Humphrey v. Nance

Decision Date17 June 2013
Docket NumberNos. S13A0201,S13X0202.,s. S13A0201
Citation744 S.E.2d 706,293 Ga. 189
PartiesHUMPHREY v. NANCE. Nance v. Humphrey.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

Patricia B. Attaway Burton, Deputy Atty. Gen., Sabrina Dawn Graham, Mitchell P. Watkins, Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Atlanta, for appellant.

Brian Kammer, Kirsten Andrea Salchow, Atlanta, for appellee.

HUNSTEIN, Chief Justice.

In 1997, Michael W. Nance was convicted of malice murder, felony murder, aggravated assault, theft by taking, criminal attempt to commit armed robbery, and possession of a firearm during the commission of a felony, and he was sentenced to death for the malice murder. This Court affirmed Nance's convictions but reversed his death sentence and remanded the case for resentencing because a prospective juror was improperly qualified to serve on the jury. See Nance v. State, 272 Ga. 217, 526 S.E.2d 560 (2000) (unanimously affirming the convictions and reversing the death sentence with Carley and Hines, JJ., concurring specially as to one guilt/innocence phase issue). In 2002, Nance was sentenced to death a second time, and on the second appeal this Court unanimously affirmed his death sentence for the malice murder conviction. See Nance v. State, 280 Ga. 125, 623 S.E.2d 470 (2005). In 2007, Nance filed a petition for a writ of habeas corpus, which he amended on January 17, 2008. An evidentiary hearing was held on August 19–21, 2008, and, in an order filed on September 6, 2012, the habeas court denied relief with respect to Nance's convictions, but vacated Nance's death sentence based upon its finding that his trial counsel had been prejudicially deficient in presenting mitigating evidence at his resentencing trial. The Warden appeals the habeas court's vacation of the death sentence in case number S13A0201, and Nance cross-appeals in case number S13X0202, claiming that the habeas court should have also granted relief regarding his malice murder conviction. In the Warden's appeal, this Court reverses and reinstates Nance's death sentence. In Nance's cross-appeal, this Court affirms.

I. Factual Background

The evidence presented at the guilt/innocence phase of the 1997 trial showed the following. Nance stole a 1980 Oldsmobile Omega and drove to a bank in Gwinnett County on December 18, 1993. After entering the bank at approximately 11:00 a.m., Nance pulled a ski mask over his face, waved a .22 caliber revolver, and demanded that the tellers place cash in two pillowcases that he was carrying. Nance made several threats to the tellers, including threatening to kill them if they used dye packs. The tellers nevertheless slipped two dye packs into the pillowcases with the money. Nance exited the bank and got into the Omega where the dye packs detonated, emitting red dye and tear gas. Grabbing a black trash bag containing the gun, Nance abandoned the Omega and went across the street to a liquor store parking lot where Gabor Balogh was backing his car out of a parking space. Dan McNeal, who had just left the liquor store behind Balogh, was standing nearby. He saw Nance run around the front of Balogh's car, yank open the driver's door, and thrust his right arm with the plastic bag into Balogh's car. Then McNeal heard arguing and Balogh saying, “no, no, no,” as he leaned away from Nance and raised his left arm defensively. Nance shot Balogh in the left elbow, and the bullet entered his chest and caused his death a short time later. Nance then pointed the gun at McNeal and demanded his keys. Instead of complying, McNeal ran around the side of the liquor store. Nance fired another shot, but McNeal was not hit. Nance then ran around the opposite side of the liquor store, confronted McNeal behind the store, and pointed the gun at him. As McNeal ran back to the front of the store, Nance turned and ran to a nearby Chevron station, where he entered into a standoff with police, telling them, “If anyone rushes me, there's going to be war.” Over an hour passed before police persuaded Nance to surrender. The State also presented evidence that Nance had robbed another Gwinnett County bank three months earlier where he had made a similar threat to kill the teller and that he had pleaded guilty in federal court to committing both Gwinnett County bank robberies.

II. Ineffective Assistance of Counsel Claim at the 2002 Resentencing Trial

In case number S13A0201, the Warden appeals the habeas court's determination that trial counsel were ineffective at Nance's resentencing trial in 2002 for failing to adequately present mitigating evidence regarding Nance's borderline intellectual functioning, organic brain damage, and exposure to tear gas.

A. Applicable Law

To prevail on an ineffective assistance of counsel claim, a petitioner must show that counsel's performance was not reasonable under the circumstances and that actual prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985). Under the rules and presumptions set down in Strickland,

(j)udicial scrutiny of counsel's performance must be highly deferential [.] ... [A]ny ineffective assistance inquiry [must begin] with “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” ... Because constitutionally acceptable performance is not narrowly defined, but instead encompasses a “wide range,” a petitioner seeking to rebut the strong presumption of effectiveness bears a difficult burden.

(Citations omitted.) Waters v. Thomas, 46 F.3d 1506, 1511–1512 (11th Cir.1995). To show sufficient prejudice to prevail on his claim, a petitioner must show that “there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Citation omitted.) Smith, 253 Ga. at 783(1), 325 S.E.2d 362. In reviewing a habeas court's ruling on an ineffective assistance claim, [w]e accept the habeas court's findings of fact unless clearly erroneous and independently apply the law to those facts.” Head v. Hill, 277 Ga. 255, 266(VI), 587 S.E.2d 613 (2003).

