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IN THE SUPREME COURT OF FLORIDA TROY MERCK, JR., Appellant, v. Case No. SC04-1902 STATE OF FLORIDA, Appellee.
Page 1
IN THE SUPREME COURT OF FLORIDA
TROY MERCK, JR.,
Appellant,
v.
Case No. SC04-1902
STATE OF FLORIDA,
Appellee.
___________________________/
ON APPEAL FROM THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT,
IN AND FOR PINELLAS COUNTY, FLORIDA
ANSWER BRIEF OF APPELLEE
CHARLES J. CRIST, JR.
ATTORNEY GENERAL
ROBERT J. LANDRY
Assistant Attorney General
Florida Bar I.D. No. 0134101
Concourse Center 4
3507 East Frontage Road, Suite 200
Tampa, Florida 33607-7013
Telephone: (813) 287-7910
Facsimile: (813) 281-5501
COUNSEL FOR APPELLEE
Page 2
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................ ii
STATEMENT OF THE CASE AND FACTS............................... 1
SUMMARY OF THE ARGUMENT ..................................... 22
ARGUMENT.................................................... 25
ISSUE I ................................................... 25
ISSUE II .................................................. 36
ISSUE III ................................................. 46
ISSUE IV .................................................. 61
ISSUE V ................................................... 71
ISSUE VI .................................................. 86
CONCLUSION.................................................. 89
CERTIFICATE OF SERVICE ...................................... 89
CERTIFICATE OF FONT COMPLIANCE............................... 89
WHETHER THE TRIAL COURT IMPROPERLY EXCLUDED EVIDENCE
RELATING TO APPELLANT’S PRESUMPTIVE PAROLE DATE IN THE
PENALTY PHASE.
WHETHER THE TRIAL COURT IMPROPERLY EXCLUDED EVIDENCE
RELEVANT TO THE NATURE AND CIRCUMSTANCE OF THE
OFFENSE.
WHETHER PROSECUTORIAL REMARKS IN CLOSING ARGUMENT
DENIED APPELLANT A FAIR PENALTY PHASE HEARING AND
CONSTITUTED REVERSIBLE ERROR.
WHETHER THE TRIAL COURT ERRED REVERSIBLY IN FAILING TO
FIND OR IN GIVING TOO LITTLE WEIGHT TO MITIGATING
FACTORS.
WHETHER THE DEATH SENTENCE IMPOSED IS PROPORTIONATE.
WHETHER THE DEATH PENALTY STATUTE IS UNCONSTITUTIONAL.
Page 3
ii
TABLE OF AUTHORITIES
Cases
Anderson v. State,
863 So. 2d 169 (Fla. 2003)................................. 78
Apprendi v. New Jersey,
530 U.S. 466 (2000) ....................................... 86
Atwater v. State,
626 So. 2d 1325 (Fla. 1993) ................................ 80
Banks v. State,
732 So. 2d 1065 (Fla. 1999) ................................ 54
Bates v. State,
750 So. 2d 6 (Fla. 1999)........................... 27, 30, 34
Blackwelder v. State,
851 So. 2d 650 (Fla. 2003)............................. 24, 86
Blackwood v. State,
777 So. 2d 399 (Fla. 2000)......................... 43, 63, 70
Bogle v. State,
655 So. 2d 1103 (Fla. 1995) ............................ 36, 41
Bolender v. State,
422 So. 2d 833 (Fla. 1982)................................. 83
Bonifay v. State,
680 So. 2d 413 (Fla. 1996)................................. 78
Booker v. State,
773 So. 2d 1079 (Fla. 2000) ................................ 30
Bowden v. State,
588 So. 2d 225 (Fla. 1991)................................. 84
Breedlove v. State,
413 So. 2d 1 (Fla. 1982)............................... 46, 54
Brooks v. State,
762 So. 2d 879 (Fla. 2000)................................. 55
Bryant v. State,
785 So. 2d 422 (Fla. 2001)......................... 63, 67, 70
Butler v. State,
842 So. 2d 817 (Fla. 2003)................................. 77
Buzia v. State,
926 So. 2d 1203 (Fla. 2006) ................................ 77
Page 4
iii
Caballero v. State,
851 So. 2d 655 (Fla. 2003)................................. 85
Card v. State,
803 So. 2d 613 (Fla. 2001)................................. 77
Carroll v. State,
815 So. 2d 601 (Fla. 2002)................................. 58
Chandler v. State,
702 So. 2d 186 (Fla. 1997)................................. 55
Conahan v. State,
844 So. 2d 629 (Fla. 2003)......................... 51, 53, 55
Conde v. State,
860 So. 2d 930 (Fla. 2003)......................46, 62, 67, 70
Cox v. State,
819 So. 2d 705 (Fla. 2002)............................. 63, 77
Dade County School Board v. Radio Station WQBA,
731 So. 2d 638 (Fla. 1999)................................. 40
Darling v. State,
808 So. 2d 145 (Fla. 2002)............................. 22, 40
Davis v. State,
859 So. 2d 465 (Fla. 2003)................................. 78
Dessaure v. State,
891 So. 2d 455 (Fla. 2004)................................. 77
Doorbal v. State,
837 So. 2d 940 (Fla. 2003)......................24, 56, 57, 87
Douglas v. State,
878 So. 2d 1246 (Fla. 2004) ............................ 77, 78
Downs v. State,
572 So. 2d 895 (Fla. 1990)......................... 29, 43, 44
Duest v. State,
855 So. 2d 33 (Fla. 2003).......................... 22, 40, 78
Elledge v. State,
706 So. 2d 1340 (Fla. 1997) ................................ 66
England v. State,
2006 Fla. LEXIS 942 (Fla. May 25, 2006) ................ 40, 86
Evans v. State,
808 So. 2d 92 (Fla. 2001).............................. 55, 64
Everett v. State,
