scene of a crime and knowledge that
          a crime is being committed are not sufficient to make a
          defendant [a] participant in a crime. The State would have
          to prove beyond a reasonable doubt that the defendant was
          present and aided or abetted or assisted or participated in
          the commission of the crime and was not just simply present
          while a crime was being committed and had knowledge that
          a crime was being committed. (Emphasis added).

In short, examining the instructions in their entirety reveals that they
adequately conveyed the applicable law.

Mazzell contends that his attorney should have insured that the
instructions properly clarified the difference in South Carolina law
between a principal and an accessory before the fact. We disagree.
The attorney's behavior is reasonable when viewed in light of the
approach taken by the defense at trial. Mazzell's attorney adopted a
two-pronged strategy at trial: he attacked the government's case and
he offered an alibi. More than an alibi, in fact, Colleen Mazzell testi-
fied that her husband warned Hogg to stay away from Seagraves. Not
a single aspect of this defense ever suggested that Mazzell was an

                     8
accessory instead of a principal. To imply that Mazzell might be an
accessory instead of a principal, and seek jury instructions to that
effect, was plainly in conflict with the approach taken by trial coun-
sel.

In attacking the trial attorney's failure to obtain proper clarification
of South Carolina law, Mazzell relies chiefly on State v. Collins, 225
S.E.2d 189 (S.C. 1976). That case, however, presented quite different
circumstances. In Collins, the evidence"created a close question as
to whether [the defendant] might more properly have been charged as
an accessory than as a principal," id. at 192, because the defendant,
though apparently involved with the robbery, was in jail at the time
it actually occurred. Where, as here, the defendant contends that he
had no involvement with the crime whatsoever, an instruction clarify-
ing the difference between a principal and accessory is not required.
In fact, the South Carolina Supreme Court expressly rejected the need
for any clarifying instruction on the difference between an accessory
and a principal in a case where two brothers accused of killing their
father and grandmother each asserted their non-involvement with the
crime. State v. Good, 432 S.E.2d 463, 465-66 (S.C. 1993). Mazzell's
assertion of non-involvement places him squarely within the Good
decision.

Finding Mazzell's counsel to be deficient would require us to adopt
a standard of ineffectiveness that would sweep many able and compe-
tent lawyers within its reach. Mazzell's trial attorney presented a vig-
orous and capable defense. He sought to emphasize Mazzell's
innocence and he vigorously impeached those witnesses who claimed
Mazzell was involved in Seagraves' murder. At the conclusion of
trial, he sought instructions consistent with that defense. The instruc-
tions accurately conveyed to the jury the elements of the respective
offenses and, taken as a whole, they accurately stated the applicable
South Carolina law. The choices Mazzell's counsel made were well
within "the wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689. We decline to allow an ineffective assis-
tance of counsel claim to create a situation where post-conviction
attorneys stroll in with the full benefit of hindsight to second-guess
trial lawyers who professionally discharge their duties to their clients
under the manifold pressures of a state trial. See id. at 690;
Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); Bunch v.

                    9
Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991), cert. denied, 505
U.S. 1230 (1992).

B.

Even if our conclusion on the performance prong were to the con-
trary, Mazzell's claim would still fail because no prejudice flowed
from the lack of an objection to the jury instructions. Under the preju-
dice prong of Strickland, Mazzell must show that "there is a reason-
able probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." 466 U.S. at 694;
Nix v. Whiteside, 475 U.S. 157, 175 (1986). As the state post-
conviction court found, this is a burden he cannot meet.

Mazzell argues that he was prejudiced because there was a "reason-
able probability" that the jury believed that he helped plan Seagraves'
murder, but that he did not shoot Seagraves himself. This was a plau-
sible scenario, according to Mazzell, because the state presented only
weak evidence that he actually shot Seagraves. If the jury believed
this version of events, Mazzell argues that he could not lawfully be
convicted of murder and kidnapping, yet the instructions erroneously
allowed the jury to convict him as a principal to those crimes.

This argument requires us to ignore the trial record. At trial, the
jury was presented with competing theories of the abduction and mur-
der of Ricky Seagraves. According to the theory presented by the
state, Mazzell wanted Seagraves killed and he enlisted Hogg and
Merriman to find Seagraves for him; Hogg and Merriman found Sea-
graves at the Majik Market, roughed him up, delivered him to Maz-
zell, and Mazzell killed and buried him. In contrast to the state's
version of events, Mazzell's theory was that he had absolutely noth-
ing to do with Seagraves' murder; in fact, he tried to protect Sea-
graves, who was his close friend, by warning Hogg to stay away from
him. Under Mazzell's theory, Danny Hogg killed Seagraves himself,
and then blamed Mazzell.

