Georgia - May 17,
Twelve-year-old Mary Frances Stoner lived with her parents in rural
Bartow County and attended Adairsville High School.
Darrell Gene Devier was employed as a tree-trimmer by a company
which in November 1979 sent a crew to prune trees near the Stoner
residence, along the Georgia Power right-of-way.
job took several days, during which time Devier on one occasion
related to a fellow crew-member that he would like to have sex with
the Stoner girl and on another occasion he was heard to observe,
"It's time for the good-looking girl to get home from school." The
crew completed its work at noon on Friday, November 30, 1979, and
received the remainder of the day off.
Shortly before 4:00 p.m. that day, two witnesses observed a
dark-blue or black Ford Pinto with mag wheels parked at the exit of
an abandoned truck stop approximately 150 feet north of the Stoner
driver was a white male with long hair and a beard. This car and its
driver were also observed by several students on the school bus
which dropped Mary Stoner off near her driveway between 3:55 and
4:00 p.m. A student who had been sitting with Mary Stoner exited at
the next stop, about 50 yards further south. Upon exiting, she
observed a dark-colored Pinto with mag wheels backing out of the
Stoner driveway. It had two people in it.
body of Mary Frances Stoner was found the next day in a
wooded area in Floyd County, near the Floyd-Bartow county line. Her
head was crushed. Several blood-stained rocks lay nearby, the
largest of which weighed 49 pounds.
Doctor Harvey Howell conducted the autopsy. In addition to the head
injuries, Dr. Howell observed fresh tears and bruises in the vaginal
area and discovered, inside her vagina, a large amount of
blood-tinged fluid material. This material was later examined by a
serologist from the state crime lab who testified that it contained
Howell testified that, in his opinion, Mary Stoner had been raped
and that death had occurred soon afterwards as a result of severe
brain injury and asphyxiation by choking.
Devier, who had long hair and a beard and owned a black Pinto with
mag wheels, was arrested 5 days later. Devier gave a statement which
was transcribed and admitted in evidence at trial.
told the interrogating officers that he had been driving his black
Pinto the afternoon of November 30, looking for a place to rent,
when he saw the school bus just as Mary Frances Stoner got off. The
school bus left and he pulled into the driveway and asked her for
came to the car and sat in the passenger seat to look at a piece of
paper he had "pulled out" of his "dash." Then he grabbed her and
drove off, taking her to an isolated, wooded area. He stopped the
car and told her to get into the back seat. She asked him if he was
going to rape her and he told her "yes." After they had "sexual
intercourse," he made her get out of the car.
Devier told the officers that he intended to tie her to a tree and
then leave. However, she yelled at him and hit him in his chest and
he pushed her. She fell and hit her head "on a rock or something"
and when he saw that, he "just got down and started choking her."
Zeroing in on a Suspect's Weakness
John Douglas Mind Hunter.com
How Profilers Stage an Interrogation
When investigators interrogate a suspect in a crime, they have to
pay careful attention to the process. Months or years of work on a
case can be lost when just one interrogation is run without
forethought and preparation.
I've conducted a few interrogations; profilers are sometimes called
upon to do this. But most often, their job is to help select and
prepare investigators from local law enforcement or state or federal
agencies -- often other FBI agents -- to question the suspect. By
formulating an approach that zeroes in on the suspect's weakness,
profilers augment the investigators' knowledge of the case with a
script and setting for the interrogation -- what I call "staging."
My first opportunity to stage an interrogation came in December
1979, when an FBI agent in Georgia called me for assistance. He was
investigating the rape and murder of 12-year-old Mary Frances Stoner,
who had disappeared the previous week after a school bus driver
dropped her off 100 yards from her front door.
Darrell Gene Devier, who'd been trimming trees in the area the week
before, drove up just after Mary Frances got off the bus. He forced
her into his car and took her to the isolated, wooded area where her
body was found soon after she was killed. He raped her in the car
and was surprised to find that she wasn't going along with it. She
struggled and begged and cried, ruining the fantasy he had
constructed of what it would be like to have sex with her.
He couldn't let her go
He let her out of the car and told her to get dressed, but had
decided he couldn't let her go. When she turned her back to him, he
began strangling her, knocking her out while pushing her to the
ground. But he wasn't strong enough to choke her to death, so he
lifted a 50-pound rock and dropped it onto her head again and again
until she was dead.
There were no witnesses. How did we know what had happened? By
telephone, I was given descriptions of the crime scene, autopsy
results and the victim's personality. From this information, I
constructed a probable scenario for the crime and a profile of the
unknown subject, or UNSUB, which turned out to be very accurate.
I'll elaborate on this aspect of profiling, which is probably the
most well-known part of the job, in the next column.
The police brought Devier in, but he was uncooperative, cocky and
evasive. His polygraph results were inconclusive. He felt confident
he could beat the system. The way we staged his interrogation was
going to be very important.
So I went to work and came up with a plan.
Setting the stage
First, a team made up of both local police officers and FBI agents
from the Atlanta field office would conduct the interview, which
would intimidate Devier and let him know this was a big deal.
Second, the team would question Devier in the evening, in a room
with dim lighting. The setting would relax Devier, which would make
him vulnerable to a key stressor that would be placed in the room (keep
Third, stacks of overflowing folders with his name on them would be
placed in the room. Even if the folders were filled with blank paper,
Devier would believe that this was a thorough investigation.
Fourth, they would bring up the issue of spattered blood. I knew
from other blunt-force-trauma cases that the murderer would've
gotten blood on his clothes and hands. If Devier was their man, he
would respond strongly to the mention of this.
Fifth, and most important, the bloody rock from the crime scene --
the murder weapon -- would be placed a few feet from Devier, 45
degrees below his line of sight. If he was guilty, I knew he'd never
be able to keep his eyes off it. The interrogators wouldn't mention
the rock at first, but would allow Devier to sweat and sneak glances
at it while they talked about other aspects of the crime.
Transfixed by a bloody rock
The rock was his weakness, the key stressor he'd be unable to
Finally, I warned the interrogators that they'd have to sink to
Devier's level. They would need to project blame onto the victim by
suggesting that she'd seduced him. Allowing Devier a face-saving
scenario was their only chance of getting a confession because
Devier knew that Georgia is a death penalty state.
The instant Devier entered the interrogation room, he was transfixed
by the rock. He started sweating, breathing hard and cowering. As
planned, interrogators projected blame onto the victim. Devier got
really quiet. An innocent man will scream and protest, but a guilty
man will listen to what you have to say if you've surprised him with
a chance to save face.
Then they moved the rock, placing it on the table right in front of
Devier. They told him they knew he was guilty, but that they
believed he'd only planned to rape the victim, not kill her. They
said others thought the killing was premeditated, but they knew
better and had spoken with the district attorney. They said they
understood that he'd been frightened and acted suddenly, otherwise
he would've brought a real weapon instead of using ... a rock.
Boom. Devier confessed to the rape and murder of Mary Frances as
well as another rape the previous year. He was executed in 1995.
The face of evil - psychotic murderers
By Eugene H. Methvin
National Review, Jan 23, 1995
Adairsville, Georgia, the body of 12-year-old Mary Stoner was found in
the woods near her home in December 1979. She had been sexually
assaulted, and her head had been crushed with a large rock.
By telephone the sheriff in this little mountain
community consulted Douglas and described the scene. It was not much
to go on. However, Douglas responded: "The killer will probably be a
divorced white man in his mid twenties, will drive a black or blue car
and work at a macho laborer's job. You'll probably find he had some
prior contact with the victim. He'll probably be a high-school dropout
who served in the Army or Marines, but he probably got a medical or
dishonorable discharge after fewer than six months in service. I think
he'll have a previous record of sex crimes. And if you put him on a
lie detector, the test will be inconclusive or show no deception at
The sheriff was amazed. "You just described a
suspect we just released!" he declared. Douglas suggested interviewing
the man again, following a subtle interrogation technique that he
detailed to the sheriff. The man was Darrell Gene Devier.
As predicted, he showed no deception in a polygraph
examination. At all points, his resemblance to Douglas's profile was
uncanny. He worked as a tree-limb cutter, drove a dark blue Pinto, was
an eighth-grade dropout, and had been kicked out of the Army with a
general discharge after less than a year's service. He was divorced at
the time of the killing.
Other evidence implicated him in an attempt to rape
a 13-year-old girl in a nearby town before Mary Stoner's murder.
Witnesses testified that Devier's crew had worked at the Stoner home
before the murder and that Devier had made sexual remarks about the
girl. In an extensive interview, Devier confessed. Testimony about his
confession was admitted at his March 1982 trial, and a jury convicted
him and sentenced him to death for rape and murder.
Georgia Killer Executed
The New York Times
May 18, 1995
A man who raped and killed a 12-year-old girl in
1979 was executed yesterday in Georgia's electric chair, and a
convicted killer who took his case to the Internet was executed by
injection in Illinois.
The Georgia man, Darrell Gene Devier, was
pronounced dead at 1:28 P.M. at the state prison near Jackson. Mr.
Devier, 39, was convicted of the 1979 kidnapping, rape and beating
death of Mary Frances Stoner.
He watched intently as six guard strapped him into
the electric chair, wiggling his head to adjust the chin strap. He
told the warden, A. G. Thomas, he had no final statement.
After the execution, an uncle of the murdered girl,
Vince Stewart of Cartersville, Ga., told reporters that the family
could now begin to heal. "We are relieved it is over," he said.
Mr. Devier was to have been put to death late
Monday. But minutes before he was to go to the electric chair, a storm
knocked out the power. Because of a generator problem, telephones that
would have brought word of a reprieve were also out.
The Georgia Attorney General, Michael J. Bowers,
jumped in his car with a cellular phone, drove until he found a signal
and learned that the United States Supreme Court had granted a
The Court lifted that stay today.
(253 Ga. 604)
(323 SE2d 150)
DECIDED NOVEMBER 29, 1984 -- REHEARING DENIED DECEMBER 12, 1984.
Murder, etc. Floyd Superior Court. Before Judge Royal.
This is the third appearance of this death
penalty case. On interlocutory appeal, this court affirmed the trial
court's denial of Devier's challenge to the constitutionality of a
statute which established the present Floyd-Bartow county line and,
as well, the court's ruling on a motion to suppress. Devier v. State,
247 Ga. 635 (277 SE2d 729) (1981).
Subsequently, Devier was convicted in Floyd County of rape and
murder and sentenced to death. This court reversed, finding
meritorious Devier's challenge to the array of the grand jury.
Devier v. State, 250 Ga. 652 (300 SE2d 490)
(1983). After reindictment, Devier was retried, convicted and
sentenced to death. He now appeals.
Twelve-year-old Mary Frances Stoner lived with
her parents in rural Bartow County and attended Adairsville High
School. Darrell Gene Devier was employed as a tree-trimmer by a
company which in November 1979 sent a crew to prune trees near the
Stoner residence, along the Georgia Power right-of-way. The job
took several days, during which time Devier on one occasion
related to a fellow crew-member that he would like to have sex
with the Stoner girl and on another occasion he was heard to
observe, "It's time for the good-looking girl to get home from
The crew completed its work at noon on Friday,
November 30, 1979, and received the remainder of the day off.
Shortly before 4:00 p.m. that day, two witnesses
observed a dark-blue or black Ford Pinto with mag wheels parked at
the exit of an abandoned truck stop approximately 150 feet north of
the Stoner driveway. The driver was a white male with long hair and
a beard. This car and its driver were also observed by several
students on the school bus which dropped Mary Stoner off near her
driveway between 3:55 and 4:00 p.m. A student who had been sitting
with Mary Stoner exited at the next stop, about 50 yards further
south. Upon exiting, she observed a dark-colored Pinto with mag
wheels backing out of the Stoner driveway. It had two people in it.
The body of Mary Frances Stoner was found the
next day in a wooded area in Floyd County, near the Floyd-Bartow
county line. Her head was crushed. Several blood-stained rocks lay
nearby, the largest of which weighed 49 pounds. Doctor Harvey Howell
conducted the autopsy. In addition to the head injuries, Dr. Howell
observed fresh tears and bruises in the vaginal area and discovered,
inside her vagina, a large amount of blood-tinged fluid material.
This material was later examined by a serologist from the state
crime lab who testified that it contained spermatozoa Dr. Howell
testified that, in his opinion, Mary Stoner had been raped and that
death had occurred soon afterwards as a result of severe brain
injury and asphyxiation by choking.
Devier, who had long hair and a beard and owned a
black Pinto with mag wheels, was arrested 5 days later.
