Devier v. State

• Decision Date: 29 November 1984
• Docket Number: No. 41001,41001
• Parties: DEVIER v. The STATE.
• Court: Georgia Supreme Court

Page 150

323 S.E.2d 150

253 Ga. 604

DEVIER v. The STATE.

No. 41001.

Supreme Court of Georgia.

Nov. 29, 1984.

Rehearing Denied Dec. 12, 1984.

J. Scott Callan, Albert F. Burkhalter, Jr., Rome, for Darrell Gene Devier, Sr.

F. Larry Salmon, Dist. Atty., Rome, Michael J. Bowers, Atty. Gen., Dennis R. Dunn, for the State.

BELL, Justice.

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 S.E.2d 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 S.E.2d 490 (1983). After reindictment, Devier was retried, convicted and sentenced to death. He now appeals. ¹

1. 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 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 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 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In his third enumeration of error, which is argued first, Devier contends the jury voir dire was overly restrictive.

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 S.E.2d 238 (1981). See also, Henderson v. State, 251 Ga. 398, 306 S.E.2d 645 (1983).

3. 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 strikes.

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. ²

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 § 15-12-171.

(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., their disqualification.

(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 S.E.2d 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, 467 U.S. 1025, 104 S.Ct. 2885, 2890, 81 L.Ed.2d 847 (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 selected 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 S.E.2d 600 (1978).

However, in Blankenship v. State, 247 Ga. 590, 277 S.E.2d 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 strikes.

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...