(1) The Warden contends that the habeas court erred as a matter of law by applying the principle enunciated in its order that [c]ompetent defense counsel presents the jury with the totality of reasonably available mitigation evidence, consistent with the defense strategy,” in determining that Nance's trial counsel were constitutionally deficient at his resentencing trial in omitting the mitigating evidence presented in his habeas proceeding. (Emphasis supplied.) We agree that the principle articulated by the habeas court is contrary to the law. In Strickland, the United States Supreme Court noted that [t]here are countless ways to provide effective assistance in any given case” and that [e]ven the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Accordingly, the Supreme Court eschewed “rigid requirements for acceptable assistance,” like the requirement that the habeas court here erroneously applied. Id. at 690, 104 S.Ct. 2052. Trial counsel are not constitutionally deficient as a matter of law simply because they do not present all reasonably available mitigating evidence, even if the omitted evidence is consistent with their chosen strategy. See Hall v. Lee, 286 Ga. 79, 80–81(II)(B)(1), 684 S.E.2d 868 (2009); Chandler v. United States, 218 F.3d 1305, 1319(XI) (11th Cir.2000). Rather, in reviewing trial counsel's performance, [w]e ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.’ (Citation omitted.) Jefferson v. Zant, 263 Ga. 316, 318(3)(a), 431 S.E.2d 110 (1993).

(2) Critical to the question of whether a reasonable lawyer could have decided to forego presenting readily available mitigating evidence is the thoroughness of the investigation supporting that decision. See Wiggins v. Smith, 539 U.S. 510, 522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (stating that the Court's “principal concern” in deciding whether counsel exercised reasonable professional judgment was not whether counsel should have presented a mitigation case but whether the investigation supporting the decision not to do so was reasonable). In that regard, the Warden contends that the habeas court also failed to give proper deference to its own finding, amply supported in the record, that trial counsel made a reasonable investigation before deciding what evidence to present and, conversely, what evidence to omit at Nance's resentencing trial. After an independent review of the record, we agree with the Warden's argument for the reasons discussed below.

B. The 1997 Original Trial

Even though the Warden challenges the habeas court's ruling that Nance's trial counsel were ineffective in his resentencing trial, trial counsel's investigation and presentation of evidence in his original trial are relevant because trial counsel's actions and what occurred in the original trial reasonably affected their investigation and presentation of mitigating evidence in the resentencing trial. Thus, we begin with a review of the original trial in 1997.1

(1) Investigation for the 1997 Trial

Nance was originally represented by lead counsel Donald Hudson and co-counsel Edwin Wilson. Before Nance was tried in Gwinnett County, he pled guilty in federal court to both of the Gwinnett County bank robberies and to possession of a firearm by a convicted felon. Nance was represented in his federal case by counsel from the Federal Public Defender Program. After Nance was sentenced in federal court, the Gwinnett County trial court granted Hudson's request to be dismissed as Nance's attorney for reasons not directly related to Nance's case. The court appointed Johnny Moore, a former Gwinnett...

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27 cases
  • Ford v. Tate
    • United States
    • Supreme Court of Georgia
    • October 31, 2019
    ...such a certificate of probable cause where, as here, the Warden is already appealing in the case. See, e.g., Humphrey v. Nance, 293 Ga. 189, 190, 744 S.E.2d 706 (2013) ("In Nance's cross-appeal, this Court affirms.").2 Trial counsel's billing records were admitted without objection in the h......
  • Ford v. Tate, S19A0825
    • United States
    • Supreme Court of Georgia
    • October 31, 2019
    ...obtaining such a certificate of probable cause where, as here, the Warden is already appealing in the case. See, e.g., Humphrey v. Nance, 293 Ga. 189, 190, 744 S.E.2d 706 (2013) ("In Nance's cross-appeal, this Court affirms.").2 Trial counsel's billing records were admitted without objectio......
  • Sears v. Humphrey
    • United States
    • Supreme Court of Georgia
    • November 18, 2013
    ...was no testimony that Sears ever used cocaine or that his marijuana use began before the age of 16. See Humphrey v. Nance, 293 Ga. 189, 213(II)(C)(3)(b)(ii), 744 S.E.2d 706 (2013) (finding it reasonable to conclude that an expert's testimony had been discredited, where the State “challenged......
  • State v. Spratlin
    • United States
    • Supreme Court of Georgia
    • March 11, 2019
    ...no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. See Humphrey v. Nance, 293 Ga. 189, 192, 744 S.E.2d 706 (2013). In particular, "decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only i......
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2 books & journal articles
  • Legal Ethics
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 67-1, September 2015
    • Invalid date
    ...(2013).272. Id. at 240, 751 S.E.2d at 795.273. Id. at 244, 751 S.E.2d at 797.274. Id. at 240, 241, 242, 751 S.E.2d at 794, 795, 796.275. 293 Ga. 189, 744 S.E.2d 706 (2013).276. Id. at 190, 744 S.E.2d at 709.277. Id. at 191, 744 S.E.2d at 710.278. Id. at 209, 211, 218, 221, 744 S.E.2d at 722......
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    • Mercer University School of Law Mercer Law Reviews No. 66-1, September 2014
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