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NEXT CASE ON THE COURT'S CALENDAR IS TROY MERCK VERSUS THE STATE OF FLORIDA. MR. BOLOTIN.

MAY IT PLEASE THE COURT. I AM STEVE BOLOTIN OF THE PUBLIC DEFENDER'S OFFICE IN BARTOW. I REPRESENT MR. MERCK. THIS IS A CASE WHERE THE DEATH SENTENCE IS DISPROPORTIONED AND THE DEATH SENTENCE IS NOT VALIDATED. THAT WAS BE BASED ON THE TOTALITY OF THE CRIME AND THE FACT THAT THIS IS NOT ONE OF THE MOST MITIGATED HOMICIDES AND THERE IS SUBSTANTIAL MITIGATION IN THIS CASE, AND THE BACKGROUND MITIGATION IS INTRICATELY AND CAUSELY RELATED TO THE CIRCUMSTANCES OF THE COMMISSION OF THE CRIME.

IT IS A FACTUAL MATTER, AND I CAN'T RECALL RIGHT NOW. DID THE DEFENDANT AND THE VICTIM KNOW EACH OTHER PRIOR TO THIS EVENING?

NO. THEY DID NOT. THEY WERE BOTH DRINKING IN THE SAME BAR DURING THE COURSE OF THE EVENING BUT THEY APPARENTLY DID NOT EVEN ENCOUNTER EACH OTHER IN THE BAR. THE CIRCUMSTANCES WERE, FIRST, EVERYBODY INVOLVED IN THE CASE, AS FAR AS YOU CAN TELL FROM THE RECORD, WAS SUBSTANTIALLY INTOXICATED.

DOES THAT INCLUDE THE WOMAN WHO WAS THE DRIVER OF THE CAR THAT -- AS I UNDERSTAND IT, THE VICTIM WAS ACTUALLY TALKING TO A WOMAN WHO WAS THE DRIVER OF A CAR.

OKAY.

THAT WAS KATHRYN SULLIVAN, WHO WAS AN OFF DUTY EMPLOYEE OF THE BAR. SHE TESTIFIED THAT SHE HAD BEEN DRINKING. SHE DID NOT THINK SHE WAS DRUNK BUT SHE WAS SUFFICIENTLY CONCERNED THAT SHE DIDN'T FEEL COMFORTABLE DRIVING HOME. THE TESTIMONY OF THE STATE'S KEY WITNESS, NEAL THOMAS, WAS THAT HE AND TROY WERE DRINKING. THEY WERE NECK AND NECK, DRINKING APPROXIMATELY THE SAME AMOUNT, WHICH, ACCORDING TO THE STATE WITNESSES' TESTIMONY, WOULD HAVE BEEN FIVE BEERS AND TWO MIXED DRINKS. THERE WAS, ALSO, TESTIMONY THAT, AT THE END OF THE EVENING, IT WAS DOLLAR TEQUILA NIGHT AT THE BAR. HE TESTIFIED THAT THERE WAS TEQUILA AT THE TABLE BUT HE, NEAL, DID NOT RECALL DRINKING ANY.

WHAT DOES THIS GO TOWARDS, THESE FACTS? IS IT GOING TOWARDS THE JUDGE SHOULD ASSIGN MORE WEIGHT TO UNDER EXTREME MENTAL, WHATEVER --

NO. IT IS GOING BASICALLY TO THREE DIFFERENT THINGS, GOING TO THE TOTALITY OF THE CIRCUMSTANCES OF THE COMMISSION OF THE CRIME, GOING TO THE DUAL TWIN CAMPBELL ISSUES THAT ITCH RAISED IN THE BRIEF, THE FAILURE TO CONSIDER TROY'S LONG HISTORY OF ALCOHOLISM, THE FAILURE TO --

WHEN YOU SAY A LONG HISTORY OF ALCOHOLISM, I DO SEE SOME QUESTION ABOUT HOW SOMEONE AT 19 CAN BE SO USED TO ALCOHOL THAT -- IS THAT WHAT YOU ARE TALKING ABOUT, LONG HISTORY?

YES.

WHEN HAD HE STARTED DRINK HAD GONE?

I WILL GET INTO THAT, BECAUSE THAT IS INTERESTING, BECAUSE THE ONE WITNESS, THE ONLY WITNESS WHO IS -- WE HAVE GOT FOUR EXPERT WITNESSES, THREE FOR THE DEFENSE AND -- FOUR FOR THE DEFENSE AND THREE FOR THE STATE, ALL OF WHOM AGREE THAT, IF HE WERE TO DRINK FOR HIS BODY WEIGHT, AN APPROXIMATELY 2.1 BLOOD ALCOHOL WOULD HAVE RENDERED HIM SUBSTANTIALLY IN TOX INDICATED. -- INTOXICATED.

THE FACT THAT THIS CRIME OCCURRED AND WHAT HE DID AFTERWARDS, THAT THAT REFUTES HIS ACTUAL STATE. I MEAN HE WASN'T FALLING DOWN DRUNK. HE WAS --

HE WAS PHYSICALLY ABLE TO DO THE ACT. I MEAN THIS IS NOT A LONG SERIES -- THIS IS NOT A CASE LIKE, FOR EXAMPLE, THE PAUL BEASLEY JOHNSON CASE, WHERE THE DRUG MITIGATOR WAS REJECTED ON THE GROUNDS THAT, THROUGH THE COURSE OF THE EVENTS OF HOURS THROUGHOUT AN EVENING, THAT THE EVIDENCE REFLECTED LESS AND LESS DRUG INVOLVEMENT IN THE CASE. THIS WAS A CASE, THIS WAS A SUDDEN SENSELESS, MOTIVE LESS HOMICIDE THAT OCCURRED AFTER A POINTLESS CONVERSATION IN THE BARROW-CONFRONTATION IN THE BAR PARKING LOT AT CLOSING TIME.

BUT THERE WAS ENOUGH TIME. -- THEY DID HAVE THE CONFRONTATION AND HE DIDN'T IMMEDIATELY STAB HIM. DIDN'T HE GO TO THE CAR TO RETRIEVE THE WEAPON THAT WAS USED AND TAKE OFF HIS SHIRT?

THAT IS AN INTERESTING QUESTION. THERE ARE TWO STATE WITNESSES THAT SAY THAT HAPPENED, BUT THE TWO STATE WITNESSES, MAYBE BECAUSE THEY WERE BOTH BOTH INTOXICATED, COMPLETELY CONTRADICT WHAT OCCURRED.

HOW ARE WE TO VIEW THAT?