Devier gave a statement which was transcribed and
admitted in evidence at trial. He told the interrogating officers
that he had been driving his black Pinto the afternoon of November
30, looking for a place to rent, when he saw the school bus just as
Mary Frances Stoner got off. The school bus left and he pulled into
the driveway and asked her for some directions. She came to the car
and sat in the passenger seat to look at a piece of paper he had "pulled
out" of his "dash." Then he grabbed her and drove off, taking her to
an isolated, wooded area. He stopped the car and told her to get
into the back seat. She asked him if he was going to rape her and he
told her "yes." After they had "sexual intercourse," he made her get
out of the car.
Devier told the officers that he intended to tie
her to a tree and then leave. However, she yelled at him and hit him
in his chest and he pushed her. She fell and hit her head "on a rock
or something" and when he saw that, he "just got down and started
choking her." Then he left.
We have reviewed the evidence pursuant to Rule IV
(B) (2) of the Unified Appeal Procedure, as amended, 252 Ga. A-13 et
seq. It is sufficient to convince a rational trier of fact beyond a
reasonable doubt that Devier raped and murdered Mary Frances Stoner.
Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
In his third enumeration of error, which is
argued first, Devier contends the jury voir dire was overly
The voir dire examination lasted three days and
fills over 800 pages of transcript. The very length of the voir dire
is a strong indication that it was not overly restrictive, and our
review of it persuades us that it was not.
Control of the voir dire is vested in the sound
discretion of the trial court and that discretion is not abused
where, as here, both parties were given "an opportunity to ascertain
the ability of the prospective jurors to decide the case on its
merits, with objectivity and freedom from bias and prior inclination."
Waters v. State, 248 Ga. 355, 363 (3)
(283 SE2d 238) (1981). See also,
Henderson v. State, 251 Ga. 398 (306 SE2d
In his second enumeration, Devier complains of
the trial court's refusal to grant challenges for cause to 30
prospective jurors whose answers on voir dire, Devier contends,
demonstrate their bias.
In order to examine this enumeration of error, we
deem it necessary to set forth an explanation of the mechanics of
the voir dire examination and jury selection as it proceeded in this
case, and to examine the status of the challenged jurors.
Sixty-four veniremen underwent voir dire, of
which 22 were excused for cause, leaving a qualified panel of 42
from which the 12 trial jurors were selected, Devier being entitled
to 20 peremptory strikes and the state, ten. OCGA
15-12-165. Twelve additional veniremen
were qualified to allow the selection of three alternate jurors,
Devier here being entitled to six peremptory strikes and the state,
three. OCGA 15-12-169.
During the selection of the trial jurors, Devier
used 14 of his allotted 20 peremptory strikes. The state used all of
its allotted strikes. Alternate jurors were then selected from the
alternate jury panel, both parties using all of their alternate
Two of the prospective jurors complained of in
this enumeration of error were, in fact, excused for cause, albeit
for reasons other than Devier's initial challenges to these jurors.
Eight of the prospective jurors complained of
in this enumeration were members of the alternate jury panel. One
was selected as an alternate juror. However, none of the trial
jurors became incapacitated, see OCGA
15-12-172, and the alternate jurors therefore did not
participate in the jury deliberations. See OCGA
(a) Any possible error in the court's refusal to
grant Devier's initial challenges to the two potential jurors who
were later excused for other reasons is clearly harmless since
Devier ultimately obtained the relief he initially sought, i.e.,
(b) Also clearly harmless is any possible error
regarding the seven challenged potential alternate jurors who were
not selected. Their "presence did not affect the exercise of
peremptory challenges during the selection of the 12 jurors who
tried the case." Spivey v. State, 253 Ga. 187,
200 (319 SE2d 420) (1984). And
regardless of their impact upon the selection of the alternate
jurors, none of the alternate jurors was ever needed.
(c) The remaining challenged potential alternate
juror was selected as an alternate juror. Although she did not
participate in the deliberations, she did associate with the other
jurors during the trial. See OCGA 15-12-170;
Patton v. Yount, ---- U. S. ---- (35 Cr. L. R. 3152, 3155) (Case No.
83-95, decided June 26, 1984).
This juror had not recently read anything about
the case and was not aware of the prior verdict. She had never
voiced an opinion about the case and had no present opinion
regarding Devier's guilt or innocence, nor any bias or prejudice
for or against him.
We need not decide whether a trial court could
commit harmful error by erroneously refusing to excuse for cause a
potential alternate juror who is selected as an alternate juror
where none of the alternate jurors is called upon to participate in
the jury deliberations, since the record clearly shows that the
trial court did not err by refusing to excuse this juror.
(d) With regard to the remaining jurors, the
state relies upon the general rule that " 'where it does not
affirmatively appear from the record that a party had exhausted his
peremptory challenges at the time the full panel of jurors was
accepted and sworn, the appellate court will presume that he was not
prejudiced by the action of the court in erroneously disallowing his
challenge for cause, and will not grant a reversal for the alleged
error.' [Cits.]" Foster v. State, 240 Ga. 858,
859 (242 SE2d 600) (1978).
However, in Blankenship v. State,
247 Ga. 590 (277 SE2d 505) (1981), we
held that a Witherspoon error is not harmless in a death penalty
case even where the state has failed to use all of its peremptory
Here, Devier had remaining six unused peremptory
strikes. Whether the presumption of harmlessness noted in Foster
should apply in a death penalty case in which the number of
allegedly erroneous refusals to excuse for cause exceeds the number
of unused peremptory strikes we need not decide.
We have carefully reviewed the voir dire
examination of the remaining 20 allegedly unqualified prospective
jurors. All of them had read or heard something about the case.
However, ten of these challenged jurors testified that they had no
prejudice or bias for or against the defendant, and had not formed
or expressed an opinion regarding guilt or punishment. Two others
testified that they previously had formed or expressed an opinion,
but did not now have one. The remaining eight admitted at least to
having tentative opinions regarding Devier's guilt or innocence or
possible punishment. However, all of these jurors testified, under
oath, that they could lay aside whatever opinions or impressions
they might have and could decide the case based upon the evidence
presented and the law as charged to them by the court. See Spivey
v. State, supra; Waters v. State, supra.
The trial court did not err by concluding that
none of these prospective jurors was disqualified.
In his first enumeration of error, Devier
contends that his motion for change of venue should have been
Devier supported his motion with copies of
newspaper articles and transcripts of radio broadcasts by three
local radio stations. The trial court reserved a ruling on the
motion until after the jury voir dire.
After the jurors had been examined, the trial
court noted that 76 prospective jurors were examined and that 16, or
21 %, had been excused for publicity-related cause and stated: "I am
convinced the atmosphere in this county is such, after having heard
the . . . prospective jurors, that . . . the defendant can get a
fair trial in this county." The motion for change of venue was
In order to prevail on a motion for change of
venue pursuant to OCGA 17-7-150 (a),
a defendant must show "(1) that the setting of the trial was
inherently prejudicial or (2) that the jury selection process
showed actual prejudice to a degree that rendered a fair trial
impossible." Street v. State, 237 Ga. 307,
311(227 SE2d 750) (1976). "[T]he
empanelling of fair and impartial jurors, as demonstrated on voir
dire, makes it particularly difficult to show that the setting of
the trial was inherently prejudicial." Kesler v. State,
249 Ga. 462, 472 (291
SE2d 497) (1982). Moreover, a trial court's finding that a
defendant can receive a fair trial in the county in which the
crime was committed will be upheld unless manifestly erroneous.
Patton v. Yount, supra; Irvin v. Dowd, 366 U. S. 717 (81 SC 1639,
6 LE2d 751) (1961).
In Irvin v. Dowd, supra, the United States
Supreme Court found manifest error in the refusal to change venue
where the community had been "subjected to a barrage of inflammatory
publicity immediately prior to trial," Murphy v. Florida, 421 U. S.
794, 798 (95 SC 2031, 44 LE2d 589) (1975), and where, of 370
prospective jurors examined, 90% entertained some opinion as to
guilt (eight of whom were selected as trial jurors) and 62% were
excused for cause because they had fixed opinions.
By contrast, in Patton v. Yount, supra, the Court
found no manifest error in the refusal to change venue where the
commission of the crime had preceded the trial under review by four
years, by which time the prejudicial publicity and the community's
sense of outrage had significantly diminished, even though the voir
dire transcript showed that, of 163 prospective jurors examined, 77%
admitted they would carry an opinion into the jury box (eight of
whom were ultimately selected as trial or alternate jurors) and 59%
were excused for cause for having firm opinions that could not be
changed regardless of the evidence.
Here, as in Patton v. Yount, supra, nearly four
years elapsed between the commission of the crime and the trial
under review. In fact, of the numerous newspaper articles admitted
in evidence, only two were written in the year preceding this
trial, and these two were published 10 months prior to trial. Many
of the radio broadcasts were more recent. However, we do not find
that Floyd County had been "subjected to a barrage of inflammatory
publicity immediately prior to trial . . .," Murphy v. Florida,
supra at 798 or that the setting of the trial was "inherently
prejudicial," Kesler v. State, supra.
Moreover, only 21% of the prospective jurors in
this case were excused for having firm opinions resulting from pre-trial
publicity, and no juror who had ever formed or expressed an opinion
regarding the case was selected as a trial or alternate juror. We
find no manifest error in the trial court's finding that Devier
could receive a fair trial in Floyd County.
Devier's first enumeration of error is
In his fourth enumeration of error, Devier
contends the trial court erred by denying his challenge to the
constitutionality of Georgia's arrest law. See OCGA
17-4-40 et seq.
Devier was arrested December 6, 1979, on a
warrant charging him with the rape of Linda Gail Elrod. The warrant
affidavit included the facts required by OCGA
17-4-41. It did not include facts sufficient to demonstrate
probable cause for the issuance of the warrant. Georgia law imposes
no requirement that arrest warrant affidavits include such
information. Roberts v. State, 252 Ga. 227
(1) (314 SE2d 83) (1984).
That is not to say, however, that arrest warrants
need not be supported by probable cause. "The Fourth Amendment . . .
provides that '. . . no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation . . .' The decisions require
that 'before a warrant for either arrest or search can issue . . .
the judicial officer issuing such a warrant [must] be supplied with
sufficient information to support an independent judgment that
probable cause exists for the warrant.' [Cit.]" Cofield v. State,
247 Ga. 98, 109 (5) (274
SE2d 530) (1981).
We cannot agree with the Attorney General's
contention that disclosure to the issuing magistrate of information
sufficient to establish probable cause was "not required by law," or
with the District Attorney's contention that a warrant affidavit
complying with OCGA 17-4-41 is alone
sufficient to demonstrate the validity of an arrest warrant.
However, we do not agree with Devier's contention
that the arrest warrant in this case was invalid.
Although "[t]he better practice clearly would be
for the affidavit to show probable cause . . ., the Fourth Amendment
does not by its terms require that probable cause be shown by the
affidavit, but that 'the judicial officer . . . be supplied' with
sufficient information to support his independent judgment that
probable cause exists for the warrant. [Cit.]" Cofield v. State,
supra at 109-110.
Here, the record shows that the officer who
sought the warrant supplied the issuing magistrate with sufficient
information to support a finding, which the magistrate made, that
probable cause existed for the issuance of the warrant. The trial
court did not err by overruling Devier's constitutional challenge to
Georgia's arrest law.
Devier sought to introduce in evidence the
results of a polygraph examination administered to him. In the
absence of an express stipulation by both parties that these results
would be admissible, the trial court did not err by ruling they were
inadmissible. Willis v. State, 249 Ga. 261
(2) (290 SE2d 87) (1982); State v. Chambers,
240 Ga. 76 (239 SE2d 324) (1977).
Devier's fifth enumeration is meritless.
Devier's sixth and seventh enumerations of error
concern the admissibility of the results of his custodial
The transcript of the Jackson-Denno hearing from
the previous trial has been included in the record on this appeal.
It was stipulated below that this nearly 600-page transcript would
provide the evidentiary basis on which the trial court would decide
the issues involved in these two enumerations of error.
The evidence can be summarized as follows:
Devier's first contact with law enforcement
officers concerning the disappearance of Mary Frances Stoner
occurred late in the morning of December 1, 1979. FBI agent Bob
Leary, accompanied by two Bartow County sheriff's deputies, visited
Devier at his home in Bartow County. The victim's body, to their
knowledge, had not yet been discovered. Leary identified himself and
the others and told Devier that they were investigating "a crime"
that had occurred the previous day, that Devier was one of a number
of people they planned to talk to, and that they needed to know
where he had been the previous afternoon. Devier replied that he
could not exactly remember. Leary asked him if it might help him
remember if he would accompany them and show them where he had gone
the previous day after he got off work.
Leary testified that he told Devier he was not
under arrest and that he was being asked to do this voluntarily.
According to Leary, Devier replied that he understood and he
voluntarily went with them.
They began to retrace Devier's various movements
of the day before. They headed to a church at which Devier
remembered parking when he met a friend. On the way, a call came
over the radio advising them to go to the Barnsley Garden Road area.
