Michael Wayne NANCE
Number of victims: 1
Date of murder:
Date of arrest:
Date of birth: 1961
Victim profile: Gabor Balogh
Method of murder:
Location: Gwynnett County, Georgia, USA
Status: Sentenced to death on October 1, 1997
(272 Ga. 217)
(526 SE2d 560)
Murder. Gwinnett Superior Court. Before Judge Clark.
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 hallway
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
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 SC 2781, 61 LE2d 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 SE2d 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 SE2d 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 SE2d 5) (1992),
quoting Battie v. Estelle, 655 F2d 692, 702 (5th Cir. 1981). See
also Buchanan v. Kentucky, 483 U. S. 402, 422 (107 SC 2906, 97 LE2d
336) (1987); Estelle v. Smith, 451 U. S. 454, 465 (101 SC 1866, 68
LE2d 359) (1981); Abernathy, supra, 265 Ga. at 754-755 (2); Jenkins,
supra, 265 Ga. at 540-541 (3). 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 F2d 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 a 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); 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).
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; Lynd, supra; Motes v. State,
256 Ga. 831 (2) (353 SE2d 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
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 F2d 1104, 1111, n. 8 (D.C. Cir. 1984); Gibson
v. Zahradnick, 581 F2d 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 F2d 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) (Anderson 1999); Va. Code Ann. 19.2-169.7,
264.3:1 (G) (Michie 1995).
We therefore restate our holding in Abernathy
that when a defendant must submit to a court-ordered mental health
examination because he wishes to present expert mental health
testimony at his trial, the State expert may only testify in
rebuttal to the testimony of the defense expert or to rebut the
testimony of the defendant himself. Harris v. New York, 401 U. S.
222, 225-226 (91 SC 643, 28 LE2d 1) (1971); Booker v. Wainwright,
703 F2d 1251, 1257-1258 (11th Cir. 1983); Abernathy, supra, 265 Ga.
at 756. The trial court erred by allowing the State to introduce
this evidence other than in rebuttal; however, we conclude that the
evidence that Nance ingested alcohol and illegal drugs on the
morning of the murder was harmless due to the overwhelming evidence
of his guilt outlined in the first division.
3. Nance claims that the trial court erred by
refusing to charge the jury on voluntary manslaughter because he
told the police he fired his gun in response to the victim trying to
run him over with his car. However, Nance also stated that he shot
into the air to scare the victim and that he did not want to hit
anyone. " 'Intent to kill is an essential element of both murder and
voluntary manslaughter,' " Walker v. State,
258 Ga. 443 (5) (370 SE2d 149) (1988), quoting Parks v. State,
254 Ga. 403 (12) (330 SE2d 686) (1985);
16-5-2, and Nance's statement established otherwise. In
addition, a voluntary manslaughter charge is not warranted when the
only alleged evidence of provocation is the victim resisting an
armed robbery. See Turpin v. Christenson, 269
Ga. 226, 234 n. 6 (497 SE2d 216)
(1998). The trial court did not err by refusing to give a charge on
4. Evidence of the December 1993 bank robbery was
admissible in the guilt-innocence phase as part of the criminal
transaction which led to the murder. See Satterfield v. State,
256 Ga. 593 (6) (351 SE2d 625) (1987)
(State is entitled to present evidence of the entire res gestae of
the crime). The trial court also permitted the State to introduce
evidence of Nance's September 1993 bank robbery to show his intent
and bent of mind during the December 1993 crimes. See Belton v.
State, 270 Ga. 671 (5) (512 SE2d 614) (1999);
Raulerson v. State, 268 Ga. 623 (8) (491 SE2d
791) (1997); Williams v. State, 261 Ga.
640 (2) (409 SE2d 649) (1991).
The record supports the trial court's finding
that this evidence was offered for the proper purpose of showing
Nance's intent and bent of mind (the similar threats to the tellers
in each robbery showed Nance's willingness to kill people who
interfered with his plans); that Nance was the perpetrator of the
September 1993 bank robbery (Nance pled guilty in federal court);
and that the September 1993 bank robbery was sufficiently similar to
the December 1993 crimes that proof of the former tended to prove
the latter. See id. The trial court did not err by admitting this
5. During direct examination by the State, Dan
McNeal testified that he was currently living at Victory Home, a
Christian treatment center for people suffering from problems with
alcohol, drugs, and depression. On cross-examination, Nance asked
McNeal how his recovery was going and whether he was a regular
customer at the liquor store. The State on redirect examination
asked McNeal if his current stay at Victory Home had anything to do
with the murder of Balogh. The trial court overruled Nance's
objection, and McNeal replied that witnessing the murder and being
shot at had directly led to "how I've lived the past almost four
Nance claims on appeal that this testimony was
victim-impact evidence that is improper in the guilt-innocence phase.