893 So. 2d 1278 (Fla. 2004) ................................ 77
Page 5
iv
Fennie v. State,
855 So. 2d 597 (Fla. 2003)................................. 58
Finney v. State,
660 So. 2d 674 (Fla. 1995)................................. 43
Floyd v. State,
913 So. 2d 564 (Fla. 2005)............................. 24, 87
Ford v. State,
802 So. 2d 1121 (Fla. 2001) ................................ 50
Foster v. State,
679 So. 2d 747 (Fla. 1996)................................. 63
Franklin v. Lynaugh,
487 U.S. 164 (1988) ....................................... 41
Franqui v. State,
699 So. 2d 1312 (Fla. 1997) ................................ 31
Franqui v. State,
699 So. 2d 1332 (Fla. 1997) ................................ 84
Franqui v. State,
804 So. 2d 1185 (Fla. 2001) ............................ 46, 50
Freeman v. State,
563 So. 2d 73 (Fla. 1990).................................. 84
Freeman v. State,
858 So. 2d 319 (Fla. 2003)................................. 66
Globe v. State,
877 So. 2d 663 (Fla. 2004)......................... 62, 70, 77
Green v. State,
907 So. 2d 489 (Fla. 2005)................................. 31
Griffin v. State,
866 So. 2d 1 (Fla. 2003)................................... 51
Guzman v. State,
721 So. 2d 1155 (Fla. 1998) ................................ 84
Hawk v. State,
718 So. 2d 159 (Fla. 1998)................................. 54
Hayes v. State,
581 So. 2d 121 (Fla. 1991)................................. 84
Henyard v. State,
689 So. 2d 239 (Fla. 1996)................................. 42
Hitchcock v. State,
578 So. 2d 685 (Fla. 1990)............................. 43, 44
Page 6
v
Hitchcock v. State,
755 So. 2d 638 (Fla. 2000)................................. 54
Hodges v. State,
885 So. 2d 338 (Fla. 2004)............................. 24, 86
Holland v. State,
773 So. 2d 1065 (Fla. 2000) ............................ 25, 78
Huff v. State,
569 So. 2d 1247 (Fla. 1990) ................................ 54
Hutchinson v. State,
882 So. 2d 943 (Fla. 2004)................................. 78
Ibar v. State,
31 Fla. L. Weekly S 149 (Fla. March 9, 2006) ........... 22, 41
Jeffries v. State,
797 So. 2d 573 (Fla. 2001)................................. 77
Johnson v. State,
438 So. 2d 774 (Fla. 1983)................................. 25
Jones v. State,
748 So. 2d 1012 (Fla. 1999) ................................ 25
Jones v. State,
923 So. 2d 486 (Fla. 2006)................................. 43
Kearse v. State,
770 So. 2d 1119 (Fla. 2000) ............................ 57, 62
Keen v. State,
775 So. 2d 263 (Fla. 2000)................................. 43
Kilgore v. State,
688 So. 2d 895 (Fla. 1996)................................. 55
King v. State,
514 So. 2d 354 (Fla. 1987)................................. 36
Kramer v. State,
619 So. 2d 274 (Fla. 1993)................................. 82
Lamarca v. State,
785 So. 2d 1209 (Fla. 2001) ................................ 77
Larkins v. State,
739 So. 2d 90 (Fla. 1999).................................. 76
Larzelere v. State,
676 So. 2d 394 (Fla. 1996)................................. 42
Lawrence v. State,
846 So. 2d 440 (Fla. 2003)................................. 79
Page 7
vi
Lucas v. State,
568 So. 2d 18 (Fla. 1990).................................. 43
Lugo v. State,
845 So. 2d 74 (Fla. 2003)...................24, 52, 53, 57, 87
Lukehart v. State,
776 So. 2d 906 (Fla. 2000)................................. 55
Lynch v. State,
841 So. 2d 362 (Fla. 2003)................................. 77
Maxwell v. State,
603 So. 2d 490 (Fla. 1992)................................. 76
McMullen v. State,
714 So. 2d 368 (Fla. 1998)................................. 25
Melendez v. State,
612 So. 2d 1366 (Fla. 1992) ................................ 42
Melton v. State,
853 So. 2d 431 (Fla. 5
th
DCA, August 12, 2003) .............. 80
Melton v. State,
866 So. 2d 1229 (Fla. 5
th
DCA, February 10, 2004) ........... 80
Merck v. State,
664 So. 2d 939 (Fla. 1995)......................... 71, 73, 82
Merck v. State,
763 So. 2d 295 (Fla. 2000)................................. 74
Miller v. State,
926 So. 2d 1243 (Fla. 2006) ................................ 53
Monlyn v. State,
894 So. 2d 832 (Fla. 2004)................................. 77
Moore v. State,
701 So. 2d 545 (Fla. 1997)......................... 23, 46, 53
Mordenti v. State,
630 So. 2d 1080 (Fla. 1994) ................................ 42
Morton v. State,
789 So. 2d 324 (Fla. 2001)............................. 55, 77
Nelson v. State,
850 So. 2d 514 (Fla. 2003)............................. 67, 77
Occhicone v. State,
570 So. 2d 902 (Fla. 1990)............................. 46, 54
Ocha v. State,
826 So. 2d 956 (Fla. 2002)................................. 79
Page 8
vii
Oregon v. Guzek,
126 S.Ct. 1226 (2006)...................................... 41
Overton v. State,
801 So. 2d 877 (Fla. 2001)................................. 54
Owen v. State,
862 So. 2d 687 (Fla. 2003)................................. 77
Pagan v. State,
830 So. 2d 792 (Fla. 2002)............................. 25, 58
Perez v. State,
919 So. 2d 347 (Fla. 2005)................................. 66