I AM NOT ASKING YOU, AT THIS POINT, TO FIND THAT NEAL THOMAS COMMITTED THE CRIME OR THAT TROY MERCK DIDN'T. I DO THINK THAT SOME EVIDENCE RELATING TO THE POSSIBILITY THAT NEAL WAS MORE INVOLVED IN THE CRIME THAN WHAT HE SAID SHOULD HAVE BEEN ADMITTED, BUT WHAT I AM ARGUING AT THIS POINT IS JUST CIRCUMSTANCES OF THE CRIME. WHAT YOU HAVE GOT IS THIS 19-YEAR-OLD ALCOHOLIC WITH A BLOOD ALCOHOL OF .21 COMES OUT OF THE BAR. THIS TOTALLY CONTRADICTS THE TESTIMONY OF THE WITNESS KATHRYN SULLIVAN BUT CAME OUT OF THE BAR AND THE WOMAN SAID, IN ATONE OF VOICE, THAT HE THOUGHT HE HAD AN ATTITUDE. GET OFF MY CAR. THE WOMAN SAID SHE THOUGHT IT WAS GLENN THAT SAID THAT, GET OFF MY CAR, BUT THAT IS NEITHER HERE NOR THERE. NEAL SAYS I, NEAL WAS LOOKING FOR SOMEONE TO PROVOKE. I WAS CRUISING FOR A FI. I DIDN'T LIKE THE WOMAN'S ATTITUDE, AND THEN I SAW THAT GUY. JIM NEWTON. THE STATE IT WAS TROY WHO WAS PROVOKING JIM NEWTON BUT NEAL THOMAS SAID, NO, IT WASN'T TROY. IT WAS MAE.

BUT HE DIDN'T SAY THAT HE DID THE ACT.

NEAL DIDN'T SAY HE DID THE ACT. NO WAY. HE IS NOT GOING TO SAY. THAT FRANKLY THE EVIDENCE, IF YOU GO BACK TO THE ORIGINAL TRIAL, THE EVIDENCE ON THAT POINT IS CONFLICTING. I AM NOT SAYING THIS COURT SHOULD FIND, AS A MATTER OF LAW, THAT TROY DIDN'T DO IT. ONE OF THE ISSUES IS THAT THE JURY SHOULD HAVE BEEN ABLE TO HEAR THE COMPLETE CIRCUMSTANCES OF THE CRIME, BUT BASICALLY WHAT I AM GETTING AT HERE AS TO INTOXICATION IS IT IS A CAMPBELL ISSUE, A SENTENCING ORDER HERE TIED UP IN PROPORTIONALITY. WE HAVE GOT A SENTENCING ORDER WHERE THE JUDGE FILED THREE AGGRAVATORS. ONE IS THE FELONY PROBATION AGGRAVATOR, THE EXPOS FACT--- FACTO. I HAVE ARGUED THAT IT SHOULDN'T BE FOUND, BUT EVEN THE INNUENDO THAT IT SHOULD BE FOUND, BUT THAT DOESN'T GET BACK TO THE REGION --

WOULD YOU GET BACK TO THE QUESTION. THIS IS A 19-YEAR-OLD WHO, ALREADY, BY 19 YEARS OLD, HAD ALREADY COMMITTED SEVERAL FELONIES AND HAD ALREADY BEEN COMMITTED TO THE DEPARTMENT OF CORRECTIONS WITHIN A YEAR OR TWO BEFORE THIS MURDER, BUT DID THOSE OTHER ROBBERIES, DID THOSE INVOLVE ALCOHOLIC STATES?

WE KNOW THERE WERE A SERIES OF FIVE CONVENIENCE STORE ROBBERIES THAT OCCURRED IN THREE ADJOINING COUNTIES IN THE SAME GENERAL PERIOD OF TIME. WE DON'T KNOW WHAT LEVEL OF -- THE ONLY ONE THAT THE STATE PRESENTED EVIDENCE OF WHAT OCCURRED WAS THE ONE FROM PASCO COUNTY, WHERE THERE WAS -- I THINK A KNIFE WAS BRANDISHED AND THE PERSON WAS PUSHED TO THE FLOOR.

WELL, THE TRIAL JUDGE FOUND THAT, IN EACH ONE OF THEM, A KNIFE --

IN THE OTHER FOUR, THE CONVICTION, THE PLEA WAS TO ROBBERY WITH A DEADLY WEAPON, SO WE KNOW THAT A KNIFE WAS USED IN SOME WAY. NOW, GO BACK TO YOUR QUESTION ABOUT WHAT EVIDENCE IS THERE OF ALCOHOL ITCH, THAN IS A GOOD POINT, BECAUSE THE STATE, IN ITS BRIEF, SAYS WE DON'T DISAGREE WITH THE CASES CITED BY THE APPELLANT THAT A HISTORY OF ALCOHOLISM MAY BE A VALID OR IMPORTANT MIGHT GATOR IN A -- MITIGATOR IN A GIVEN CASE. WHAT WOULD BE A BETTER CASE THAN THAT, WHERE THIS ONE REVOLVES AROUND SOMEBODY WHO IS SO CONSUMED BY ALCOHOL, WHO IS NOT EVEN LEGAL AGE, WHO CAN'T DRINK. TROY MERCK IS THE SON OF LOIS MERCK AND NOBODY KNOWS WHO HIS FATHER WAS. HIS STEPFATHER WAS AN ALCOHOLIC. HIS MOTHER WAS ABSOLUTELY VICIOUS THROUGHOUT HIS LIFE, BOTH PHYSICALLY AND MENTALLY. SHE ABUSED DRUGS.

I AM ASKING TO HIS HISTORY.

THIS IS RELEVANT TO HIS HISTORY OF ALCOHOLISM. I WANT TO SHOW IT WAS AVAILABLE IN THE HOUSE. HIS SISTER TESTIFIED THAT THERE WAS ALWAYS SOMEBODY DRUNK THERE, DRUNK HE WILL UNCLES FIGHTING IN THE HOUSE AND ALL. LOIS MERCK SAID THAT ONE OF HER BOYFRIENDS, RAY PRICE, STARTED PUTTING ALCOHOL IN HIS BABY BOTTLE, TO GET HIM TO SHUT UP AND GO TO SLEEP. AS TO WHAT AGE THIS COMES FROM, AS LATE AS 7 OR 4 OR 5, HE WAS TAUGHT BY HIS BROTHER RAY PRICE AND TONY TO START HUFFING CHEMICALS, THE GAS AND THE GLUE. THE TESTIMONY FROM HIS SISTER WAS, WHEN THERE WAS ALCOHOL AROUND, ON THE TABLE ONE THE REFRIGERATOR, HE WOULD GET IT OR SOMEBODY WOULD GIVE IT TO HIM. NOBODY TOLD AM NOT TO DO. THAT WAS THAT A RARE OCCURRENCE THAT THERE WAS THERE WAS ALCOHOL ON THE SNABL UNDER THE TOTALITY -- ON THE TABLE? UNDER THE TOTALITY OF THIS EVIDENCE, I WOULD DOUBT IT, BECAUSE THERE WAS SOMEBODY IN THE HOUSE ALWAYS DRUNK AND BRAWLING. HE STARTED USING ALCOHOL REGULARLY AT THE AGE OF 11. SO YOU HAVE GOT REGULAR DRINKING, ON HIS PART, FROM THE AGE OF 11 TO 19.

WAS THERE OTHER CRIMINAL CONDUCT THAT OCCURRED, FROM 11 ON?

