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 SE2d 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 SE2d 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 BackgroundThe 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.