Peterka v. State,
890 So. 2d 219 (Fla. 2004)............................. 23, 56
Pittman v. State,
646 So. 2d 167 (Fla. 1994)................................. 80
Porter v. Crosby,
840 So. 2d 981 (Fla. 2003)............................. 24, 87
Preston v. State,
607 So. 2d 404 (Fla. 1992)................................. 41
Quince v. State,
732 So. 2d 1059 (Fla. 1999) ................................ 54
Ramdass v. Angelone,
530 U.S. 156 (2000) ................................... 22, 32
Ray v. State,
755 So. 2d 604 (Fla. 2000)................................. 36
Reed v. State,
875 So. 2d 415 (Fla. 2004)................................. 66
Reese v. State,
768 So. 2d 1057 (Fla. 2000) ............................ 76, 78
Reynolds v. State,
2006 Fla. LEXIS 888 (Fla. May 18, 2006) .........40, 67, 78, 80
Rimmer v. State,
825 So. 2d 304 (Fla. 2002)................................. 57
Ring v. Arizona,
536 U.S. 584 (2002) ............................... 24, 86, 88
Robertson v. State,
829 So. 2d 901 (Fla. 2002)................................. 40
Robinson v. State,
761 So. 2d 269 (Fla. 1999)................................. 76
Page 9
viii
Rodriguez v. State,
919 So. 2d 1252 (Fla. 2005) ................................ 54
Rose v. State,
787 So. 2d 786 (Fla. 2001)............................. 62, 70
Sager v. State,
699 So. 2d 619 (Fla. 1997)................................. 82
Schoenwetter v. State,
2006 Fla. LEXIS 668 (Fla. April 27, 2006) .................. 63
Simmons v. South Carolina,
512 U.S. 154 (1994) ............................22, 26, 31, 32
Simmons v. State,
2006 Fla. LEXIS 813 (Fla. May 11, 2006) ................ 25, 77
Sims v. State,
681 So. 2d 1112 (Fla. 1996) ................................ 41
Smith v. State,
866 So. 2d 51 (Fla. 2004).................................. 46
Spencer v. State,
842 So. 2d 52 (Fla. 2003).................................. 43
State v. DiGuilio,
491 So. 2d 1129 (Fla. 1986) ................................ 60
State v. McBride,
848 So. 2d 287 (Fla. 2003)................................. 39
Taylor v. State,
630 So. 2d 1038 (Fla. 1993) ................................ 80
Taylor v. State,
855 So. 2d 1 (Fla. 2003)............................... 64, 77
Thomas v. State,
618 So. 2d 155 (Fla. 1993)................................. 83
Thomas v. State,
748 So. 2d 970 (Fla. 1999)................................. 50
Trease v. State,
768 So. 2d 1050 (Fla. 2000) ................................ 54
Trotter v. State,
576 So. 2d 691 (Fla. 1990)................................. 80
Urbin v. State,
714 So. 2d 411 (Fla. 1998)................................. 83
Voorhees v. State,
699 So. 2d 602 (Fla. 1997)................................. 82
Page 10
ix
Walls v. State,
641 So. 2d 381 (Fla. 1994)................................. 67
Waterhouse v. State,
596 So. 2d 1008 (Fla. 1992) ................................ 29
Way v. State,
760 So. 2d 903 (Fla. 2000)............................. 22, 41
White v. State,
817 So. 2d 799 (Fla. 2002)................................. 54
Whitfield v. State,
706 So. 2d 1 (Fla. 1997)................................... 30
Whitton v. State,
649 So. 2d 861 (Fla. 1994)................................. 83
Willacy v. State,
696 So. 2d 693 (Fla. 1997)................................. 78
Wuornos v. State,
676 So. 2d 972 (Fla. 1996)................................. 67
Zack v. State,
753 So. 2d 9 (Fla. 2000)................................... 36
Zack v. State,
911 So. 2d 1190 (Fla. 2005) ................................ 59
Other Authorities
F.S. 921.141 ............................................ 64, 65
Page 11
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STATEMENT OF THE CASE AND FACTS
(a) Procedural History:
Merck was tried and convicted of first degree murder of the
victim James Anthony Newton. Initially, the case went to trial
and ended in a mistrial on November 6, 1992 because the jury was
unable to reach a verdict. After the second trial he was found
guilty as charged and the jury recommended death by a nine to
three vote. On appeal this Court affirmed the judgment but
remanded for resentencing because the jury had heard evidence
pertaining to a North Carolina juvenile adjudication which was
not a conviction within the meaning of F.S. 921.141(5)(b).
Merck v. State, 664 So. 2d 939
(Fla. 1995).
Merck’s
resentencing took place and the jury unanimously recommended a
sentence of death. This Court reversed and remanded for a new
penalty phase proceeding because the trial court had failed to
properly find, evaluate and weigh evidence of Appellant’s
alcohol abuse within the list of nonstatutory mitigators and
retroactive application of the felony probation aggravator
violated the ex post facto clause. Merck v. State, 763 So. 2d
295 (Fla. 2000).
(b) The Instant Proceedings:
Following jury selection, the trial court instructed the
jury that Merck had been found guilty of murder in the first
Page 12
2
degree, that an appellate court had reviewed and affirmed the
conviction and had sent the case back “to decide what sentence
should be imposed.