WHAT I KNOW OF IS THIS. I KNOW OF THE FIVE CONVENIENCE STORE ROBBERIES THAT OCCURRED. IT WAS CONSIDERABLY LATER THAN 11. I WOULD SAY PROBABLY ABOUT 17. AND WE, ALSO, KNOW ABOUT THE INCIDENCE WHICH WAS NOT ADMITTED INTO EVIDENCE AT THIS TRIAL, BECAUSE IT WAS -- IT RESULTED -- IT WAS WHEN HE WAS 13 AND IT RESULTED IN A JUVENILE ADJUDICATION, AND THAT WAS THE BASIS OF THE REVERSAL THE FIRST TIME AROUND.

DID HE EVER GET ANY TREATMENT FOR HIS ALCOHOL CONDITION?

NO INDICATION THAT EVER DID. IN ADDITION, HE HAS GOT A SEVERE CASE OF ADHD AND RITALIN WAS PRESCRIBED FOR HIM BUT HIS NEGLECTFUL MOTHER JUST -- HE NEVER GOT IT.

HOW FAR DID HE GO IN SCHOOL?

HE WENT TO THE EIGHTH GRADE. I HOPE I HAVE TIME TO GET TO THE CIRCUMSTANCES UNDER WHICH HE DROPPED OUT OF THE EIGHTH GRADE, BECAUSE IF YOU READ HIS PRO SE BRIEF IN THIS CASE, HE IS A BRIGHT GUY. THIS IS A GUY THAT HAD POTENTIAL AT ONE TIME, AND IT WAS TAKEN AWAY NOT THROUGH HIS JUST BAD ATTITUDE OR NOT CARING. THERE WAS A POINT IN TIME WHEN THIS GUY COULD HAVE DEVELOPED INTO SOMETHING, AND IT WAS TAKEN AWAY FROM HIM, AND I HOPE I HAVE TIME TO GET TO THAT, BUT I NEED TO CONTINUE --.

YOU ARE GOING OVER A LOT OF HELPFUL INFORM ACHE, BUT IN DOING -- INFORMATION, BUT IN DOING THE PROPORTIONALITY ANALYSIS, IT SEEMS TO ME UNDER THE PROOF THAT WAS SUBMITTED HERE, YOU HAVE TO ACCEPT THIS CASE AS ONE FOUND BY THE TRIAL JUDGE AND FOUND BY THE JURY, TO BE A BRUTAL, SENSELESS, KILLING OF AN INNOCENT VICTIM.

I WOULD AGREE THAT IT WAS BRUTAL. I WOULDN'T NECESSARILY AGREE THAT IT WAS TORTUROUS, IN HAC TERMS.

WHAT I WOULD ASK YOU TO DO NOW, AND DO IT BASED ON YOUR BRIEF OR HOWEVER YOU WANT TO DO IT, BUT IN OUR PROPORTIONALITY REVIEW, WE HAVE GOT TO, NOW, LOOK AROUND AT THE OTHER CASES WE HAVE HAD, WHERE WE HAVE SAID THAT EITHER THE DEATH SENTENCE IS APPROPRIATE OR IT IS NOT, AND WHAT ARE THE OTHER CASES THAT YOU WOULD POINT -- SPECIFICALLY.

I WILL DO THAT. THE FIRST THING I WANT TO POINT OUT ON THAT, AND THIS IS SOMETHING, WHEN I WAS DOING THIS BRIEF AND, ALSO, THE ORIGINAL BRIEF IN '94, I THOUGHT I WOULD FIND CASES WITH SIMILAR FACTUAL CIRCUMSTANCES OF THE MURDER AND I DIDN'T AND THE STATE DIDN'T, AND THAT IS KIND OF STUNNING, BECAUSE IT DOESN'T SEEM LIKE IT WOULD BE AN UNIQUE CRIME, AND IT MAKES ME WONDER IF A LOT OF CRIMES THAT ARE ESSENTIALLY SIMILAR TO THIS WIND UP PLEA TO SAY LIFE OR PLEAS TO DCA AND WIND UP IN COURTS OF APPEAL. I DON'T HAVE ANYTHING DIRECTLY ON POINT BUT I WOULD, ALSO, SAY NEITHER DOES THE STATE. THE COURT SAID IN NEIBERT VERSUS STATE THAT THE COURT INVOLVES SUBSTANTIAL MITIGATION THAT MAY MAKE THE DEATH PENALTY INAPPROPRIATE, EVEN WHEN HEINOUS AND ATROCIOUS HAS BEEN PROVED, AND I CITE FIVE CASES WHERE HAC, HAD AGGRAVATORS, WHERE THOSE WERE FOUND, IN THE COURSE, AND THE DEATH PENALTY WAS FOUND DISPROPORTIONATE. VOORHEES VERSUS STATE, ROBBERY AND HIC. KRAMER VERSUS STATE, PRIOR VIOLENT FELONY IN HAC, WILSON VERSUS STATE, PRIOR VIOLENT FELONY IN HAC. WILSON IS, ALSO, VERY RELEVANT, IN THAT IT WAS A CASE WHERE THERE WAS NO FELONY CLAIMED THERE AND THE COURT FOUND THAT THE PREMEDICATION, IF -- PREMEDITATION, IF ANY, WAS OF SHORT DURATION AND HERE THE SHORT DURATION WAS FUELED BY ALCOHOL.

WHAT IS THE POINT THAT NEEDS TO BE MADE?

THAT IS A POINT THAT NEEDS TO BE MADE AND ALSO RESPONDING TO JUSTICE ANSTEAD'S QUESTION, I AM ARGUING HERE FOR PROPORTIONALITY. I THINK THAT THE LIFE SENTENCE SHOULD BE FOUND THAT JUSTICE WOULD BE A LIFE SENTENCE AND AT SATISFACTORY IN THIS CASE. BUT THE OTHER THING THAT THE COURT COULD DO IS EFFECT THE ERRORS IN THE JUDGE'S CASE, AND THE COURT WOULD PRESUMABLY, I HOPE, POSTPONE ANY DECISION ON PROPORTIONALITY, UNTIL THE ERRORS ARE CLEARED UP. IN THIS CASE, WE HAVE GOT AN AGGRAVATOR THAT WAS FOUND AND GIVEN GREAT WEIGHT THAT WE KNOW IS LEGALLY INVALID BECAUSE IT VIOLATES EXPOSE FACTOR -- EXPOS FACTO, AND IN ADDITION TO THE GREAT DEAL OF MITIGATION IN THIS CASE AND IN ADDITION TO THAT THE JUDGE GAVE THAT AGGRAVATING FACTOR GREAT WEIGHT, THE PROR PORTIONALITY ISSUE IN THIS CASE, THREE AGGRAVATORS ARE IN THIS CASE. WE HAVE THE HISTORY OF FAILING TO EITHER CONSIDER THE LONG HISTORY OF ALCOHOLISM OR ITS EFFECTS AT THE TIME. WHAT THE TRIAL JUDGE DID ON THE LATERAL LEVEL IS ONLY CONSIDER IT STATUTORY ADMITTING TO DECREASED CAPACITY AND HE DIDN'T CONSIDER THAT, EVEN IF IT COULD RISE TO THAT LEVEL, THAT COULD BE A A MITIGATING FACTOR, BECAUSE THAT IS AN ERROR UNDER THE CHESHIRE CASE AND THE CLARK CASE. WE HAVE GOT TWO MAJOR POINTS. AGAIN, THIS IS A 1-YEAR-OLD DEFENDANT WHERE THE UNDON'T DRA DIRECT -- THE UNCONTRADICTED TESTIMONY IS HE HAS GOT THE -- I AM RAMBLING HERE AND INTO MY REBUTTAL TIME.