They arrived and the officers, leaving Devier alone in the police
car, walked to a field road near which the victim's body had been
An officer stood near the police car, guarding
the crime scene. Devier testified that Leary ordered the officer to
make sure Devier stayed in the car. (Other testimony established
that this particular automobile had operable inside door handles.)
Leary testified, however, that he only told the officer to keep
Devier off the premises of the crime scene. As far as Leary was
concerned, Devier was free to go anywhere else.
Shortly, the officers returned to the car and
continued their drive with Devier. They stopped at a service station
upon observing the friend that Devier claimed to have been with
Friday afternoon. Leary and one of the officers got out of the car
and talked to the friend.
Devier testified that he asked the remaining
officer if he could go to the bathroom and that the officer told him
to stay in the car. The officer, however, testified to the contrary.
Leary testified that on another occasion, they
stopped at a store to allow Devier to buy himself a pack of
cigarettes. Devier entered the store alone and made his purchase.
Eventually, having accomplished their purpose,
they drove to the Adairsville police department. There, Leary
advised Devier of his Miranda rights, told him that his car had been
identified as the one the kidnapper had driven, that his friend had
last seen Devier at 3:00 p.m., leaving a 3-1/2 hour gap which was
not accounted for, and accused Devier of being the person who had
kidnapped and murdered Mary Frances Stoner. Devier denied the
Leary asked if Devier would accompany him to
Cartersville for further questioning. He again told Devier he was
not under arrest or in custody and that if he went, it would be
voluntary on his part. Devier agreed to go, saying that he wanted to
They went to the Bartow County sheriff's office
in Cartersville where Devier was given a polygraph examination,
which he "passed." At approximately 6:00 p.m., he went home with his
Leary testified that if at any time Devier had
said, "Okay, I want to go home," he "would have felt obligated to
take him home. He wasn't under arrest."
The next day, December 2, 1979, GBI agent Vernon
Keenan, along with Bartow County sheriff's investigator Ray Sullivan,
visited Devier at his home at approximately 10:30 a.m. Devier was
advised of his Miranda rights and questioned briefly. The officers
took some pictures of his automobile and then left.
Devier and his wife gathered their laundry
together and drove to Rome. Shortly before 6:00 p.m., Devier was
stopped by a Rome police officer pursuant to a lookout which had
been placed on his automobile. Another nearby officer was called to
the scene. This officer took Devier's driver's license and a pistol
lying between the front seats. Devier was informed that Rome police
investigators wanted to talk to him. The officer testified that he
was unaware that other investigators had already talked to Devier.
Devier testified that he asked the officer if he
was under arrest and the officer told him no, but "if you know
what's good for you, . . . you'll follow me over there."
The officer testified that when he told Devier
that he was wanted for questioning, Devier agreed to follow him to
the Rome police station. The officer testified that he led the way
in his car, followed by Devier in his, followed by the other police
officer in his car.
The lead officer was asked what would have
happened if Devier had pulled out of this convoy and sped away. The
officer testified that he did not know and could not say.
Upon their arrival at the police station, the
officer gave Devier's driver's license and pistol to another officer.
Devier was then taken to an office, given his Miranda rights, and
Several officers who had previously talked to
Devier were summoned to the Rome police station. Officer Sullivan
testified that Devier was being "detained" for questioning. Asked
whether, if Devier had attempted to leave, Sullivan would have tried
to stop him, Sullivan answered, "It is possible." Devier made no
incriminating statements and, sometime after midnight, he was
allowed to go home. He was not questioned again until after his
arrest the afternoon of December 6, 1979.
In the interim, investigation continued. Among
other things, it was learned that six months previously, Devier had
possibly committed the rape of 12-year-old Linda Gail Elrod. This
case was investigated and by December 6, it was felt by those in
charge of the investigations that sufficient probable cause had been
obtained to support an arrest warrant for the Elrod rape, as well as
search warrants in the instant case. See Devier v. State, supra,
247 Ga. 635, 636-639. It was also felt
that there was sufficient probable cause to arrest Devier for the
Mary Frances Stoner murder-rape. However, it was deemed a closer
question than in the Elrod case and the decision was made to arrest
Devier for the latter rape.
Devier was arrested at approximately 5:30 p.m. on
the premises of the Georgia Power Company in Rome. He was taken to
the Floyd County police station in Rome, advised of his Miranda
rights, which he waived, and interrogated. He confessed.
The confession was taped. However, the taping
mechanism or the tape itself was faulty, and the tape was largely
inaudible. The confession was repeated, and this time successfully
transcribed, the next day.
(a) In his sixth enumeration of error, Devier
contends he was illegally detained December 1 and again on December
2, in violation of the Fourth Amendment to the United States
The state makes no claim that, on either December
1 or December 2, law enforcement officers had probable cause to
arrest Devier. Instead, the state contends that Devier was not
arrested on either of those dates.
It is true that Devier was not formally arrested
until December 6. However, detention falling short of a formal
arrest may violate the Fourth Amendment. Dunaway v. New York, 442 U.
S. 200 (99 SC 2248, 60 LE2d 824) (1979). In United States v.
Mendenhall, 446 U. S. 544, at 553-554 (100 SC 1870, 64 LE2d 497)
(1980), Justice Stewart proposed that Fourth Amendment protections
apply when, "by means of physical force or a show of authority . . .
a reasonable person would have believed that he was not free to
leave." A majority of the Supreme Court has adopted this standard.
Florida v. Royer, ---- U. S. ---- (103 SC 1319, ---- LE2d ----)
(1983). With limited exceptions, "seizures" require probable cause
to arrest. Michigan v. Summers, 452 U. S 692 (101 SC 2587, 69 LE2d
340) (1981); United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC
2574, 45 LE2d 607) (1975); Terry v. Ohio, 392 U. S. 1(88 SC 1868, 20
LE2d 889) (1968).
In Dunaway v. New York, supra, the Court
considered the following facts: Dunaway was taken into custody and
transported to police headquarters in a police car. He was not told
that he was not under arrest; moreover, he would have been
physically restrained if he had attempted to leave. He was placed in
an interrogation room and questioned for an hour. He confessed. The
state conceded that until Dunaway confessed, police did not have
sufficient probable cause to make an arrest.
The Supreme Court held that Dunaway was seized on
less than probable cause, that the extent of the seizure exceeded
that authorized by Terry v. Ohio, supra, and its progeny, and that
the seizure was therefore illegal.
In Florida v. Royer, supra, the Court considered
these facts: Officers having reasonable suspicion falling short of
probable cause to believe that Royer was carrying illegal drugs
approached him in an airport concourse. They obtained his airline
ticket and his driver's license. Without offering to return these
items, the officers asked Royer to accompany them to a small room
adjacent to the concourse. Royer was not told that he was not under
arrest. Moreover, the state conceded that the officers would not
have permitted Royer to leave the room even if he erroneously had
thought that he could. The officers used Royer's baggage check stubs
to obtain his luggage and brought it to the room. Royer was asked if
he would consent to a search of the luggage. He was not told that
his luggage would be returned if he refused to consent. Royer
produced a key and the luggage was searched, resulting in the
discovery of marijuana.
The Supreme Court held that Royer had been "seized"
and that the scope of this seizure exceeded the permissible scope of
a limited investigative detention authorized by Terry v. Ohio, supra,
and its progeny. Therefore, the Court held, the purported consent to
search was invalid.
As the Court stated in Florida v. Royer, supra,
there is no "litmus-paper test for distinguishing a consensual
encounter from a seizure or for determining when a seizure exceeds
the bounds of an investigative stop . . . [T]here will be endless
variations in the facts and circumstances, so much variation that it
is unlikely that the courts can reduce to a sentence or a paragraph
a rule that will provide unarguable answers to the question whether
there has been an unreasonable search or seizure in violation of the
Nonetheless, an examination of Royer and Dunaway,
and the facts of the two cases, provides a useful background to our
examination of the facts of this case.
The trial court found that Devier was not in
custody on December 1. The evidence, while in conflict as to certain
particulars, supports this finding.
at 19, fn. 16. "The purpose of the Fourth
Amendment is not to eliminate all contact between the police and the
citizenry, but 'to prevent arbitrary and oppressive interference by
enforcement officials with the privacy and personal security of
individuals.' [Cit.]" United States v. Mendenhall, supra, 446 U. S.
On December 1, Devier was told repeatedly that he
was not under arrest and that he did not have to accompany the
officers. The evidence shows that Devier voluntarily accompanied the
officers and that if he had indicated, at any time, that he desired
to return home, he would have been transported home. He was neither
handcuffed, nor formally arrested, and moreover, the trial court was
authorized by the evidence presented to find that on at least one
occasion Devier was left completely unattended.
As a practical matter, of course, Devier suffered
some restriction of his freedom of movement simply by virtue of
being in a moving automobile some distance from his home. But that
is necessarily the case whenever one voluntarily accepts a ride with
another. The fact that Devier was largely dependent upon others for
his locomotion does not mean that he was in "custody" under the
Fourth Amendment. Hardeman v. State, 252 Ga.
286 (1) (313 SE2d 95) (1984).
The evidence amply supports the court's finding
that on December 1, Devier had not been seized in violation of the
Likewise, the evidence supports a finding that
Devier was not seized the morning of December 2, when law
enforcement officers visited Devier at his home and questioned him
However, we cannot agree that Devier had no
objective reason to believe he was not in custody on the evening of
Unlike the prior occasions, Devier was not
repeatedly told that he was free to go or that his continued
cooperation was dependent upon his voluntary consent.
Moreover, even if we discount Devier's self-serving
testimony that the officer who escorted him to the Rome police
station patted his gun and told Devier that he had better accompany
the officers, it is undisputed that Devier had been deprived of his
driver's license and his pistol and that he was escorted to the
police station surrounded by police cars. In addition, one of the
interrogating officers testified that Devier was being "detained"
for questioning and neither he nor the transporting officers could
positively state that Devier would not have been stopped if he had
attempted to leave.
Although Devier was not formally arrested, we
find that he was "seized" within the meaning of the Fourth Amendment,
and that the length of the seizure exceeded the permissible scope of
Terry-type investigative detention not supported by probable cause.
However, Devier made no incriminating or
inculpatory statements the evening of December 2 and no statement
made that evening, incriminatory or otherwise, was offered in
evidence at trial. Thus, insofar as December 2 is concerned, there
are no statements to suppress.
There remains the question whether the post-arrest
statements given December 6 and 7 must be suppressed as a result of
the illegalities of December 2.
"[A]lthough a confession after proper Miranda
warnings may be found 'voluntary' for purposes of the Fifth
Amendment, this type of 'voluntariness' is merely a 'threshold
requirement' for Fourth Amendment analysis. [Cit.]" Dunaway v. New
York, supra, 442 U. S. at 217 (footnote omitted). In the Fourth
Amendment context, the relevant inquiry is whether Devier's post-arrest
statements were obtained by the exploitation of the illegality of
December 2. Brown v. Illinois, 422 U. S. 590 (95 SC 2254, 45 LE2d
416) (1975); Wong Sun v. United States, 371 U. S. 471 (83 SC 407, 9
LE2d 441) (1963).
We conclude they were not. Devier was not
formally arrested December 2 and, ultimately, was released. For four
days, he was not in custody, nor was he questioned. Then he was
lawfully arrested. In view of the temporal distance between the
illegality and the confession and the intervening circumstance of a
lawful arrest, we find that any taint" was sufficiently "attenuated"
to allow the admission of the post-arrest statements over a Fourth
Amendment objection. Wong Sun v. United States, supra.
(b) Devier contends an additional violation of
Dunaway v. New York, supra, in that he was arrested for one offense
and questioned for another. We disagree. Devier was lawfully
arrested on a valid warrant. We find no Fourth Amendment violation
in the fact that he was then questioned about another offense. Cf.
Spence v. State, 252 Ga. 338 (313 SE2d 475)
(c) In his seventh enumeration of error, Devier
contends the trial court erred by ruling that the custodial
statements made on December 6 and 7 were voluntarily given.
The trial court's findings of voluntariness were
not clearly erroneous and we therefore must accept them. Rose v.
State, 249 Ga. 628 (2) (292 SE2d 678) (1982).
In his eighth enumeration of error, Devier
contends the trial court erred by refusing to give four defense
requests to charge. We have reviewed these requests, as well as the
court's charge, and find that the requests which were not
inappropriate were essentially covered by the court's charge. It is
well settled that "[t]he failure to give requested instructions in
the exact language requested, where the charge given substantially
covers the same principles, is not grounds for reversal." Kelly v.
State, 241 Ga. 190 (4) (243 SE2d 857) (1978).
Devier additionally contends the court's
instructions on mitigating circumstances were inadequate.
The court charged as follows:
"Now, Ladies and Gentlemen, you should consider
all of the evidence submitted in both phases of the trial of this
case in arriving at your verdict as to the sentences to be imposed.
