Merck v. State

• Decision Date: 12 October 1995
• Docket Number: No. 83063,83063
• Citation: 664 So.2d 939
• Parties: 20 Fla. L. Weekly S537 Troy MERCK, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 939

664 So.2d 939

20 Fla. L. Weekly S537

Troy MERCK, Jr., Appellant, v. STATE of Florida, Appellee.

No. 83063.

Supreme Court of Florida.

Oct. 12, 1995.

Rehearing Denied Dec. 22, 1995.

James Marion Moorman, Public Defender and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General and Robert J. Landry, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing a death sentence upon Troy Merck, Jr. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.

Merck was convicted of first-degree murder of the victim, James Anthony Newton. Newton died after Merck repeatedly stabbed him while the two men were in the parking lot of a bar in Pinellas County shortly after 2 a.m. on October 12, 1991. The bar had closed at 2 a.m., and several patrons of the bar remained in the parking lot. The evidence was that several of these individuals, including the victim, Merck, and those who witnessed the murder, had consumed a substantial amount of alcohol during the evening while at the bar.

After closing, Merck and his companion, both of whom had recently come to Florida from North Carolina, were in the bar's parking lot. The two were either close to or leaning on a vehicle in which several people were sitting. One of the car's occupants asked them not to lean on the car. Merck and his companion sarcastically apologized. The victim approached the car and began talking to the car's owner. When Merck overheard the owner congratulate the victim on his birthday, Merck made a snide remark. The victim responded by telling Merck to mind his own business. Merck attempted to provoke the victim to fight; however, the victim refused.

Merck then asked his companion for the keys to the car in which he had come to the bar. At the car, Merck unlocked the passenger-side door and took off his shirt and threw it in the back seat. Thereafter, Merck approached the victim, telling the victim that Merck was going to "teach him how to bleed." Merck rushed the victim and began hitting him in the back with punches. The person who had been talking to the victim testified that she saw a glint of light from some sort of blade and saw blood spots on the victim's back. The victim fell to the ground and died from multiple stab wounds; the main fatal wound was to the neck.

Merck was indicted on November 14, 1991, for the first-degree murder of James Anthony Newton. The case went to trial and ended in a mistrial on November 6, 1992, because the jury was unable to reach a verdict. After a second trial, Merck was found guilty as charged. The jury recommended death by a vote of nine to three. The trial judge found two aggravating factors: (1) the murder was especially heinous, atrocious, or cruel; ¹ and (2) previous conviction of felonies involving the use or threat of violence. ² The court found no statutory mitigating factors and two nonstatutory mitigating factors: (1) abused childhood; and (2) alcohol use on the night of the offense. The trial court sentenced Merck to death.

On appeal, Merck presents five claims: (1) the trial court erred in imposing the death sentence; (2) the death sentence is invalid because the jury heard and the trial judge considered highly prejudicial testimony not relating to any statutory aggravating circumstance; (3) the trial court erred in denying Merck's motion for mistrial based upon a State witness's reference to the first trial of this case; (4) Merck's conviction must be vacated as a result of the State's bad-faith failure to preserve potentially exculpatory evidence; and (5) the trial court erred in giving the jury an unconstitutionally vague and overbroad instruction on the "especially heinous, atrocious, or cruel" aggravating factor.

GUILT PHASE

Issues 3 and 4 raised by Merck relate to the guilt phase of the trial. We do not find merit in either issue and affirm Merck's conviction.

With respect to issue 3, we find that there was no abuse of discretion in denying Merck's motion for mistrial based upon inadvertent reference by Deputy Sheriff Nestor, the case agent detective, to the first trial of this case. The reference was isolated and appears to have been inadvertent. The trial court had ordered in limine that there be no reference to the first trial, in which the jury had been unable to reach a verdict. Detective Nestor was the State's witness, and during cross-examination by Merck's counsel, the following colloquy occurred:

Q. Have you seen the videotape by the way?

A. No, not recently I have not.

Q. Have you ever seen it?

A. Back before the last trial, yes.

Q. Is it fair--does it fairly, accurately depict what--when you say, you talk about the last hearing that we had in this case?