DID THE STATE COMMENT ON THAT? EMOTIONAL AGE?

NO, HE DID NOT. THERE WAS NO TESTIMONY AS TO EMOTIONAL AGE. HE TESTIFIES THAT HE HAS A BRIGHT, NORMAL IQ, WHICH THE DEFENSE AGREES. THIS IS SOMETHING THAT HAD POTENTIAL AND MAY STILL HAVE POTENTIAL. NOW, GOING BACK TO DR. MARIN, DOCTOR HEIDI, THE DEFENSE EXPERT, EXAMINED THE DEFENDANT FOR SIX HOURS AND TALKED TO HIS RELATIVES AND PEOPLE WHO KNEW HIM AS A CHILD AND DELVED INTO THIS. DR. MARIN, WHO WAS ORIGINALLY A DEFENSE EXPERT IN THE CASE AND WAS NOT CALLED TO TRIAL AND THEN POPS UP AS A WITNESS IN CASE. I COULDN'T ARGUE IT DUE TO LACK OF EVIDENTIARY DEVELOPMENT, BUT I DON'T KNOW WHAT HE IS DOING TESTIFYING FOR THE STATE HERE, BUT HE SAID I DID NOT EXAMINE THIS MAN. I TALKED TO HIM FOR ABOUT AN HOUR AND I RANSOM PSYCHOLOGICAL TESTS BUT I INTENTIONALLY DID NOT GO INTO HIS BACKGROUND. I DON'T KNOW ANYTHING ABOUT HIS BACKGROUND, BUT THE PERSONALITY DISORDER NOS THAT I FOUND IS CONSISTENTLY WITH A CRUEL AND NURBL UPBRINGING. EVERYBODY AGREES THAT THE AMOUNT HE HAD TO DRINK AND THIS PROBABLE BLOOD ALCOHOL LEVEL, THIS GUY WEIGHS 144 POUNDS AS COMPARED TO NEAL THOMAS'S 165, AND THEY HAD THE SAME AMOUNT TO DRINK. EVERYBODY, INCLUDING DR. MARIN, AGREES THAT THIS WOULD RENDER SOMEBODY INTOXICATION. THE ASSUMPTION THAT THIS GUY HAS BEEN DRINKING LARGE APARTMENTS FROM A VERY YOUNG AGE AND IS SOMETHING THAT HE DOES EVERYDAY AND WOULD HAVE DEVELOPED A TOLERANCE TO IT. NO TESTIMONY THAT HE DOES HAVE A TOLERANCE, JUST THAT ANYBODY THAT DRINKS THAT MUCH WOULD HAVE A TOLERANCE SO THEREFORE WE CAN DISCOUNT THAT.

HOW ABOUT THE SCENE OF THE BAR AND RESTAURANT WITH THROWING THE KEYS ACROSS AND "DON'T USE MY MY REAL NAME". IS THAT PART OF THE EVIDENCE?

YES. THAT IS PART OF THE EVIDENCE BUT NUMBER ONE, I DON'T THINK THE FACT THAT SOMEBODY CAN CATCH A SET OF CAR KEYS, ESPECIALLY WITH SOMEBODY WHO HAS FAIRLY GOOD MOTOR SKILLS, IT DOESN'T SHOW THAT HIS MIND WASN'T IMPAIRED BY ALCOHOL, BUT THE REAL WEIGHING OF THAT IS KATHRYN SULLIVAN, THE ONE WHO SAID THAT THE STABER WAS WEARING KHAKI PANTS, WHICH WE KNOW TROY WASN'T, AND THE WOMAN WHO SAYS THAT HE PICKED THE FIGHT WITH THE VICTIM, WHICH WE KNOW HE DIDN'T, ACCORDING TO NEAL THOMAS, SHE TESTIFIED THAT THE OTHER GUY THREW THE KEYS AND SAID NICE CATCH, TROY, AND TROY SAID DON'T CALL ME BY MY REAL NAME AND THE FIRST GUY SAID I SAID BOY. THE GUY WHO SUPPOSEDLY SAID ALL OF THAINGS, NEAL THOMAS, A KEY STATE WITNESS, WHO WAS NOT LOOKING TO DO TROY MERCK ANY FAVORS IN THIS TRIAL, HE DOESN'T RECALL DOING ANY OF THESE THINGS. THAT TELLS ME EITHER ONE OF THE OTHER OR BOTH OF THESE KEY WITNESSES WAS SO DRUNK THAT THEY DON'T KNOW WHAT HAPPENED OR BOTH OF THOSE KEY WITNESSES IS LYING. I AM NOT ARGUING FOR A JOA AT THIS POINT. I WISH I COULD BUT I CAN'T. WHAT I AM ARGUING FOR IS THAT THE TOTALITY OF THE CIRCUMSTANCES OF THIS CASE IS IT IS A BUNCH OF INTOXICATED PEOPLE OUTSIDE A BAR AT CLOSING TIME. YOU HAVE GOT A 19-YEAR-OLD DEFENDANT WHO SHOULDN'T HAVE BEEN DRINKING IN THE FIRST PLACE, WHOSE BLOOD ALCOHOL, ACCORDING TO THE CHIEF TOXICOLOGISTS, THE LOW END OF THE RANGE IS THE DUI LEVEL AND THE HIGH END IS TYPICAL OF THE DUI LEVEL. THIS IS NOT A DEATH CASE AND I WILL RESERVE MY TIME, IF I HAVE ANY.

MY NAME IS BOB LANDRY WITH RESPECT TO THIS APPEAL AND WITH RESPECT TO THE FIRST COUPLE OF ISSUES REGARDING THE TRIAL COURT'S FAILURE TO GIVE CONSIDERATION TO LONG-TERM ALCOHOL ABUSE AS A MITIGATING FACTOR, AS WE POINTED OUT IN OUR BRIEF, THE TRIAL COURT COULD PER MISERABLY GIVE MINIMAL WEIGHT TO THIS, IN LIGHT OF FACTUAL PREDICATE TESTIMONY SUPPORTING IT.

THE STATE DOESN'T CONCEDE THAT, IF WE WERE TO LOOK AT ALL OF THE RECORDS IN THIS CASE, THAT IT WOULD SUPPORT A FINDING THAT THIS WAS A PERSON THAT HAD ABUSED ALCOHOL FROM AN EARLY AGE?

