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IN THE SUPREME COURT OF FLORIDA TROY MERCK, Appellant, vs. STATE OF FLORIDA, Appellee. : : : Case No. : : SC04-1902 :
Page 1
IN THE SUPREME COURT OF FLORIDA
TROY MERCK,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
:
:
: Case No.
:
:
SC04-1902
:
APPEAL FROM THE CIRCUIT COURT
IN AND FOR PINELLAS COUNTY
STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
JAMES MARION MOORMAN
PUBLIC DEFENDER
TENTH JUDICIAL CIRCUIT
JOHN C. FISHER
Assistant Public Defender
FLORIDA BAR NUMBER 0999865
Public Defender's Office
Polk County Courthouse
P. O. Box 9000--Drawer PD
Bartow, FL 33831
(863) 534-4200
ATTORNEYS FOR APPELLANT
Page 2
i
TOPICAL INDEX TO BRIEF
PAGE NO.
STATEMENT OF THE CASE AND FACTS ............................. 1
SUMMARY OF THE ARGUMENT .................................... 50
ARGUMENT ................................................... 52
ISSUE I
THE TRIAL COURT IMPROPERLY EXCLUDED
EVIDENCE RELATING TO APPELLANT’S
PRESUMPTIVE PAROLE DATE THAT WAS RELEVANT
TO THE JURY’S DETERMINATION OF SENTENCE. ..... 49
ISSUE II
THE TRIAL COURT IMPROPERLY EXCLUDED
EVIDENCE THAT WAS RELEVANT TO THE NATURE
AND CIRCUMSTANCE OF THE OFFENSE, HAD
BEARING ON THE FINDING OF AN AGGRAVATING
FACTOR, AND COULD HAVE BEEN THE BASIS OF
ADDITIONAL MITIGATING FACTORS. ............... 61
ISSUE III
IMPROPER REMARKS TO THE JURY, MADE BY THE
ASSISTANT STATE ATTORNEY DURING CLOSING
ARGUMENT, DENIED APPELLANT A FAIR PENALTY
PHASE PROCEEDING. ............................ 68
ISSUE IV
THE DEATH SENTENCE MUST BE REVERSED BECAUSE
THE TRIAL COURT FAILED TO FIND OR GAVE TOO
LITTLE WEIGHT TO MITIGATING FACTORS. ......... 92
ISSUE V
THE DEATH SENTENCE IS NOT PROPORTIONATE
.
..... 96
ISSUE VI
FLORIDA'S DEATH PENALTY STATUTE IS
UNCONSTITUTIONAL. ........................... 106
CONCLUSION ................................................ 108
CERTIFICATE OF SERVICE .................................... 108
Page 3
ii
TABLE OF CITATIONS
PAGE NO.
Federal Cases
Apprendi v. New Jersey, 530 U.S. 466 (2000)
98
Eddings v. Oklahoma, 455 U.S. 104 (1982)
61, 68, 88
Gardner v. Florida, 430 U.S. 349 (1977)
49, 68
Kelly v. South Carolina, 534 U.S. 246 (2002)
59
Lockett v. Ohio, 438 U.S. 586 (1978)
49, 59, 61, 67
McCleskey v. Kemp, 481 U.S. 279 (1987)
59
Ring v. Arizona, 536 U.S.584 (2002)
98
Roper v. Simmons, 543 U.S. 551 (2005)
93
Shafer v. South Carolina, 532 US. 36 (2001)
59
Simmons v. South Carolina, 512 U.S. 154 (1994)
49, 58, 59, 67
Skipper v. South Carolina, 476 U.S. 1 (1986)
59, 61
State Cases
Alford v. State, 307 So. 2d 433 (Fla. 1975)
61
Almeida v. State, 748 So. 2d 922 (Fla. 1999)
90
Bertolotti v. State, 476 So. 2d 130 (Fla. 1985) 68, 69, 73, 78
Bonifay v. State, 680 So. 2d 413 (Fla. 1996)
61, 67, 79
Booker v. State, 773 So. 2d 1079 (Fla. 2000)
49, 57, 60
Breedlove v. State, 413 So. 2d 1 (Fla. 1982)
69
Briggs v. State, 455 So. 2d 519 (Fla. 1st DCA 1984)
76
Brooks v. State, 762 So. 2d 879 (Fla. 2000)
70
Campbell v. State, 571 So. 2d 415 (Fla. 1990)
84, 88
Carlile v. State, 129 Fla. 860, 176 So. 862 (1937)
74
Cheshire v. State, 568 So. 2d 908 (Fla. 1990)
79
Clark v. State, 609 So. 2d 513 (Fla. 1992)
93
Clark v. State, 690 So. 2d 1280 (Fla. 1997)
64
Cole v. State, 701 So. 2d 845 (Fla. 1997)
79
Crain v. State, 894 So. 2d 59 (Fla. 2004)
90
Crook v. State, 908 So. 2d 350 (Fla. 2005)
90
Davis v. State, 698 So. 2d 1182 (Fla. 1997)
76
Downs v. State, 572 So. 2d 895 (Fla. 1990)
61, 63, 65, 67
Elledge v. State, 613 So. 2d 434 (Fla. 1993)
94
Fuller v. State, 540 So. 2d 182 (Fla. 5th DCA 1989)
76
Garron v. State, 528 So. 2d 353 (Fla. 1988)
73, 78
Gore v. State, 719 So. 2d 1197 (Fla. 1998)
69
Green v. State, 907 So. 2d 489 (Fla. 2005)
57
Hess v. State, 794 So. 2d 1249 (Fla. 2001)
50
Hitchcock v. State, 673 So. 2d 859 (Fla. 1996)
51
Huff v. State, 437 So. 2d 1087 (Fla. 1983)
77
In re Moriah P., 1998 WL 234841, *4 (Conn. May 05, 1998)
83
Jackson v. State, 522 So. 2d 802 (Fla. 1988)
77
Jackson v. State, 530 So. 2d 269 (Fla. 1988)
58
Kearse v. State, 770 So. 2d 1119 (Fla. 2000)
71
Kearse v. State, 770 So. 2d 119 (Fla. 2000)
79