However, Nance's cross-examination questions implied that alcohol
may have affected McNeal's perception of the events he witnessed in
1993 and the State is permitted to rehabilitate a witness whose
credibility had been attacked. See Blige v. State,
264 Ga. 166 (2) (441 SE2d 752) (1994).
We find no error.
6. Nance complains that six prospective jurors
were biased in favor of the death penalty and the trial court erred
by refusing to excuse them for cause.
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 SE2d 741) (1997),
quoting Wainwright v. Witt, 469 U. S. 412, 424 (II) (105 SC 844, 83
LE2d 841) (1985). On appeal, the relevant inquiry is whether the
trial court's qualification of the prospective juror is supported by
the record as a whole. Greene, supra, 268 Ga. at 49. An appellate
court must pay deference to the finding of the trial court; this
deference includes the trial court's resolution of any equivocations
or conflicts in the prospective juror's responses on voir dire. Id.
"Whether to strike a juror for cause is within the discretion of the
trial court and the trial court's rulings are proper absent some
manifest abuse of discretion." Id. at 50. After review of the
record, we conclude that the trial court did not abuse its
discretion with regard to the qualification of five of these
However, the trial court erred by failing to
excuse prospective juror Johnson for cause because her views in
favor of capital punishment would prevent or substantially impair
the performance of her duties as a juror in accordance with her
instructions and oath. See Wainwright, supra, 469 U. S. at 424 (II);
Greene, supra, 268 Ga. at 48; Childs v. State,
257 Ga. 243 (7) (357 SE2d 48) (1987)
(a potential juror is disqualified if unable to fairly consider a
life sentence). Her answers to voir dire questions about the death
penalty clearly show that she would always vote to impose a death
sentence if Nance was convicted of murder and the jury found a
statutory aggravating circumstance, regardless of the evidence and
the trial court's instructions.
Briefly summarized, when asked by Nance's counsel
whether, if Nance was convicted, she would always choose death or
whether she could consider alternative punishments, she replied, "It
would always be death." Later, in response to questioning by the
district attorney, she said she did not know that all murderers are
not eligible for the death penalty and that the State had to prove a
statutory aggravating circumstance. She said that she could follow
the law and added, "And if you prove to me that he did do it, then
at that time --." The district attorney replied that was not the
standard, and again told her the State would have to prove a
statutory aggravating circumstance. Ms. Johnson said she understood.
Nance's counsel then asked her if Nance was guilty and the State
proved a statutory aggravating circumstance, "would you then always
give the death penalty?" Ms. Johnson replied, "Yes, sir." The trial
court outlined the three sentencing options and asked Ms. Johnson if
she could apply the law and the facts of the case and choose the
appropriate sentence. She said she could. Nance's counsel then asked
her if given all three sentencing options and Nance was guilty and
the jury found aggravating circumstances, "would you always choose
death?" She replied, "Yes, sir." The trial court qualified her to
serve on the jury over Nance's objection.
It is common for a prospective juror to initially
state that he would always choose death for a convicted murderer
when the prospective juror is ignorant of the bifurcated nature of a
capital trial and is unaware that all murders do not warrant a death
sentence under Georgia law. See, e.g., Bishop v. State,
268 Ga. 286 (6) (486 SE2d 887) (1997);
Finney v. State, 253 Ga. 346 (3) (320 SE2d
147) (1984). Often, after the prospective juror is apprised
of the procedure involved in a capital trial and that not all
murderers receive the death penalty, the prospective juror alters
his initial position and may become qualified to serve. See id. In
this case, however, Ms. Johnson three times firmly and unequivocally
stated that she would always vote to impose a death sentence if
Nance was convicted and the jury found a statutory aggravating
Two of these statements came after Ms. Johnson
was informed of the procedure in a capital trial and that not all
murderers receive the death penalty under Georgia law. At no time
during voir dire did Ms. Johnson say she could vote to impose a life
sentence. The trial court told her the sentencing options and asked
her if she could listen to the law and the facts and choose the
appropriate sentence, to which she replied affirmatively, but it is
clear from her other responses that Ms. Johnson believed the
appropriate sentence would always be a death sentence. See Alderman
v. State, 254 Ga. 206 (4), n. 2 (327
SE2d 168) (1985) (prospective juror properly disqualified
under Wainwright when he stated that he could listen to the evidence
and arrive at a "fair sentence," but other responses showed that he
did not consider the death penalty to be a "fair sentence").