Consequently, you will not concern
yourselves with the question of his guilt.” (V. 2dAdd. II,
R.254).
(1) Katherine Sullivan, a bartender at the City Lights on
October 11, 1991, testified that she and friends were there to
celebrate the birthday of victim Jim Newton. (V. 2dAdd. II,
R.265). They arrived about 10:00 or 10:30 and left at closing
at 2:00. (V. 2dAdd. II, R.266). After the bar closed, she and
her boyfriend Glenn went to the car and talked; she was in the
driver’s seat and he was in the passenger seat. Another friend,
Don Ward, was standing by the passenger side of her car. (V.
2dAdd. II, R.268). One of two men leaned against her car and
her boyfriend asked them not to do so and they apologized
sarcastically. (V. 2dAdd. II, R.268). Jim Newton moved his car
around and walked with Don to the car and asked if everything
was all right. She got out of the car and congratulated him on
his birthday.
Someone said “congradu—fucken—lations”.
(V.
2dAdd. II, R.269-270). The one who made the snide comment was
trying to egg Newton into a fight. Jim said he would not fight
and the man called him a pussy. Jim said he was a pussy but
still was not going to fight. (V. 2dAdd. II, R.270). The man
Page 13
3
said he was going to teach him how to bleed, walked back to
their car and asked his friend to throw him the keys. The man
unlocked his car and threw his shirt into the back of the car.
The man was able to catch the car keys and walk to his car and
unlock it without any trouble.
(V. 2dAdd. II, R.271).
He
fumbled between the seat and door for something, walked back and
handed the keys to his friend. (V. 2dAdd. II, R.272). He broke
into a run as he approached Newton and started punching him; she
saw blood on the victim’s back and realized he wasn’t just being
punched. She thought she saw a glint off the street light on
something in his hand. She ran inside and said someone has been
stabbed, call 911. (V. 2dAdd. II, R.274). Newton didn’t do
anything to defend himself. The witness identified Appellant in
court as the killer. (V. 2dAdd. II, R.276).
(2) Neil Thomas, Appellant’s companion, met him in Ocala a
couple of weeks before this incident. (V. 2dAdd. II, R.299).
He went with Merck to North Carolina to visit the latter’s
relatives and drove from there to Pinellas County in a red
Mercury Bobcat. He thought Merck was about nineteen at the
time. (V. 2dAdd. II, R.300). Thomas had five or six beers and
a couple of shots at the City Lights and he gave about the same
amount of liquor to Merck. (V. 2dAdd. II, R.301). Merck had a
fixed handle buck knife in his possession. While they were
Page 14
4
inside the bar Merck had no trouble walking or talking. (V.
2dAdd. II, R.302).
He and Merck leaned up against a blue
Camaro. They were asked sarcastically to get off the car and
Thomas responded with a smart remark. Thomas called the guy a
pussy. (V. 2dAdd. II, R.303). Appellant got aggravated and put
his shirt in the Bobcat. Troy charged around the car and began
punching him in the back. (V. 2dAdd. II, R.304). Appellant ran
back to the car and said we have to go. Thomas drove out of the
parking lot.
(V. 2dAdd. II, R.305).
He looked back and
Newton’s shirt looked shiny in the back. He recalled Merck when
running back to the car held his arm very stiff and it looked
like he was concealing something in his hand. Thomas remembered
having heard a soft popping noise, like a screwdriver going
through a carpet during the fight. (V. 2dAdd. II, R.306). He
asked Merck if he had stabbed the guy and Appellant held up his
hand holding the knife with blood all over his hand and arm.
Merck said he killed him and that if he didn’t kill him, he
would find him in the hospital and finish the job. (V. 2dAdd.
II, R.307). Merck recounted how he stabbed the victim, that he
was not sure if he was going to kill him so he decided to stick
him in the neck and once he stuck him in the neck he actually
twisted the knife and was trying to rip his throat out. Merck
repeated the story a half dozen times. (V. 2dAdd. II, R.312).
Page 15
5
Merck said he saw the victim’s blood squirt out and stop like a
squirt gun. They drove for five minutes and abandoned the car.
(V. 2dAdd. II, R.313). They changed their clothes and removed
the car tag. (V. 2dAdd. II, R.314). They walked for an hour to
a bowling alley and Merck had no problem walking and running.
They played pool and Merck won. (V. 2dAdd. II, R.316-317). He
and Merck were in a Clearwater motel when Merck was arrested.
Thomas had eleven convictions. (V. 2dAdd. II, R.317).
(3) Salvatore Pensiero was a disk jockey at the City
Lights Nightclub and while they were closing up one of the off
duty employees came screaming in and said someone was stabbed in
the parking lot. He saw a man on the ground holding his throat
gasping for air. (V. 2dAdd. II, R.344).
(4) Donald Ward was present when Jim Newton was stabbed
and killed. (V. 2dAdd. II, R.348). He heard the assailant say
happy birthday. (V. 2dAdd. II, R.349). He didn’t actually see
the knife. (V. 2dAdd. II, R.351).
(5) James David Carter was in charge of security at the
club; he went outside when he heard the report of a stabbing and
wrote down the tag number of the fleeing vehicle. (V. 2dAdd.
II, R.354).
(6) Detective Thomas Nestor identified pictures of the
scene where the attack occurred. (V. 2dAdd. II, R.361). The
Page 16
6
abandoned red Mercury Bobcat was found two miles away; a knife
and sheath were in the back seat. (V. 2dAdd. II, R.364-65).
