Merck v. State

• Citation: 975 So.2d 1054
• Decision Date: 06 December 2007
• Docket Number: No. SC04-1902.,SC04-1902.
• Parties: Troy MERCK, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

975 So.2d 1054

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

No. SC04-1902.

Supreme Court of Florida.

December 6, 2007.

Rehearing Denied February 11, 2008.

James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, and Robert J. Landry, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

Troy Merck, Jr., appeals the death sentence imposed upon him after a second remand for resentencing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the sentence.

I. FACTS AND PROCEDURAL HISTORY

Troy Merck, Jr., was convicted of first-degree murder following the 1991 stabbing of James Anthony Newton. The facts surrounding the murder are set forth in Merck v. State, 664 So.2d 939 (Fla.1995) (Merck I). The jury recommended a sentence of death, and the trial court followed that recommendation. On October 12, 1995, this Court affirmed Merck's conviction but reversed his death sentence because we found that a North Carolina juvenile adjudication presented to the jury was not a "conviction" within the meaning of the conviction of a prior violent felony aggravator and that admitting evidence regarding this adjudication was harmful error. Id. at 944. On remand in July of 1997, a circuit court jury unanimously recommended a death sentence, which the trial court imposed. On July 13, 2000, this Court again reversed Merck's death sentence because we found that the trial court failed to adequately consider nonstatutory mitigation in its sentencing order and inappropriately applied the felony probation aggravator, which did not exist at the time of Newton's murder. Merck v. State, 763 So.2d 295, 298-99 (Fla.2000) (Merck II).

Merck's third resentencing proceeding, held in March of 2004 and now before us for review, resulted in a jury recommendation of death by a nine-to-three vote. The trial judge held a Spencer¹ hearing on March 28, 2004. Both the State and the defense presented psychological experts who testified regarding Merck's mental and emotional states at the time of the murder and at the time of the instant resentencing. The defense also introduced into evidence a copy of the 1997 penalty-phase testimony of Ron Bell, Chief Toxicologist for the Pinellas/Pasco County Medical Examiner's Office, who offered an opinion regarding Merck's levels of intoxication and impairment at the time of the murder. After considering this evidence, the trial court followed the jury's recommendation and imposed the death penalty, finding two aggravating factors: the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person; and the capital felony was especially heinous, atrocious, or cruel (HAC). The trial court found one statutory mitigating factor, Merck's age of nineteen at the time of the offense, which it assigned some weight. The court further found three nonstatutory mitigating factors: difficult family background, assigned some weight; alcoholism/alcohol abuse-intoxication, assigned little weight; and the capacity to form and maintain positive relationships and the capacity for growth, assigned some weight. State v. Merck, CRC9116659CFANO-C (Fla. 6th Cir. Ct. order filed Aug. 6, 2004) (Sentencing Order).

On appeal, Merck presents six claims: (1) the trial court improperly excluded evidence relating to Merck's presumptive parole release date; (2) the trial court improperly excluded evidence that was relevant to the nature and circumstances of the offense, had bearing on the finding of an aggravating factor, and could have been the basis of additional mitigating factors; (3) the assistant state attorney's closing argument included improper remarks, which denied Merck a fair penalty-phase proceeding; (4) the trial court failed to find or gave too little weight to mitigating factors; (5) the death sentence is disproportionate; and (6) Florida's capital sentencing scheme violates the decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

II. EXCLUSION OF EVIDENCE CLAIMS

A. Exclusion of Parole Expert Testimony

Merck argues that the trial court erred in excluding proffered expert testimony regarding Florida's parole procedures and his likelihood of being paroled. Because this murder occurred in 1991, the resentencing jury was instructed that Merck could be sentenced to death or to life in prison without the possibility of parole for twenty-five years.² Merck contended that the 2004 resentencing jury would unduly consider that he could be paroled twelve years from the date of its sentencing recommendation. Thus, the defense wanted to present as a witness Felix Ruiz, Regional Administrator in the Tampa Bay Area for the Florida Parole Commission, to testify as to the unlikelihood of Merck actually being paroled. The State objected that this testimony was "wildly speculative" and irrelevant because the State would not be drawing the jury's attention to the fact that Merck would be considered for parole in 2016 if he was given a life sentence. The defense argued that this testimony was relevant to the mitigating circumstance of length of sentence.