Therefore, the trial court abused its discretion by qualifying Ms.
Johnson to serve on the jury. See Greene, supra, 268 Ga. at 48-50;
Pope v. State, 256 Ga. 195 (7) (e) (345
SE2d 831) (1986) (reversible error when prospective juror who
would automatically vote for a death sentence for a convicted
murderer and would not consider mitigating evidence was qualified to
serve), overruled on other grounds by Nash v. State,
271 Ga. 281 (519 SE2d 893) (1999). The
error regarding prospective juror Johnson does not affect the
convictions because she was not disqualified on the question of
guilt or innocence. Pope, supra. Accordingly, Nance's sentence of
death is reversed. Id.
7. Because the evidence supports the jury's
finding of the statutory aggravating circumstances, on retrial of
the penalty phase, the State may again seek the death penalty.
Childress v. State, 266 Ga. 425 (6) (467 SE2d
NANCE'S COUNSEL: Now, you understand that the law
never requires the death penalty to be imposed in any case, but it
may be considered in murder cases by the jurors. In deciding whether
the death penalty's appropriate, could you follow the judge's
instructions and could you consider all the alternatives, and the
alternatives being life in prison, life in prison without the
possibility of parole, and the death sentence? Could you consider
all three and decide what was appropriate in a particular case?
NANCE'S COUNSEL: And assuming that you sat on the
jury and you and the other 11 jurors found Michael guilty beyond a
reasonable doubt, would you still be able to consider alternative
punishments, or would your sentence always be death if you found him
MS. JOHNSON: It would always be death.
NANCE'S COUNSEL: It would always be death? You
believe then, in the eye for an eye, if a person kills somebody,
they should die?
NANCE'S COUNSEL: And so what I'm asking, you
wouldn't be able to consider the life in prison or life in prison
without parole if you found him guilty; is that correct?
MS. JOHNSON: That's correct.
PROSECUTOR: Ms. Johnson, in response to some
questions that [Nance's counsel] had asked you about the death
penalty, I want to go back and talk about that a little more. First
of all, do you understand that not every murder under our law is
even eligible for a jury to decide whether or not that person gets
the death penalty?
MS. JOHNSON: I did not know that.
PROSECUTOR: And do you understand that, so not
all murders are even entitled to consideration for the death
penalty. Did you know that?
PROSECUTOR: And there is only a certain class or
a certain type of murder where the State has a certain burden where
you would even be asked to consider that?
MS. JOHNSON: I didn't know that.
PROSECUTOR: Now, this case is one of those cases
where the State has announced that it's going to seek the death
penalty in the case. What that means is we would have to prove to a
jury beyond a reasonable doubt that the defendant is guilty of the
crime, first of all. That would be the first decision the jury makes.
Do you understand that?
PROSECUTOR: The second decision is then we would
have to prove to you beyond a reasonable doubt that one of what is
called an aggravating circumstance exists in order for you to even
be allowed to vote for the death penalty. Do you understand that?
PROSECUTOR: In considering this particular case,
if you were selected as a juror, could you listen to the instruction
of the Court and could you hold the State to the burden of proving
the aggravating circumstance beyond a reasonable doubt before you
would even consider imposing the death penalty?
PROSECUTOR: And would you follow the law as it is
given to you by the Court?
PROSECUTOR: So despite your feeling that the way
[Nance's counsel] put it, an eye for an eye, that really isn't your
feeling, is it? Your feeling is that you're prepared to follow the
MS. JOHNSON: I'm prepared to follow the law. And
if you prove to me that he did do it, then at that time --
PROSECUTOR: Now, you understand that's not the
standard. The standard is we have to prove to you that he did it.
MS. JOHNSON: Yes, sir, I understand that.
PROSECUTOR: Thank you. That's all the questions I
TRIAL COURT: [Nance's counsel]?
NANCE'S COUNSEL: Ms. Johnson, I don't want to
belabor this. And like I say, we're just trying to find out what
your feelings are. There's nothing wrong with whatever your feelings
are. If, as [the prosecutor] says, you found Michael guilty beyond a
reasonable doubt and you found the aggravating circumstances that
the judge told you you had to find and you found that they were
there, would you then always give the death penalty?
NANCE'S COUNSEL: That's all I have.
TRIAL COURT: Okay. [Prosecutor], anything
PROSECUTOR: No, Your Honor.
TRIAL COURT: All right. Ms. -- Counsel, do you
mind if I ask her a question? Ms. Johnson, you understand that
should the Defendant in this case be found guilty, there are three
possible sentences that the jury would have to consider? And one is
life in prison, one is life in prison without the possibility of
parole, and one is the death penalty. Do you understand that?