Newton’s blood was found inside the vehicle. (V. 2dAdd. II,
R.366) and Merck’s fingerprints were found in and around the
car. (V. 2dAdd. II, R.367). Katherine Sullivan identified Neil
Thomas from a photopack. (V. 2dAdd. II, R.368).
1
Det. Nestor
received a phone call from Neil Thomas’s grandmother and his
department was able to locate Thomas and Merck. Merck gave a
false name at the time of his arrest. (V. 2dAdd. II, R.369).
(7) Detective Mike Madden arrived at the hospital at about
the time Newton was pronounced dead. He observed preliminarily
four stab wounds to the left back, one to the left neck, one
underneath the left armpit area and one to the lest chest area.
(V. 2dAdd. II, R.375).
Later at the autopsy he noticed wounds
to the face.
(V. 2dAdd. II, R.376).
Det. Madden observed
defensive wound injuries on the left hand.
(V. 2dAdd. II,
R.380).
(8) Dr. Noel Palma, a medical examiner, reviewed the
autopsy report done by Dr. Davis and reviewed the various
photographs of James Newton. (V. 2dAdd. II, R.388-389). The
cause of death was multiple stab wounds of the neck and trunk.
1
Katherine Sullivan also testified she had identified Merck from
a photopack. (V. 2dAdd. II, R.287), which was corroborated by
Detective Nestor. (V. 2dAdd. II, R.372).
Page 17
7
(V. 2dAdd. II, R.390).
There were seven stab wounds and
multiple incise wounds. (V. 2dAdd. II, R.391). There were at
least thirteen or fourteen incise wounds for a total of twenty
various inflicted wounds . (V. 2dAdd. II, R.399). Stab wound
(referred to as number six) was on the left side of the ear and
went through the skull and even penetrated the bone. (V. 2dAdd.
III, R.402). The injuries would cause pain. (V. 2dAdd. III,
R.404). The most significant stab wound that can cause death
went through the soft tissue of the neck, the carotid artery,
jugular vein and esophagus. (V. 2dAdd. III, R.406). He would
survive for about a minute or so; his movement of the hands
toward the neck was purposeful and meaningful, a sign of
consciousness – as well as the defensive wounds observed. (V.
2dAdd. III, R.407-408). The wounds were not survivable. (V.
2dAdd. III, R.409). The manner of death was homicide. (V.
2dAdd. III, R.413).
The parties stipulated that Appellant had five prior
convictions: State’s Exhibit No. 8 is a 1989 judgment for
robbery with a deadly weapon; State’s Exhibit No. 9 is another
1989 conviction for robbery with a deadly weapon; State’s
Exhibit No. 10 is a 1989 conviction for robbery with a deadly
weapon; State’s Exhibit No. 11 is a 1989 conviction for robbery
with a deadly weapon; and State’s Exhibit No. 12 is a 1990
Page 18
8
conviction for robbery. The exhibits were renumbered 39 through
43. (V. 2dAdd. III, R.429-432). The State rested.
Upon the State’s objection, the court ruled that it would
not allow the testimony of Felix Ruiz of the Parole Commission
that the potential length of sentence would be about eight
hundred years. (V. 2dAdd. III, R.432-433). A proffer of Ruiz’s
testimony was taken. (V. 2dAdd. III, R.435-441).
After making an opening statement (V. 2dAdd. III, R.443-
449), the defense played a videotape of school psychologist
Nancy Pate, Defense Exhibit 12. (V. 2dAdd. III, R.449). A
videotape of special education teacher George Olbon was also
played to the jury.
(V. 2dAdd. III, R.451-452)(see also
Defendant’s Exhibit 12 at V. Supp. V, R.738 and Defendant’s
Exhibit 16 at V. Supp. V, R.739).
Nancy Pate testified via videotape. (V. Supp. V, R.687-
716). Ms. Pate has been a school psychologist since 1978 and
was employed by the county schools in South Carolina. (V. Supp.
V, R.689). She met Merck when he was seven years old at the
beginning of his second grade; his first grade teacher had
referred him for testing. (V. Supp. V, R.691). She visited his
home and saw newspapers stapled to walls; she understood it was
done for insulation.
(V. Supp. V, R.693-694).
Merck had
drooping eyelids and his teeth needed attention. (V. Supp. V,
Page 19
9
R.695).
She tested him and concluded he needed a highly
structured classroom setting.
(V. Supp. V, R.696).
He
responded well to praise. (V. Supp. V, R.697). Much later in
Florida after speaking to his sister Stacy, Pate heard there was
physical abuse at home. (V. Supp. V, R.697). She evaluated
Merck later that year. (V. Supp. V, R.698). It seem Merck
failed to profit from school instruction and had an extremely
low self-concept.
(V. Supp. V, R.700).
She recommended
placement for students with emotional disabilities. (V. Supp.
V, R.700-701). She tested Merck again in September of 1982 and
she contacted Merck’s teacher, Mr. Olbon. (V. Supp. V, R.701-
702).
Her testing in 1982 showed indications of mental
confusion, withdrawing, impulsiveness.
(V. Supp. V, R.705).
She also gave him a personality test which indicated low self-
reliance. (V. Supp. V, R.706). Some of his responses were
reflective of a violent content.
(V. Supp. V, R.707).
On
cross-examination, Pate conceded Merck basically had an average
level of intelligence. (V. Supp. V, R.710). She had made a
notation that he often talks of doing violence. (V. Supp. V,
R.713). She did not have a degree in psychology. (V. Supp. V,
R.714).
Special education teacher George Olbon testified he met
Merck when the latter was a fourth grade student about ten or
Page 20
10
eleven years old.