Page 4
iii
Knight v. State, 672 So. 2d 590 (Fla. 4th DCA 1996)
76
Kramer v. State, 619 So. 2d 274, 278 (Fla. 1993)
90, 94, 95
Landry v. State, 620 So. 2d 1099 (Fla. 4th DCA 1993)
76
Livingston v. State, 565 So. 2d 1288, 1292 (Fla. 1988)
93, 97
Lucio v. State, 2005 WL 607698, at *1 (Tex. App. Mar 17, 2005)
83
Mahn v. State, 714 So. 2d 391 (Fla. 1998)
93
Merck v. State, 664 So. 2d 939 (Fla. 1995)
1, 50, 65
Merck v. State, 763 So. 2d 295 (Fla. 2000)
1, 50, 64, 79, 86
Miller v. State, 373 So. 2d 882 (Fla. 1979)
75
Morgan v. State, 639 So. 2d 6, 14 (Fla. 1994)
91
Nibert v. State, 574 So. 2d 1059 (Fla. 1990)
88, 91, 93
Pardo v. State, 563 So. 2d 77 (Fla. 1990)
88
Parker v. State, 873 So. 2d 270 (Fla. 2004)
64
Perez v. State, 919 So. 2d 347 (Fla. 2005)
79
People v. Ellis, 2003 WL 22884026, *6 (Cal. App. Dec 08, 2003)
83
People v. O'Hara, 2004 WL 2191318, at *9 (Cal. App. Sep 30,
2004)
83
People v. Robinette, 2003 WL 1861551, *3 (Cal. App. Apr. 11,
2003)
84
People v. Wright, 2002 WL 31187860, *2 (Mich. App. Oct. 01,
2002)
84
Pollard v. State, 444 So. 2d 561 (Fla. 2d DCA 1984)
71
Pope v. Wainwright, 496 So. 2d 798 (Fla. 1986)
77
Porter v. State, 564 So. 2d 1060 (Fla. 1990)
89
Preston v. State, 607 So. 2d 404 (Fla. 1992)
64
Reed v. State, 875 So. 2d 415 (Fla. 2004)
71
Rhodes v. State, 547 So. 2d 1201 (Fla. 1989)
70, 71
Richardson v. State, 604 So. 2d 1107 (Fla. 1992)
70, 71
Robertson v. State, 699 So. 2d 1343 (Fla. 1997)
96
Rogers v. State, 511 So. 2d 526 (Fla. 1987)
79
Ruiz v. State, 743 So. 2d 1 (Fla. 1999)
68, 72
Sager v. State, 699 So. 2d 619 (Fla. 1997)
91, 96
Sliney v. State, 699 So. 2d 662 (Fla. 1997)
89
Smith v. State, 74 Fla. 44, 76 So. 334 (1917)
74
State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986)
78
State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001)
99
State v. Johnson, 616 So. 2d 1 (Fla. 1986)
99
State v. Owen, 696 So. 2d 715 (Fla. 1997)
64
Tate v. Tate, 1998 WL 170142, *7 (Conn. Feb. 10, 1998)
83
Teffeteller v. State, 439 So. 2d 840 (Fla. 1983)
95
Teffeteller v. State, 495 So. 2d 744 (1986)
62, 64
Terry v. State, 688 So. 2d 954 (Fla. 1996)
89
Thomas v. State, 748 So. 2d 970, 984 n.10 (Fla. 1999)
69
Tillman v. State, 591 So. 2d 167 (Fla. 1991)
89
Trushkin v. State, 425 So. 2d 1126 (Fla. 1983)
99
Urbin v. State, 714 So. 2d 411 (Fla. 1998) 69, 70, 89, 93, 94,
96
Voorhees v. State, 699 So. 2d 602 (Fla. 1997)
91, 96
Walker v. State, 707 So. 2d 300 (Fla. 1997)
75
White v. State, 403 So. 2d 331 (Fla. 1981)
75
Page 5
iv
Wickham v. State, 593 So. 2d 191 (Fla. 1991)
79
Wilson v. State, 493 So. 2d 1019 (Fla. 1986)
97
Wolcott v. State, 774 So. 2d 954 (Fla. 5th DCA 2001)
76
State Regulations
Fla. Admin. Code 23-21.002(39)
53, 54
Fla. Admin. Code 23-21.002(44)
53
Fla. Admin. Code 23-21.006(1)
52
Fla. Admin. Code 23-21.009
52
Other Authorities
Amy Allen & Susan Myres, The Impact of Domestic Violence on
Children, 42 Houston Lawyer 18, 21 (2004)
74
Page 6
1
STATEMENT OF THE CASE AND FACTS
On November 14, 1991, Appellant Troy Merck, Jr. was
charged by indictment in Pinellas County with the first-degree
murder of James Newton (1s/1-2). A trial held before Judge
Luten in November 1992 ended in a hung jury (1s/3-8). After a
second jury trial held before Judge Luten in September 1993,
Mr. Merck was found guilty as charged and sentenced to death
(1s/1, 9-18). On appeal, this Court affirmed the conviction,
but reversed the death sentence and remanded for a new penalty
trial (1s/20-34), Merck v. State, 664 So. 2d 939 (Fla. 1995).
In July 1997, a resentencing proceeding was held before
Judge Khouzam (1s/35-41). The jury recommended a death
sentence (1s/41), and in September 1997 Judge Khouzam imposed
the death penalty (1s/42-46). On appeal, this Court reversed
the death sentence, finding that the trial court failed to
properly find, evaluate, and weigh evidence of Mr. Merck’s
alcohol abuse within the list of nonstatutory mitigating
circumstances in the sentencing order and that application of
the felony probation aggravating factor violated the ex post
facto clause (1s/48-57), Merck v. State, 763 So. 2d 295 (Fla.
