Darrel Devier

Parties and identity

Darrel Gene Devier was the defendant.

Background

Mary Frances Stoner was twelve years old. She lived with her parents in rural Bartow County and attended Adairsville High School.

Darrel Gene Devier was employed as a tree-trimmer by a company that, in November 1979, sent a crew to prune trees near the Stoner residence, near the Georgia Power right-of-way. The job took several days. During that period, Devier said to a fellow crew-member that he would like to have sex with the Stoner girl, and he was heard to observe, "It's time for the good-looking girl to get home from school."

The offence

On Friday, November 30, 1979, the crew completed its work at noon and received the remainder of the day off. Shortly before 4:00 p.m., 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.

The Ford Pinto and its driver were also observed by several students on the school bus that 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, and observed a dark-colored Pinto with mag wheels backing out of the Stoner driveway. It had two people in it.

Mary Frances Stoner’s body 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 head injuries, fresh tears and bruises were observed in the vaginal area. Inside her vagina, a large amount of blood-tinged fluid material was discovered. The material was later examined by a serologist from the state crime lab, who testified that it contained spermatozoa. Doctor 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 owned a black Pinto with mag wheels and matched the description of long hair and a beard given to witnesses.

In Devier’s statement to interrogating officers, he said that he was 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 to ask her for 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 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 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." When he saw that, he "just got down and started choking her." Then he left.

Investigation

The body of Mary Frances Stoner was found the next day in Floyd County near the Floyd-Bartow county line. The largest of several blood-stained rocks nearby weighed 49 pounds.

The autopsy was conducted by Doctor Harvey Howell, who testified about tears and bruises in the vaginal area, blood-tinged fluid inside the vagina containing spermatozoa, and that death occurred soon afterwards due to severe brain injury and asphyxiation by choking.

The serologist from the state crime lab testified that the blood-tinged fluid material contained spermatozoa.

Arrest

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 that was transcribed and admitted in evidence at trial.

Trial

Devier’s jury deliberations and selection are described in the appellate record. The voir dire examination lasted three days and filled over 800 pages of transcript.

The case involved a Georgia death penalty prosecution. The procedural history described in the appellate decision included multiple appearances and retrials: after conviction in Floyd County for rape and murder and a death sentence, the Georgia Supreme Court reversed for meritorious challenge to the array of the grand jury; after reindictment, Devier was retried, convicted, and sentenced to death; he then appealed.

Jury voir dire and jury selection

In the voir dire and jury selection described on appeal, 64 veniremen underwent voir dire. Twenty-two were excused for cause, leaving a qualified panel of 42 from which the 12 trial jurors were selected. Devier was entitled to 20 peremptory strikes; the state had ten. Twelve additional veniremen were qualified to allow the selection of three alternate jurors. Devier was entitled to six peremptory strikes for alternates; the state had three. During selection of the trial jurors, Devier used 14 of his allotted 20 peremptory strikes, and the state used all of its allotted strikes. Alternate jurors were selected from the alternate jury panel, with both parties using all of their alternate strikes.

The appellate discussion noted that alternate jurors did not participate in jury deliberations because none of the trial jurors became incapacitated.

The appellate decision addressed a contention about challenges for cause, discussing several categories of prospective jurors including those excused for other reasons, those in the alternate jury panel, and one potential alternate juror who was selected as an alternate and associated with other jurors during trial but did not participate in deliberations.

The appellate decision found that none of the prospective jurors was disqualified.

Change of venue

Devier supported his motion for change of venue with copies of newspaper articles and transcripts of radio broadcasts by three local radio stations. The trial court reserved a ruling until after jury voir dire. After jurors had been examined, the trial court noted that 76 prospective jurors were examined and that 16 (21%) were excused for publicity-related cause. The trial court stated it was convinced the atmosphere in the county was such that the defendant could get a fair trial in the county. The motion was denied.

Suppression and admissibility issues

The appellate decision addressed challenges to the constitutionality of Georgia’s arrest law, concluding the trial court did not err by overruling Devier’s constitutional challenge to Georgia’s arrest law.

The appellate decision also addressed the admissibility of polygraph results, concluding that without express stipulation by both parties that those results would be admissible, the trial court did not err by ruling they were inadmissible.