It is in light of these theories and the evidence presented to support
them that we must gauge the effect of the jury instructions. Estelle,
502 U.S. at 72. As our review of the trial record reveals, the suppos-
edly plausible scenario that Mazzell now presents was not a question

                    10
put to the jury: the defense did not argue, or even hint, that Mazzell
was involved only before the fact, but was not present at the crime
scene. As the state post-conviction judge noted:"The evidence pres-
ented at trial did not create sufficient question as to whether Mazzell
might more properly have been charged as an accessory before the
fact than as a principal. . . . There was no evidence presented to sup-
port Mazzell's new post-conviction assertion that he acted only as an
accessory before the fact." Instead, the evidence put a different ques-
tion to the jury: whether Mazzell participated in Seagraves' murder
by instructing that he be abducted and thereafter killing him. It is on
this question that the state and defense clashed, and which the jury
was asked to decide. Asked to choose between contrasting theories of
what happened on the night of October 30, 1978, the jury's verdict
indicates that it believed that Mazzell killed Seagraves after Hogg and
Merriman abducted him.

This understanding of the jury's verdict is reinforced by its verdicts
on the other counts. In addition to murder, Mazzell was convicted of
conspiracy to kidnap, criminal conspiracy, and kidnapping. These
convictions reveal that the jury generally believed the state's theory
of the case, and did not credit Mazzell's defense. If Mazzell's defense
was believed, he would not have been convicted of either conspiracy
count because he (through his wife) claimed that he was totally unin-
volved in the crime.

Moreover, in order to convict Mazzell of kidnapping, the jury had
to have concluded that Mazzell was an active participant in the abduc-
tion. The kidnapping instruction stated:

          In South Carolina, anyone who shall unlawfully seize, con-
          fine, kidnap, abduct, or carry away any other person by any
          means whatsoever, without authority of the law, is guilty of
          the crime of kidnapping. . . . [T]he State must prove beyond
          reasonable doubt that there was [ ] an intentional [ ] seizure,
          detention, confinement or carrying away of another person
          without the consent of that person, and that it was done [ ]
          without authority of law.

To convict based on this instruction, the jury must have found that
Seagraves was alive when Hogg and Merriman delivered him to Maz-

                    11
zell; otherwise, Mazzell could not have taken Seagraves "without
[his] consent." The conviction on kidnapping further reveals that the
jury found Mazzell to be an active and present participant (who
seized, detained, confined or carried away Seagraves) in the kidnap-
ping. In short, the jury verdict on kidnapping is telling: it indicates
that the jury did not discount the testimony of the state witnesses
based on Mazzell's attacks on them, did not credit Colleen Mazzell's
claim that her husband had no involvement in this crime, and did not
believe the defense witnesses who claimed that Hogg (not Mazzell)
killed Seagraves by shooting him at the Majik Market.

Finally, we reject Mazzell's attempt to characterize the state's case
as particularly weak with respect to his presence at the crime scene.
Danny Hogg, of course, testified in detail as to Mazzell's involvement
in the abduction and murder. But Hogg was not the only witness
whose testimony supported the state's theory of the case. Carl Hines
testified that in late 1978 Mazzell declared he was going to kill Sea-
graves and that Mazzell later boasted of killing him, describing how
Seagraves had begged for his life. As Hines recounted their conversa-
tion, Mazzell said: "[t]hat son of a bitch[Seagraves] wasn't so tough.
. . . That son of a bitch wasn't so mean. Not at the end. . . . He was
just like all the rest of the son of a bitches. . . . I had him down on
his knees. He was crying and begging and he said,`Paul, Paul, please
don't kill me.'" According to Hines, Mazzell was confident that he
could not be charged with murder because the police would not be
able to find Seagraves' body. As Hines reported it, Mazzell said:
"They can't file no charges on you if they can't find the body. . . .
They'll have to go a long ways out to find that son of a bitch." And
aside from Hines, Harold Behrens also corroborated Hogg's testi-
mony. Behrens recounted his own conversation with Merriman, Maz-
zell's co-defendant, about the abduction and murder. The version of
events Merriman described to Behrens was consistent with the state's
theory of the case.

In the face of this evidence, Mazzell now attempts to characterize
Hogg, Hines, and Behrens as highly untrustworthy witnesses. But
Mazzell's trial counsel presented this very same argument to the jury.
Indeed, attacking the credibility of the state's witnesses, particularly
Hogg, formed one of the cornerstones of Mazzell's defense at trial.
The question of credibility was thus put before the jury, and "our

                     12
adversary system reposes judgment of the credibility of all witnesses
in the jury." Brooks v. Tennessee, 406 U.S. 605, 611 (1972). We shall
uphold its verdict.

III.

For the foregoing reasons, we reject Mazzell's claim that his trial
counsel was constitutionally ineffective. The judgment of the district
court is hereby reversed and the case is remanded for further proceed-
ings consistent with this opinion.

SO ORDERED

                    13