2000).
On May 12, 2003, at a hearing held before Judge Downey,
the defense moved to bar imposition of death sentence (v1/94-
110; v3/412-436). The defense asserted Florida’s capital
sentencing procedure is unconstitutional because: it is
Page 7
2
contingent on factual findings of aggravating factors by the
trial judge, not by the jury; the jury’s recommendation need
not unanimous and is merely advisory; the aggravating factors
are not charged in the indictment or found by the jury
unanimously and beyond a reasonable doubt; and rewriting the
standard jury instructions cannot cure the constitutional
infirmities (v1/94-10). Life imprisonment was the only
sentence that can be constitutionally imposed (v1/94, 107-
110). The motion was denied (v3/435-436).
On March 1, 2004, a motion hearing was held before Judge
Downey (1a/616-676). The defense sought to present evidence to
the jury that Mr. Merck did not cause the death of Mr. Newton
or that his participation was minor (v2/212; 1a/618). Neil
Thomas supplied alcohol to Mr. Merck (1a/619-620). Mr. Thomas
provoked the confrontation (1a/619). Eyewitness Katherine
Sullivan’s description of the clothing worn by the person who
did the stabbing was consistent with the clothing worn by Neil
Thomas during the incident (1a/619). A fingerprint examiner
also testified about fingerprints consistent with Mr. Thomas
(1a/619). Mr. Thomas was never prosecuted as an accomplice or
an accessory after the fact (1a/620).
The defense asserted Mr. Thomas received preferential
treatment from the State (1a/620). During the last sentencing
proceeding, the State assisted Mr. Thomas with an outstanding
arrest warrant for violation of probation, and after the trial
the probation was dismissed (1a/620). The evidence should be
Page 8
3
heard by the jury and was relevant to mitigating factors that
Mr. Merck’s involvement was minor or Mr. Thomas stabbed Mr.
Newton (1a/620-623, 628). Although Mr. Thomas was never
charged, the Court has found the mitigating factor to apply in
a case where another person was not charged (1a/631). This
motion was denied at the previous sentencing, but the Court
did not address this matter on appeal (1a/622-626, 632-633).
To exclude this evidence would deny due process guarantees of
the U.S and Florida Constitutions (1a/623).
The State asserted the motion should be denied because it
was previously denied by Judge Khouzam, and the Court did not
overturn that ruling on appeal (1a/624-625). The trial court
denied the motion, holding the ruling was not overruled or was
affirmed on appeal, the matter could not be relitigated, for
the mitigator of minor involvement to apply another person
must be charged in the case which did not happen in this case,
and Mr. Merck could not argue participation was minor because
the jury found him guilty of first-degree premeditated murder
(v2/216; 1a/626-633).
The defense also sought to prevent the State from using
as an aggravating factor Mr. Merck’s 1989 Florida convictions,
despite the denials of motions to set aside those convictions,
because the trial courts failed to make proper findings on the
record when sentencing a minor as an adult (v1/45-46, 49-51,
66-93; v2/208-210, 218-221; 1a/657-673). The motion was denied
Page 9
4
(1a/671-672). A joint stipulation to use video conferencing
footage of several witnesses at trial was filed (v2/217).
On March 15-16, 2004, a jury trial held before Judge
Downey ended in mistrial (v2/225-226).
On March 17-19, 2004, a jury trial was held before Judge
Downey (v3-4/1-370; 2a1-4/1-612). During a sidebar conference,
the defense objected to the actions of the bailiffs:
Also, we need to do something about the bailiffs.
I know that they are trying to do their job, but the
minute Troy moves this guy is up our butt. If I want
Troy up here at the bench, which he has a right to be
up at the bench, this bailiff is not letting him come
up here.
(2a1/22). The trial court indicated it would allow Mr. Merck
to approach the bench and stated, “We won’t worry about that
now.” (2a1/22). The defense later reminded the trial court to
address the issue of the bailiffs’ actions (2a1/69). The trial
court agreed and instructed the jurors, “You may have noticed
that there are several bailiffs sitting close to Mr. Merck up
here. Please understand that this is standard operating
procedure for our bailiffs and our security within the
building. Do not concern yourself with it at this point.
Thank you.” (2a1/70-71).
Katherine Sullivan testified she was a bartender at City
Lights, but she was off-duty on the night of October 10-11,
1991 (2a2/265). She drove her blue Camaro to the bar at 10:00
or 10:30 p.m. that night, accompanied by her boyfriend, Glenn
Sharpenstein, and his friend, Don Ward (2a2/265, 267, 289).
Page 10
5
They went there to celebrate the birthday of another friend,
Jim Newton (2a2/265-266). Ms. Sullivan drank “two or three
beers and a couple of shots,” then decided to stop drinking at
midnight because she could not safely drive home (2a2/265-266,
289). She asked a co-worker to drive her home (2a2/290). She
did not see Mr. Newton have any problems with anyone in the
bar (2a2/267).
Ms. Sullivan testified that after the bar closed at
approximately 2:00 a.m., she sat in her car talking with her
boyfriend (2a2/268, 290-291). She sat in the driver’s seat and
Mr. Sharpenstein sat in the passenger seat (2a2/268). They
planned to go get breakfast with Mr. Newton and Mr. Ward
(2a2/268). Mr. Newton intended to ride with them because he
believed he had too much to drink and he wanted a ride home
(2a2/291).
Ms. Sullivan testified that a man, identified in court as
Mr. Merck, leaned on her car (2a2/268, 276). Mr. Sharpenstein
asked him to not lean on the car (2a2/268). Mr. Merck and his
companion sarcastically apologized while popping their heads
in and out of the window, but Ms. Sullivan did not believe
there was a problem with them (2a2/268-269, 291-294). Mr.
