Merck v. State

• Decision Date: 28 December 2018
• Docket Number: No. SC18-88,SC18-88
• Citation: 260 So.3d 184
• Parties: Troy MERCK, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

260 So.3d 184

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

No. SC18-88

Supreme Court of Florida.

December 28, 2018

Linda McDermott of McClain & McDermott, P.A., Estero, Florida, for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Senior Assistant Attorney General, Tampa, Florida, for Appellee

PER CURIAM.

260 So.3d 188

This case is before the Court on appeal from an order denying Troy Merck's successive motion to vacate a judgment of conviction of first-degree murder under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1) of the Florida Constitution.¹ Merck contends that the postconviction court erred in denying his overlapping claims of newly discovered evidence and violations of Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For the reasons explained below, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Merck was convicted of the first-degree murder of James Newton and sentenced to death, and his conviction was affirmed on direct appeal in 1995. Merck v. State (Merck I ), 664 So.2d 939, 940 (Fla. 1995). We have since affirmed the denial of Merck's initial motion for postconviction relief and denied his petition for writ of habeas corpus. Merck v. State (Merck IV ), 124 So.3d 785, 790 (Fla. 2013). However, errors in the sentencing process have required resentencing on two prior occasions, Merck I , 664 So.2d at 944 ; Merck v. State (Merck II ), 763 So.2d 295, 299 (Fla. 2000), and Merck is presently awaiting his third resentencing due to Hurst error in his most recent penalty phase.²

The subject of this appeal is Merck's first successive motion for postconviction relief. In that motion, Merck alleged violations of Giglio and Brady , as well as a more general claim of newly discovered evidence, based on information his postconviction investigator recently obtained from Neil Thomas, a key witness for the State at Merck's trial. Because Merck has been granted a new penalty phase, the issues addressed in this decision pertain to his conviction only.

In Merck's first appeal, we described the facts of the crime as follows:

Newton died after Merck repeatedly stabbed him ... in the parking lot of a bar in Pinellas County shortly after 2 a.m. on October [11], 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 [Thomas], 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

260 So.3d 189

them not to lean on the car. Merck and [Thomas] sarcastically apologized. The victim approached the car and began talking to the car's owner [Katherine Sullivan]. 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 [Thomas] for the keys to the car in which he had come to the bar [which was a Mercury Bobcat]. 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. [Sullivan] 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 I , 664 So.2d at 940-41.

Merck had two theories of defense. First, he argued that there was a reasonable doubt as to whether he, rather than Thomas, was the attacker. Second, he argued that if he was the attacker, he was so intoxicated that he "blacked out" and did not remember it and, therefore, could not have formed the intent to commit premeditated first-degree murder.³

The trial evidence showed that Thomas and Merck spent approximately four hours at the bar before the murder. Merck testified that he consumed twelve to fifteen beers and eight to ten shots of liquor during this time. In contrast, Thomas testified that he and Merck each consumed approximately six beers and two or three shots of liquor. Thomas testified that he felt "buzzed pretty good" and that Merck did not show any effects from his consumption of alcohol. Merck did not seem to be having any trouble walking, standing, or talking, and Merck responded appropriately when Thomas spoke to him. Sullivan also testified that the attacker, whom she identified as Merck both in court and before trial, had no trouble walking or talking.⁴

According to Thomas, after the attack was over, Merck urged him to "[c]ome on," and Thomas then got into the Bobcat and drove away with Merck, asking Merck if he had stabbed Newton. Thomas recalled that Merck held up a bloody knife, announced that he had killed Newton, and said that if he had not succeeded in killing Newton, he would go to the hospital and "finish what [he] started." Thomas testified that Merck described the attack repeatedly from that point forward. At some point, Merck explained to Thomas that he decided to kill Newton when Newton failed to back down from the confrontation as Merck approached him.

Thomas testified that after escaping the scene, he parked the Bobcat at an apartment complex, where he and Merck began

260 So.3d 190

to change clothes. Thomas recounted that as he and Merck were in the parking lot, Thomas saw a patrol car slam on its brakes and turn around, at which point he and Merck ran. They hid in some bushes and then made their way to a Burger King, where they called a cab. Merck and Thomas had the driver drop them off at a bowling alley across the street from a motel where they intended to stay. However, before going to the motel, they played a game of pool, and Merck had no difficulty with the game. According to Thomas, once they arrived at the motel, Merck continued describing the attack. Thomas testified that Merck did not pass out or start sleeping or "anything like that" and that Merck did not seem to have any difficulty remembering what happened.

Contrary to Thomas's account of Merck's actions and demeanor, Merck testified that after he heard Thomas calling Newton a name, he leaned down to pick something up and that the next thing he remembers is leaning on the Bobcat and hearing Thomas tell him to hurry up and change clothes. Merck testified that he remembered running with Thomas when they saw a patrol car. He also testified that he remembered going to "a Hardee's or something," lying in some bushes, and taking a cab to a bowling alley where he went in and shot pool. The next thing he remembered after that was waking up the next morning at a motel. According to Merck, after he told Thomas he did not remember the night before, Thomas told him that they had been in a fight and, later, that Merck had stabbed someone.

Thomas and Merck both testified that three females joined them at the motel during the weekend after the stabbing. Two of these females testified that, although Merck described the stabbing and claimed to have done it, he was often interrupted by Thomas, who supplied and corrected details of Merck's account while Merck looked as though he did not really believe he did what Thomas attributed to him. The third female contradicted this testimony, stating that Thomas did not take part in recounting the incident.

A couple of days after the stabbing, Thomas walked away from the motel and arranged to be picked up at another location. When his contact arrived, he was advised that the police were on their way as well. Thomas was reluctant to talk to the police at first, but he ultimately told the police where Merck was and learned a few minutes later that Merck was in custody. Thomas gave a sworn statement that same day, giving essentially the same account that he later presented at trial. At trial, Thomas testified that no one had threatened him to get him to "tell what [he] knew about the incident."

GIGLIO , BRADY , AND NEWLY DISCOVERED EVIDENCE CLAIMS

The successive postconviction motion at issue in this appeal relates to Thomas's testimony concerning Merck's level of intoxication, as well as Thomas's motivation to testify and to minimize Merck's level of intoxication. The postconviction court granted Merck an evidentiary hearing, where it received the testimony of Thomas, as well as Merck's trial counsel, Merck's initial postconviction counsel, and Merck's current postconviction investigator. Merck relied on portions of this testimony to support each of his claims: a Giglio claim,...