(V. Supp. V, R.721).
Merck was better
prepared after he had gone to the Collins Home for Children.
(V. Supp. V, R.722).
Merck made good progress with Olbon;
Merck’s attitude with him was good and he got along most of the
time with other students. Sometimes children made fun of his
eye condition. His self-esteem improved. The structure helped.
(V. Supp. V, R.724). He was headed for the mainstream at the
end of the school year, but then he did not return. (V. Supp.
V, R.725).
2
Appellant’s sister Stacy France testified that when her
mother was pregnant with Appellant she tried to hide it because
Stacy’s future step-father was in Vietnam and she didn’t want
him to know she was pregnant before he got home; he figured out
it was not his child. The mother tried to abort Appellant and
after he was born blamed him for losing Hubert. The mother was
mentally and physically abusive to Appellant. (V. 2dAdd. III,
R.454-455).
The defense introduced a number of photographs.
(V. 2dAdd. III, R.456-459). Stacy France was put in a boarding
school for two or three years beginning in about her fourth
grade. (V. 2dAdd. III, R.459). She went back from time to time
2
While the court reporter in preparing the supplemental record
of the videotape has transcribed the testimony of witnesses Pate
and Olbon, the court reporter has also included that of Jason
Louis Eller. The undersigned counsel has been advised that Mr.
Eller’s videotaped testimony was not introduced and submitted as
evidence to the jury.
Page 21
11
for holidays and summers and the mother’s treatment of Appellant
continued. (V. 2dAdd. III, R.460). The witness has kept in
touch with him while he’s been in prison, and he is positive and
encouraging as a counselor.
(V. 2dAdd. III, R.460).
She
testified that her mother took turpentine and rubbed it on her
stomach in an effort to abort Appellant.
(V. 2dAdd. III,
R.461).
The witness acknowledged that her mother had also
beaten her, that she was able to turn her life around from being
in this impoverished condition – she works at a community
college now and has in the past been a paralegal and worked for
a law firm – and she has children of her own and has let her
mother baby-sit the children while she worked in the daytime.
(V. 2dAdd. III, R.463-465).
The defense introduced Merck’s
birth certificate listing the date of birth as January 9, 1972.
(V. 2dAdd. III, R.471-472).
Ann Rackley, co-founder of the Collins Children’s Home,
testified that Appellant and his family were referred to her by
the school system, school psychologist, teachers and principal.
(V. 2dAdd. III, R.474). She testified that Appellant came from
a very troubled, dysfunctional home; the mother lacked parenting
skills. Appellant came to her before he turned eleven years
old; his high school teacher was George Olbon.
Appellant
thrived well in the structured environment. (V. 2dAdd. III,
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12
R.476-477). However, when the summer started Appellant’s mother
took him home to live with her. (V. 2dAdd. III, R.482-483).
Linda Snyder, Appellant’s foster mother in 1984 in North
Carolina, testified that Merck did very well with her – did not
get into trouble, or misbehave, he made friends easily and did
well in school. (V. 2dAdd. III, R.493). She noticed a pattern
that Appellant’s mother expected him to express her hostility to
society.
(V. 2dAdd. III, R.494).
When Appellant had home
visits when he returned he would be disturbed. He had not been
in a loving environment. (V. 2dAdd. III, R.495). Merck stayed
in her home only four months. (V. 2dAdd. III, R.495). They
became close friends during his incarceration. (V. 2dAdd. III,
R.497).
Tara Wilkinson met Appellant in 1998 when she was living in
Texas; her boyfriend was visiting another inmate and she came
along as company and support. She and Merck have now been pen
pals for five and one-half years. (V. 2dAdd. III, R.504-505).
She has seen maturity, he is a creative and intelligent person.
(V. 2dAdd. III, R.506). She drove all the way from Dallas,
Texas to meet him in jail. (V. 2dAdd. III, R.508).
Nora McClure, an assistant public defender who represented
Merck in 1991, testified that he has become more mature in the
last thirteen years. (V. 2dAdd. III, R.514). He is a very
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13
social person and he has been kept in a solitary cell. (V.
2dAdd. III, R.517).
The defense announced that they were excusing Ron Bell as a
witness without his testimony and Dr. Maher would not be used.
(V. 2dAdd. III, R.512).
When the defense announced that
Appellant Merck would be the last defense witness, the court
conducted a colloquy wherein Appellant acknowledged that it had
been explained to him that the defense team would not be calling
Ron Bell as a witness and that no mental health expert would be
called. (V. 2dAdd. III, R.522). The court noted that if such
testimony were not presented the jury could not hear it. The
State added that the defense was choosing not to call Bell, Dr.
Maher and a pathologist Dr. Willy – but that a Spencer hearing
was available subsequently. (V. 2dAdd. III, R.524). After a
recess, Merck and his counsel agreed to proceed with Merck being
the remaining last witness and that no one was forcing him to
testify. (V. 2dAdd. III, R.526). Merck was aware that the
prosecutor could cross-examine him. (V. 2dAdd. III, R.527).
Appellant testified that alcohol had been part of his life
since he was a baby. A couple of years ago when his attorneys
informed him that he had a relatively high IQ, he decided to
develop himself through books. (V. 2dAdd. III, R.530-531). He
has a better understanding of patterns that develop and can
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14
understand what is going on with himself and other people. (V.
2dAdd. III, R.532).
On cross-examination Merck acknowledged
that aside from this case he had been convicted of a felony five
or six times. (V. 2dAdd. III, R.536). Merck admitted that he
had a tolerance for alcohol, that is he could function, walk,
talk and operate machinery. His lifestyle changed in the last
two years. (V. 2dAdd. III, R.537-538).