Newton and Mr. Ward moved Mr. Newton’s car near her car, then
they approached her car, Mr. Ward on the passenger side and
Mr. Newton on the driver’s side (2a2/268-269, 292-293). Mr.
Newton asked if everything was all right (2a2/269, 292). Ms.
Sullivan got out of her car, said everything was fine, and
Page 11
6
congratulated him on his birthday (2a2/269, 292). They stood
face-to-face on the driver’s side of her car, near the rear of
the car (2a2/269, 295). As a joke, Mr. Sharpenstein rolled up
the passenger window, trapping Mr. Ward’s hands, then lit a
cigarette in his hand (2a2/294).
Ms. Sullivan testified that someone snidely said,
“congradu-fucken-lations” (2a2/269-270). Mr. Newton had done
nothing to provoke anyone and had nothing in his hands
(2a2/270). Mr. Merck tried to goad Mr. Newton into fighting
and called him a pussy (2a2/270, 293). Mr. Newton said,
“that’s right, I’m a pussy, but I’m still not going to fight”
(2a2/270). Ms. Sullivan and Mr. Newton talked and tried to
ignore the other people (2a2/270).
Ms. Sullivan testified Mr. Merck continued to goad Mr.
Newton (2a2/270). He walked towards his car, perhaps a red
Pinto, parked two spaces away from her car (2a2/270-271, 278).
He asked his companion to throw him the keys (2a2/270). The
companion threw the keys to him from approximately ten feet
away (2a2/270-271). Mr. Merck caught the keys, walked to the
passenger side door, unlocked it, removed his light-colored
buttoned-down oxford shirt, threw it in the back seat, fumbled
around for something, then returned the keys to his companion
(2a2/270—272, 279). He stood by front passenger side of Ms.
Sullivan’s car and said to Mr. Newton, “I’m going to teach you
to bleed” (2a2/270, 272).
Page 12
7
Ms. Sullivan testified Mr. Merck ran toward Mr. Newton,
Mr. Newton turned to face him, and she stepped back a few
steps (2a2/273, 295). Mr. Newton did not move toward him, did
nothing to provoke him, and held nothing in his hands
(2a2/273). Mr. Merck struck Mr. Newton four or five times with
both hands, apparently punching him (2a2/273-277, 295-296).
Mr. Merck began inflicting uppercut blows (2a2/274-277). Mr.
Merck had no problem walking or delivering blows (2a2/276).
Ms. Sullivan saw blood on Mr. Newton’s back, then realized the
blows were not just punches (2a2/274). She believed she saw
Mr. Merck pull back Mr. Newton’s head, and she saw light
reflect from something in his hand (2a2/274-275, 296). Mr.
Newton did not defend himself (2a2/274-275).
Ms. Sullivan testified she ran into the bar and asked
employees to call 911 (2a2/274, 296). Time froze for her and
she could not estimate how much time elapsed while she
witnessed the incident (2a2/297). She remained in the bar
until police arrived 2½ hours later and did not observe what
happened outside (2a2/290, 296). She had been impaired by
alcohol, but she knew what occurred (2a2/287). She asserted
Mr. Newton’s attacker had a slight southern drawl, but after
the incident she apparently told an officer that the man had a
southern accent, but no drawl (2a2/272, 296-297). She
described his eyes as “buggy” (2a2/298). The police later
showed her six photographs and she identified a photograph of
Troy Merck as the man who committed the crime (2a2/287-288).
Page 13
8
The defense renewed its objection to the trial court’s
exclusion of evidence about the involvement in and/or
commission of the crime by Neil Thomas (2a2/285).
Neil Thomas testified he had been convicted of felonies
or crimes of dishonesty eleven times (2a2/317). He met Mr.
Merck in Ocala in October 1991 (2a2/299, 325). They became
“road dogs,” “buddying around” and drinking alcohol together
(2a2/299-300). They went to North Carolina to visit Mr.
Merck’s relatives and stayed in his home (2a2/299, 325). Mr.
Thomas met Mr. Merck’s mother and believed Mr. Merck and his
mother had a good relationship (2a2/299). Mr. Merck’s brother
gave him a fixed-handled Buck knife (2a2/302, 308). They drove
from North Carolina to Pinellas County in a red Mercury Bobcat
that Mr. Merck bought from his brother (2a2/300, 325).
Mr. Thomas testified on October 10, 1991, they went to
City Lights, looking for a good time (2a2/300, 323). Mr.
Thomas was then 25 years old and Mr. Merck was then 19 years
old, below the legal drinking age (2a2/300-301, 320-321). Mr.
Thomas knew no one at the bar (2a2/300). Mr. Thomas bought 5
or 6 beers and 3 or 4 shots of liquor, and he illegally bought
the same for Mr. Merck (2a2/301, 321-322, 325). They had “a
buzz on,” but they were not falling down drunk and Mr. Merck
had no trouble walking and talking (2a2/302, 322). Mr. Thomas
was 5’10” tall and weighed between 170 and 180 pounds
(2a2/328-339). They stayed at the bar until it closed at
approximately 2:00 a.m. (2a2/302, 321).
Page 14
9
Mr. Thomas testified that after the bar closed, they went
to the parking lot and tried to talk to girls (2a2/302). There
were many people in the parking lot (2a2/327). Mr. Thomas, and
perhaps Mr. Merck, leaned against a blue Camaro (2a2/303). The
occupants of the Camaro were about to leave (2a2/303). Mr.
Newton stood the driver’s side of the Camaro and sarcastically
told Mr. Thomas to get off the car (2a2/303). Mr. Thomas by
the interruption to his talking to girls, said he would get
off the car, and called Mr. Newton a pussy (2a2/303, 323). Mr.
Newton said “yeah, I’m a real pussy” and he crossed his hands
across his chest (2a2/303, 324).
