Nance v. State

• Decision Date: 28 February 2000
• Docket Number: No. S99P1518.,S99P1518.
• Citation: 272 Ga. 217,526 S.E.2d 560
• Parties: NANCE v. The STATE.
• Court: Georgia Supreme Court

526 S.E.2d 560

272 Ga. 217

NANCE v. The STATE.

No. S99P1518.

Supreme Court of Georgia.

February 28, 2000.

Reconsideration Denied March 23, 2000.

Edwin J. Wilson, Snellville, for appellant.

Daniel J. Porter, District Attorney, Phil Wiley, Assistant District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Allison B. Goldberg, Assistant Attorney General, for appellee. HUNSTEIN, Justice.

A jury convicted Michael Wayne Nance 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. The jury recommended a death sentence for the malice murder conviction after finding beyond a reasonable doubt two aggravating circumstances: the offense of murder was committed by someone with a prior record of conviction for a capital felony, OCGA § 17-10-30(b)(1); and the offense of murder was committed while the defendant was engaged in the commission of an armed robbery. Id. at (b)(2). The trial court sentenced Nance to death and he appeals.¹

1. The evidence adduced at trial shows that Nance stole a 1980 Oldsmobile Omega and drove to the Tucker Federal Savings & Loan on December 18, 1993. He entered the bank wearing a ski mask and gloves and carrying a .22 caliber revolver. While ordering the tellers to put money into two pillowcases he had brought with him, he said "no dye money or I'll kill you" and "I'm going to come back and kill you all if the dye thing goes off." Despite Nance's threats, the tellers managed to slip two dye packets in with the money. Nance exited the bank and got into the Oldsmobile where the dye packets activated, emitting red dye and tear gas. Nance abandoned the Oldsmobile holding the gun in his right hand covered by a plastic trash bag. His ski mask and the dye-stained bags of money were left in the car.

Nance ran to a liquor store parking lot. Dan McNeal had just made a purchase at the liquor store and was standing in the parking lot. Gabor Balogh had just left the liquor store and was backing his car out of a parking space. Balogh was only halfway out of the parking space when Nance ran around the front of Balogh's car, yanked open the front driver's-side door, and thrust his right arm into the car. McNeal saw Balogh leaning away from Nance with his hands on the steering wheel. He heard Balogh screaming and saying "No, no." Nance shot Balogh in the left elbow and the bullet entered his chest. The medical examiner testified that the bullet moved downward through Balogh's body, passing between the upper and lower lobes of his left lung and lacerating his heart before stopping in his liver.

Nance then pointed the gun at McNeal and said, "Give me your keys." McNeal ran around the side of the liquor store and Nance fired another shot. McNeal was not hit. Nance apparently ran around the other side of the store because the two men encountered each other behind the store. McNeal turned and ran back around the store to the parking lot. He went to Balogh's car and saw Balogh slumped over and gasping for breath. Balogh died before the ambulance arrived.

Nance ran to a nearby gas station where he held the gun to his head during a one-hour standoff with police. He told the police, "If anyone rushes me, there's going to be war." The police convinced him to surrender. Nance's gloves and shirt were stained with the same red dye used in the dye packets. A firearms expert testified that Nance's gun, which contained two spent shells, was probably the same gun used to kill Balogh. Nance confessed to the bank robbery, but said that he had only fired once up in the air to scare Balogh because Balogh was trying to run him over with his car. To show Nance's intent and bent of mind, the State presented evidence that Nance robbed another bank in the same county in September 1993 and issued a similar threat to the teller. In the penalty phase, the State presented evidence that Nance committed an armed robbery in Kansas in 1984.

The evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt proof of Nance's guilt 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence was also sufficient to authorize the jury to find beyond a reasonable doubt the two statutory aggravating circumstances which support his death sentence for the murder. Id.; OCGA § 17-10-35(c)(2).

