Devanna v. State

In the Supreme Court of Georgia
Decided: October 19, 2021
S21A0990. DeVANNA v. THE STATE.
WARREN, Justice.
After a jury trial in June 2019, Alexander DeVanna was
convicted of malice murder and other crimes related to the shooting
death of his wife, Casey DeVanna.1 DeVanna appeals, contending
1 The crimes occurred on August 26 and 27, 2017. On November 28,
2018, a Clarke County grand jury indicted DeVanna for malice murder, two
counts of felony murder (one predicated on aggravated assault and one
predicated on possession of a firearm by a convicted felon), aggravated assault,
two counts of possession of a firearm by a convicted felon, and possession of a
firearm during the commission of a crime. At a trial from June 3 to 7, 2019, a
jury found DeVanna guilty of all counts. On June 7, 2019, DeVanna was
sentenced as a recidivist to life in prison without the possibility of parole
(“LWOP”) for malice murder and to two consecutive five-year prison sentences
for possession of a firearm by a convicted felon and possession of a firearm
during the commission of a crime. The felony murder counts were vacated by
operation of law, the aggravated assault count was merged into the malice
murder count, and one of the two possession-of-a-firearm-by-a-convicted-felon
counts merged into the other one for sentencing purposes. Through trial
counsel, DeVanna filed a timely motion for new trial. Through appellate
counsel, DeVanna filed an amended motion for a new trial. On December 21,
2020, following a hearing, the trial court entered an order granting in part and
denying in part DeVanna’s amended motion for new trial. The trial court
that his trial counsel rendered ineffective assistance under the Sixth
Amendment to the United States Constitution by failing to request
a proper jury instruction on the legal principle that a convicted felon
can possess a firearm while acting in self-defense under certain
circumstances. We disagree and affirm DeVanna’s convictions.
1. (a) The evidence presented at DeVanna’s trial showed that
DeVanna and Casey married in May 2017 and began living in St.
Petersburg, Florida. Several months into their “rocky” marriage,
the couple decided to go on a road trip and camp in Georgia before
heading out west. On August 26, 2017, DeVanna and Casey, along
with their cat Gizmo, checked into Room 226 at the Best Western
Hotel on Milledge Avenue in Athens, Georgia. On the afternoon of
August 27, after check-out time, housekeeping staff found Casey’s
body lying on one of the two beds in Room 226 with her legs hanging
concluded that it improperly sentenced DeVanna as a recidivist because his
previous felony convictions—all from Florida—would not have been felonies in
Georgia. The trial court denied DeVanna’s amended motion for new trial as to
all of his other arguments. On January 20, 2021, DeVanna was resentenced to
LWOP plus 10 years in prison. DeVanna filed a timely notice of appeal on
December 22, 2020. The case was docketed to the August 2021 term of this
Court and orally argued on September 21, 2021.
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off of the side of the bed and her feet touching the floor. A staff
member called 911, and shortly thereafter, local law enforcement,
the Athens-Clarke County Fire Department, and National EMS all
arrived at the hotel.
Officers observed that “a lot” of blood from Casey’s nostrils and
mouth had dried on her face. She was lying sideways across the
twin bed furthest from the door with her legs dangling down the side
of the bed as if she had been sitting on the side of the bed and then
laid backwards. An officer later testified that pillows were lying on
top of Casey’s arms and that four drinks were sitting on the
nightstand upright and undisturbed, adjacent to the bed where she
lay. A detective testified that he saw no evidence of any sort of
violent struggle in the room. He also testified that when some of the
other first responders present at the scene rolled Casey over on the
bed to prepare to remove her body, he observed blood pooling out of
her head, which he said indicated that Casey’s body had not been
moved since she was killed.
Upon processing the crime scene, law enforcement officers
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found, among other things, a piece of G.E.D. paperwork and a high
school diploma belonging to “Alexander T. DeVanna,” a receipt from
a pizza shop located across the street from the Best Western with
the name “Alex” and room number 226 listed on the receipt, and
shotgun shell casings from the nightstand.
Six days later, DeVanna checked into a campground near
Ocala, Florida. Athens-Clarke County law enforcement officers
began tracking the location of his cell phone that same day and
issued a be-on-the-lookout alert to local law enforcement in Marion
County, Florida. The next morning, local officers on a routine patrol
identified DeVanna and his car at a campground bathroom. Officers
arrested DeVanna and took him into custody.
Two Athens-Clarke County detectives traveled to Florida and,
after advising DeVanna of his rights under Miranda,2 conducted a
video-recorded interview. During that interview, DeVanna claimed
that Casey found text messages on his phone between Paige Vargas
2 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
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(one of DeVanna’s former romantic partners) and DeVanna,3 that
Casey became angry at him, and that he later awoke to Casey
loading a round into the chamber of a gun, which she pointed at
DeVanna’s head. He further claimed that in the ensuing struggle
over the firearm, “his pinky might have fired the weapon.” One
detective observed scratches on the side of DeVanna’s torso during
the interview.