Mr. Thomas testified that Mr. Merck became aggravated by
Mr. Newton disrespecting Mr. Thomas, walked to the Bobcat,
removed his shirt, and put his shirt in the car (2a2/304-305,
324-325). Mr. Thomas told Mr. Newton he should leave or he
would probably be beaten (2a2/304, 326). Mr. Thomas stood by
the rear passenger side of the Camaro, but he was tall enough
to easily see over the car (2a2/328). Mr. Merck charged at Mr.
Newton, grabbed him, and punched his back (2a2/304-307, 326-
329). Mr. Thomas believed Mr. Merck and Mr. Newton were face
to face (2a2/329). There was a popping sound, similar to the
sound of a screwdriver going through a carpet (2a2/306-307,
326-328).
Mr. Thomas testified he was aware of “a lot going on,”
but he paid no attention, he was not interested, he did not
enjoy watching fights, and he did not know whether the man
Page 15
10
defended himself (2a2/305, 307, 326-327, 329). The next thing
he knew, Mr. Merck ran to the car, holding his arm stiffly as
if concealing something in his hand, and saying they should
leave (2a2/305-306, 329). Mr. Thomas decided leaving was a
good idea (2a2/330). He jumped in the car and drove away with
Mr. Merck sitting in the passenger seat (2a2/305, 329). As
they left, Mr. Thomas looked toward the Camaro and saw the
back of Mr. Newton’s shirt looked shiny and saw many people
rushing to the scene (2a2/305-306, 329).
Mr. Thomas testified that as they drove away, he asked
Mr. Merck whether he stabbed the man (2a2/307, 330). Mr. Merck
held up his bloody knife and said, “I fucken killed him. If I
didn’t fucken kill him, I’ll go find him in the hospital and
finish the job.” (2a2/307-308, 330-331). Mr. Merck said he
repeatedly stabbed the man, attempted to kill him by twisting
the knife in the man’s throat, then sliced his throat to make
sure he killed him (2a2/312-313, 332-333). Mr. Merck said he
tried to stab the man again, but he struck the man’s head and
cut his finger on the slippery bloody knife (2a2/312). He said
blood squirted from the man’s throat (2a2/313). He said he
knew the man was dead, so he stopped attacking the man
(2a2/333-334).
Mr. Thomas testified he drove the car for five minutes,
then they stopped and abandoned the car (2a2/313, 331). They
removed the license plate and changed their clothes in order
to avoid being caught by the police (2a2/313, 330). Mr. Thomas
Page 16
11
denied cleaning the knife (2a2/332). The knife was left in the
car (2a2/317, 331). They walked and ran three blocks, taking
an hour to do so because they repeatedly hid behind bushes
(2a2/315-316, 334-335). Mr. Merck had no problems walking
(2a2/317). They then called a cab to take them a bowling alley
(2a2/334-335). Mr. Merck won a game of pool they played at the
bowling alley (2a2/317).
Mr. Thomas testified they returned to look for the car
and learned the police had seized it (2a2/318). Mr. Merck told
the same account of the incident at least six times during
several days following the incident (2a2/312-313, 318, 339).
They were subsequently arrested at a motel (2a2/317). Mr.
Thomas made a sworn statement to officers indicating Mr. Merck
told him he stopped stabbing the man and left when he knew the
man was dead (2a2/333-334). Mr. Thomas was not charged with
supplying the underage Mr. Merck with alcohol, with accessory
after the fact, or with any other offense relating to the
incident (2a2/330).
Mr. Thomas denied receiving preferential treatment from
the State (2a2/335). He had outstanding charges for violating
probation in Pinellas County in 1994, but he did not turn
himself in until 1997 at the suggestion of Assistant State
Attorney Daniels who he knew from this case (2a2/335-337, 340-
341). He was born in St. Petersburg and lived there for 15
years, but he claimed to be unfamiliar with St. Petersburg and
knew no other person than Assistant State Attorney Daniels
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(2a2/337-338). Assistant State Attorney Daniels arranged for
Mr. Thomas to be released on recognizance (2a2/336-337, 341).
A couple of years before this trial, Mr. Thomas was arrested
on another old outstanding warrant (2a2/339-340). He had now
turned his life around and worked as a computer programmer
(2a2/340-341).
Salvatore Pensiero, a disk jockey at City Lights,
testified that after closing on October 11, 1991, an off duty
employee entered the bar, screaming that someone had been
stabbed in the parking lot (2a2/344). He and other employees
went to the parking lot and saw a man on the ground, holding
his throat and gasping for air (2a2/344-345). There was blood
on his hands and clothes and a puddle of blood on the ground
(2a2/344-345). The man had earlier been in the club (2a2/345).
The man kicked his legs, then stopped moving and prayed for
the easing of his pain (2a2/345). The time seemed endless, but
Mr. Pensiero estimated he saw the man moving for five to ten
minutes (2a2/345).
Donald Ward testified he was intoxicated on the night of
October 10-11, 1991 (2a2/349, 352). After City Lights closed,
he stood beside Ms. Sullivan’s Camaro, “hanging out” with Ms.
Sullivan and Mr. Sharpenstein (2a2/349). Mr. Sharpenstein
joked around by rolling the car window up on Mr. Ward’s hands
and lighting a cigarette in his hand (2a2/349). A man said
happy birthday, approached Mr. Newton, grabbed his neck, and
repeatedly punched him (2a2/349-350). Mr. Ward thought it was
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playful roughhouse from a friend and he saw no knife, but Mr.
Newton subsequently fell on the hood of the Camaro and bled
from his mouth (2a2/351). Mr. Ward handed his shirt to a
person who used it to attempt to stop the blood pumping from
Mr. Newton’s neck (2a2/349, 351-352). For five to six minutes,
Mr. Newton moved around, gagged and tried to breath,
repeatedly reached for his neck, and his eyes rolled in his
head (2a2/350). The incident occurred quickly, but time slowed
after the attack (2a2/352-353).