2. Before trial, Nance announced his intention to present expert mental health testimony in the sentencing phase. In accordance with law, the trial court required Nance to submit to a mental health examination by a State psychologist. See Abernathy v. State, 265 Ga. 754(1), 462 S.E.2d 615 (1995) (if defendant intends to present expert mental health testimony as mitigating evidence, he must submit to a mental health examination by a State expert); Jenkins v. State, 265 Ga. 539(3), 458 S.E.2d 477 (1995). Dr. Theresa Sapp conducted the State's mental health examination of Nance. She read Nance his constitutional rights and he signed a rights waiver form. Nance's attorneys were also present throughout the examination. During the examination, Nance told Dr. Sapp that he had ingested cocaine, Dom Perignon, and marijuana before he left his house to rob the bank on December 18, 1993. While the State was presenting its case-in-chief in the guilt-innocence phase, it called Dr. Sapp as a witness. Over Nance's objection, she testified that Nance told her he had ingested cocaine, Dom Perignon, and marijuana on the morning of the murder. Dr. Sapp was not qualified as an expert at that time, was not referred to as a doctor, and she presented no mental health testimony. Nance argues that Dr. Sapp's testimony could only have been presented in rebuttal to the testimony of Nance's mental health expert in the sentencing phase. The State argues that Dr. Sapp did not testify as a mental health expert in the guilt-innocence phase and that Nance's statement to her was admissible because it was voluntary and preceded by Miranda warnings.

The rule requiring a defendant who elects to present the testimony of a mental health expert to submit to examination by a State expert arises from "`the State's overwhelming difficulty in responding to the defense psychiatric testimony without its own psychiatric examination of the accused and by the need to prevent fraudulent mental defenses.'" Lynd v. State, 262 Ga. 58(11), 414 S.E.2d 5 (1992), quoting Battie v. Estelle, 655 F.2d 692, 702 (5th Cir.1981). See also Buchanan v. Kentucky, 483 U.S. 402, 422, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987); Estelle v. Smith, 451 U.S. 454, 465, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Abernathy, supra, 265 Ga. at 754-755(2),462 S.E.2d 615; Jenkins, supra, 265 Ga. at 540-541(3),458 S.E.2d 477. The rule seeks a fair balance between the interests of the State, the regard for the function of the courts to ascertain the truth, and the scope of a defendant's privilege against self-incrimination. See Battie, supra, 655 F.2d at 702, n. 22. It has been likened to the defendant's waiver of his privilege against self-incrimination should he choose to testify on his behalf; if he takes the stand, the State may cross-examine him. See Battie, supra; Lynd, supra. If a defendant who wishes to present the testimony of a mental health expert at his trial refuses to submit to an examination by a State mental health expert, the trial court may prevent the defendant's expert from testifying. See Abernathy, supra at 754(1), 462 S.E.2d 615; Lynd, supra. If a defendant chooses to present mental health evidence through lay witnesses only, the State may not rebut the mental health evidence with the testimony of its mental health expert. Abernathy, supra at 755(2), 462 S.E.2d 615.

Therefore, the purpose of the rule requiring the defendant to submit to a State mental health examination under these circumstances is to permit the State to formulate a response or a rebuttal to the testimony of the defendant's mental health expert. See Estelle, supra, 451 U.S. at 465,101 S.Ct. 1866; Lynd, supra; Motes v. State, 256 Ga. 831(2), 353 S.E.2d 348 (1987). This purpose was subverted in Nance's case when, during the State's case-in-chief in the guilt-innocence phase, the State's expert stripped off her medical title and testified as a lay witness about what the defendant told her during the examination. Access to the defendant's psyche was permitted so the State could respond to the defendant's mental health expert, not to gather incriminating statements that bolster the State's case. A defense lawyer in a capital case, who must prepare for the sentencing phase should his client be convicted, should not be forced to choose between presenting mental health mitigation evidence through an expert and providing the State with evidence with which to convict his client. Indeed, many jurisdictions expressly prohibit the introduction of statements obtained during a court-ordered mental health examination to prove the defendant's guilt. See, e.g., United States v. Byers, 740 F.2d 1104, 1111, n. 8 (D.C.Cir. 1984); Gibson v. Zahradnick, 581 F.2d 75, 78 (4th Cir.1978) (use of incriminating statement obtained during court-ordered mental health examination to prove defendant's guilt is unconstitutional); United States v. Williams, 456 F.2d 217, 218 (5th Cir.1972); Fed. R.Crim.P. 12.2(c) ("No statement made by the defendant in the course of any [court-ordered psychiatric] examination ... shall be admitted in evidence against the defendant in any criminal proceeding except on an issue respecting mental condition on which the defendant has introduced testimony."); Mo. Ann. Stat. § 552.030(5) (West Supp.1999); Ohio Rev.Code Ann. § 2945.371(J) (...