A search of DeVanna’s campsite in Florida revealed a Taurus
9mm pistol that a GBI firearms examiner later testified contained
characteristics that matched those on the bullet recovered from
Casey’s body. That search also revealed two identification cards
belonging to Casey and a receipt from an Athens RaceTrac ATM
dated August 27.
The State also introduced evidence that Dakota Waite, a close
friend of DeVanna’s, exchanged messages with DeVanna through
Facebook Messenger a week before Casey’s death. Specifically,
3 Evidence about the content of those messages is recounted later in this
division.
5
DeVanna messaged Waite saying, “Going to shoot my wife and
myself prob [sic] today,” and “going to shoot dope today.” DeVanna
sent Waite a photo of himself holding a gun to his head and of a self-
inflicted cut from DeVanna’s wrist up to his elbow. In response,
Waite asked DeVanna, “Where’s yer [sic] wife?!” DeVanna
responded “I’m about to shoot her in the head and go get f***ed up
one last time.”
The State also introduced evidence of other social media and
text messages DeVanna sent on the night of, and the night after,
Casey’s death. On the night of August 26—the night of the
shooting—DeVanna sent a Facebook message to a different friend,
Jarrett Russo, stating, “I am in Athens, Georgia, about to leave my
wife.” DeVanna went on to say, “We planned on camping in GA but
she’s out of her meds and is making it hard for me not to hurt her
lol.” DeVanna also told Russo that while stopped at a gas station in
Georgia during their road trip, Casey had thrown his possessions
out of the car and driven off without him, but that she returned later
to retrieve him and help him pick up his belongings. DeVanna told
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Russo that, after this episode and upon arriving at the hotel, Casey
was “passed out now haha.” He also wrote, “I got to leave before I
end up in prison” and suggested that he might steal Casey’s car.
Russo responded, “That’s grand theft auto” and “jail either way.”
The next day, DeVanna sent a text message to a third friend,
Tanner Hackney, saying, “I love you brother but this will prob [sic]
be the last time you hear from me.” Hackney told DeVanna to call
him and that “you can’t just leave me hanging here.” DeVanna
responded, “I shoot her man[.] I f***ing shoot her . . . .” Hackney
then began calling DeVanna until DeVanna called him back at
approximately 2:00 p.m. DeVanna told Hackney that he woke up to
Casey pointing a gun at his head and that he got up and wrestled
the gun from her and “he had lost his anger and he shot her in the
f***ing head.”
DeVanna had also exchanged Facebook messages with Paige
Vargas. On August 26, DeVanna messaged Vargas and told her that
he was in Georgia “[b]ecause I’m a dumba** who got married.”
DeVanna wrote that the “[f]irst time I ever hit a woman was
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yesterday.” DeVanna sent Vargas a photo he took the night before
of the cut that spanned from his wrist to his elbow. He then
messaged her, “I [sic] about to kill her man . . . godamn [sic].” He
then sent Vargas a photo of him pointing a gun at Casey’s head while
she was sleeping. Vargas urged DeVanna to “cool down” and to not
“be dumb,” but DeVanna responded, “If I let her live, she will
continue to degrade me make [sic] me do more stupid sh*t.” Hours
later, DeVanna sent Vargas a message saying, “I did it” and “I’m so
sorry.” The next afternoon, DeVanna called Vargas and told her
that he and Casey were wrestling over a gun and it went off.
DeVanna told Vargas he intended to get a “bunch of drugs and try
and kill himself.”4
The State also presented evidence that around 12:50 a.m. on
4 The State also admitted into evidence Facebook Messenger
conversations DeVanna had with various other friends who did not testify at
trial. Those records showed DeVanna making the following statements on
August 19, 2017, a week before the shooting: “I’m going to shoot her then
myself”; “I’m going to shoot my wife and myself”; and “I’m going to do it today.”
On August 27, in response to a friend’s question about whether DeVanna had
“kill[ed] someone,” DeVanna responded with a frown symbol and “yes.”
DeVanna does not challenge on appeal the admission of these messages at
trial.
8
August 27, DeVanna went to an ATM at a nearby RaceTrac
convenience store and made two withdrawals from Casey’s account.
Over the next six days, DeVanna made additional withdrawals from
the account, including several in St. Petersburg, Florida.