TRIAL COURT: Do you think you could apply the law
as I were to tell you the law exists in this state to the facts as
you hear them in this courtroom and choose the appropriate sentence?
TRIAL COURT: Okay. All right. Any further
PROSECUTOR: None from the State, Your Honor.
NANCE'S COUNSEL: Ms. Johnson, let me ask you one
thing. I don't want to belabor this, but even though you're given
all the choices and everything, would your choice, if you were given
those choices by the judge and if you found him guilty beyond a
reasonable doubt and found aggravating circumstances, would you
always choose death?
NANCE'S COUNSEL: That's all I have. Thank you.
TRIAL COURT: Okay. All right. I'm going to have
you step outside the door there for a second.
CARLEY, Justice, concurring specially.
In Division 6, the majority concludes that
Nance's death sentence must be reversed because the trial court
erred in failing to excuse juror Johnson for cause. I am in full
agreement with that holding. I also concur in the remainder of the
opinion, with the exception of certain portions of Division 2. In
that division, the majority correctly finds that it was error, but
harmless, for the trial court to allow the State's expert to testify,
during the prosecution's case in chief in the guilt-innocence phase,
that Nance made certain statements to her in the course of a mental
health examination. I believe, however, that Division 2 errs in its
ultimate holding that "the State expert may only testify in rebuttal
to the testimony of the defense expert or to rebut the testimony of
the defendant himself."
There is no authority for limiting the State's
expert to rebuttal of testimony given by either the defendant's
expert or the defendant himself. To the contrary, " 'the State has
the right to call rebuttal witnesses to refute or explain any or all
of the defendant's evidence. . . . (Cit.)' [Cit.]" (Emphasis
supplied.) Watkins v. State, 206 Ga. App. 701,
705 (5) (426 SE2d 238) (1992). In
particular, the right to rebut a witness' testimony through
impeachment "is one of the cornerstones of the adversarial process.
Even evidence which violates constitutional standards of due process,
such as unlawfully obtained confessions, may be admitted for
impeachment purposes. [Cit.]" Charlton v. State,
217 Ga. App. 842, 844 (459
SE2d 455) (1995).
The majority relies upon federal cases applying
Federal Rule of Criminal Procedure 12.2 (c). However, the federal
rule does not prohibit the rebuttal use of a statement which the
defendant made to the State's expert and which related to an issue
other than mental condition, if the defense has already introduced
testimony on that particular issue. United States v. Kessi, 868 F.2d
1097, 1108 (V) (9th Cir. 1989); 1A Wright, Federal Practice &
Procedure: Criminal 3d 209, pp. 441-442 (1999).
I also cannot agree with the second footnote,
wherein the majority overrules Hittson v. State,
264 Ga. 682, 683 (2) (449
SE2d 586) (1994) to the extent that that decision "authorized
a State expert to testify in response to lay witness testimony that
the defendant was remorseful. . . ." Consideration of the viability
of Hittson is not even necessary, because the State's expert in this
case testified during the State's case in chief and not in rebuttal.
Moreover, as previously discussed, I believe that Hittson properly
holds that statements made to a State expert may be related by that
expert in rebuttal of the defendant's evidence, regardless of the
source of that evidence. Hittson is correct because it involves only
testimony introduced by the State during rebuttal of the evidence
produced by the defense. It should not be overruled.
I am authorized to state that Justice Hines joins
in this special concurrence.
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.
crimes were committed on December 18, 1993. On April 5, 1994,
Nance was indicted for 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 State filed a notice of intent to seek the death
penalty on April 13, 1994. The trial took place from September
8-26, 1997. The jury convicted Nance of all counts on September
25, 1997, and the jury recommended a death sentence for malice
murder the following day In addition to the death sentence, the
trial court sentenced Nance to a 20-year sentence for aggravated
assault with concurrent sentences of 20 years for theft by
taking and 10 years for criminal attempt to commit armed robbery.
The trial court also sentenced Nance to a consecutive five-year
sentence for possession of a firearm during the commission of a
felony. The felony murder conviction was vacated by operation of
law. Malcolm v. State, 263 Ga. 369 (4)
(434 SE2d 479) (1993). Nance filed a motion for new trial
on October 24, 1997, which was amended on March 18, 1999, and
denied by the trial court on March 19, 1999. The case was
docketed in this Court on July 14, 1999, and orally argued on
October 12, 1999.
DECIDED FEBRUARY 28, 2000 -- RECONSIDERATION DENIED MARCH 23, 2000.
Michael Wayne Nance