WELL, I DON'T -- I THINK THE ONLY TESTIMONY THAT COMES IN ALONG THAT LINE IS FROM THE MENTAL HEALTH EXPERTS OR THE DR. MARINE OR DR. HEIDI, WHO TALKED ABOUT, PRETTY MUCH, SELF REPORTS BY MERCK ON. THAT WE HAD TESTIMONY, FOR EXAMPLE, ALL OF THE FOSTER PARENTS, THERAPEUTIC PARENTS, ALL OF THESE PEOPLE WHO WERE TESTIFYING AS TO THE DEFENDANT'S CHARACTER AND UPBRINGING AND THE TIME IN WHICH THEY HAD HIM IN THEIR CUSTODY, AWAY FROM THE MOTHER, I MEAN, THEY DIDN'T MENTION ANYTHING AT ALL ABOUT ALCOHOL. THE TWO COUSINS -- I AM SORRY.

DIDN'T, THOUGH, THE STATE'S EXPERTS GIVE, AS A REASON THAT A .21 WOULD NOT HAVE AFFECTED HIM, THE FACT THAT HE HAD DEVELOPED A TOLERANCE TO ALCOHOL?

YEAH. DR. MARIN GAVE AN OPINION ALONG THAT LINE.

IS DR. MARIN A STATE EXPERT?

HE WAS A STATE EXPERT IN THIS CASE.

WOULDN'T THAT SUPPORT THE POSITION THAT THERE HAD BEEN LONG-TERM ABUSE?

THE KROOINGS -- THE CONCLUSION, I GUESS WE HAVE TO DETERMINE EXACTLY WHAT THAT ALL WAS PREDICATED UPON. I MOON, IF MARIN TESTIFIED THAT HE ONLY TALKED TO MERCK, HE DIDN'T TALK TO ANYBODY ELSE, THE POINT I WAS MAKING IS THAT THERE WERE A LOT OF PEOPLE WHO TESTIFIED AS TO MERCK'S UPBRINGING AND YOUTH, FOR EXAMPLE HIS COUSINS THAT GREW UP ACROSS THE WAY IN THE TEENAGED YEARS, I GUESS, WITH HIM, AND ONE OF THEM SAID I ONLY SAW HIM DRINK ALCOHOL ON ONE OCCASION.

LET ME ASK YOU ABOUT DR. MARIN THEN. HOW IN DEPARTMENT WAS HIS TESTIMONY CONCERNING HOW LONG YOU WOULD HAVE HAD TO HAVE BEEN ABUSING ALCOHOL TO HAVE DEVELOPED THIS? ANY OF THAT? WAS THAT DEVELOPED TO THAT POINT?

I DON'T THINK IT WAS, THROUGH MARIN. I THINK MARIN WAS ASKED YOU KNOW, A QUESTION, QUESTIONS CONCERNING, PRIMARILY I THINK HE WAS TALKING ABOUT EMOTIONAL AND MENTAL DISTURBANCE, AND HE OPINED THAT MERCK DID NOT HAVE THAT. HE WAS ESSENTIALLY AN ANTISOCIAL PERSONALITY WITH NARCISSISTIC FEATURES AND ALL OF THIS, AND THAT HIS DRINKING THAT NIGHT OR DRINK AGO GREAT AMOUNT OF ALCOHOL ON THAT NIGHT -- OR DRINKING A GREAT AMOUNT OF ALCOHOL ON THAT NIGHT WASN'T NECESSARILY, DIDN'T RISE TO THE LEVEL OF EMOTIONAL OR MENTAL DISTURBANCE, BECAUSE HE GATHERED THAT HE HAD HAD A LONG HISTORY OF ALCOHOLIC ABUSE AND HAD BUILT UP A TOLERANCE TO IT, AND SO THAT MARIN'S VIEW OF IT WAS THAT NOT EVERYBODY WHO DRINKS THIS MUCH IS, YOU KNOW, HAS THIS TOLERANCE BUILT UP, IS NECESSARILY GOING TO GO OUT AND COMMIT THIS KIND OF A CRIME, SO HE WAS --

YOU STARTED OUT, WHEN I ASKED YOU ABOUT THE LONG-TERM HISTORY OF ABUSE, YOU SAID THERE IS NO FACTUAL BASIS, BUT YOUR OWN EXPERT, THE STATE'S EXPERT, SAID THE REASON THAT .21, WHICH IS TWICE THE LEGAL LIMIT, WOULDN'T HAVE AFFECTED THIS PARTICULAR PERSON, SO THAT HE COULDN'T HAVE REALLY BEEN SUBSTANTIALLY IMPAIRED ON THIS NIGHT, BECAUSE HE HAD DEVELOPED A TOLERANCE, WHICH WOULD BE CAUSED BY A LONG-TERM USE OF ALCOHOL, SO IT MAY ADD UP TO THE SAME THING, BUT DON'T WE HAVE TO ACCEPT, AS A FACT IN THE RECORD, THAT THIS YOUNG 19-YEAR-OLD HAD A LONG-TERM HISTORY OF ALCOHOL ABUSE?

WELL, IF YOU WANT TO SAY THAT DR. MARIN'S CONCLUSION, WHICH WAS SIMPLY BASED ON THE SELF REPORTING OF MERCK TO HIM, BECAUSE HE TESTIFIED HE DIDN'T TALK TO ANY OTHER FAMILY MEMBERS OR ANYTHING ELSE WHO HAD A BASIS, A BACKGROUND BASIS FOR IT, IF YOU SAID THAT HIS CONCLUSION HAS TO BE ACCEPTED, FINE, BUT THEN AGAIN, THE TRIAL JUDGE INDICATED THAT SHE CONSIDERED THE LONG-TERM ALCOHOL ABUSE AT PAGE 12 OF THE SENTENCING ORDER. I MEAN, AS ONE OF THE FACTORS THAT HAD BEEN PRESENTED TO HER, IN WHICH SHE GAVE, APPARENTLY, SHORT SHRIFT TO. WITH RESPECT TO THE CLAIM THAT MR. MERCK HAD A GREAT DEAL OF ALCOHOL USE ON THE NIGHT OF THE CRIME, CERTAINLY THERE WAS THAT TESTIMONY OF MR. NEAL THOMAS ALONG THAT LINE, AND, OF COURSE, THE TRIAL JUNK WENT INTO THAT IN GREAT DETAIL, IN GREAT DEPARTMENT, WHEN DESCRIBING WHY THE STATUTORY MENTAL MITIGATING FACTOR, WHICH WAS PREDICATED UPON ALCOHOL USE, SHOULD NOT BE GIVEN GREAT WEIGHT, AND THAT WENT TO ALL OF THE FACTORS SURROUNDING THE FACTUAL INCIDENT THAT OCCURRED AT THE TIME OF THE CRIME. HE WAS ABLE TO --

THIS MURDER WAS NOT -- THERE WAS NO ECONOMIC MOTIVE TO THE MURDER. CORRECT?

THAT'S CORRECT.

AND SO IT IS SIMPLY -- I MEAN, HOW LONG BEFORE THE MURDER WAS IT PLANNED? I AM JUST TRYING TO GET A SENSE OF MAYBE IT IS GOING BACK TO WHAT MR. BOLOTIN SAID. WHAT CASES DO WE HAVE WHERE WE HAVE IMPOSED THESE KINDS OF FACTS, WHERE REALLY WE HAVE A SPUR OF THE MOMENT, SENSE, IF HE HAD HAD A GUN HE WOULD HAVE SHOT HIM AND THEN THERE WOULDN'T BE HAC?

