Nance v. State

• Decision Date: 17 January 2006
• Docket Number: No. S05P1438.,S05P1438.
• Citation: 280 Ga. 125,623 S.E.2d 470
• Parties: NANCE v. STATE.
• Court: Georgia Supreme Court

280 Ga. 125

Page 470

623 S.E.2d 470

NANCE v. STATE.

No. S05P1438.

Supreme Court of Georgia.

December 1, 2005.

Reconsideration Denied January 17, 2006.

COPYRIGHT MATERIAL OMITTED

Edwin J. Wilson, Snellville, Sharon Lee Hopkins, Johnny Ray Moore, Lawrenceville, for appellant.

Daniel J. Porter, Dist. Atty., Hon. Thurbert E. Baker, Atty. Gen., Phil Whiley, Chief Asst. Dist. Atty., Christopher Dale Helms, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

A jury convicted Michael W. Nance in 1997 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. He was sentenced to death for malice murder. This Court affirmed the convictions, but reversed the death sentence due to a prospective juror being improperly qualified to serve on the jury. Nance v. State, 272 Ga. 217(6), 526 S.E.2d 560 (2000). In the 2002 sentencing trial that followed the reversal of the imposition of the death penalty, a jury recommended a death sentence for Nance after finding the existence of two statutory aggravating circumstances beyond a reasonable doubt: the offense of murder was committed by a person with a prior record of conviction for a capital felony; and the murder was committed while the defendant was engaged in the commission of another capital felony. OCGA § 17-10-30(b)(1), (2). Finding no error, we affirm the death sentence.¹

1. The evidence adduced at trial showed that Nance stole a 1980 Oldsmobile Omega and drove to a bank in Gwinnett County on December 18, 1993. He entered the bank wearing a ski mask and gloves and carrying a .22 caliber revolver, and demanded cash. He told the head bank teller she would be the first one to die if the police came. Despite Nance's threats to kill them if they used dye packets, the tellers slipped two dye packets into the bags 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, taking his gun with him and leaving his ski mask and the dye-stained bags of money in the car.

Nance ran across the street to a liquor store parking lot where Dan McNeal, who had just made a purchase at the liquor store, was standing. Gabor Balogh had just left the liquor store and was backing his car out of a parking space when Nance ran around the front of Balogh's car, yanked open the driver's door, and thrust his gun into the car. McNeal heard arguing and Balogh saying, "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 damaged his heart, which caused his death shortly thereafter.

Nance then pointed the gun at McNeal and demanded his keys. Instead of complying with the demand, McNeal ran around the side of the liquor store, causing Nance to fire a shot at him. McNeal was not hit and ran back around the store to the parking lot where he went to Balogh's car and saw him slumped over and gasping for breath as he died. Nance ran to a nearby gas station where he surrendered after a standoff with police.

In addition to the facts surrounding the murder of Gabor Balogh, the State presented evidence that Nance had robbed another bank in Gwinnett County three months earlier, during which he had made a similar threat to kill the teller. The State established that Nance pled guilty in federal court to committing the two bank robberies, and also presented evidence that Nance had been convicted of armed robbery in Kansas in 1984.

The evidence was sufficient to authorize the jury to find the statutory aggravating circumstances beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); OCGA § 17-10-35(c)(2).

2. The Georgia death penalty statutes are not unconstitutional. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Riley v. State, 278 Ga. 677(8), 604 S.E.2d 488 (2004). The Georgia death penalty scheme does not violate the Sixth Amendment because the jury must find beyond a reasonable doubt the statutory aggravating circumstances necessary to make a defendant eligible for the death penalty. See Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Henry v. State, 278 Ga. 617(2), 604 S.E.2d 826 (2004). Contrary to Nance's assertion, there is no requirement that non-statutory aggravating evidence be proven beyond a reasonable doubt. "While statutory aggravating circumstances must be proved beyond a reasonable doubt, the jury is not required to `evaluate each and every evidentiary vignette pursuant to the reasonable doubt standard.'[Cit.]." Ward v. State, 262 Ga. 293(29), 417 S.E.2d 130 (1992) (emphasis in original). The trial court in this case properly instructed the jury it must find beyond a reasonable doubt the existence of one or more statutory aggravating circumstances in order to impose death or life imprisonment without parole, and that it could impose life imprisonment with the possibility of parole for any reason or no reason. See Ward, supra. We find no error.