James Carter, doorman and foreman of security for the
bar, testified that after closing, Ms. Sullivan reported a
stabbing in the parking lot and the police were repeatedly
called (2a2/354-356). He went to the parking lot, saw a small
red car leaving, unsuccessfully tried to stop the car, and got
the tag number (2a2/354, 358). Others in the parking lot tried
to treat Mr. Newton, who moved, moaned, and coughed up blood
for twenty to thirty minutes (2a2/354-356, 358). There was a
large pool of blood (2a2/354, 356). When the police arrived
thirty minutes after they were called, Mr. Carter gave them
the tag number (2a2/355, 357). The scene was hectic (2a2/357-
358).
Detective Thomas Nestor testified he was assigned to lead
the investigation of the homicide and went to City Lights in
the early morning of October 11, 1991 (2a2/360, 372). The
homicide occurred at approximately 2:10 a.m., it was reported
at 2:15 a.m, and paramedics and police arrived at 2:15 a.m.
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(2a2/372-373). The area around Ms. Sullivan’s car was bloody
(2a2/361).
Detective Nestor testified officers found the abandoned
red Bobcat at a parking lot two miles from the bar (2a2/364).
A knife bearing blood spatter and a pink shirt were on the
backseat of the car (2a2/365-367). Mr. Newton’s blood was
found in the car (2a2/366). Mr. Merck’s fingerprints and a
North Carolina license tag were also found in the car
(2a2/366-367, 370-371). The tag led police to consider Mr.
Merck a suspect (2a2/367). Ms. Sullivan identified photos of
Mr. Merck and Mr. Thomas from separate photopacks (2a2/368-
372). As the result of a tip from Mr. Thomas’ grandmother, Mr.
Merck and Mr. Thomas were found (2a2/369). Upon arrest, Mr.
Merck gave a false name (2a2/369).
Detective Mike Madden testified that on October 11, 1991,
he checked on the victim at Northside Hospital (2a2/374-375).
There had been attempts at medical intervention, and it was
difficult to examine the wounds because of blood, but he saw
numerous wounds to his back, neck and chest (2a2/375). Later
that day he attended the autopsy (2a2/376). There were four
stab wounds to the left back, a stab wound to the left neck, a
stab wound to the left armpit, a laceration between the lip
and chin, several lacerations on the left cheek, a laceration
across the Adam’s apple, an abrasion on the forehead, and a
wound on the left ear which penetrated the scull (2a2/275-
281). The stab wounds were consistent with a blade with a
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sharp side and a dull side (2a2/379, 381). There were no
wounds to the arms, but there were defensive wounds to the
left hand (2a2/375, 379-380).
Dr. Noel Palma, a Pinellas County medical examiner,
testified an autopsy was performed on October 11, 1991 by a
former associate medical examiner, Dr. Robert Davis (2a2/387).
The autopsy report and photographs indicated: James Newton was
25 years old, he was 5’10” tall, and he weighed 188 pounds;
there were four stab wounds to the back; he had a blood
alcohol level of .18 (blood) or .21 (vitreous), in excess of
the legal limit for driving; there was one stab wound to the
throat that severed the carotid artery and the jugular vein
and that could have been consistent with twisting of a knife
or the body moving; there was one stab wound to the head that
penetrated the scull; there was one stab wound to the left
lower chest; the stab wounds were inflicted by a knife with a
sharp edge and a blunt edge; there were 13 or 14 incise wounds
including facial wounds and defense wounds to the left hand;
the injuries would have cause pain; and death was homicide
caused by multiple stab wounds to the neck and trunk, each of
which was potentially fatal (2a2-2a3/388-407, 410-412, 423-
424).
Dr. Palma testified Mr. Newton would have remained
conscious for approximately one minute after the infliction of
the stab wounds, especially the stab wound to the neck, and
perhaps only 30 seconds if the jugular vein or carotid artery
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16
was completely severed, but placing pressure on the wound
could have slowed the loss of consciousness (2a3/407-409, 415-
423, 425-426). He would have felt no pain after losing
consciousness (2a3/423). When asked whether testimony of
witnesses that he gasped, groaned, kicked and moved arms
toward his throat for one to five minutes indicated he was
conscious, Dr. Palma stated that purposeful movements such as
moving his arms toward his throat indicated consciousness and
he could have remained conscious for one to three minutes
(2a3/407-409, 425). He could have remained technically alive
for several minutes after losing consciousness (2a3/408-409).
The wounds were not survivable (2a2/409). The paramedics
indicated he was dead at 2:20 a.m. (2a3/409). The
pronouncement of death at the hospital at 3:14 a.m. was a mere
formality (2a3/409).
The State introduced documents showing Mr. Merck’s had
five Florida convictions in 1989: in Marion County case no.
89-786 he was adjudicated guilty of robbery with a deadly
weapon and sentenced to four years imprisonment followed by
one year probation; in Lake County case no. 89-383, he was
adjudicated guilty of robbery with a deadly weapon and
sentenced to six years imprisonment; in Lake County case no.
89-894 he was adjudicated guilty of robbery with a deadly
weapon and sentenced to six years imprisonment; in Lake County
case no. 89-895 he was adjudicated guilty of robbery with a
deadly weapon and sentenced to six years imprisonment; and
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17
Pasco County case no. 89-1617 he was adjudicated guilty of
robbery and sentenced to five years imprisonment (1s/6-7, 44-
48; 2a3/427-432). The defense stipulated they were Mr. Merck’s
convictions (2a3/427-429). The State then rested its case
(2a3/432).
The defense sought to present testimony of Felix Ruiz, an
administrator for the Parole Commission concerning Mr. Merck’s
presumptive parole date (2a3/432-434). The alternative to the
death penalty was life imprisonment without the possibility of
parole for 25 years, and Mr. Merck had already been imprisoned
for 12 years (2a3/434). The defense moved to prevent the State
from arguing that if a life sentence was imposed, Mr. Merck
would be eligible for parole in 13 years (2a3/434-435). The
State said that other than informing the jury that the choice
was a death sentence or a life sentence without the
possibility of parole for 25 years, it would not make this
argument (2a3/435). The defense proffered the testimony of Mr.