The appellate decision addressed the admissibility of statements made during custodial interrogation in the context of a Jackson-Denno hearing and Fourth Amendment issues involving alleged detention on December 1 and December 2, 1979, and statements given on December 6 and December 7.

The appellate decision described that Devier had first contact with law enforcement on late in the morning of December 1, 1979 and that he was advised he was not under arrest and that he voluntarily accompanied officers. It described movements to retrace Devier’s route, a visit to a field road near which the victim’s body had been found, stops including a service station and a store, and then transport to the Adairsville police department. It described Miranda advisements and that Devier was advised his car had been identified as the one the kidnapper had driven, with questions about a gap in time. It described that on that date Devier denied the accusation, and he agreed to go with an agent to Cartersville for further questioning. It described a polygraph examination at the Bartow County sheriff’s office in Cartersville and that Devier went home with his brother around 6:00 p.m.

The appellate decision described that on December 2, 1979, GBI agent Vernon Keenan and Bartow County sheriff’s investigator Ray Sullivan visited Devier at his home at approximately 10:30 a.m., advised him of Miranda rights, questioned him briefly, took pictures of his automobile, and left. It described that Devier and his wife gathered their laundry and drove to Rome. Shortly before 6:00 p.m., Devier was stopped by a Rome police officer pursuant to a lookout, and another officer took his driver’s license and a pistol lying between the front seats. It described that Devier was informed that Rome police investigators wanted to talk to him, that Devier agreed to follow to the Rome police station, that upon arrival his license and pistol were given to another officer, that Miranda rights were administered and he was questioned, and that he was allowed to go home after midnight.

The appellate decision described that between those events and Devier’s formal arrest on December 6, investigation continued, including learning about an alleged prior rape involving Linda Gail Elrod. It described that officers believed there was sufficient probable cause to support an arrest warrant for the Elrod rape, and that Devier was arrested at approximately 5:30 p.m. on the premises of the Georgia Power Company in Rome. It described taking Devier to the Floyd County police station in Rome, advising him of Miranda rights, that he waived them, that he confessed, that the confession was taped but the tape was largely inaudible, and that the confession was repeated successfully transcribed the next day.

The appellate decision described the legal analysis regarding whether Devier was seized on December 1 and December 2 for Fourth Amendment purposes. It found that Devier was not in custody on December 1, that he was not seized on the morning of December 2, but that he was seized within the meaning of the Fourth Amendment on the evening of December 2 and that the length of seizure exceeded permissible Terry-type investigative detention. It concluded that the confession itself was not suppressed because no statements were obtained on December 2 and any taint from illegalities did not require suppression of post-arrest statements given later after a lawful arrest.

Evidence of prior rape at sentencing

The appellate decision addressed sentencing-phase testimony by Linda Gail Elrod. It recorded that Ms. Elrod testified that on June 2, 1979, she had been raped by Devier. It recorded that she explained she had known him for many years and that Devier had lived in her home for a period of time. It recorded that she testified that on the day in question she and Devier left her house in his car to go smoke some marijuana, that they got into an argument, and that he asked her if he did not owe her "some licks from yesterday." It recorded her testimony that he grabbed her, threw her into the back seat, and made her undress, and that she testified that they had "sexual intercourse" without her consent.

The appellate decision addressed Devier’s argument that this testimony was inadmissible in aggravation because it was not offered to prove a statutory aggravating circumstance; because it was a separate, independent crime not part of the transaction on trial; and because Devier had never been convicted. The appellate decision concluded there was no statutory or constitutional bar to the procedure, stating the prior rape was proved by the testimony of the victim.

Sentencing

The appellate decision described that the jury found statutory aggravating circumstances for each count and imposed the death penalty on each count.

Count 1 (murder)

For 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 (b) (7)).

Count 2 (rape)

For Count 2 (rape), the jury found as statutory aggravating circumstances:

• that the rape was committed while the offender was in the commission of kidnapping 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 appellate decision stated the death penalty was imposed on each count.

