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Supreme Court of Florida
____________
No. SC91581
____________
TROY MERCK, JR.,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[July 13, 2000]
PER CURIAM.
Troy Merck, Jr. appeals the death sentence
imposed upon him after a remand
for resentencing. We have jurisdiction.
Art. V, § 3(b)(1), Fla. Const. For
the reasons expressed herein, we reverse
Merck’s sentence of death and
remand this case to the trial court
for a new penalty-phase proceeding and a
new sentencing order in which the trial
court is to provide detailed written
findings as to aggravating and statutory
and nonstatutory mitigating
evidence presented.
Merck was charged on November 14, 1991,
in Pinellas County with first-degree
murder. The case went to trial in November
1992 and ended in a mistrial
because the jury was unable to reach
a verdict. After a trial in September
1993, Merck was found guilty and sentenced
to death. The facts of this case
are set forth in detail in Merck v.
State, 664 So. 2d 939 (Fla. 1995). This
Court affirmed the conviction but reversed
the death sentence based on our
finding that juvenile adjudication
as to a North Carolina shooting incident
was not a "conviction" within the meaning
of the statute making prior
conviction of a violent felony an aggravating
factor and that the court’s
finding of this aggravator was harmful
error. Id. at 944.
Merck’s resentencing took place in July
1997. The jury unanimously
recommended a death sentence. The trial
court found three aggravators: Merck
was previously convicted of a felony
and on felony probation (great weight);
Merck was previously convicted of a
felony involving the use or threat of
violence to the person (one robbery,
four armed robberies) (great weight);
and the murder was especially heinous,
atrocious, or cruel (HAC) (great
weight). As statutory mitigators, the
court found Merck’s age (nineteen)
(very little weight) and that the murder
was committed while Merck was under
the influence of extreme mental or
emotional disturbance (little weight). As
nonstatutory mitigation, the court
found childhood abuse and deprivation
(some weight); and learning disability,
long-term alcohol abuse, chemically
dependent parents, lack of a parental
role model, and capability of forming
loving relationships (some weight).
After considering the relevant factors,
the trial court sentenced Merck to
death.
In this appeal of his resentencing Merck
raises five claims through counsel
and five additional claims in a supplemental
pro se brief. We will discuss
only the dispositive first, second,
and fourth claims that Merck raised
through counsel and find the remainder
of Merck’s claims to be moot in light
of our finding of reversible error.
In his first two claims, Merck contends
that the trial court did not comply
with this Court’s directions in Campbell
v. State, 571 So. 2d 415 (1990), in
that the court failed to properly find,
evaluate, or weigh evidence of Merck
’s alcohol abuse within the list of
nonstatutory mitigating circumstances in
the sentencing order. First, Merck
claims that the court erred in failing to
find, evaluate, or weigh evidence of
Merck’s long-term alcohol abuse as to
nonstatutory mitigation. Second, Merck
claims that the trial court erred in
failing to find, evaluate, or weigh
evidence of Merck’s substantial alcohol
intake on the night of the instant
crime as a nonstatutory mitigator. We
agree with both of Merck’s arguments
as to the trial court’s lack of
findings concerning Merck’s use of
alcohol the night of the murder and his
long-term alcohol abuse.
The trial court’s sentencing order states
as to the statutory mitigator of
substantial impairment:
c. The capacity of the defendant to
appreciate the criminality of his
conduct or to conform his conduct to
the requirements of law was
substantially impaired.
Two experts testified that the defendant
had a substance abuse alcohol
disorder. Ron Bell, the defendant’s
expert toxicologist, testified that he
estimated the defendant’s blood alcohol
level of [sic] to be in the range of
0.16 - 0.26 with an average level of
0.21 at the time of this murder.
However, this information was not derived
from a blood test but rather was
estimated based upon testimony of alcohol
consumption. He acknowledged that
long term use of alcohol can increase
tolerance levels.
The state’s expert found the defendant
did appreciate the criminality of his
conduct and that the defendant’s [ability
to conform his] conduct to the
requirements of the law was not impaired.
The expert for the defense
disagreed and testified that the defendant
had no emotional appreciation of
the significance of the killing and
she stated that it was beyond his
capacity to think or evaluate it. She
testified that once the impulsiveness
and aggression of the defendant began,
it would not stop. She also testified
that on the night of the homicide the
defendant had excessive alcohol use;
consequently, the defendant experienced
emotional upheaval at the time of
the homicide.