YOU KNOW, I AM TRYING TO THINK OF A SIMILAR FACTUAL PATTERN. I THINK, IN ONE OF THE CASES WE CITED IN OUR BRIEF, BANKS WAS A CASE WHERE THE DEFENDANT HAD BEEN DRINKING IN THE BAR FOR SEVERAL HOURS BEFOREHAND AND THEN, I GUESS, WENT HOME AND KILLED THE VICTIM, AND THE COURT YOU KNOW, BOTH, FOUND THE CASE TO BE PROPORTIONATE AND REJECTED THE ALCOHOLIC MITIGATOR -- THE FAILURE TO FIND ALCOHOLISM A MITIGATING FACTOR, POINTING OUT THAT THE DEFENDANT WAS ABLE TO -- THERE WERE NO VISIBLE SIGNS OF IMPAIRMENT. HE WAS ABLE TO WIN POOL GAMES. THAT IS WHAT HAPPENED IN THIS CASE, AFTER THE KILLING, THE -- THOMAS AND MERCK WENT OFF TO A BOWLING ALLY OR SOME KIND OF ESTABLISHMENT AND PLAYED POOL FOR A COUPLE OF HOURS AND MERCK WAS ABLE TO NEGOTIATE THAT GAME FAIRLY WELL, FAIRLY SUCCESSFULLY, SO THE BANKS CASE WOULD BE ONE IN WHICH THE COURT POINTED OUT THAT THE CRIME WAS COMMITTED IN A PURPOSEFUL MATTER. THE FACTS OF THIS CASE SHOW THAT IT WAS COMMITTED IN A PURPOSE US TELEPHONE MANNER. THE DEFENDANT HAD TO GO OVER TO THE LOCKED CAR AND OBTAIN FROM HIS COMPANION, NEAL THOMAS, GO OVER AND UNLOCK THE DOOR AND TO OFF HIS SHIRT AND REACH IN TO RETRIEVE A KNIFE WITH A FOUR AND-A-HALF TO 5 INCH BLADE AND CAME BACK CONCEALING THAT KNIFE IN HIS HANDS, SO THAT THE VICTIM AND NO ONE ELSE COULD SEE IT, AND THEN PROCEEDED TO ATTACK HIM WITHOUT PROVOCATION, STABBING IN SEVERAL TIMES MUCH THE MEDICAL EXAMINER SAID HE HAD SOMETHING LIKE 13 STAB WOUNDS ON HIS BODY. SEVEN OF THEM, I THINK, WERE DEEPER THAN THEY WERE LONG, AND, OF COURSE, ONE OF THE FATAL WOUNDS, IF NOT THE FATAL WOUND, WAS A KNIFE WOUND TO THE NECK, IN WHICH THE DEFENDANT TWISTED THE KNIFE AFTERWARDS, ACCORDING TO THE MEDICAL EXAMINER. NOT ONLY THIS BUT THE DEFENDANT WAS ABLE TO RECOUNT, IN FASCINATING DETAIL, SEVERAL TIMES TO MR. THOMAS ADDS, WHAT HE DID AND HOW HE DID IT -- TO MR. THOMAS AFTERWARDS WHAT HE DID AND HOW HE DID IT AND REJOYS THAT, IF HE HADN'T BEEN YOU CAN -- REJOICE THAT, IF HE HADN'T BEEN SUCCESSFUL IN THAT EFFORT, HE WOULD GO BACK TO THE HOSPITAL AND FINISH THE JOB.

AS OPPOSED TO SOMEONE WHO GOES WHAT DID I DO, WHAT DID I DO, AND TO SHOW THAT THIS WAS A SPUR OF THE MOMENT, THIS PERSON, IF WE COULD LOOK AT THE FACTS OF WHAT OCCURRED AFTERWARDS THAT HE NOT ONLY KNEW WHAT HE DID BUT THAT HE WAS GLAD THAT HE HAD DONE IT.

NOT ONLY AFTERWARDS BUT HIS CONDUCT THROUGHOUT THE EPISODE. IT SHOWS PURPOSEFUL, MEANINGFUL, GOAL-DIRECTED CONDUCT, AND IT WASN'T SIMPLY JUST A FIGHT THAT OCCURRED.

CAN I ASK YOU? HE WAS ON FELONY PROBATION, AND I WANT TO ASK YOU, JUST IDEA THAT HE HAD BEEN SENTENCED TO PRISON TERMS JUST A YEAR OR TWO BEFORE. DO WE KNOW ANYTHING ABOUT WHY HE WAS RELEASED AND WHAT TYPE OF CONDITIONS OF PROIBATION HE WAS UNDER? WAS HE BEING CLOSELY MONITORED BY THE DEPARTMENT OF CORRECTIONS? WAS HE UNDER ANY REQUIREMENT TO GET ALCOHOL TREATMENT, TO GET A JOB, TO DO ANYTHING THAT MIGHT HAVE PREVENTED THIS CRIME FROM OCCURRING?

WE KNOW THERE WAS TESTIMONY FROM THE PROBATION OFFICER, WHO TESTIFIED THAT, WHEN MR. MERCK WAS RELEASED FROM PRISON, I THINK IT WAS APPROXIMATELY THREE OR FOUR WEEKS BEFORE THIS HOMICIDE, THAT HE SIGNED THE PROBATION OFFICER HAD TO READ TO HIM THE REQUIREMENTS OF BEING ON PROBATION AND ALL OF THAT, AND THAT MR. MERCK HAD SIGNED THAT ORDER, UNDERSTANDING THAT. NOW, THE -- IN TERMS OF WHY HE WAS RELEASED, THAT ISN'T CLEAR. WE HAVE THE EXHIBITS IN THE RECORD, IN WHICH MR. MERCK WAS APPARENTLY CONVICTED OF THREE COUNTS OF -- I SHOULD SAY IN LAKE COUNTY, THREE OFFENSES OF ROBBERY WITH A WEAPON, IN PASCO COUNTY THERE WAS ANOTHER COUNT IN WHICH HE HELD A KNIFE TO THE VICTIM'S NECK, AND ANOTHER ONE IN LAKE COUNTY, AND IN ALL OF THOSE CASES, I THINK HE RECEIVED EITHER BETWEEN FOUR AND SIX YEARS CONCURRENT IN PRISON. NOW, WHY HE WAS RELEASED IN 1991, IS NOT CLEAR AND APPARENTLY IS UNKNOWN.

SO HE HAD SIGNED AN ORDER SAYING HE WASN'T GOING TO DO THICKS LIKE CRIMINAL ACTIVITY -- THINGS LIKE CRIMINAL ACTIVITY, BUT HE DIDN'T -- THERE WEREN'T ANY SPECIFIC CONDITIONS LIKE HE NEEDED TO GET ALCOHOL.