This would include any and all evidence of mitigating circumstances
received by you in this case. Mitigating circumstances are those
circumstances which in fairness and mercy shall be considered by you
in fixing punishment.
"I charge you that in reaching your decision to
sentence the defendant to life imprisonment or to death, you are
authorized and directed to consider as a mitigating factor any
aspect of the defendant's character or record and any of the
circumstances of the offense that the defense offers as a basis for
a sentence less than death.
"As to each of the counts, Ladies and Gentlemen,
I charge you that even if you should find beyond a reasonable
doubt that the State has proved the existence of a statutory
aggravating circumstance or circumstances which would justify the
imposition of a death sentence, you are not required to recommend
that the accused be put to death, and this is so even though you
find that no mitigating circumstances were shown. Even though you
may be authorized to recommend the death penalty, you are not
required to do so. The law vests in the jury the exclusive right
to either make or withhold a recommendation for the death penalty.
"The sentences to be imposed in this case are
entirely within your discretion, and you may provide for a life
sentence for murder for this accused or a life sentence or less for
rape for this accused for any reason that is satisfactory to you or
without any reason, if you care to do so.
"Of course, as to each of the counts; that is,
Count I and Count II, if the State has failed to prove beyond a
reasonable doubt that the offense charged was committed under one or
more of the statutory aggravating circumstances, as contended by the
State, and described to you by the Court, you would not be
authorized to recommend the death penalty. Without such a finding,
the death penalty cannot be imposed."
The charge sufficiently instructed the jury as to
mitigating circumstances. Romine v. State,
251 Ga. 208 (10) (305 SE2d 93) (1983).
Although not raised by Devier, we must express
our disapproval of the court's instruction that: "The sentences to
be imposed in this case are entirely within your discretion . . ."
The law does not repose the matter of sentence entirely to the
jury's discretion. A jury may not impose a death sentence unless it
finds at least one statutory aggravating circumstance beyond a
reasonable doubt. OCGA 17-10-30 (c).
Only if this threshold is crossed may the jury impose a death
sentence. Only then may it exercise its discretion to choose between
life and death. Zant v. Stephens, 250 Ga. 97
(297 SE2d 1) (1982).
However, we find no reversible error here, since
the charge as a whole clarified the extent of the jury's discretion
regarding the imposition of punishment.
In his ninth enumeration of error, Devier
contends the trial court erred by overruling defense objections to
the sentencing-phase testimony of Linda Gail Elrod.
Ms. Elrod testified that on June 2, 1979, she had
been raped by Devier. She explained that she had known him for many
years; that Devier had even lived in her home for a period of time.
On the day in question, she and Devier had left her house in his car
to go smoke some marijuana. They got into an argument and he asked
her if he did not owe her "some licks from yesterday." She testified
that he grabbed her, threw her into the back seat, and made her
undress. Then, she testified, they had "sexual intercourse" without
Devier contends this testimony was not admissible
in aggravation because it was not offered to prove a statutory
aggravating circumstance; because it was a separate, independent
crime not a part of the transaction on trial; and because it was not
otherwise admissible since Devier had never been convicted of the
rape of Linda Gail Elrod.
We find no merit to this enumeration.
The state is not limited to proof only of the
enumerated statutory aggravating circumstances. Godfrey v. Francis,
251 Ga. 652, 660 (308
SE2d 806) (1983); Zant v. Stephens, supra.
On the issue of guilt or innocence, "the only
relevant evidence is that which pertains to the offense with which
the defendant is charged." Fair v. State,
245 Ga. 868, 873 (268 SE2d 316)
(1980). On the issue of sentence, however, "the trier of fact must
make a determination as to the sentence to be imposed, taking into
consideration all aspects of the crime, the past criminal record or
lack thereof, and the defendant's general moral character. [Cits.]
Any lawful evidence which tends to show the motive of the defendant,
his lack of remorse, his general moral character, and his
predisposition to commit other crimes is admissible in aggravation,
subject to the notice provisions of the statute." Ibid; OCGA
Here, there is no question that the requisite
notice was furnished. The objection is merely that the prior rape
was not evidenced by a conviction.
In Clenney v. State, 229
Ga. 561 (4) (192 SE2d 907) (1972), this court held that the
state could offer prior convictions in aggravation only if the state
could demonstrate that those convictions were valid. Since the
convictions offered in Clenney were facially invalid in that they
failed to disclose representation by an attorney or the waiver of
the right thereto, Clenney's sentence was reversed.
Clenney did not hold that convictions were
necessary to prove prior conduct; only that invalid convictions were
Here, the state did not rely upon an invalid
conviction in aggravation. Instead, the prior rape was proved by the
testimony of the victim of the rape. We find no statutory or
constitutional bar to this procedure.
As to Count 1 (murder), the jury found as
statutory aggravating circumstances that the murder was committed
while the offender was engaged in the commission of rape, kidnapping
with bodily injury and aggravated battery (OCGA
17-10-30 (b) (2)) and that the offense
of murder was outrageously or wantonly vile, horrible or inhuman in
that it involved torture or depravity of mind and an aggravated
battery to the victim (OCGA 17-10-30
As to Count 2 (rape), the jury found as statutory
aggravating circumstances that the rape was committed while the
offender was in the commission of kid napping with bodily injury and
aggravated battery (OCGA 17-10-30 (b)
(2)) and that the offense of rape was outrageously or wantonly vile,
horrible or inhuman in that it involved torture or depravity of mind
and an aggravated battery to the victim (OCGA
17-10-30 (b) (7)).
The death penalty was imposed on each count.
(a) We note that the trial court properly defined
the offense of kidnapping with bodily injury in its sentencing
charge. See Rivers v. State, 250 Ga. 303 (8)
(298 SE2d 1) (1982). The evidence supports the jury's
findings that the murder and the rape occurred during the commission
of the offense of kidnapping with bodily injury. Waters v. State,
supra, 248 Ga. 355 (11); Peek v. State,
239 Ga. 422, 431(238
SE2d 12) (1977).
(b) The evidence supports the jury's finding that
the offense of murder occurred during the commission of the offense
of rape. We note that this case presents no problem of "mutually
supporting aggravating circumstances." Compare Wilson v. State,
250 Ga. 630 (9) (300 SE2d 640) (1983).
(c) Devier claimed in his confession that the
victim fell and hit her head on a rock. However, the evidence showed
that her head had been crushed and that several nearby rocks were
bloodstained. The evidence indicated that these rocks were not in
their original locations, but had been moved to the vicinity of the
body from as far as 50 feet away. The evidence supports a finding
that the murder and the rape involved the offense of aggravated
battery, committed while the victim was still alive. See Hance v.
State, 245 Ga. 856 (3) (268 SE2d 339) (1980).
We note that the trial court properly defined the
offense of aggravated battery in its sentencing charge. Rivers v.
(d) The offenses of rape and murder were in this
case outrageously and wantonly vile, horrible and inhuman in that
they involved torture, depravity of mind, and an aggravated battery
to the victim. The evidence supports the jury's findings in this
regard, and the facts of this case distinguish it from those cases
in which a finding of the (b) (7) statutory aggravating circumstance
would not be appropriate. See Allen v. State,
253 Ga. 390 (6) (321 SE2d 710) (1984); West v. State,
252 Ga. 156 (Appendix) (313
SE2d 67) (1984); Whittington v. State,
252 Ga. 168 (9b) (313 SE2d 73)
(1984); Phillips v. State, 250 Ga. 336 (6)
(297 SE2d 217) (1982); Hance v. State, supra.
We find that the sentences of death imposed in
this case were not imposed under the influence of passion, prejudice,
or any other arbitrary factor. OCGA 17-10-35
We find that the sentences of death imposed in
this case are neither excessive nor disproportionate to penalties
imposed in similar cases, considering both the crime and the
defendant. OCGA 17-10-35 (c) (3). The
similar cases listed in the appendix support the death penalties in
GREGORY, Justice, concurring specially.
I concur in the judgment of the majority opinion.
However, I would reach that judgment through different rationale
than that stated in Division 9. I would hold that the testimony of
Linda Gail Elrod is admissible as a necessary corollary to
established Eighth Amendment jurisprudence.
In death penalty cases a constitutional
requirement exists that the sentencer focus on the character of the
individual defendant. It is on this basis, together with the
circumstances of the offense, that the jury or the judge must decide
between life and death for a defendant who is within the death
eligible class. Zant v. Stephens, --- U. S. --- (103 SC 2733, 77
LE2d 235) (1983). In order for this decision to properly be made the
broadest scope of evidence reasonably capable of presentation, both
favorable and unfavorable to the defendant, must be presented. We
are not dealing with technical rules of evidence. We must determine
the scope of information properly considered by the sentencer in
deciding between life and death.
Once the position that the death penalty is a per
se violation of the Eighth Amendment proscription against cruel and
unusual punishment (see concurring opinion of Brennan, J., in Furman
v. Georgia, 408 U. S. 238 (92 SC 2726, 33 LE2d 346) (1972)) was
rejected, there evolved two basic criteria for testing the
constitutionality of a death penalty statute. First, Furman, supra,
held that the scope of the death eligible class itself must not be
overbroad. The imposition of the death penalty for a petty offense
would obviously violate this principle. The outer circle of the
permissible death eligible class was ultimately drawn at those who
commit intentional homicide. Enmund v. Florida, 458 U. S. 782 (102
SC 3368, 73 LE2d 1140) (1982).
Second is the criterion of individualization. It
is unconstitutional to fix the scope of the death eligible class and
make death mandatory for all who fall within the class. Woodson v.
North Carolina, 428 U. S. 280 (96 SC 2978, 49 LE2d 944) (1976);
Roberts v. Louisiana, 431 U. S. 633 (97 SC 1993, 52 LE2d 637)
(1977). Every defendant has the right to be considered as an
individual even though the crime committed brings him within the
death eligible class. The death penalty may not be imposed without
giving individual consideration to the character of the defendant.
Who he or she is must be the subject of inquiry. It is
unconstitutional to preclude consideration, as a mitigating factor,
of any aspect of a defendant's character. Lockett v. Ohio, 438 U. S.
586 (98 SC 2954, 57 LE2d 973) (1978); Eddings v. Oklahoma, 455 U. S.
104 (102 SC 869, 71 LE2d 1) (1982).
A selection must be made from among those in the
death eligible class based upon a consideration of the individual
character of a given defendant within the class. Those among the
class differ from each other in both positive and negative aspects
of character. The good and the bad must be known if an informed
selection process is to take place. It might suffice in a single
case to allow consideration only of positive aspects of character.
After all, any error would be in favor of life. But, considered as a
whole, the death penalty scheme depends upon the availability of
full information (good and bad) in order that juries and judges make
informed selections for the death penalty from those who are among
the eligible. To withhold evidence of bad character in all cases
would ultimately undermine the process because selection would
proceed on less than adequate information. While the rules of
evidence may exclude specific evidence in given instances, any rule
with such a broad sweep as to exclude all evidence of prior crimes
for which there has been no conviction would so limit the
information available to the sentencer as to unlawfully restrict the
individualization necessary under the Eighth Amendment. The system
must allow access to this information in order to pass
constitutional muster as a system.
The jury returned its verdict as to sentence on November 16, 1983. A
motion for new trial was filed December 7, 1983, amended February
10, 1984, heard February 14, 1984, and denied the same day. A notice
of appeal was filed March 12, 1984, and the record was docketed
April 4, 1984. The case was orally argued June 28, 1984.
Transcript, Vol. 1, p. 309; vol. 2, p. 664.
3 F.3d 1445
Darrell Gene Devier, Sr.,
Walter Zant, Warden, Georgia Diagnostic and Classification Center,
Darrell Gene Devier, Sr., Petitioner-Appellant,
Walter Zant, Warden, Georgia Diagnostic and Classification Center,
September 23, 1993
Appeals from the United States
District Court for the Northern District of Georgia.
Before KRAVITCH and COX, Circuit Judges, and
CLARK, Senior Circuit Judge.
Petitioner Darrell Gene Devier, Sr. brought a
petition for a writ of habeas corpus under 28 U.S.C. Sec .
2254 seeking collateral relief from his convictions and sentence of
death in Georgia state court for the murder and rape of Mary Frances
Stoner. The district court granted the petition on the grounds that
Devier had been unconstitutionally prejudiced by the introduction at
his sentencing hearing of testimony concerning an unrelated, prior
criminal offense that he allegedly committed, but for which he has
neither been charged nor convicted. The State appeals from the
district court's order, and Devier brings a cross-appeal from the
denial of the other claims contained in his petition. We reverse the
district court's grant of relief as to sentencing and affirm the
district court's denial of Devier's other claims.
At the time of her murder, Mary
Frances was twelve years old and lived with her parents in Bartow
County. Devier was employed as a member of a tree-trimming crew and
was sent in November, 1979 to prune trees near the Stoner residence.