The GBI forensic pathologist who performed Casey’s autopsy
testified that Casey suffered a gunshot wound to her face fired from
an “intermediate range” likely in excess of six inches, and that the
trajectory of the bullet was consistent with the shooter standing and
Casey sitting. The pathologist characterized Casey’s cause of death
as a gunshot wound to the head and the manner of death as
homicide. The autopsy showed that Casey suffered an additional
blunt force injury to her head.
The GBI forensic toxicologist who performed a drug screen on
Casey testified that it revealed an analog of fentanyl, a “C[entral]
N[ervous] S[ystem] depressant” that will “slow down your brain”
and “motor functions” and make you “drowsy,” “sleepy,” “confused,”
and dizzy. She testified that THC was also found in Casey’s system.
DeVanna—who had stipulated to his status as a convicted
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felon—raised both self-defense and accident as defenses and
testified in his own defense. He claimed that Casey’s mood “was
fluctuating” and “was sometimes high and then sometimes real low.”
He testified that, on the night of her murder, Casey went to sleep
before he did, and that, after he went to sleep, he awoke to the sound
of Casey “pulling back the slide” of a handgun and felt her pressing
the gun to his head. DeVanna recounted that Casey then said
something to the effect of, “You’re messaging her again.” DeVanna
claimed that he began “wrestling [Casey] over the gun,” took
possession of the gun from her, and “pushed her down” before “she
came back at [him].” He created some distance between the two of
them, but then Casey latched onto his side and scratched him, which
was “right about [the] time . . . the firearm went off.” DeVanna said
he could hear Casey “gurgling” as she struggled to breathe following
the gunshot. After the gun went off, DeVanna said he “had a bunch
of emotions,” “picked up [his] backpack and firearm [and Casey’s]
medication . . . and just . . . left.”
(b) DeVanna’s trial counsel requested the pattern jury
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instructions on justification, self-defense, mistake, and accident.
The trial court gave the pattern charge on justification, which
included the charge that “[a] person is not justified in using force if
that person is attempting to commit, is committing, or is fleeing
after the commission or attempted commission of a felony.
Possession of a firearm by a convicted felon is a felony offense under
Georgia law.” The trial court also instructed that “[i]f you believe
that the defendant was justified under the instructions that the
Court has given you, then it would be your duty to acquit the
defendant.”
DeVanna also requested an instruction on when a convicted
felon may use a firearm in self-defense, and the trial court read this
charge verbatim to the jury:
When a felon is in imminent peril of great bodily harm or
reasonably believes himself to be in such danger and with
preconceived design on his part a firearm is made
available to him, his temporary possession of that weapon
for a period no longer than that in which the necessity or
apparent necessity to use it continues does not violate the
statutory prohibition against possession of a firearm by a
convicted felon.
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The jury found DeVanna guilty of malice murder, two counts
of felony murder, aggravated assault, two counts of possession of a
firearm by a convicted felon, and possession of a firearm during the
commission of a crime. Represented by new counsel at the motion-
for-new-trial stage, DeVanna argued in his amended motion that the
trial court gave a conflicting charge on justification: on the one hand,
the trial court instructed that a justification defense was not
available to DeVanna because he was committing the felony of
possession of a firearm by a convicted felon, but on the other, it
instructed that if DeVanna was, in fact, possessing a gun to defend
himself, that possession would be lawful. DeVanna argued that,
because trial counsel did not object to this conflicting charge, his
counsel provided ineffective assistance. The trial court denied
DeVanna’s amended motion for a new trial as to his ineffective
assistance of counsel claim, reasoning that “[t]he two jury
instructions at issue were correct statements of the law. Thus, trial
counsel’s representation was neither deficient nor prejudicial.”
2. DeVanna’s sole enumeration of error on appeal is that his
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trial counsel provided ineffective assistance under the Sixth
Amendment to the United States Constitution because he failed to
request a proper jury instruction explaining that a convicted felon
can possess a firearm when acting in self-defense. To prevail on a
claim of ineffective assistance of counsel, a defendant generally must
show that counsel’s performance was deficient and that the deficient
performance resulted in prejudice to the defendant. See Strickland
v. Washington, 466 U.S. 668, 687-695 (104 SCt 2052, 80 LE2d 674)
(1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To
satisfy the deficiency prong, a defendant must demonstrate that his
attorney “performed at trial in an objectively unreasonable way
considering all the circumstances and in the light of prevailing
professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d
637) (2013); see also Strickland, 466 U.S. at 687-688. To satisfy the
prejudice prong, a defendant must establish a reasonable
probability that, in the absence of counsel’s deficient performance,
the result of the trial would have been different. See Strickland, 466
U.S. at 694. “If an appellant fails to meet his or her burden of
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proving either prong of the Strickland test, the reviewing court does
not have to examine the other prong.” Lawrence v. State, 286 Ga.