THERE MIGHT HAVE BEEN CONDITIONS IN TERMS OF PAYING RESTITUTION OR SOMETHING ALONG THAT LINE, BUT I DON'T RECALL ANYTHING ALONG THE LINES OF SEEKING TREATMENT OR COUNSELING OR ANYTHING OF THAT NATURE. WITH RESPECT TO THE ISSUE OF PROPORTIONALITY, AS WE HAVE ARGUED IN OUR BRIEF, CERTAINLY THIS -- THE HEINOUS, ATROCIOUS AND CRUEL QUALITY, WHICH THIS COURT FOUND ON THE LAST APPEAL, THIS CASE HAS NOT CHANGED. THIS IS STILL LIKE THE WHITT ENCASE, WHERE BOTH THE DEFENDANT AND THE VICTIM HAD CONSUMED SOME ALCOHOL. THIS WAS A VERY BRUTAL, MULTIPLE STABBING TYPE CASE. THE ADDITIONAL AGGRAVATING FACTOR OF A STRONG QUALITY THAT WE FEEL WAS PRESENT IN THIS CASE IS THE PRIOR VIOLENT FELONY CONVICTIONS. WE HAVE NOT ONLY ONE MISSTEP WITH THE LAW BUT WE HAVE FIVE SEPARATE INCIDENTS, OVER A SEVERAL-MONTH PERIOD, IN WHICH THE DEFENDANT COMMITTED ROBBERIES. AS A MATTER OF FACT, HE TOLD DR. HEIDI, THE DEFENSE EXPERT, THAT HE ESSENTIALLY QUIT HIS JOB TO DO ROBBERIES. NOW, WHETHER OR NOT THAT WAS A FLIPPANT COMMENT OR A SERIOUS ONE IS HARD TO GAUGE, BUT IN ANY EVENT, IT SHOWS THAT WE DON'T HAVE SIMPLY A SINGULAR EPISODE IN HIS LIFE PREVIOUS TO THIS INCIDENT, IN WHICH HE HAS FAILED TO COMPLY WITH THE LAW. ADDITIONALLY, OF COURSE, THE TRIAL JUDGE FOUND THE FELONY PROBATION AGGRAVATOR, WHICH I UNDERSTAND THE COURT HAS STRUCK DOWN IN THE ZACH CASE AS BEING EXPOS FACTO. EVEN IF THE COURT WERE TO CONCLUDE THAT THIS IS EXPOS FOCTO IN THIS CASE, WHEN YOU CONSIDER THE STRENGTH OF THE FACTORS IN THIS CASE AND COMPARE IT TO THE MITIGATING FACTORS OFFERED AND PERMITTED BY THE TRIAL COURT, THAT DEATH IS STILL THE APPROPRIATE SANCTION. WE DO NOT HAVE THE KIND OF MENTAL MITIGATING FACTORS THAT HAVE BEEN FOUND BY THIS COURT IN OTHER PAST CASES. THERE IS NO RETARDATION OR PSYCHOSIS OR HALLUCINATIONS OR DELUSIONS. ESSENTIALLY DR. MARIN'S CONCLUSION IS THAT THIS PERSON IS BASICALLY AN ANTISOCIAL PERSONALITY WITH NARCISSISTIC FEATURES, AND DR. HEIDI DIDN'T DISAGREE WITH THAT. DR. HEIDI AGREED WITH THAT, SO I SUBMIT THAT, WHEN YOU LOOK AT THE QUALITY OF THE MITIGATING FACTORS THAT HAVE BEEN BEEN PRESENTED AND CONSIDERED AND FOUND BY THE TRIAL COURT, WHEN YOU CONSIDER THE STRENGTH OF THE AGGRAVATING FACTORS, HAC AND PRIOR FELONY VIOLENT CONVICTIONS, TO ME, ARE STRONG IN THIS CASE. WHEN YOU CONSIDER THE FACT THAT THE JURY, IN THIS CASE, RECOMMENDED DEATH BY A VOTE OF 12-0, AFTER HEARING EVERYTHING.

WHAT DID THEY HEAR ABOUT THE MURDER? WHAT WAS IT, AND I WOULD LIKE YOU TO ADDRESS, SPECIFICALLY, WHAT EVIDENCE THE DEFENDANT WANTED TO PUT ON ABOUT THE CIRCUMSTANCES OF THE MURDER THAT THE DEFENDANT COULDN'T PUT ON?

WELL, I THINK THE EVIDENCE THAT THIS JURY HEARD WAS THEY HEARD TESTIMONY FROM KATHRYN SULLIVAN, WHO WAS THE EYEWITNESS HERE, IN THE PARKING LOT, AS TO THE DEFENDANT BEING THE ONE WHO ESSENTIALLY ATTACKED THE VICTIM, AFTER THIS VERBAL PRESIDENT REPARTE BETWEEN THE -- AFTER THIS VERBAL HEPA -- REPARTE BETWEEN THE DEFENDANT AND THE VICTIM. SHE TESTIFIED TO THE MURDER. THERE WAS ADDITIONAL TESTIMONY FROM A WITNESS CONCERNING AFTER THE STABBING HOW HE HAD TRIED TO HELP THE VICTIM OR SOMETHING, WHILE 911 WAS CALLED TO GIVE ASSISTANCE AND HE GAVE TESTIMONY TO THE FACT THAT THE VICTIM WAS ALIVE AND MOANING AND STILL CONSCIOUS AT THAT TIME. WITH RESPECT TO EVIDENCE THAT WAS PRECLUDED, I AM NOT SURE THERE REALLY WAS ANY. THERE WAS A LITTLE BIT OF A PROFFER MADE AS TO CONCERNING THE PANTS OR SOMETHING ALONG THAT LINE, WHETHER OR NOT DETECTIVE NESTOR WAS CHANGING HIS TESTIMONY OR SOMETHING.

I THOUGHT THERE WAS SOME PROFFER TESTIMONY ABOUT WHETHER IT WAS THE OTHER WITNESS THAT ACTUALLY WAS EGG EGGING MERCK ON. WAS THAT NOT PROFFERED EVIDENCE?

I THINK, I MAY BE MISTAKEN, BUT I THINK THOMAS TESTIFIED TO. THAT I THINK THOMAS, IN FRONT OF THE JURY, TESTIFIED THAT HE WAS THE ONE WHO MADE THE STATEMENT TO THE VICTIM, YOU ARE JUST A WIMP OR SOMETHING OF THAT NATURE. THERE MAY HAVE BEEN A SLIGHT CONFLICT BETWEEN THOMAS AND SULLIVAN OR SOME OTHER WITNESS WITH REGARD TO THAT, BUT I THINK THE JURY HEARD THAT. WHOLE -- THE TESTIMONY, THE ISSUE WITH REGARDING THE PANTS, WE SUBMIT, IS REALLY A RED HERRING. IN THE LAST TRIAL, MERCK ADMITTED, WHEN HE TOOK THE STAND, THAT HE WAS WEARING THE PANTS UPON WHICH THE FBI EXPERT FOUND THE VICTIM'S DNA BLOOD AND THOMAS, BOTH IN THE FIRST TIME A -- TRIAL AND IN THIS TRIAL TESTIFIED THAT THOSE PANTS WERE MUCH TOO SMALL FOR HIM TO BE WEARING, SO I THINK WHEN YOU LOOK AT THE TOTALITY OF THE RECORD IN THIS CASE, CLEARLY THE TRIAL JUDGE CONCLUDED THAT DEATH WAS THE APPROPRIATE SANCTION, AS THE TRIAL COURT SHOULD HAVE FOUND. IF THE COURT HAS QUESTIONS ABOUT ANYTHING ELSE, I WOULD BE HAPPY TO TRY TO ANSWER IT. OTHERWISE WE WOULD ASK THE COURT TO AFFIRM.