The crew completed its work around noon on Friday, November 30, 1979
and received the remainder of the day off. Several witnesses
observed Devier at approximately 3:45 p.m. seated in a dark-colored
Ford Pinto that was parked at a truck stop located 150 feet from the
Stoner's driveway. A school bus dropped off Mary Frances near her
driveway between 3:55 and 4:00 p.m. Another student, who exited at
the next stop about 50 yards away, observed the Pinto backing out of
the Stoner driveway with two people in it.
Mary Frances' body was found on the morning of
December 1 by hunters in a wooded area in Floyd County. Her head was
crushed and blood-tinged frothy material exuded from her mouth and
nose. Several large blood-stained rocks were found near her body.
During the autopsy, the Bartow County medical examiner found fresh
tears and bruises in the vaginal area and a large amount of blood-tinged
fluid inside the vagina containing sperm. The doctor testified that,
in his opinion, Mary Frances had been raped and died shortly
afterwards as a result of a severe brain injury and asphyxiation by
After being the subject of a police investigation
for several days, Devier was arrested on December 6 and gave a taped
statement after signing a waiver of his rights. He told the police
officers that he had been driving his black Pinto the afternoon of
November 30 when he saw Mary Frances step down from the school bus.
After the bus left, Devier pulled into the
driveway to ask for directions, grabbed her, and drove to an
isolated, wooded area. He stopped the car and raped Mary Frances in
the back seat. After she was forced out of the car, Devier told the
officers that he intended to tie her to a tree. Mary Frances,
however, began yelling and hit him in the chest. Devier pushed her
to the ground where she hit her head "on a rock or something" and
when he saw that, he "just got down and started choking her." He
then left the scene.
After his first trial ended in a mistrial due to
improper contact between a bailiff and a juror, Devier was
subsequently convicted by a Floyd County jury for the rape and
murder of Mary Frances and sentenced to death on both counts. The
Supreme Court of Georgia reversed this conviction on the grounds
that the grand jury list was not fairly representative of a cross-section
of the citizens of Floyd County.
After a reindictment and a third trial in
November, 1983, Devier was again found guilty of both offenses and
sentenced to death. The Georgia Supreme Court affirmed the
convictions and sentence on direct appeal,
and the United States Supreme Court denied Devier's petition for a
writ of certiorari.
Devier then sought habeas corpus relief in state court, which was
denied on the merits after an evidentiary hearing. The Georgia
Supreme Court denied a certificate of probable cause to appeal, and
the United States Supreme Court denied review.
Devier brought the instant petition for a writ of
habeas corpus in the district court.
After denying Devier's motions for discovery and an evidentiary
hearing, the district court issued its final order in which it held
that the testimony at the sentencing hearing concerning a prior rape
allegedly committed by Devier violated the constitutional
requirement that nonstatutory aggravating information must be "reasonably
objective and reliable." The court denied the remaining claims in
Devier's petition and ordered the State to resentence him.
After hearing argument on the appeal from this
order, we remanded this case for the limited purpose of deciding a
sentencing issue that had not been resolved by the district court in
its final order. This court retained jurisdiction, and we now
proceed to a review of the claims raised in Devier's petition. We
find that the district court erred in holding that evidence of
unadjudicated crimes, as a class, can never be introduced at a
capital sentencing hearing. In Part II.G. of this opinion, we will
discuss specifically the admissibility of the evidence of
unadjudicated crimes presented in this case.
A. Ineffective Assistance of Counsel
Devier initially claims that his trial counsel
failed to render effective assistance of counsel in violation of the
Sixth Amendment at numerous points during both the guilt and penalty
phases of his trial. To establish such a claim, a defendant must
show that his counsel's representation fell below an "objective
standard of reasonableness" and "that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."
In applying this constitutional standard, a
reviewing court must strive to avoid the "distorting effects of
hindsight" by viewing the circumstances of a trial through the eyes
of counsel. In
particular, a court should be highly deferential to those choices
made by defense counsel in the conduct of a trial that are arguably
dictated by a reasonable trial strategy. The Sixth Amendment's
guarantee of effective assistance of counsel is satisfied if
counsel's choice of defense tactics was the result of an informed,
professional judgment made after a reasonable investigation into the
facts of a case and the relevant law.
At his third trial in November, 1983, Devier was
represented by two attorneys, Scott Callan and Albert Burkhalter,
who were appointed to represent him approximately six months prior
to trial. The state court, which held an evidentiary hearing on
Devier's habeas petition, found that "Callan had considerable
criminal trial experience, including one case where the death
penalty was sought," and that "Burkhalter had tried several felony
cases and had previously assisted in a death penalty case." Because
their client had been previously tried and convicted, Callan and
Burkhalter were in the unusual position of knowing the exact details
of the State's case and what defense tactics used by Devier's
previous attorneys had failed.
At the state habeas proceeding, Callan and
Burkhalter testified that after reviewing the transcript of the
second trial and consulting with the first set of attorneys, they
concluded that a "confrontational" approach to Devier's defense had
been unsuccessful at the second trial. In light of the strong
likelihood that Devier would be convicted for a second time, the
attorneys adopted a "low key" approach at the third trial to avoid
appearing antagonistic to the jury and with the primary emphasis of
avoiding the death penalty.
1. Guilt-Innocence Phase
Against this general background, we now turn to
Devier's specific claims of ineffective assistance of counsel raised
on appeal. Devier first alleges that his attorneys failed to present
any evidence at the guilt phase challenging the voluntariness of
either his waiver of rights during his post-arrest interrogation or
the resulting inculpatory statements. In particular, Devier claims
that his attorneys should have called witnesses attacking the
voluntariness of this confession in light of the circumstances of
his actual interrogation and his below average intelligence.
We find, however, that Devier has failed to
allege how and in what manner his own incriminating statements
should have been attacked at trial by his attorneys. The district
court found that the attorneys reviewed the transcript of the prior
trial and consulted with Devier on a number of occasions about his
defense. At these meetings, Devier was not able to divulge any
additional facts or information that should have caused a reasonable
attorney to conduct further investigations into the nature of
Devier's confession. Devier also has not made even the barest
allegation as to what additional witnesses should have been called
on his behalf at trial, and we are therefore unable to assess what
effect, if any, this omission might have had on the outcome of the
In addition, the failure of his attorneys to
introduce psychological evidence as to how his general mental status
affected the voluntariness of his confession does not amount to
ineffective assistance of counsel. The record does not show, and
Devier does not allege, that a reasonable attorney should have been
on notice that a psychological examination of Devier was needed to
assess his competency to stand trial or was otherwise necessary in
the conduct of his defense.
Even if such information had been available, we cannot say that the
failure to present such evidence to attack the voluntariness of his
confession was sufficiently prejudicial as to have affected the
outcome of his trial.
Devier next contends that his attorneys should
have objected to the prosecutor's inflammatory tactics during the
guilt phase of the trial such as the use of photographs of the
victim, the dropping of heavy rocks during his closing argument, and
his invocation to the jury that they should "agree with me" as to
The attorneys testified at the state habeas
proceeding that the prosecutor's closing argument was similar to the
one previously given at the first trial and that they made a
strategic decision not to object to it as part of their "low-key"
approach. We find nothing in the record to suggest that this
decision was ill-advised. Yet, even if this tactical decision not to
object was unreasonable, Devier was not prejudiced by such an
omission because we find that the prosecutor's remarks at the guilt
phase were not so improper as to have rendered Devier's trial
In addition, photographs of the victim of a crime are admissible
under Georgia law
and therefore no claim for ineffective assistance of counsel can lie
from the failure to object to such evidence.
Devier also alleges that his attorneys failed to
explore or develop a defense at the guilt phase based on his
impaired mental state at the time of the crime resulting from the
use of marijuana. Although review of this claim may be precluded
because it does not seem to have been raised initially in the
district court, we nevertheless conclude that the argument is
The district court specifically found that the
attorneys made a reasonable, tactical decision that Devier would not
testify because he had made a negative impression at his earlier
trial by projecting himself in a "fairly sneering[,] arrogant manner."
Devier, however, does not allege how he could have established an
intoxication defense at trial without his own testimony. We
therefore have no basis for concluding that his attorneys' failure
to develop this line of defense at the guilt phase amounted to
ineffective assistance of counsel.
Lastly, Devier claims that his defense counsel's
closing argument at the guilt phase was deficient because he failed
to ask the jury to return a verdict of not guilty and asked only
that they judge the evidence "fairly and impartially." Although
there is serious doubt as to whether counsel's failure to deliver a
more "adversarial" closing argument was sufficiently prejudicial as
to affect the outcome of the case, we decline to review the merits
of this contention because it was clearly not presented in the
petitions addressed to either the district court or the state court.
2. Sentencing Phase
Devier contends that his attorneys were
ineffective in their representation of him during the sentencing
phase due to their inadequate preparation, failure to call other
available witnesses willing to testify on his behalf, and failure to
elicit mitigating evidence of Devier's abusive and disrupted
childhood and upbringing. The record shows that the attorneys called
five mitigating witnesses--Devier's brother, two uncles, an aunt,
and his mother--who each generally testified that he had been a good
child and that he was a nonviolent and pleasant adult. There is no
basis in the record on which to conclude that the district court
erred in finding that Devier's attorneys adequately prepared these
witnesses by consulting with them regarding their role as mitigating
In addition, Devier has not carried his burden of
showing how the testimony of these witnesses would have changed if
they had been better prepared. Similarly, Devier's counsel did not
act unreasonably in failing to call other witnesses whose testimony
was proffered by affidavit in the district court. These additional
witnesses would have testified to essentially the same impressions
and sentiments about Devier that his close relatives had already
related at trial and would have added little to the weight of the
We find somewhat more troubling the fact that the
attorneys failed to present as mitigating evidence any testimony
concerning Devier's disrupted childhood and the effects that an
abusive father had on his early family life. In the state habeas
proceeding, the attorneys testified that evidence of Devier's
troubled childhood was presented at his second trial by his mother,
Thelma Woods. At the third trial, however, Woods became extremely
emotional on the witness stand and was unable to complete her
As a result of this breakdown, the jury was
prevented from hearing any testimony concerning Devier's childhood.
Prior to calling her down from the witness stand, the attorneys
stated that they made a tactical decision that Woods' emotional
state "probably got across [her concern for her son] about as well
as anything could." In addition, the district court found that the
attorneys were well aware of Devier's family history because such
evidence had been presented at his second trial. Given the fact that
Devier had received a sentence of death, the court concluded that
the attorneys made a reasonable strategic decision to try a
different approach in not presenting such mitigating evidence.
Although there is no per se rule that evidence of
a criminal defendant's troubled childhood must always be presented
as mitigating evidence in the penalty phase of a capital case, it is
undoubtedly true that such evidence will usually present a defendant
in a more sympathetic light to the jury. In this case, however, such
evidence had already been presented to a jury without apparent
success at Devier's second trial. Thus, in light of their overall "low-key"
strategy at trial and the breakdown of Devier's mother on the
witness stand, the attorneys made a tactical decision not to present
any testimony of Devier's family history. In considering claims of
ineffective assistance of counsel, we are reminded that a reviewing
court should "address not what is prudent or appropriate, but only
what is constitutionally compelled."
In this case, Devier's attorneys had "a
reasonable basis for [their] strategic decision that an explanation
of petitioner's history would not have minimized the risk of the
Whether or not we believe this trial strategy afforded Devier the
best possible defense at the penalty phase is beside the point; the
decision not to present such mitigating evidence was reasonably
supported, fell well within "the wide range of professionally
and is therefore entitled to deference by this court.
Devier also contends that his counsel rendered
ineffective assistance of counsel at the sentencing phase by failing
to object to the prosecutor's allegedly inflammatory closing
argument. In these remarks, the district court noted that:
the prosecutor compared the jurors to soldiers
who had an unpleasant duty to perform and argued that their failure
to fulfill this duty would result in the loss of their birthright in
the same manner as the Cherokee Indians lost their birthright in
Georgia. The district attorney also argued that [Devier] was like a
cancer which should be exorcised to protect society. As well, the
prosecutor remarked that life imprisonment would constitute a
pleasant retirement for [Devier] with the full use of expensive
At the state evidentiary hearing, the attorneys
testified that the prosecutor's argument was generally the same
argument presented at the second trial and that they made a
strategic decision not to object on the belief that the trial court
would not require the prosecutor to rein in his remarks. As noted
above, the attorneys adopted an overall strategy of conducting a "low-key"
defense in order to avoid appearing antagonistic at trial. Although
we agree with the district court that the prosecutor's arguments
approached the bounds of an unconstitutional effort to enflame the
decision not to object was based on a reasonable strategic choice.
The fact that such a stratagem, viewed from hindsight, may have been
imprudent does not, however, provide the basis for a claim of
ineffective assistance of counsel.