533, 533-534 (690 SE2d 801) (2010).
In arguing that his trial counsel requested an inadequate
justification instruction and was thus ineffective, DeVanna contends
that the instruction the trial court gave to the jury was problematic
for multiple reasons. First, DeVanna argues that the instruction his
trial counsel requested and that the trial court gave was internally
inconsistent, contradictory, and misleading because it required that
a felon have a firearm “with preconceived design,” but also required
that the felon’s possession of the firearm be for a period of time “no
longer than that in which the necessity or apparent necessity to use
it continues.”5 Second, he asserts that the instruction given was
5 Trial counsel relied on the jury instruction from Little v. State, 195 Ga.
App. 130, 131 (392 SE2d 896) (1990), as the source of his requested jury
instruction on when a convicted felon may use a firearm in self-defense. In
Little, the Court of Appeals recited a jury instruction, requested by Little at
trial, based on the Supreme Court of California’s decision in People v. King,
582 P2d 1000, 1006-1007 (Cal. 1978). But it appears that the Court of Appeals
transcribed the instruction from King incorrectly. Compare King, 582 P2d at
1007 (“without preconceived design”) with Little, 195 Ga. App. at 131 (“with
preconceived design”) (emphasis supplied). But see Waugh v. State, 218 Ga.
14incorrect under our recent decision in Johnson v. State, 308 Ga. 141,
(839 SE2d 521) (2020), where we held that
A person is justified in threatening or using force against
another, or in engaging in conduct that is otherwise
prohibited under [the carrying and possessing firearms
part of the code], when and to the extent that he or she
reasonably believes that such threat or force or conduct
otherwise prohibited under [the carrying and possessing
firearms part of the code] is necessary to defend himself
or herself or a third person against such other’s imminent
use of unlawful force[.]
Id. at 145. He specifically contends that the instruction that was
given “forced the trier of fact to disregard [DeVanna’s] justification
defense” and “made clear to the jury that DeVanna’s illegal
possession of a firearm, even during a struggle in the defense of self,
barred [DeVanna] from employing a justification defense.”
DeVanna thus argues that trial counsel should have requested the
following instruction on justification:
If you, the jury, find and believe that the facts presented
at trial demonstrate that at the time of the killing, the
App. 301, 303 (460 SE2d 871) (1995) (describing the instruction in Little as
“appear[ing] to be a correct statement of the law”). In noting this apparent
error, we take no position on the correctness of the instruction from King that
was repeated (albeit with a transcription error) in Little.
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accused possessed a firearm solely to defend himself from
the attack of the deceased, then the law charged on
justification/self[-]defense can apply during your
deliberations, even though the parties have stipulated to
the fact that Appellant is a convicted felon. The facts of
this case are solely for you, the jury, to decide.
Here, however, we need not decide whether trial counsel was
constitutionally deficient in failing to request the justification
instruction DeVanna proffers on appeal, because DeVanna has
failed to carry his burden to show that he suffered prejudice from
any such deficiency. See Lawrence, 286 Ga. at 533-534. Even
assuming for the sake of argument that the justification instruction
trial counsel requested was confusing, misleading, or even
erroneous, DeVanna has not shown a reasonable probability that
the outcome of the trial would have been different had trial counsel
requested the instruction that DeVanna now asserts was necessary
to present his self-defense claim to the jury. See Strickland, 466
U.S. at 694 (“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”). That is because the State
presented an overwhelming amount of evidence of DeVanna’s guilt,
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including messages DeVanna sent to multiple people in the week
leading up to Casey’s shooting saying that he wanted to kill Casey
by shooting her in the head. That evidence also included the photo
DeVanna sent Vargas of DeVanna pointing a handgun at Casey’s
head while she was sleeping on the night of her death and a message
after the shooting telling her “I did it,” as well as DeVanna’s phone
call to Hackney the day after Casey’s shooting in which he stated
that “he had lost his anger and he shot her in the f***ing head.”
Further, the State presented testimony that DeVanna and Casey’s
hotel room showed no sign of a struggle. DeVanna’s claim of
ineffective assistance of counsel therefore fails. See Turner v. State,
308 Ga. 537, 540-541 (842 SE2d 40) (2020) (concluding that
appellant could not establish prejudice in light of the “strong”
evidence of his guilt); Hinton v. State, 304 Ga. 605, 608 (820 SE2d
712) (2018) (“Because the evidence of Hinton’s guilt was strong, and
any evidence supporting a voluntary manslaughter theory was
weak, Hinton has failed to establish a reasonable probability that
the jury would have reached a different result, even if it had been
17
charged on voluntary manslaughter.”) (citation omitted).
Judgment affirmed. All the Justices concur.
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