A. Yes, sir.

Q. Does it fairly, accurately depict what went on at the time?

A. Yes.

The record reflects that Merck's counsel properly responded to this statement by not drawing attention to it. The trial court was well within its discretion to determine that the statement did not prevent Merck from having a fair trial. Power v. State, 605 So.2d 856 (Fla.1992), cert. denied, 507 U.S. 1037, 113 S.Ct. 1863, 123 L.Ed.2d 483 (1993).

In issue 4, Merck asserts that the failure on the part of Detective Nestor to keep as evidence a pair of khaki pants located during the search of the vehicle abandoned by Merck and his companion after the murder, was a bad-faith failure to preserve potentially exculpatory evidence, resulting in a denial of due process. In examining the items found in the vehicle, Detective Nestor meticulously looked at every item found in the car, and a videotape was made of the search. Detective Nestor testified that it was his job as the case agent to determine which of these items had evidentiary value. He retained all items that he determined to have evidentiary value, and he left the other items in the vehicle. The vehicle was thereafter available to be picked up by its registered owner. One of the items examined by Detective Nestor was a pair of "baggy khaki colored style pants." Detective Nestor testified that after he examined those pants and found no blood stains on them, he concluded that they did not have evidentiary value and left the pants in the vehicle.

Merck raised this issue in post-trial motions which were acknowledged not to be timely. Merck asserts that the failure to maintain this evidence was fundamental error and, as such, can be raised for the first time post-trial. We do not agree. Here, the failure to preserve the khaki pants was clearly known by Merck prior to and during the trial. The issue was not preserved by timely objection and was not properly the basis for a post-trial attack on the conviction. State v. Matera, 266 So.2d 661 (Fla.1972).

However, even if there had been a timely presentation of this issue, based upon our review of the record, we conclude that the failure to preserve the khaki pants was not a denial of due process pursuant to Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), and Kelley v. State, 569 So.2d 754 (Fla.1990). There is simply no showing that Detective Nestor acted in bad faith in deciding not to preserve pants which had no blood stains. Moreover, Merck has to stack multiple inferences in order to postulate that the pants were either material or exculpatory. Thus, we find no merit in Merck's fourth issue.

PENALTY PHASE

In issue 1, appellant raises three points.

A. Appellant's age, 19, should have been found and weighed in mitigation.

We reject Merck's contention that our decision in Ellis v. State, 622 So.2d 991 (Fla.1993), is applicable to Merck, who was 19 at the time of this murder. Rather, as we decided in Peek v. State, 395 So.2d 492 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981), the trial court may find or decline to find age as a mitigating factor in respect to a defendant who is 19. In the trial court's sentencing order in this case, the trial court considered but rejected defendant's age as being a mitigating factor. We affirm.

B. The judge should not have found or instructed the jury on the heinous, atrocious, or cruel aggravating factor.

The basis of Merck's argument regarding the second point is that this aggravator is not applicable because this was a sudden attack at a time when both Merck and the victim were intoxicated. The medical examiner testified that the fatal wound to the neck would have caused unconsciousness within two to five minutes and death within five to ten minutes. The victim had a blood alcohol level of .18. Likewise, there was substantial evidence that Merck had consumed a sufficient amount of alcohol to have been intoxicated at the time of the murder. However, there was also evidence that Merck had deliberately twisted the knife blade during the stabbing. Witnesses testified that this stabbing occurred after Merck said to the victim, "I'll show you how to bleed." Death was a result of multiple stab wounds.

We recently rejected a challenge that the heinous, atrocious, or cruel aggravator was not applicable based upon a similar assertion in Whitton v. State, 649 So.2d 861 (Fla.1994), petition for cert. filed, No. 94-9356 (U.S. May 15, 1995). We believe that the heinous, atrocious, or cruel aggravator was applicable in this case and affirm on this issue.

C. The death sentence is disproportionate.

Merck bases this issue primarily upon the contention in point B that the heinous, atrocious, or cruel aggravator should be stricken. We have rejected that contention and likewise reject the contention that death is disproportionate in this stabbing murder. Whitton; Derrick v. State, 641 So.2d 378 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 943, 130 L.Ed.2d 887 (1995); Taylor v. State, 630 So.2d 1038 (Fla.1993), cert. denied, --- U.S. ----, 115 S.Ct. 107, 130 L.Ed.2d 54 (1994); Atwater v. State, 626 So.2d 1325 (Fla.1993), ...