Ruiz (2a3/435-441).
Felix Ruiz testified he was the Regional Administrator in
the Tampa Bay Area for the Florida Parole Commission
(2a3/436). As part of his job, Mr. Ruiz renders advisory
opinions on the possibility of parole in cases where capital
life sentences were imposed for crimes that occurred prior to
1994 (2a2/436). A potential parolee’s first parole hearing is
held within 18 months of completion of a minimum mandatory
term, and the Parole Commission has a responsibility to review
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18
each case of parole eligibility every five years (2a3/437-
438). The Commissioners have ultimate say on whether to grant
parole (2a3/437-438).
Mr. Ruiz testified that the Florida Administrative Code
contains a scoring matrix for determining a presumptive parole
date (2a3/436). The matrix considers the seriousness of the
offense, use of a deadly weapon, and prison disciplinary
reports, and the parole date may be mitigated by participating
in treatment programs (2a3/437). A capital life felony is
scored at the high end of the matrix (2a3/437). Mr. Merck
would not be automatically released on parole upon becoming
parole eligible (2a3/437).
Mr. Ruiz calculated Mr. Merck’s presumptive parole date
at 9,998 months, or 833 years, from his date of conviction,
minus time served in county jail (2a3/436-437, 440-441). The
lowest possible presumptive parole date for Mr. Merck would be
300 months from his date of conviction plus time for
aggravating factors such as the use of a deadly weapon, but
the Commissioners instruct Administrators to use the high end
of the matrix (2a3/438-439). Mr. Ruiz knew of no persons
convicted of first-degree murder and sentenced to life without
the possibility of parole for 25 years who had been granted
parole (2a3/440).
The trial court ruled the testimony of Mr. Ruiz was not
admissible (2a3/433, 441).
Defense exhibit 12, a videotape of Nancy Pate, Troy
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Merck’s elementary school counselor/evaluator and later his
school psychologist, was admitted and played for the jury and
defense exhibit 10, Ms. Pate’s reports about Troy Merck, was
admitted (v1/244, 247; 1s/49, 52; 2a3/449). Troy was referred
for testing by his first grade teacher in May of 1979 because
of social-emotional and study skill problems. At the time of
testing he was a second grader in a structured class with a
remedial reading lab because of reading difficulties. Troy was
neat and attractive, and was enthusiastic about the testing
and responded well to praise. He was asthmatic and had poor
vision in one eye, but was otherwise in good health. His test
results indicated average intelligence with strengths in word
knowledge and visual retention, but with weaknesses in visual
perception and alertness. His ability in arithmetic was
appropriate to his age, but he had serious difficulties in
reading and spelling. She determined he did not qualify for
any special programs and she recommended he continue in the
structured second grade class where he would receive
individualized instruction and a remedial reading program. She
also recommended: he be seated away from visual distractions;
he participate in outdoor games and indoor activities to
sharpen his visual acuity; and he be evaluated by an
ophthalmologist.
Later that school year, Ms. Pate again tested Troy. She
noted Troy failed to profit from the structured second grade
program due to social-emotional problems. He had extremely low
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20
self-esteem, saying he was ugly, people hated him, and no one
wanted to be around him. Troy’s eyelids drooped and he had to
tilt his head up an exaggerated amount because the lids fell
down over his eyes. His dental hygiene was poor. During a home
visit she was surprised to see newspapers stapled to the
walls; she was later told by the social worker that poor
people often do that for insulation. She recommended that Troy
be placed as an emotionally handicapped student at the
psychoeducation center because of his strong anti-social
tendencies.
In September 22, 1982, when Troy was ten years old, Ms.
Pate tested him for a third time. Testing established average
intelligence, good visual attentiveness, but problems with
fine motor skills and speed. He did well in mathematics, but
did poorly in reading and spelling. He had emotional
difficulties including mental confusion, withdrawal, and
impulsiveness. He scored low for self-reliance, feeling of
belonging, social standards, social skills, antisocial
tendencies, and school relationships. Ms. Pate recommended
Troy continue in the self-contained emotionally handicapped
class with George Olbon.
Ms. Pate felt some of Troy’s responses on the Weschler
Intelligence Scale were reflective of a violent content. One
question was "what are you supposed to do if a boy much
smaller than you starts to fight you"; Troy answered "Walk
away, but if he keeps on, tell him you'll murder him". Asked
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21
to give two reasons why criminals are locked up, he said "To
teach them a lesson" (a correct response) and "So they won't
steal and get head blew off." Ms. Pate believed these
responses from a ten year old were consistent with someone who
had been exposed to violence at a very young age. Years later,
Troy’s sister Stacy told Ms. Pate about violence in the home
that could relate to the results of that test.
Defense exhibit 16, a videotape of George Olbon, Troy's
teacher in a self-contained emotionally handicapped class, was
admitted and played for the jury, and defense exhibit 9,
Troy’s fifth grade report card and a 1983 annual review, was
also admitted (v2/246, 248; 1s/51, 53; 2a3/451-452). Troy had
normal intelligence, but he had emotional problems. He also
had drooping eyelids, he had to tip his head in order to see
people, and children teased him about this. Mr. Olbon was
having some success in improving Troy’s self-esteem and
ability to get along in groups, and in curbing his impulsive
behavior. Troy had problems reading, but mathematics was his
best subject and Mr. Olbon planned to place him in a
mainstream mathematics class. However, that did not occur
because Troy was placed in the Collins Children’s Home. While
Troy was at the Collins Home, his behavior, his self-esteem,
and his ability to get along in groups improved. However, Troy
left the Collins Home to live with his mother.
Stacy France testified she was ten years older than her
brother Troy Merck who was the youngest child in the family
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22
(2a3/453). Her sister Roberta was six years older than her,
and was now deceased (2a3/454, 456). She had another brother
who was 18 months younger than her (2a3/454).