The Court addressed the admissibility of evidence about a defendant's likelihood of parole in Jackson v. State, 530 So.2d 269 (Fla.1988), where the defendant argued that the trial judge erred in prohibiting him from presenting as a mitigating circumstance the philosophy of the then-existing parole commission not to grant parole to defendants convicted of capital offenses. The Court found that the trial judge did not abuse his discretion because such evidence did not concern the appellant's character and it was "probable that none of the present parole commission would be serving at the time Jackson could be eligible for parole in twenty-five years had a life sentence been imposed." Id. at 274.

Likewise, in King v. Dugger, 555 So.2d 355, 359 (Fla.1990), this Court found no error where a trial court excluded testimony by the Executive Director of the Florida Parole and Probation Commission that a life sentence for first-degree murder includes a minimum mandatory sentence of twenty-five years of imprisonment because such evidence was not relevant to King's character, his prior record, or the circumstances of the crime. This Court held that the "standard instruction on the possible sentences for first-degree murder adequately inform[s] the jury of the minimum mandatory portion of a life sentence." Id. That same year, this Court found no error in Lucas v. State, 568 So.2d 18, 20 n. 2 (Fla.1990), where the trial court refused to allow Lucas to present testimony that he would not be paroled if sentenced to life imprisonment.

Given these precedents, we find that the trial court did not abuse its discretion in excluding the proffered testimony.³

B. Evidence of Circumstances of the Murder

In this claim, Merck argues that the trial court erred in excluding defense evidence regarding the circumstances of the murder. He claims that the trial court improperly excluded testimony that would tend to show that he did not fatally stab the victim and that his involvement in the crime was minor.

The record reflects that except for the testimony identified below that was not proffered, the allegedly excluded testimony was presented to the jury. Contrary to Merck's argument on appeal, the jury heard that Neil Thomas illegally bought alcoholic drinks for an underage Merck on the night of the murder. Thomas testified that he, not Merck, called the victim a "pussy" and that the victim's subsequent refusal to fight may have been perceived by Merck as disrespectful and annoying. Thomas testified that he drove Merck away from the crime scene and that they changed clothes so that they would be less recognizable, hid from the police in some bushes, and played pool together later that night. Finally, Thomas testified that he had not been charged with any crime regarding Newton's murder, denied being given preferential treatment, and explained the prosecuting attorney's role in and the circumstances surrounding his release after turning himself in to police in 1997 on a 1994 arrest warrant.

Merck argues that the trial court excluded potentially exculpatory testimony by a fingerprint examiner and evidence that eyewitness Katherine Sullivan's description of the stabber's clothing matched Thomas's clothing, not Merck's. The record does not contain a proffer of such testimony. Thus, we deny Merck's claim.⁴ See Lucas v. State, 568 So.2d 18, 22 (Fla. 1990) ("A proffer is necessary to preserve a claim such as this because an appellate court will not otherwise speculate about the admissibility of such evidence.").

III. CLOSING ARGUMENTS

Merck argues that he was denied a fundamentally fair penalty phase because the prosecutor made numerous improper comments during closing arguments. Attorneys are permitted wide latitude in closing arguments but are not permitted to make improper argument. Gore v. State, 719 So.2d 1197, 1200 (Fla.1998). Closing argument is an opportunity for counsel to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence. Counsel must contemporaneously object to improper comments to preserve a claim for appellate review. Unobjected-to comments are grounds for reversal only if they rise to the level of fundamental error. The Court considers the cumulative effect of objected-to and unobjected-to comments when reviewing whether a defendant received a fair trial. Brooks v. State, 762 So.2d 879, 898-99 (Fla.2000). A trial court has discretion in controlling opening and closing statements, and its decisions will not be overturned absent an abuse of discretion. Dufour v. State, ...