THANK YOU. REBUTTAL?

THE STATE SAYS THAT THE TRIAL JUDGE GAVE THE EVIDENCE OF TROY'S LONG HISTORY OF ALCOHOLISM SHORT SHRIFT. THE TRUTH IS SHE GAVE IT NO SHRIFT. SHE MISTAKENLY THOUGHT THAT SHE HAD DEALT WITH IT, UNDER THE PARAGRAPH ABOUT THE IMPAIRED CAPACITY BUT SHE HAD NOT. YOU READ THE SENTENCING ORDER IN ITS TOTALITY AND THE LONG HISTORY OF ALCOHOLISM, AND ITS RELATION TO THIS CRIME, WAS NOT CONSIDERED, WAS NOT WEIGHED, WAS NOT FOUND.

DO YOU AGREE THAT, OTHER THAN TESTIMONY FROM EXPERTS ABOUT SELF REPORTING, LET ME FINISH, WITNESSES, ARE THERE ANY RECORDS THAT INDICATE THAT HE HAD AN ALCOHOL OR DRUG ABUSE PROBLEM?

THERE IS NO RECORDS, AND I SUSPECT THE REASON THERE IS NO RECORDS IS BECAUSE THIS IS THE SORT OF THING. I AM SURE IT IS NOT THE KIND OF THING THAT HIS MOTHER, WHEN SHE GOT HIM BACK FROM THE COLLINS CHILDREN HOME, WOULD HAVE SEEN AS BEING A PROBLEM. SHE WASN'T REAL BIG ON MEDICAL INTERVENTION FOR TROY'S PROBLEMS, BUT THE STATE IS ABSOLUTELY WRONG, AND THE STATE SAYS THAT THERE WAS NO EVIDENCE OF THE LONG HISTORY OF ALCOHOLISM EXCEPT ITS OWN WITNESS, DR. MARIN, WHO IT, THEN, WANTS TO DISCOUNT, BUT THERE WAS, IN FACT, TESTIMONY FROM BOTH EXPERTS, BUT THERE WAS A GREAT DEAL OF LAY TESTIMONY, PARTICULARLY FROM THE TWO SISTERS, WHO ARE THE PEOPLE WHO WOULD KNOW THE BEST. IT GOES, THERE ARE, I AM GOING TO HAVE TO RELY ON THE BRIEF, BUT THERE WAS A GREAT DEAL OF EVIDENCE.

THE BUSINESS ABOUT THE ALCOHOL USE IS INTERTWINED WITH THE HORRIBLE BACKGROUND THAT YOU PORTRAY IN YOUR BRIEF, WITH THE MOTHER AND THE MANY BOYFRIENDS AND SO THAT, REALLY, IS, THE ALCOHOL ABUSE, IN THIS INSTANCE, AS OPPOSED TO A SITUATION WHERE THERE WAS A LOT OF TESTIMONY THAT THERE WAS HAVING TO DO WITH PRIOR ALCOHOL-RELATED CRIMINAL INVOLVEMENT OR SOMETHING OR THAT HE HAD BEEN COMMITTED FOR ALCOHOLISM OR SOMETHING LIKE THAT. THIS INSTANCE, IT IS REALLY ALL WRAPPED UP IN THE CHILD ABUSE.

IT IS NOT THE SAME THING. IT IS -- YOU KNOW, GRANTED, I MEAN, ALL OF THE MITIGATION INTERRELATES IN THE SENSE, I MEAN, TO TRY TO CATEGORIZE IT HERE. HE IS 19 YEARS OLD. HE HAS GOT THE STUNTED EMOTIONAL DEVELOPMENT OF A 10, 12, 14-YEAR-OLD. HE HAS GOT THIS BRUTAL, BRUTAL PHYSICAL AND PSYCHOLOGICAL ABUSE. THE TRIAL JUDGE EVEN FOUND IT EXTREME IN HER SENTENCING ORDER AND YET SHE ONLY GAVE THAT, I THINK, SOME WEIGHT, BUT EVEN SHE AGREED THAT IT WAS EXTREME. THIS IS AN ALCOHOL-RELATED CRIME AND YET NEITHER OF THE TWO ALCOHOL-RELATED MITIGATORS WERE IN ANY WAY CONSIDERED IN THE SENTENCING ORDER, NOT THE LONG HISTORY, NOT THE INTOXICATION AT THE TIME OF THE KRIP. NOW, THE STATE WANTS YOU TO FIND A LOT OF STUFF HARMLESS IN THIS CASE. THEY WANT YOU TO FIND THE LEGALLY INVALID EXPOS FOCTO ERROR IN THE CASE. THEY WANT TO YOU HARMLESS. THAT THEY WANT YOU TO HARMLESS THE FAILURE OF CONSIDERING THE ALCOHOLISM, EVEN THOUGH THIS IS AN ALCOHOL-RELATED CRIME. THEY WANT YOU TO HARMLESS THE FAILURE OF CONSIDERATION OF THE CRIME AS A NONSTATUTORY MITIGATE OR. THEY DON'T WANT YOU TO SEE A PROBLEM WHERE THE ONLY WITNESS WHOSE BEHAVIOR REFUTES THAT HE WOULD HAVE BEEN SUBSTANTIALLY INTOXICATED. THEY ALL AGREE THAT HIS LEVEL OF ALCOHOL CONSUMPTION WOULD DO THAT. THE ONLY ONE WHO SAYS IT WOULDN'T HAVE AN EFFECT IS DR. MARIN. POINT OUT SOMETHING WEIRD ABOUT DR. MARIN, IN THE NEIBERT, CASE, WHERE HE WAS A DEFENSE EXPERT AND RETAINED, AND HE TESTIFIED THAT HE WAS A VERY LONG ALCOHOLIC AND WAS ON ALCOHOL AT THE TIME OF THE CRIME, AND THIS COURT, DUE TO PROPORTION, REVERSED, AND THIS COURT DOESN'T THINK VOLUNTARY INTOXICATION SHOULDN'T BE CONSIDERED BECAUSE ALL PEOPLE WHO ARE DRUNK DON'T DO THIS. YOU CAN POINT TO PEOPLE WHO HAVE THAT MITIGATOR WHO DON'T DO MURDERS, BUT THAT IS NOT THE STANDARD.

YOU ARE GOING TO HAVE TO BRING YOUR REMARKS TO A CLOSE. THANK YOU.

I AM SORRY. I WOULD ASK THIS COURT TO DO, QUICKLY, RATHER THAN STRETCH THIS OUT AND REVERSE THIS CASE FOR A LIFE SENTENCE, WHICH IS APPROPRIATE. OTHERWISE REMAND IT FOR RESENTENCING OR FOR A PROPER SENTENCING ORDER ON ALL OF THESE DIFFERENT GROUNDS. THANK YOU. THANK THE BOTH OF YOU.