There was testimony from eyewitnesses
which described the defendant as not
appearing intoxicated, walking very
deliberately to his friend’s car,
catching tossed keys in mid-air, unlocking
and opening the car door,
retrieving the knife and hiding it
from the on-lookers. One eye witness
testified that when the defendant caught
the keys in mid-air, in response to
his friend’s comment "nice catch Troy,"
the defendant replied "don’t use my
real name." The defendant then proceeded
in a deliberate fashion and
brutally stabbed the victim. This testimony
compels this Court to believe
that the alcohol use on the night of
the murder did not substantially impair
the defendant.
State v. Merck, No. 91-16659 CFANO-M,
sentencing order at 9-10 (Fla. 6th
Cir. Ct. order filed Sept. 12, 1997)
(emphasis added).
As to nonstatutory mitigation, the trial judge wrote in her order:
2. Non-statutory Mitigating Factors
The defendant asked the Court to consider
these non-statutory mitigating
factors:
a. The defendant was under the influence of alcohol.
The Court has addressed this factor
under the defendant’s third statutory
mitigating factor regarding his capacity
to appreciate the criminality of
his conduct or to conform his conduct
to the requirements of the law.
. . . .
c. Defendant lists as additional non-statutory
factors his learning
disability, his long-term alcohol abuse,
his chemically dependent parents,
his rejection by two father figures,
his lack of a parental role model, his
lack of a male parent, and his capability
to form loving relationships.
Several of these factors have been
previously discussed. As to the remaining
factors; First, as to his learning
disability, the testimony showed that
such disorder does not impact on development.
Many children have learning
disabilities and grow up to be responsible
citizens. Second, as to his lack
of a parental role model, his sisters,
aunts, and foster parents all
testified about helping him to grow
up and exposing him to love. Third, as
to defendant having the capacity to
form a loving relationship, the Court
considered the testimony of his family
members and his parents. These
factors have been considered by this
Court and will be given some weight.
State v. Merck, sentencing order at 11-12 (emphasis added).
The trial court, in considering mitigating
evidence, must determine whether
the facts alleged in mitigation are
supported by the evidence. See Bonifay
v. State, 680 So. 2d 413, 416 (Fla.
1996) (citing Rogers v. State, 511 So.
2d 526, 534 (Fla. 1987)). A trial court
is obligated to find and weigh all
valid mitigating evidence available
in the record at the conclusion of the
penalty phase. See Cheshire v. State,
568 So. 2d 908, 911 (Fla. 1990).
Evidence is mitigating if, in fairness
or in the totality of the defendant’s
life or character, it may be considered
as extenuating or reducing the
degree of moral culpability for the
crime committed. See Wickham v. State,
593 So. 2d 191, 194 (Fla. 1991).
In Campbell, we held that a sentencing
court must expressly evaluate in its
written order each mitigating circumstance
proposed by the defendant to
determine whether it is supported by
the evidence and whether, in the case
of nonstatutory factors, it is truly
of a mitigating nature. See 571 So. 2d
at 419. Here, we find that the trial
judge erred in that her explanation in
the sentencing order of her evaluation
as to nonstatutory mitigation failed
to include Merck’s drinking on the
night of the murder or Merck’s long-term
alcohol abuse.
In the sentencing order, the trial court
correctly stated that Merck had
urged the court to find the two alcohol-related
nonstatutory mitigators.
However, we find the court’s reference
back to a one-sentence discussion of
evidence of Merck’s long-term alcohol
abuse in the statutory mitigation
section of the order to be insufficient
as to our Campbell sentencing order
requirement. Likewise, although the
trial court did discuss in the
sentencing order evidence of Merck’s
drinking alcohol the night of the
murder, this discussion was only in
the context of finding that this
evidence did not prove a statutory
mitigator and is insufficient as to our
Campbell sentencing order requirement.
The sentencing order concludes that
the long-term alcohol abuse was considered
together with nonstatutory
factors of Merck’s "learning disability,
. . . his chemically dependent
parents, his rejection by two father
figures, his lack of a parental role
model, his lack of a male parent, and
his capability to form loving
relationships." State v. Merck, sentencing
order at 12. Merck alleges this
analysis of nonstatutory mitigation
does not evaluate the evidence presented
as nonstatutory mitigation or explain
the reasoning for the trial court’s
weighing of nonstatutory mitigation.