Finally, Devier alleges that his defense counsel
was deficient in making a closing argument at the penalty phase that
did not mention any of the mitigating evidence or address the
crucial aggravating testimony of the prior rape allegedly committed
by Devier and which consisted solely of a plea for mercy. We find
this contention meritless. The fact that defense counsel chose to
place primary emphasis on eliciting sympathy from the jury for his
client, rather than thoroughly dissecting the evidence presented in
the penalty phase is a uniquely tactical decision that a reviewing
court must treat with deference.
In this case, we find nothing in the record to
suggest that defense counsel's closing argument at the sentencing
hearing was grossly deficient in presenting an adequate argument to
the jury to impose a lesser punishment. Furthermore, Devier does not
allege, and we cannot discern from the record, any prejudice that he
may have suffered from not having a closing argument that examined
the evidence in more detail.
B. Procedural Default
The state court found a number of the claims in
Devier's habeas petition to be procedurally defaulted on the grounds
that he had not properly preserved them for collateral review.
Specifically, the state court found that Devier failed to raise an
objection at trial as to these various claims or to bring these
issues on direct appeal. These contentions are (1) that Devier was
unconstitutionally prejudiced by the introduction of numerous
photographs of the victim; (2) that Devier was unconstitutionally
prejudiced by the use of armed guards to escort him to the courtroom
and their proximity to him at trial; (3) that the closing arguments
of the prosecutor at both the guilt and penalty phases were an
unconstitutional attempt to inflame the jury; (4) that the Georgia
Unified Appeal Procedure deprived Devier of the right to counsel;
(5) that Devier's right to a fair trial was violated by the trial
court's failure to provide funds for the employment of an
investigator and other expert witnesses; (6) that the "death
qualification" of the jury deprived Devier of a fair and impartial
jury; (7) that the "death qualification" of the jury deprived Devier
of a representative cross-section of the community; and (8) that
Devier was unconstitutionally prejudiced by the jury instructions at
the guilt phase of the trial.
In order to preserve an issue for collateral
review under Georgia law, a timely objection must be made at trial
and raised on appeal in accordance with Georgia procedural rules.
Such procedural default, however, shall be excused upon a showing of
cause for noncompliance with such a requirement and of actual
prejudice or to avoid a miscarriage of justice.
Absent a showing that the "cause and prejudice" standard has been
met, a federal court may not grant collateral relief to a state
habeas petitioner whose claims are nonreviewable in state court due
to procedural default.
Devier's only allegation of "cause" sufficient to
excuse the procedural default of these claims in state court is his
claim that his attorneys rendered ineffective assistance of counsel.
As noted above in section II.A., however, we found that Devier's
attorneys did not render ineffective assistance of counsel at
various episodes during the trial and therefore cannot further
conclude that their representation was pervasively deficient
throughout the trial. Accordingly, we conclude that Devier has not
established sufficient "cause" to excuse the procedural default of
C. Fourth Amendment
Devier claims that his rights under the Fourth
Amendment were violated because he was arrested under authority of a
warrant not supported by probable cause and that certain of his
statements admitted at trial were the fruits of this allegedly
improper arrest. These Fourth Amendment claims were given a full and
fair hearing in the state courts: they were raised initially to the
trial court in a motion to suppress and an appeal was taken to the
Georgia Supreme Court from the denial of this motion.
As a result, under the clear language of Stone v. Powell,
the district court did not err in holding that it lacked authority
to review these claims.
Devier urges that this doctrine does not apply to capital cases.
This court, however, has applied this doctrine to capital cases in
the past, and
we see nothing in the language or reasoning of Powell itself or the
Supreme Court's more recent pronouncements to support such a
D. Voluntariness of Confession
Devier next contends that certain incriminating
statements elicited by the police shortly after his arrest were the
result of an involuntary confession made in violation of due process.
In determining whether a particular confession was involuntary, we
must look to the "the totality of all the surrounding circumstances--both
the characteristics of the accused and the details of the
to determine whether a confession is the "product of an essentially
free and unconstrained choice by its maker" or whether the
defendant's "will has been overborne and his capacity for self-determination
Because the notion of voluntariness is "amphibian," there is no
predetermined formula to apply to the circumstances of a particular
case to assess whether or not a confession is involuntary; a court
must reach its own considered calculation of when the "forces [of
official coercion], under all the prevailing states of stress, are
powerful enough to draw forth a confession."
After a thorough and exhaustive examination of
the 600-page transcript of the Jackson v. Denno
hearing in this case, the Georgia Supreme Court found that Devier's
confession was voluntarily made.
This court is not bound by this prior determination because the "ultimate
question whether, under the totality of the circumstances, the
challenged confession was obtained in a manner compatible with the
requirements of the Constitution is a matter for independent federal
Findings by the state court concerning historical facts and
assessments of witness credibility are, however, entitled to the
same presumption accorded findings of fact under
28 U.S.C. Sec . 2254(d).
In addition, a federal habeas court is required to accord "great
weight to the considered conclusions of a coequal state judiciary."
The record in this case indicates that Devier was
first questioned about the Stoner murder on December 1, 1979 by
Special Agent Bob Leary of the Federal Bureau of Investigation and
two Bartow County Sheriff's deputies at Devier's mobile home in
Floyd County. The victim's body, to their knowledge, had not yet
been discovered. After identifying himself and the two deputies,
Leary told Devier that they were investigating the possible
kidnapping of Stoner, who had been reported missing the previous day,
that Devier was one of several people they intended to talk to, and
that they wanted to know where Devier had been the previous
afternoon. After replying that he could not remember his exact
whereabouts, Leary asked Devier whether it would help to remember if
he would accompany the officers and show them where he had gone
after getting off work the previous day. Leary testified at the
Jackson-Denno hearing that he told Devier that he was not under
arrest and that he was being asked to accompany the officers
voluntarily. According to Leary, Devier responded that he understood
and voluntarily went with them.
The group began to retrace Devier's various
movements during the previous day. While heading to a church at
which Devier recalled meeting a friend, a call came over the radio
advising the officers to go to the area where Mary Frances' body was
found. The group arrived at the scene, and the officers, leaving
Devier alone in the police car, walked down the road where the
victim's body was located. Another officer, who was guarding the
crime scene, stood near the police car in which Devier was sitting.
Although there was conflicting testimony as to whether Devier was
free to leave the car, the district court found that Devier made no
attempt to leave or indicate any desire to do so.
The officers then returned to the car and
continued their drive with Devier. After seeing a friend that Devier
claimed to have been with the previous afternoon, the group stopped
at a service station, and Leary and one of the deputies went out to
talk to the friend. There was also conflicting testimony as to
whether the officers would permit Devier to go to the bathroom. On
another occasion, however, Leary testified that they allowed Devier
to go into a store alone to buy some cigarettes.
Having traced the route that Devier indicated he
had taken the previous afternoon, the group drove to the Adairsville
police department. At the station, Leary gave Devier his Miranda
warnings, told him that his car had been identified as the one used
by the kidnapper, recounted that his friend had told the officers
that he had last seen Devier at 3:00 p.m. leaving a three and a half
hour gap unaccounted for, and accused Devier of having kidnapped and
murdered Stoner. Devier denied the accusations and made no
incriminating statements. Leary then asked Devier if he would
accompany him to Cartersville for further questioning.
Leary testified that he told Devier that he was
not under arrest or in custody and that if he went, it would be a
voluntary act on his part. Devier agreed to go on the ground that he
wanted to clear himself. They then went to the office of the Bartow
County Sheriff in Cartersville where Devier was given a polygraph
examination, which he alleges that he "passed." At approximately
6:00 p.m., Devier went home with his brother. Leary testified that
if Devier had at anytime said, "Okay, I want to go home," he would
have felt obligated to take him home because "[h]e wasn't under
On the next day, December 2, Georgia Bureau of
Investigation (GBI) Special Agent Vernon Keenan and Bartow County
Sheriff's Department Investigator Ray Sullivan visited Devier at his
home at approximately 10:30 a.m. Devier was advised of his Miranda
warnings and questioned briefly. At the Jackson-Denno hearing,
Devier testified that he freely and voluntarily spoke with these
officers because he wanted to help clear up this matter. Due to the
attention that Stoner's murder had attracted in Bartow County,
Devier was concerned that he might become the focus of this
community attention if he did not aid the investigation. Devier
consented to having some pictures taken of his car, and the officers
then left after spending about an hour at Devier's home.
Later that same afternoon, Devier and his family
gathered their laundry and drove to Rome. Shortly before 6:00 p.m.,
Devier was stopped by Officer Pearson of the Rome Police Department
pursuant to a lookout which had been placed on his automobile.
Officer Bill Hibberts, who was nearby, was also called to the scene.
Hibberts took Devier's driver's license and a pistol lying between
the front seat and informed Devier that Rome police investigators
wanted to talk to him. This officer testified that he was unaware
that other investigators had already spoken with Devier.
Devier testified that he asked the officer if he
was under arrest and the officer told him that he was not, but that
"if you know what's good for you, you'll follow me over there."
Hibberts testified that Devier agreed to follow him in his car to
the Rome police station for questioning. Hibberts led the way in his
car, followed by Devier, who was followed by the other officer in
Upon their arrival at the Rome police station,
Hibberts gave Devier's driver's license and pistol to another
officer. Devier was subsequently taken to an office, given his
Miranda warnings, and questioned. Several officers, including those
from the Bartow County police department and the GBI who had
previously talked to Devier, were summoned to the police station.
During the questioning, however, Devier made no incriminating
statements. Rome and Floyd County police officers continued to
question Devier until some time after midnight, when he was allowed
to return home. Devier was not questioned again until his arrest on
the afternoon of December 6.
The investigation continued in the interim, and
it was learned that six months previously, Devier had possibly
committed the rape of thirteen-year-old Linda Gail Elrod. The
investigating officers testified that they felt that there was
enough probable cause to support an arrest warrant for the Elrod
rape. Although they also believed that there was sufficient probable
cause to arrest Devier for the rape and murder of Stoner, they found
it to be a closer question and decided to arrest Devier for the
Devier was arrested at approximately 5:30 p.m. on
the premises of the Georgia Power Company in Rome and was taken to
the Floyd County police station in Rome. After being advised of his
Miranda warnings, Devier executed a written waiver of these rights
and was interrogated. He subsequently gave a taped confession.
During this interrogation, however, the district court found that a
number of police officers from Bartow County and the FBI, who had
been involved in the investigation, gathered at the police station.
Devier expressed fear of the Bartow County officers and of being
sent back to that county and asked the Floyd County interrogator not
to allow those officers into the interrogation room. The
interrogators also correctly told Devier that he would not be sent
back to Bartow County if it was determined that the crime had
occurred in Floyd County, but that if the crime had occurred in
Bartow County, he would be held in custody in that county. After
this discussion, Devier confessed to raping and murdering Stoner.
The district court further found that Devier was
transferred to the Floyd County Jail at approximately 7:30 p.m. that
evening. The Sheriff determined that Devier should be housed in the
single cell area of the jail for safety reasons because of the
nature of the crime that Devier was accused of and the attention
that the Stoner disappearance had received in the community. However,
that section of the jail was full at the time and, as a result,
Devier was transported to the Whitfield County Jail.
On the morning of December 7, it was discovered
that the tape recorder which the officers had used to record
Devier's confession had malfunctioned and that the tape was largely
inaudible. As a consequence, Devier was transported to the FBI
office in Rome and was advised that he would have to repeat his
previous statement. He was again advised of his Miranda warnings,
executed a waiver, and repeated the same confession. While making
this second statement, Devier told the officers that he had not
slept well and had not eaten anything since his arrest because he
was upset about being in jail. However, the district court found
that all the officers, who observed Devier on December 7 making this
second statement, "indicated that he appeared alert, responsive to
questions, conscious of what was going on, and never asked that the
interview be stopped."
After examining the opinions of both the Georgia
Supreme Court and the district court on this issue and the
transcript of the Jackson-Denno hearing, we agree that the
confessions elicited from Devier on December 6 and 7 were
voluntarily made and did not offend due process. The events of both
December 1 and the morning of December 2 when law enforcement
officials questioned Devier at his home were constitutionally
innocuous. Most significantly, Devier did not make any inculpatory
statements after these two interviews, but rather reaffirmed his
innocence throughout these interrogations. Nor do we find that the
police questioning of Devier during these two encounters was so
psychologically coercive as to taint any later confession.
The record amply shows that Devier voluntarily
cooperated with the investigating officers in retracing his
movements of November 30 and was told by Special Agent Leary that he
was not under arrest or considered to be in custody. In addition,
Devier testified that he voluntarily went with the officers to
continue the questioning at police stations in Adairsville and
Cartersville so that he could clear himself. As the district court
noted, there is not one iota of evidence in the record which
suggests that Devier was subjected to any form of physical or
psychological compulsion on December 1. Nor do we find the brief
interrogation at Devier's home on the morning of December 2 to be
constitutionally problematic. Devier himself testified that he
freely and voluntarily spoke with these officers, and he raises no
allegation that the officers were coercive in any manner.