Following closing arguments the jury returned with a
recommendation of death by a vote of nine to three. (V. 2dAdd.
IV, R.606-609).
At the Spencer hearing on May 28, 2004, Merck and his
counsel agreed that victim impact statements could be read. (V.
2dAdd. IV, R.618) and the victim’s father Ron Cheek read
statements from the victim’s wife Carrie Newton, the victim’s
daughter Amanda Newton, and the victim’s sister. (V. 2dAdd. IV,
R.621-627).
The defense introduced as Exhibit 1 the prior testimony of
toxicologist Ron Bell.
(V. 2dAdd. IV, R.628-629).
Bell
performed the toxicological analysis in James Newton’s autopsy;
he had a .18 heart blood alcohol and .21 vitreous blood alcohol.
(V. 2dSupp. IV, R.504, Defense Exhibit 1). He also reviewed the
previous testimony of Neil Thomas and estimated Thomas had a
blood alcohol concentration of .15 grams per deciliter and that
Page 25
15
based on Thomas’s testimony, Merck’s would have been .21 grams
per deciliter.
Variable parameters would include the
individual’s absorption rate of alcohol, the elimination rate
and distribution volume. Someone with this concentration would
have the ability to drive an automobile and may not exhibit
symptoms of intoxication, based on tolerance level. (V. 2dSupp.
IV, R.504, Defense Exhibit 1).
Defense witness, Dr. Maher, a psychiatrist, testified that
Appellant was exposed to alcohol as a very young child and that
it led to a pattern of significant alcohol use and abuse during
his teenage years and continuing during his late teenage years.
(V. 2dAdd. IV, R.634). He also had a very disordered neglectful
and abusive childhood.
Merck had a history of impulsivity,
hostility and violence toward others. (V. 2dAdd. IV, R.635).
The time spent at Collins Children’s Home was the highest level
of stability and reasonable nurturing
–
a structured
environment. (V. 2dAdd. IV, R.636). Dr. Maher opined that both
statutory mental mitigators were present. (V. 2dAdd. IV, R.636-
637). Merck’s value system was that kindness or gentleness were
weaknesses but Dr. Maher thought that Appellant has matured
considerably. (V. 2dAdd. IV, R.638-641).
On cross-examination
Dr. Maher opined that he didn’t think Merck now meets the
behavioral diagnosis of antisocial personality, but he did not
Page 26
16
believe that if Merck maintained a website on the internet
blaming Neil Thomas for the homicide would constitute a
legitimate display of remorse. (V. 2dAdd. IV, R.644). Merck
would have equated his striking the victim first with earning
the respect of people.
(V. 2dAdd. IV, R.646).
Dr. Maher
acknowledged that Merck had recently obtained a full scale IQ of
128 on the WAIS-III and in 1992 had received a score of 110
which he characterized as normal to slightly above normal. (V.
2dAdd. IV, R.648).
Merck had been placed in programs for
emotionally challenged children.
While alcohol is not a
prerequisite for him to react to a situation in a violent way,
Dr. Maher opined that Merck would not have killed Jim Newton
absent alcohol. (V. 2dAdd. IV, R.649-650).
State witness Dr. Vincent Sloman, a psychologist, testified
that he had reviewed various materials and conducted his own
clinical interview of Merck and administered a Minnesota
Multiphasic Personality Inventory. (V. 2dAdd. IV, R.657-660).
Dr. Sloman opined that Appellant suffered from an antisocial
personality disorder which is a basic pattern of disregard for
other’s rights and liberties usually beginning at or about the
age of fifteen. (V. 2dAdd. IV, R.661). Characteristics include
the failure to conform to the norms of society, aggressive,
violent acts, impulsiveness, a reckless disregard for the safety
Page 27
17
of self or others, lack of remorse or indifference toward the
consequences of one’s actions and usually substance abuse
involving alcohol or drugs. (V. 2dAdd. IV, R.661-662). Dr.
Sloman found no changes between 1993 and the present time; Merck
has not developed a new value system or conscience during his
incarceration.
(V. 2dAdd. IV, R.661-662).
Conscience is
formulated in the early years up to five years of age and
reinforced as one moves through childhood into adolescence and
adulthood –
not
formulated or built in a setting of
incarceration.
Dr. Sloman took umbrage at Merck’s described
maturity level, noting that his confinement in isolation had not
been a test of interaction with other individuals in or outside
a prison setting. (V. 2dAdd. IV, R.663). The MMPIs in both
1992 and 2004 indicated antisocial personality disorder. His IQ
level of 128 is in the superior range at the 92
nd
to 93
rd
percentile with only seven percent of the population ahead of
him. (V. 2dAdd. IV, R.663-664). His impulsivity is part of or
within the antisocial personality disorder. Dr. Sloman opined
that neither statutory mental mitigator was present, nor was
post-traumatic stress disorder. (V. 2dAdd. IV, R.665). Dr.
Sloman did not believe that the purported alcohol use that night
would rise to the level of causing him to be under the influence
of extreme mental or emotional disturbance or cause his capacity
Page 28
18
to appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law to be substantially
impaired. Dr. Sloman believed that Merck had had educational
opportunities afforded to him that he did not avail himself upon
in the school systems of North Carolina, including special
programs.
He had operations to assist him with the eye
condition that caused problems with peers and there had been
people who cared for him.
(V. 2dAdd. IV, R.667-668).
His
ongoing conduct had been a series of choices he made in his
life. The use of alcohol did not cause him to act out in the
various ways
he has done.