The appellate decision also addressed jury instructions on mitigating circumstances, including the court’s charge that:

"Mitigating circumstances are those circumstances which in fairness and mercy shall be considered by you in fixing punishment."
and that the jury was authorized and directed to consider any aspect of the defendant’s character or record and any circumstances of the offense that the defense offered as a basis for a sentence less than death.

It included the court’s charge:

"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 appellate decision noted its disapproval of the instruction phrase "The sentences to be imposed in this case are entirely within your discretion" but concluded there was no reversible error because the charge as a whole clarified the extent of the jury’s discretion.

Appeals

Georgia Supreme Court review

The appellate decision titled "DEVIER v. THE STATE" included procedural history describing this as the third appearance of the death penalty case. It stated that on interlocutory appeal, the Georgia Supreme Court affirmed denial of Devier’s challenge to the constitutionality of a statute establishing the present Floyd-Bartow county line and the ruling on a motion to suppress, citing Devier v. State, 247 Ga. 635 (277 SE2d 729) (1981). It described that Devier was subsequently convicted in Floyd County of rape and murder and sentenced to death, and that the Georgia Supreme Court reversed due to meritorious challenge to the grand jury array, citing Devier v. State, 250 Ga. 652 (300 SE2d 490) (1983). After reindictment, Devier was retried, convicted, and sentenced to death, and he appealed.

The appellate decision included discussion of:

• voir dire restrictions and challenges for cause;
• denial of change of venue;
• constitutional challenge to Georgia’s arrest law;
• inadmissibility of polygraph results absent stipulation;
• Fourth Amendment and Jackson-Denno voluntariness issues relating to statements on December 1, December 2, December 6, and December 7;
• sentencing-phase jury instructions on mitigating circumstances and aggravating circumstances;
• admissibility and use of Linda Gail Elrod’s testimony at sentencing;
• the jury’s statutory aggravating circumstances for murder and rape.

The appellate decision concluded that the sentences of death were not imposed under the influence of passion, prejudice, or any other arbitrary factor, and were neither excessive nor disproportionate.

It stated:

• decided November 29, 1984; rehearing denied December 12, 1984.

U.S. Supreme Court and federal habeas litigation

A U.S. Supreme Court summary in the later federal proceedings described that the United States Supreme Court had denied Devier’s petition for a writ of certiorari after the Georgia Supreme Court affirmed the convictions and sentence on direct appeal.

The federal court proceedings described a habeas petition under 28 U.S.C. § 2254 challenging Devier’s convictions and sentence of death in Georgia state court for the murder and rape of Mary Frances Stoner.

The federal court decision described that the district court had granted the petition on grounds that Devier was unconstitutionally prejudiced by introduction at sentencing of testimony concerning an unrelated prior criminal offense that Devier allegedly committed but for which he had neither been charged nor convicted. The appellate court reversed in part and affirmed in part, reversing the district court’s grant of relief as to sentencing and affirming the denial of other claims, and stated that resentencing was not required under that basis.

The federal decision also discussed claims about ineffective assistance of counsel at both guilt and penalty phases, procedural default, Fourth Amendment claims, voluntariness of confession, change of venue, jury instructions at sentencing, and admission of unadjudicated crime as nonstatutory aggravating factor.

The federal court also discussed that the sentencing-phase jury charge issue was remanded for the limited purpose of determining whether jury instructions vested unbridled discretion to impose the death penalty; it recorded that the Georgia Supreme Court had expressed disapproval but had found the charge as a whole clarified the extent of the jury’s discretion.

Outcome

Darrell Gene Devier was executed in Georgia.

Aftermath

An execution report described that Darrell Gene Devier was pronounced dead at 1:28 P.M. at the state prison near Jackson. It described that he was strapped into the electric chair and adjusted his chin strap, and that he told warden A. G. Thomas he had no final statement.

It described that an uncle of the murdered girl, Vince Stewart of Cartersville, Ga., told reporters that the family could now begin to heal, stating, "We are relieved it is over," and, "We are relieved it is over."

It described a storm that knocked out power shortly before he was to be put to death late Monday, causing telephones that would have brought word of a reprieve to be out, and stated that the Georgia Attorney General Michael J. Bowers drove with a cellular phone until he found a signal and learned that the United States Supreme Court had granted a temporary stay; it stated the Court lifted that stay the same day as the execution.