This is a violation of the requirements
we set forth in Campbell. See Hudson
v. State, 708 So. 2d 256, 259-60 (Fla.
1998). The nonstatutory mitigation
section of the sentencing order for this
resentencing must deal directly with
any evidence, including Merck’s alleged
alcohol abuse, that Merck presents
to the court as nonstatutory mitigation.
In his fourth claim, which is also dispositive,
Merck argues that the trial
court erred in instructing the jury
upon and then finding as an aggravating
circumstance the fact that Merck had
previously been convicted of a felony
and was placed on felony probation.
He asserts that the instruction upon and
finding of the felony probation aggravator,
which did not exist at the time
of the instant murder, violates the
ex post facto provisions of the United
States and Florida Constitutions.
The instant murder was committed on
October 12, 1991, and Merck’s
resentencing proceeding began on July
15, 1997. At the time of this crime,
the first aggravator listed in Florida’s
death penalty statute provided in
relevant part:
(5) AGGRAVATING CIRCUMSTANCES.--Aggravating
circumstances shall be limited
to the following:
(a) The capital felony was committed
by a person under sentence of
imprisonment or placed on community
control.
§ 921.141(5)(a), Fla. Stat. (1995).
At the time of the murder, the
aggravator provided in subsection (5)(a)
did not apply to persons on
probation. See Ferguson v. State, 417
So. 2d 631, 636 (Fla. 1982); Bolender
v. State, 422 So. 2d 833, 837 (Fla.
1982); Peek v. State, 395 So. 2d 492,
499 (Fla. 1980). Thereafter, the Legislature
amended section 921.141(5)(a)
to add "or on probation," ch. 96-290,
§ 5, Laws of Fla., and further revised
subsection (5)(a) again to specify
"felony probation" and previous felony
conviction. Ch. 6-302, § 1, Laws
of Fla. Pursuant to these amendments,
probationary status did not become
a statutory aggravator until May 30,
1996.
In this case, the trial court instructed
the jury that in deliberating its
sentencing recommendation it could
consider as an aggravating circumstance
the fact that Merck was on felony probation.
In her sentencing order, the
judge found felony probation as one
of three aggravating circumstances.
Merck contends that the Legislature's
amendment of section 921.141(5)(a)
subsequent to the instant crime to
add probation to the list of statutory
aggravators was a substantive change
in the law, not a mere refinement of
the law as this Court found the "community
control" aggravating circumstance
to be in Trotter v. State, 690 So.
2d 1234 (Fla. 1996). In Trotter, this
Court held that the trial court's use
of the fact that the murder was
committed while the defendant was on
community control did not violate the
defendant's ex post facto rights, even
though the crime and sentencing took
place before the sentencing provision
was amended to add the "community
control" aggravator. Id. at 1237. However,
during the time that this case
has been under review, this Court has
found ex post facto violations in two
applications of the felony probation
aggravator. See Lukehart v. State, 25
Fla. L. Weekly S489 (Fla. June 22,
2000); Zack v. State, 753 So. 2d 9 (Fla.
2000). On the basis of the present
record, we cannot find the error harmless
beyond a reasonable doubt.
In view of our finding of error in the
trial court’s sentencing order and
our striking of the felony probation
aggravator, we find that this case must
be remanded for a resentencing. Accordingly,
we vacate the sentence of death
and order a complete new penalty-phase
proceeding before a jury.
It is so ordered.
WELLS, C.J., and HARDING, PARIENTE, LEWIS and QUINCE, JJ., concur.
SHAW and ANSTEAD, JJ., concur in result only.
NOT FINAL UNTIL TIME EXPIRES TO FILE
REHEARING MOTION, AND IF FILED,
DETERMINED.
An Appeal from the Circuit Court in and for Pinellas County,
Nelly N. Khouzam, Judge - Case No. CRC91-16659 CFANO
James Marion Moorman, Public Defender,
and Steven L. Bolotin, Assistant
Public Defender, Tenth Judicial Circuit,
Bartow, Florida, and Troy Merck,
pro se, Raiford, Florida,
for Appellant
Robert A. Butterworth, Attorney General,
and Robert J. Landry, Assistant
Attorney General, Tampa, Florida,
for Appellee
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