Ms. France testified their mother became pregnant with
Troy while her husband served in Viet Nam (2a3/454). She
denied she was pregnant and tried to conceal it (2a3/454).
Things changed drastically at home and fighting began
(2a3/454). His mother unsuccessfully tried to abort him by
drinking, rubbing turpentine on her belly, and sniffing
rubbing alcohol (2a3/454-455, 461-462). Upon returning from
Viet Nam, Mr. Merck took her to a doctor, learned she was
pregnant, and learned it was not his child (2a3/454). He left
her and she blamed Troy (2a3/454-455).
Ms. France testified their mother showed no love to Troy
(2a3/455). She was mentally abusive to Troy, and beat him
physically, perhaps an average of every other day (2a3/455,
463). She held him down and beat him with her fist, a shoe, a
broom handle, or whatever object was handy (2a3/455). She
believes her mother’s attempts at abortion handicapped Troy in
numerous ways (2a3/456, 462). His eyes did not open for three
months, he had problems with his eyes, and he had a series of
eye operation beginning when he was four years old, but he
still has eye problems (2a3/456-457).
Ms. France testified that when she was 10 or 11 years old
and in the fourth grade, she was placed in a boarding school,
the Tamassee School, for two or three years (2a3/459). Troy
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23
was then the only child at home, but their sister Roberta was
around (2a3/459, 462). Ms. France returned home for holidays
and summer vacations (2a3/459, 465-466). She witnessed their
mother’s continuing abuse of Troy and heard about it from
Roberta and others (2a3/456, 462-463).
Ms. France testified that she visited Troy in prison and
they exchanged letters (2a3/460). Troy also corresponds with
her daughter and brother (2a3/460). He wrote to his mother and
his sister Roberta before they died (2a3/460). He has pen pals
(2a3/460). He stays positive and upbeat, tries to raise the
spirits of others, and counsels others about their problems
(2a3/460-461).
Ms. France testified she worked at a community college
and formerly worked as a paralegal at a law firm (2a3/464).
She was a single mother and received child support from the
children’s father (2a3/464, 466). She saw her mother slap the
children and they fought over this (2a3/466). She used a
neighbor as a regular babysitter, but on occasion used her
mother as a babysitter reluctantly and for as short a time as
possible and only to avoid losing her job and going on welfare
(2a3/464, 466).
Mr. Merck’s birth certificate was admitted (v2/245, 247;
1s/50, 52, 58; 2a3/471). It indicated he was born on January
9, 1972, in Oconee County, South Carolina (1s/58; 2a3/471-
472).
Ann Rackley testified she and her husband founded the
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24
Collins Children’s Home, a licensed group home for children
who have been abandoned, abused, neglected, or have emotional
problems (2a3/472-473). They strive to help children from
deprived backgrounds to realize their potential (2a3/473).
Since 1980, they raised over 50 children (2a3/473). They
usually accept children who are voluntarily placed with them
(2a3/573).
Ms. Rackley testified that in November 1982, when Troy
Merck ten years old, he was referred to the home through the
school system (2a3/473, 476, 486). Troy had been in a
emotionally handicapped class with teacher George Olbon
(2a3/476-477). The class contained only children with
behavioral problem, and they were segregated from other
students (2a3/477). Ms. Rackley also met with Troy’s mother,
Lois Merck, because she had custody of him (2a3/474). The home
environment was obviously troubled and dysfunctional (2a3/475-
476). His mother lacked knowledge and skills to be a mother
(2a3/476). She resented Troy from the time he was in her womb
and said Troy was so stupid he could not die right (2a3/480).
She made admissions about behaviors and inappropriate
responses (2a3/476). She hit Troy with whatever object was at
hand whenever she was angry about anything (2a3/480). Ms.
Rackley did not believe a child could survive, let alone
thrive, in that home (2a3/476).
Ms. Rackley testified she received documents including
psychological reports, school records, and medical records
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(2a3/474). She prepared an admission intake summary (2a3/474).
The psychological reports, school records, and an intake
summary were admitted into evidence (1s/59-61; 2a3/475).
Ms. Rackley testified the Collins Children’s Home’s
environment was more restrictive then his former school’s
emotionally handicapped program (2a3/476-477). Troy did well
in the extremely structured environment (2a3/477, 491). It was
difficult in the beginning, but he made real progress
(2a3/481). He ran away to the woods behind the school once
because of frustrations at school, and perhaps he ran away
more than once and perhaps went to his mother’s home, but she
could not recall him staying away from the school overnight
(2a3/486-488). He performed chores, shared family activities,
and attended church (2a3/480). He was not used to hugging, but
learned to hug and initiated hugs (2a3/480). He participated
in a Christmas play and loved acting (2a3/478-480). He
progressed emotionally and academically so much that they
decided to place him in a regular mainstream class with normal
children in the next school year (2a3/482, 488). However, the
placement in the mainstream class did not occur (2a3/482)
Ms. Rackley testified that in June 1983, his mother
decided to withdraw him from the Collins Children’s Home
(2a3/482-483). She could not be persuaded to leave him at the
home for another school year (2a3/483). Ms. Merck insisted
Troy live with her so she could collect government assistance
(2a3/483; 1s/59). Troy left with tears in his eyes (2a3/484).
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Ms. Rackley indicated on the intake summary, “Discharged June
’83 – Mother insists Troy move to Sylva so that she could
collect payment for dependent care, food stamps, etc. – Big
mistake!” (1s/59).
Ms. Rackley testified that she was contacted by the State
when the trials in this case began (2a3/484). She and her
husband have since corresponded with Troy by mail, spoke with
him on the telephone, and twice visited him face-to-face
(2a3/484, 489-490). Initially she belied Troy could not change
during his incarceration, but she witnessed changes in him
(2a3/485). He matured, became more logical, learned too