The Georgia Supreme Court found, however, that
Devier was "seized" during his six-hour detention at the Rome police
station on the evening of December 2 for fourth amendment purposes
and that the length of this seizure exceeded that permissible under
a Terry stop.
Regardless of whether or not we adopt this conclusion, this alleged
illegal detention does not require the suppression of Devier's
confession because no incriminating statements were elicited after
this particular interrogation.
Devier further argues, however, that the
psychological coercion he experienced during the interrogation on
the evening of December 2 tainted his eventual confession on
December 7. We find this argument to be baseless. Devier does not
allege, and the record does not support any finding, that he
suffered any form of illegal coercion during this interrogation.
More importantly, assuming that Devier did suffer some form of
unconstitutional compulsion, the time lapse between his detention on
the evening of December 2 and his eventual arrest four days later on
December 6 is sufficient to remove any illegal taint from his
As the Supreme Court has noted, "the temporal
proximity of the arrest and the confession, the presence of
intervening circumstances, and particularly, the purpose and
flagrancy of the official misconduct" are all relevant
considerations in determining whether a confession is the fruit of
an illegal detention.
The record in this case shows that Devier was able to return home
after his interrogation and resume his normal daily activities,
including returning to work. In those four days, Devier had access
to the aid and comfort of friends and family, time to contemplate
his situation, and more than ample opportunity to enlist legal
assistance. Under these circumstances, we must conclude that any
taint from his detention on December 2 had been completely
attenuated by the time of his eventual confession four days later.
Although Devier had little or no contact with the
police between the evening of December 2 and the afternoon of
December 6, he contends that the ongoing police investigation was
part of a campaign of police coercion to overbear his will. We also
find this claim to be meritless. During this period, the record
shows that the police were actively investigating Devier as a
possible suspect by interviewing his co-workers and investigating
his alibis. The mere fact that Devier was uncomfortable or agitated
while under the close scrutiny of the police does not render their
conduct unconstitutionally coercive. It is no doubt true that being
the target of an intense police investigation is bound to create
some angst in the subject. Absent some showing that the police
actively attempted to harass Devier, however, we cannot conclude
that a reasonable and rather routine police investigation violates
the strictures of due process.
Lastly, we also find that the execution of
Devier's arrest on the afternoon of December 6 and his subsequent
interrogation by police which elicited his first taped confession
was not unconstitutionally coercive. The district court found, and
the record clearly supports, that Devier was properly informed of
his Miranda rights, waived those rights, and voluntarily agreed to
talk with police about the murder of Stoner. Nor do we find any
support in the record for Devier's claim that his confession was
coerced from him due to the threat of mob violence.
Although a crowd of approximately thirty people
gathered at the Floyd County police department during Devier's
interrogation, the record clearly shows that this group was composed
mostly of uniformed police officers and members of the press who had
heard rumors of an arrest. The arresting officers also testified
that this group was neither loud, unruly, or gripped by a lynch-mob-like
mentality. Instead, this crowd milled about the station in a
businesslike manner and broke off into several different groups,
rather than congregating in one pack. On these facts, we can hardly
find that "the culminating threat of mob violence" created such fear
in Devier that he immediately produced a confession.
We also do not believe that Devier's statement to
the arresting officers that he wanted to keep the Bartow County
police officers out of the interrogation room indicates that he was
terrorized by the threat of mob violence. The district court found
that "[b]ecause of his prior run-in with the Bartow County police
officers [on the evening of December 2], Devier stated that he did
not trust the Bartow police and did not want them in the room."
There is no suggestion in the record, however, that the
interrogating officers used the threat of allowing the Bartow County
police officers or the crowd outside into the room as a coercive
tool to force Devier into confessing.
Rather, the interrogating officers simply assured
Devier that these individuals would not be allowed into the room. As
the district court noted, "[a]ny fear or distrust [Devier] may have
had of the situation was the product of his own mind, and [was] not
taken advantage of in an unconstitutional manner." Given the
totality of the circumstances faced by Devier on December 6, we hold
that his confession was voluntary and elicited in accordance with
the demands of due process.
Because there was no illegal taint from Devier's
December 6 confession, we find that his confession of December 7,
which was actually admitted into trial, did not violate due process.
At this interrogation in which a second taped confession was made,
Devier was given his Miranda warnings again, executed a waiver, and
proceeded to repeat his confession of the prior day. There is no
evidence in the record that Devier was physically threatened or
otherwise coerced into giving this second confession. At the Jackson-Denno
hearing, however, Devier testified that jail had "messed with his
mind" and that he had not slept well the previous night. There is no
allegation, however, that Devier's sleeplessness was the result of
affirmative action by the police, rather than the mere discomfort of
spending a first night in jail.
The district court specifically found that Devier
"did not appear to be confused, irrational, or incoherent" to the
interrogating officers and, in fact, was "alert, aware of what was
happening to him, and voluntarily agreed to cooperate." Examining
the totality of circumstances in light of these factual findings, we
conclude that Devier's incriminating statements were voluntarily
made and elicited in a manner consistent with constitutional
Change of Venue
The constitutional guarantee of a fair trial
requires that a criminal defendant must be tried by a panel of
impartial and indifferent jurors.
When pretrial publicity has so prejudiced the community atmosphere
surrounding a trial that an impartial jury cannot be seated, due
process requires that a trial court must grant a defendant's motion
for a change of venue.
Although two different standards have evolved to determine whether a
trial was so infected by pretrial publicity as to be fundamentally
contends only that constitutional prejudice can be "presumed" from
the degree and quality of pretrial publicity surrounding his case.
Under this test, "prejudice is presumed from pretrial publicity when
(1) pretrial publicity is sufficiently prejudicial and inflammatory,
and (2) the prejudicial pretrial publicity saturated the community
where the trials were held."
As the Supreme Court has noted, cases in which a conviction is
overturned on the grounds of presumed prejudice are "relatively rare."
The district court found that Devier's trial was
the subject of extensive newspaper, radio, and television coverage
from the time of his second conviction in March, 1982, the
subsequent reversal of this conviction by the Georgia Supreme Court
which required the restructuring of the grand jury pool in Floyd
County, and his retrial in November, 1983. For example, during this
period, the local newspaper, the Rome News Tribune, carried some 130
news articles and editorials about the ongoing criminal proceedings.
In addition, the extent of the publicity in the community is borne
out by an examination of the voir dire of the prospective jurors. Of
the 76 prospective jurors who were asked whether they had learned of
the case from the media, 71 responded that they had at least heard
of the case. As a result, the district court found that Devier had
carried his burden under the second prong of the "presumed prejudice"
test that Floyd County was saturated with coverage about his ongoing
Mere publicity about a case, however, is
insufficient to void a conviction.
Indeed, in a free society with the capability for "swift, widespread,
and diverse methods of communication," it should not be surprising
that informed citizens will have learned of a noteworthy case in the
community and even formed some impression as to the merits.
The publicity surrounding the disappearance and murder of a young
child is bound to be fanned by widespread media coverage. We agree
with the district court's conclusion that although the publicity
surrounding Devier's trial was widespread, the vast majority of the
media coverage was simply factual reporting and was neither "invidious
] A review of the media reports of the trial presented to the
district court indicates that Devier failed to establish that "the
populace from which his jury was drawn was widely infected by a
prejudice apart from mere familiarity with the case."
The district court found, and we agree, that most
of the reporting of Devier's trial, with the exception of a few
letters to the editor and editorials dealing with the Georgia's
Supreme Court decision to reformulate the grand jury pool, was
essentially factual and was not directed at arousing or inciting the
passion of the community. A large proportion of the publicity was
also not specifically directed at the facts of his case, but at the
subsequent reconstruction of the grand jury system in Floyd County
resulting from the Georgia Supreme Court's ruling on Devier's
appeal. In addition, many of the newspaper articles presented as
exhibits to the district court dealt with Devier's first trial in
1982 and are remote in time from Devier's retrial in November 1983.
Thus, any inflammatory publicity resulting from news coverage of his
1982 trial would have dissipated by the time of his third trial a
year and a half later.
Nor do we believe that constitutional prejudice
can be presumed by an examination of the voir dire of the
prospective jurors. The record shows that the trial court allowed
for sequestration and individual voir dire of the jury panel. Of the
76 jurors in the panel, 16 were excused for cause for reasons
related to publicity because they conceded that they had already
formed an opinion as to Devier's guilt or innocence that they could
not set aside. Six jurors were excused for unrelated reasons of
personal hardship. Of the 54 other jurors, 32 stated that they had
heard of Devier's prior conviction. Eleven of the remaining 22
jurors had some knowledge of the case, but not necessarily that
Devier had been previously tried and convicted. Five jurors stated
that they had no prior knowledge of the case before coming to court.
Although it is certainly true that a large
proportion of the jurors had some knowledge of the crime, we cannot
say that the voir dire raises an inference that pretrial publicity
so infected Devier's trial as to deny him a fair trial.
As the Supreme Court has noted, "the mere existence of any
preconceived notion [by a juror] as to the guilt or innocence,
without more" is insufficient to establish a claim of prejudicial
Viewing the totality of the circumstances, we conclude that because
Devier did not suffer any prejudice from pretrial publicity, the
trial court did not err in failing to grant his motion for a change
F. Jury Instructions at
After hearing oral argument, we remanded this
case to the district court for the limited purpose of determining
whether the jury charge at the sentencing phase vested the jury with
unbridled discretion to impose the death penalty. The Georgia
Supreme Court, sua sponte, had earlier "express[ed its] disapproval"
of these instructions, but found, that the charge as a whole "clarified
the extent of the jury's discretion regarding the imposition of the
Adopting essentially the same reasoning, the district court also
upheld these instructions.
At the close of the sentencing phase, the trial
court instructed the jury that "[t]he law vests in the jury the
exclusive right to either make or withhold a recommendation for the
death penalty.... The sentences to be imposed in this case are
entirely within your discretion." Devier contends that this portion
of the charge failed to suitably channel the jury's discretion in
determining Devier's fate at sentencing so as to minimize the risk
of an arbitrary and capricious decision.
In reviewing a challenge to a trial court's jury
instructions, a court must first focus on how a reasonable juror
would understand the specific language challenged. If the specific
charge is found to be unconstitutional, then the instructions, as a
whole, must be examined to determine whether the entire charge
reflected a correct statement of the law.
We agree with both the district court and Georgia Supreme Court that
although the challenged language, viewed in isolation, is
constitutionally problematic, the charge as a whole accurately
reflected the law in instructing the jury as to its responsibilities.
At the outset of his instructions,
the trial court charged the jury that "[t]he law of Georgia provides
that the death penalty may be imposed in certain cases provided the
jury finds beyond a reasonable doubt that the offense for which the
accused was convicted was committed under circumstances which the
law describes as statutory aggravating circumstances."
The trial court instructed on the
specific statutory aggravating factors sought by the state as to the
offenses of murder and rape. The jury was then told that "[i]f you
find and believe, beyond a reasonable doubt, that the offense of
murder was committed under one or more of the statutory aggravating
circumstances as contended by the State, you may recommend that this
defendant be put to death." The jury was instructed as to the form
of the verdict for a sentence of death or life imprisonment for the
offense of murder and the form of the verdict for a sentence of
death, life imprisonment, or a lesser punishment for the offense of
The trial court next advised the jury that "mitigating
circumstances are those circumstances which in fairness and mercy
shall be considered by you in fixing the punishment." The jury was
charged that they were "authorized and directed to consider as a
mitigating factor any aspect of the defendant's character or record
and any of the circumstances of the offense that the defense offers
as a basis for a sentence less than death." The trial court's next
set of instructions included that portion now being challenged by
As to each of the counts, Ladies
and Gentlemen, I charge you that even if you should find beyond a
reasonable doubt that the State has proved the existence of a
statutory aggravating circumstance or circumstances which would
justify the imposition of a death sentence, you are not required to
recommend that the accused [sic] to put to death, and this is so
even though you find that no mitigating circumstances were shown.
Even though you may be authorized to recommend the death penalty,
you are not required to do so. The law vests in the jury the
exclusive right to either make or withhold a recommendation for the
The sentences to be imposed in this case are
entirely within your discretion, and you may provide for a life
sentence for murder for this accused or a life sentence or less for
rape for this accused for any reason that is satisfactory to you or
without any reason, if you care to do so.
Of course, as to each of the counts; that is,
Count I and Count II, if the State has failed to prove beyond a
reasonable doubt that the offense charged was committed under one or
more of the statutory aggravating circumstances, as contended by the
State, and described to you by the Court, you would not be
authorized to recommend the death penalty. Without such a finding,
the death penalty cannot be imposed.
