Devier v. Zant, s. 89-8628

• Decision Date: 23 September 1993
• Docket Number: Nos. 89-8628,90-8571,s. 89-8628
• Parties: Darrell Gene DEVIER, Sr., Petitioner-Appellee, Cross-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee. Darrell Gene DEVIER, Sr., Petitioner-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1445

3 F.3d 1445

Darrell Gene DEVIER, Sr., Petitioner-Appellee, Cross-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification

Center, Respondent-Appellant, Cross-Appellee.

Darrell Gene DEVIER, Sr., Petitioner-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification

Center, Respondent-Appellee.

Nos. 89-8628, 90-8571.

United States Court of Appeals, Eleventh Circuit.

Sept. 23, 1993.

Dennis Dunn, Paula K. Smith, Asst. Attys. Gen., Atlanta, GA, for appellant.

Daniel I. Prywes, Pepper, Hamilton & Sheetz, Washington, DC, Arnold P. Peter, Los Angeles, CA, for appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and COX, Circuit Judges, and CLARK, Senior Circuit Judge.

PER CURIAM:

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.

I.

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 choking.

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. ¹ 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, ² and the United States Supreme Court denied Devier's petition for a writ of certiorari. ³ 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. ⁴

Devier brought the instant petition for a writ of habeas corpus in the district court. ⁵ 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.

II.

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." ⁶ 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. ⁷ 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. ⁸

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. ⁹ 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 trial.

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...