3. Nance claims the trial court erred by refusing his request to conduct a hearing on whether he should be required to wear a stun belt during his 2002 sentencing trial. A stun belt is an electronic security device worn by a prisoner that can be activated by a remote transmitter which enables law enforcement personnel to administer an incapacitating electric shock if the prisoner becomes disruptive. Unlike shackles, it is worn under the prisoner's clothes and is not visible to the jury. Nance had worn a stun belt at his 1997 trial. Before the 1997 trial, the trial court, who also presided at the 2002 sentencing trial, agreed to the State's request that Nance wear a stun belt in court after conducting a pretrial hearing where evidence was received that Nance had threatened to "bite the nose off" the prosecuting attorney during the trial. At that hearing, witnesses testified about the mechanics of the stun belt, its advantages, and possible alternatives, and Nance testified about the alleged impact a stun belt would have on his comfort and ability to concentrate. The trial judge stated in 2002 he remembered the evidence from the 1997 stun belt hearing and said he could not disregard Nance's threat, even after the passage of several years. He denied Nance's request to conduct another hearing and allowed the use of a stun belt as a security measure at Nance's sentencing trial.

It is "well established that the use of extraordinary security measures to prevent dangerous or disruptive behavior which threatens the conduct of a fair and safe trial is within the discretion of the trial court." Young v. State, 269 Ga. 478(2), 499 S.E.2d 60 (1998). The trial court conducted a hearing in this case to determine the necessity of a stun belt and concluded the use of a stun belt was warranted by the threat and would not interfere with the ability of the defendant to receive a fair trial. See id. The trial court did not err by failing to hold a second hearing in 2002; the only change in circumstance since the 1997 hearing offered by Nance was the passage of time and this was obvious to the trial court without the need for a second hearing. We find no abuse of discretion by the trial court in its ruling on this issue.

4. After conducting hearings on the procedures employed by the State of Georgia while carrying out an execution by lethal injection, the trial court ruled that these procedures are not unconstitutional. We find no error. See Riley v. State, supra, 278 Ga. 677(15), 604 S.E.2d 488. See also Dawson v. State, 274 Ga. 327, 334-335, 554 S.E.2d 137 (2001).

5. During individual voir dire, the prosecutor explained to each prospective juror the State would go first and present aggravating evidence and the defendant would then present mitigating evidence. The prosecutor also provided brief definitions of what constituted aggravating and mitigating evidence. Nance claims the definitions of mitigating evidence were sometimes misleading, but he never objected at trial to any of these comments by the prosecutor so this claim is waived on appeal. See Rhode v. State, 274 Ga. 377, 380-381(7), 552 S.E.2d 855 (2001); Earnest v. State, 262 Ga. 494, 495(1), 422 S.E.2d 188 (1992).

6. During the individual voir dire of prospective juror Johnson, Nance's counsel asked a question that listed the specific circumstances of Nance's case and then inquired of the prospective juror whether she could vote for a life sentence under those circumstances. Contrary to Nance's contention on appeal, the trial court properly sustained the State's objection that the question called for prejudgment. See Sallie v. State, 276 Ga. 506, 509-510(3), 578 S.E.2d 444 (2003) ("[Q]uestions that call for prejudgment are improper in a voir dire examination.").

7. Nance claims five prospective jurors were erroneously qualified to serve on the jury because they were opposed to voting for one of the sentences authorized by law. "The proper standard for determining the disqualification of a prospective juror based upon his views on capital punishment `is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Greene v. State, 268 Ga. 47, 48, 485 S.E.2d 741 (1997), quoting Wainwright v. Witt, 469 U.S. 412, 424(II), 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). A prospective juror is not disqualified because he or she is leaning for or against a death sentence or another possible sentence. Mize v. State, 269 Ga. 646(6)(d), 501 S.E.2d 219 (1998). However, the prospective juror is disqualified if possessed with an unwavering bias in favor of or against one of the possible sentences authorized by law such that the prospective juror could not meaningfully consider one of the three possible sentences as a verdict. See ...