The trial court then instructed the jury as to
the form of the verdict if it decided to recommend life imprisonment
for the murder charge and life imprisonment or a lesser punishment
for the rape charge. The trial court concluded by charging the jury
that it must state, in writing, those statutory aggravating
circumstances it found beyond a reasonable doubt, if it recommended
a sentence of death. Prior to reiterating the aggravating factors
for the offenses of murder and rape, the trial court gave the
following statement that Devier also challenges: "I instruct you
that if you see fit to do, and this is left entirely up to you, you
may consider the following enumerated statutory aggravating
Although we are also disturbed by
some of the trial court's exact language, we do not believe that a
reasonable juror, after hearing the entire charge, would interpret
these instructions as giving him unbridled discretion in the
decision whether to recommend a sentence of death. The jury was told
that in order to recommend a sentence of death, they must first find
that a statutory aggravating factor had been established.
The trial court specifically
instructed, however, that even if it found the existence of one or
more statutory aggravating circumstances, they need not recommend a
death sentence, despite the fact that no mitigating circumstances
were shown. While the challenged portions of the instruction, viewed
in isolation, may seem to give the jury free rein in its sentencing
decision, the instructions as a whole required the jury to focus its
deliberations on the circumstances of the crime and Devier's
character and provided specific and detailed guidance as to whether
or not to impose the death penalty.
G. Admission of Unadjudicated Crime as
Nonstatutory Aggravating Factor
The final issue in this appeal is whether the
presentation of evidence of an unadjudicated criminal offense
allegedly committed by Devier violated the Eighth Amendment.
At the sentencing hearing in this case, Linda Elrod testified that
approximately six months prior to the murder of Stoner, Devier raped
her in the back seat of his car while parked on a dirt road. At the
time of this alleged crime, Elrod was thirteen years old. Devier
argues that evidence of an unadjudicated crime is inherently
unreliable and thus inadmissible under the Eighth Amendment.
He also argues that, even if such evidence can
constitutionally be admitted at the sentencing hearing, absent
instructions as to the standard of proof by which the State must
establish its asserted nonstatutory aggravating circumstances, the
jury's consideration of such evidence when making its final
sentencing determination violates the Eighth Amendment. No such
instructions were requested or given in this case.
Devier's first argument is
foreclosed by the opinion of the en banc court in Tucker v. Kemp.
In that case, we wrote that
[o]ne class of information which is particularly
relevant to the sentencing decision is the defendant's previous
criminal activity. In addition to previous convictions, it is
acceptable to consider evidence of crimes for which a defendant has
been indicted but not convicted. Activities for which there has been
no charge filed can be considered as well. In general, the relevant
inquiry for information at sentencing is whether it is reliable.
Elrod's testimony in this case was sufficiently
reliable to be admitted in evidence. Although corroboration of a
victim's testimony is necessary to prove statutory rape under
the alleged unadjudicated crime in this case was not merely
statutory rape, but forcible rape. Elrod testified that Devier
grabbed her by the throat, threw her head against the car window,
made her get into the backseat of the car and remove her clothes,
and had sexual intercourse with her without her consent. That Elrod
was under the age of fourteen at the time does not necessarily mean
that statutory rape is the relevant offense; a person may be guilty
of forcibly raping a thirteen-year-old girl. Corroboration of the
victim's testimony is not necessary in Georgia for a conviction of
Hence, the fact that the Elrod testimony was
uncorroborated does not mean it was unreliable. To the contrary, the
Georgia Supreme Court explicitly held in the direct appeal of this
case that "the prior rape was proved" by Elrod's testimony.
Thus, the admission of the Elrod testimony did not violate Devier's
Eighth Amendment rights.
Devier's second argument--that the
jury should have been instructed as to the standard by which the
State had to prove the alleged Elrod rape before it could consider
the incident as a nonstatutory aggravating circumstance--also is
unavailing. In Henderson v. Kibbe,
the Supreme Court explained that
[o]rderly procedure requires that respective
adversaries' views as to how the jury should be instructed be
presented to the trial judge in time to enable him to deliver an
accurate charge and to minimize the risk of committing reversible
error. It is the rare case in which an improper instruction will
justify reversal of a criminal conviction when no objection has been
made in the trial court.
Hence, the Court held that
[t]he burden of demonstrating that an erroneous
instruction was so prejudicial that it will support a collateral
attack on the constitutional validity of a state court's judgment is
even greater than the showing required to establish plain error on
direct appeal. The question in such a collateral proceeding is "whether
the ailing instruction by itself so infected the entire trial that
the resulting conviction violates due process," not merely whether "the
instruction is undesirable, erroneous, or even 'universally
The petitioner's burden is "especially heavy"
when his claim is based on an omission or an incomplete instruction,
rather than an erroneous instruction.
Such an error is less likely to be prejudicial than an affirmative
misstatement of the law.
In Adams v. Wainwright,
this circuit applied Henderson to a challenge to the instructions at
the sentencing phase of a capital trial. The sentencing instructions
in Adams listed several potential statutory aggravating factors for
the jury to consider. Among them was the assertion that the killing
had occurred during the commission of, or an attempt to commit, rape
or kidnapping. The trial court, however, did not define the elements
of those predicate felonies.
Citing Henderson, the Adams court
held that the incomplete jury instruction did not so infect the
entire sentencing proceeding that the penalty ultimately imposed
violated the petitioner's due process rights.
The court stressed that "[a]n incomplete instruction is less likely
to prejudice the defendant than one which is substantively incorrect."
Moreover, the court held, "a claim of prejudice is particularly
remote where the defendant did not object to the instruction's lack
of completeness when the opportunity arose."
In view of these circumstances, as
well as the fact that the evidence supported the finding that the
murder occurred during the commission of, or attempt to commit, rape
and kidnapping, the court held that habeas relief was unwarranted.
Like the petitioner in Adams, Devier failed to
object at sentencing to the lack of a standard of proof instruction.
Indeed, he did not question the absence of the standard of proof
instruction until he filed his state postconviction petition.
Furthermore, he claims that the trial court improperly omitted an
instruction, rather than gave an affirmatively erroneous one. Under
Georgia law, once the State proves the existence of one statutory
aggravating circumstance the jury may consider "[a]ny lawful
evidence which tends to show the motive of the defendant, his lack
of remorse, his general moral character, and his predisposition to
commit other crimes."
Elrod's testimony was constitutionally reliable
and relevant as a nonstatutory aggravating circumstance. The defense
cross-examined Elrod and offered impeaching evidence and evidence in
mitigation of punishment. The jury found that the State established
several statutory aggravating circumstances, including that the
murder was outrageously or wantonly vile, horrible, or inhuman, and
that it was committed while Devier was engaged in the commission of
rape, kidnapping with bodily injury, and aggravated battery. Under
the totality of these circumstances, we do not find this case
meaningfully distinguishable from Adams. Accordingly, we reverse the
district court's grant of habeas relief as to sentencing.
For the foregoing reasons, the
order of the district court upholding Devier's convictions and
directing that he be resentenced is AFFIRMED in part and REVERSED in
KRAVITCH, Circuit Judge,
concurring specially, in which CLARK, Senior Circuit Judge, joins:
Because I believe that this case is controlled by
the principles announced in Henderson and applied in Adams--largely
because Devier never requested an instruction on the standard of
proof with respect to the alleged Elrod rape--I join the per curiam
opinion in its entirety. I write separately, however, to state my
concern about the reliability of death sentences based in part on
evidence of unadjudicated crimes absent guidance to the jury on how
to consider that evidence.
The mere fact that evidence of the defendant's
alleged unadjudicated criminal activity is sufficiently reliable to
be admitted in evidence at a capital sentencing hearing does not
mean that the jury's sentence based on that evidence necessarily is
constitutionally reliable. The basic requirements of reliability and
fundamental fairness extend to the entire sentencing process. See,
e.g., Woodson v. North Carolina,
428 U.S. 280 , 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)
("Because of [the qualitative difference between the death penalty
and a sentence of imprisonment], there is a corresponding difference
in the need for reliability in the determination that death is the
appropriate punishment in a specific case."). The crucial Eighth
Amendment question is whether the ultimate sentencing decision is
reliable, not whether the admission of certain evidence is reliable.
Assertions by the State at a
capital sentencing hearing that the defendant committed crimes for
which he has not been convicted are inherently suspect. As the Fifth
Circuit has explained, "there remains a long-held reservation about
the use of wrongdoing not then being tried. These concerns express
our acceptance that a jury suffers the human weakness of blending
wrongs--a result inconsistent with our fundamental commitment to
charge specificity, jeopardy and due process." Milton v. Procunier,
744 F.2d 1091, 1097 (5th Cir.1984), cert. denied,
471 U.S. 1030 , 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985).
On the other hand, the State has an important
interest in presenting to the sentencing jury all relevant evidence
regarding the defendant's character. Once the State establishes at
least one statutory aggravating circumstance, the jury
constitutionally may consider any conduct that reflects upon the
defendant's character. See Zant v. Stephens, 462 U.S. 862, 878, 103
S.Ct. 2733, 2743, 77 L.Ed.2d 235 (1983).
The defendant's prior criminal activity is one
example of such conduct. The courts, therefore, generally should
give effect to the State's legitimate interest in informing the jury
about the defendant's prior criminal conduct without infringing on
the defendant's right to a reliable and fundamentally fair
The American justice system typically balances
these competing concerns by requiring the State to present evidence
sufficient to satisfy an applicable standard of proof and the court
to properly instruct the jury as to that standard. See, e.g.,
Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61
L.Ed.2d 39 (1979) (holding that jury must be instructed to find each
element of the crime under the proper standard of proof).
The function of a standard of proof, as that
concept is embodied in the Due Process Clause and in the realm of
factfinding, is to "instruct the factfinder concerning the degree of
confidence our society thinks he should have in the correctness of
factual conclusions for a particular type of adjudication." The
standard serves to allocate the risk of error between the litigants
and to indicate the relative importance attached to the ultimate
Addington v. Texas, 441 U.S. 418,
423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979) (quoting In re
Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368
(1970) (Harlan, J., concurring)).
Just as it is necessary to instruct the jury as
to the standard by which the State must prove the elements of the
primary crime in order to guarantee a fundamentally fair guilt-innocence
proceeding, so too the jury must be instructed as to the standard by
which the State must prove unadjudicated criminal conduct to be used
as a nonstatutory aggravating circumstance in order to guarantee a
fundamentally fair sentencing proceeding.
Without a proper instruction as to the
sufficiency of proof for nonstatutory aggravating circumstances, the
jury may include in its life or death equation factors which in fact
may be supported by an unreliably small quantum of evidence.
Requiring a proper instruction, on the other hand, in no way
interferes with the State's countervailing interest in presenting
relevant evidence of the defendant's character.
The lone federal court of appeals squarely to
address the admissibility of unadjudicated-crimes evidence at the
sentencing phase of a capital trial has acknowledged these
principles. In Milton v. Procunier the Fifth Circuit justified its
admission of unadjudicated-crimes evidence by stressing that the
defendant is protected by devices other than the automatic exclusion
of potentially relevant character evidence--"by properly applied
standards of relevance and sufficiency of proof." 744 F.2d at 1097 (emphasis
Indeed, several states expressly require that the
State prove extraneous criminal conduct at the sentencing phase of a
capital trial by at least clear and convincing evidence. See, e.g.,
People v. Balderas, 41 Cal.3d 144, 222 Cal.Rptr. 184, 711 P.2d 480,
515-16 (1985) (beyond a reasonable doubt); State v. Brooks, 541
So.2d 801, 814 (La.1989) (clear and convincing evidence).
Henderson and Adams do not apply with the same
force when a capital defendant requests a standard of proof
instruction regarding unadjudicated crimes evidence introduced at
sentencing. In that circumstance, redress for a habeas petitioner is
much more readily available. Upon request by defense counsel,
therefore, the trial judge in capital cases should instruct the
sentencing jury as to the standard by which the State must prove the
defendant committed the crime. Failure to provide such an
instruction would impermissibly impinge on the defendant's right to
a reliable and fundamentally fair sentencing determination.
We also find that the instructions did not
overemphasize the presentation of the aggravating factors at the
expense of informing the jury of the importance of the mitigating
factors or that any other factor in the full context of the
sentencing instructions and the proceedings would lead the jury to
misinterpret the trial court's charge. See Burden v. Zant, 903 F.2d
1352, 1367 (11th Cir.1990), rev'd on other grounds, 498 U.S. 433,
111 S.Ct. 862, 112 L.Ed.2d 962 (1991); Williams, 846 F.2d at
1284-85, Peek, 784 F.2d at 1486. Indeed, some of the language
challenged on this appeal is virtually identical to that which was
implicitly upheld in Burden. See 903 F.2d at 1367 n. 10.