Merck has a self-serving
rationalization found in people who are narcissists – a part of
the fabric of an antisocial personality or conduct disorder.
(V. 2dAdd. IV, R.668-669).
Appellant filed a motion for new trial (V. II, R.261) and a
hearing on the motion was held August 25, 2004 (V. III, R.570-
600). The defense reiterated the complaint about exclusion of
the Felix Ruiz testimony, argued that Merck previously had been
“a son of a bitch” but had now changed. (V. III, R.582-583).
The prosecutor responded that Simmons v. South Carolina, 512
U.S. 154 (1994) was inapposite as indicated by this Court in
Franqui v. State, 699 So. 2d 1312 (Fla. 1997) (V. III, R.586)
and elicited testimony from Pinellas County Corporal Christine
Page 29
19
Nichowich to respond to paragraph 4 of the motion (V. III,
R.587-595). She was one of the bailiffs assigned to courtroom
security in this penalty phase proceeding. Merck had previously
displayed himself as being aggressive throughout his time at the
jail which included being cuffed and shackled at all times at
the jail. Death Row inmates are a red dot classification at the
jail. While at the courthouse Merck was not cuffed and shackled
so they place one extra bailiff within the courtroom for extra
security since he did not have the cuffs and shackles on. (V.
III, R.588-589). There was a time at the jail that Merck had
more freedom than his most recent stay – before he was put on
red dot status – where he would have more contact with other
inmates. But there were always problems in the cells, fights
would break out and detention personnel would have to go in,
break up fights and use force on him. Merck was also considered
an escape risk because of his flexibility with cuffs. Pinellas
County jail documents list the disciplinary problems and escape-
type situations with Merck.
(V. III, R.590).
Nichowich
testified that in a prior court appearance they were notified
Merck had jumped up at one point and became belligerent towards
the judge and the victim’s family. To avoid a repetition, there
were a total of four bailiffs present for the trial. She did
not observe any drastic physical movements that would call any
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20
more attention to the bailiffs. There was no sudden outburst
that caused them any concern in front of the jury. (V. III,
R.591). They did not have to place their hands on Merck and
hold him in his seat or threaten him with any type of security
devices. There were no ill words spoken. The only additional
security was one more bailiff. (V. III, R.591-592).
During the penalty phase of trial she and other deputies
were attired with a blazer jacket which conceals her taser and
9mm. gun. During the course of the trial the bailiffs did not
have to produce any tasers, handcuffs or anything. Merck was
not cuffed or shackled or in any way restrained in the presence
of the jury. He was not restrained while being escorted from
counsel table to the holding cell and he was not restrained
during penalty phase while at counsel table. (V. III, R.593-
595).
The trial court noted that the bailiffs’ presence in the
penalty phase proceedings were perfectly appropriate and that
Merck was not restrained in the presence of the jury. The court
added that its non-response to the jury question was dictated by
Florida Supreme Court precedent and that the instant case was
different from Simmons. The motion for new trial was denied.
(V. III, R.597-599).
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21
The court imposed a sentence of death on August 6, 2004,
finding the HAC and prior violent felony convictions
aggravators. (V. II, R.310-315).
Merck now appeals.
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22
SUMMARY OF THE ARGUMENT
Issue I: The lower court did not abuse its discretion in
excluding the testimony of Felix Ruiz of the Parole Commission
as to speculation on potential length of the term of
imprisonment on a life sentence.
Such testimony was not
required by Simmons v. South Carolina, 512 U.S. 154 (1994), as
was subsequently explained in Ramdass v. Angelone, 530 U.S. 156
(2000).
Issue II: The lower court did not abuse its discretion in
excluding evidence that Neil Thomas rather than Troy Merck was
the real killer of Jim Newton since lingering or residual doubt
does not constitute appropriate mitigation at the penalty phase.
Duest v. State, 855 So. 2d 33, 40 (Fla. 2003); Darling v. State,
808 So. 2d 145, 162 (Fla. 2002); Way v. State, 760 So. 2d 903,
918 (Fla. 2000); Ibar v. State, 31 Fla. L. Weekly S 149 (Fla.
March 9, 2006). Moreover, there is no basis either factually or
legally for a judgment that Merck’s involvement in the homicide
was relatively minor since Merck acted alone in the premeditated
killing of Mr. Newton. His companion Mr. Thomas was merely
present as a bystander in the parking lot with other witnesses
and had no culpability in the homicide.
Issue III: The prosecutor did not commit reversible error
in his closing argument. Appellant has preserved for appellate
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23
review only the singular objection to a remark that the defense
would talk in mitigation about things they believed should
warrant affording some mercy that was not given to the victim.
Other challenged comments raised here were unpreserved by
objection in the trial court and thus are procedurally barred.
The remarks do not rise to the level of fundamental error, i.e.
they are not so prejudicial that the recommendation of death
could not have been made without reliance on them. Peterka v.
State, 890 So. 2d 219, 243 (Fla. 2004). The trial court did not
abuse its discretion. Moore v. State, 701 So. 2d 545, 551 (Fla.
1997).
Issue IV: The weight to be accorded an aggravating or
mitigating circumstance at the penalty phase of a capital trial
is within the trial court’s discretion and will be affirmed if
based on competent, substantial evidence and reversal of the
trial court’s determination is not warranted simply because a
defendant draws a different conclusion. In the instant case the
trial court addressed the proffered mitigation and explained its
reasons for the findings and the weight afforded. Appellant may
not predicate reversal merely because his expert offers a
differing opinion than that given by the State’s expert.
Issue V: The death sentence in the instant case is a
proportionate penalty. The court found and gave great weight to
Page 34