D.A. to Prosecute Merrill 3rd Time : Courts: Defendant is accused of murdering two and badly wounding coin shop owner in robbery try. Survivor defends him.

By SUSAN MARQUEZ OWEN

May 24, 1995 12 AM PT

TIMES STAFF WRITER

SANTA ANA — Over the protests of one of his alleged victims, a former Marine corporal charged with double murder and attempted murder will be tried by the Orange County district attorney’s office for a third time, a prosecutor said Tuesday.

Deputy Dist. Atty. Rick King told Superior Court Judge Everett W. Dickey on Tuesday that his office plans to retry Thomas R. Merrill, 30, who is charged with shooting a Newport Beach coin shop owner and killing his wife and close friend during an attempted robbery in March, 1989.

“We have the evidence that shows that [Merrill] is guilty,” King said outside the courtroom. “We believe that beyond a reasonable doubt. We have an obligation to pursue this when two people were brutally slaughtered and a third almost died.”

In an effort to foil the prosecution’s plans, however, defense attorney John Barnett said he will file a formal motion by the end of next week asking Dickey to review the case and dismiss all charges against Merrill. A hearing on that matter is set for June 14.

Merrill, dressed in a suit and tie, showed little reaction to the prosecutor’s announcement and left the courtroom without a backward glance. But the news drew an angry response from the only survivor of the attack, William D. King.

King, the coin shop owner who was shot four times--once in the head--insisted outside the courtroom that Merrill did not commit the crimes and called the district attorney’s decision “ridiculous.”

“They’re wasting this guy’s life and taxpayers’ money,” King said. “I am absolutely, 100% sure he is not the one. What Tom Merrill is going through is as wrong as what happened to me.”

King said he and his new wife, Trish, and four children had flown from their new home in Arizona to be in court and to show his support for Merrill. He said he had recently chatted with Merrill on the phone and that the conversation “strengthened feelings he’s not the one.”

The district attorney’s decision and William King’s response were the latest twists in a bizarre crime saga that has already spanned two trials.

Last week, Merrill’s second trial ended in a hung jury after jurors tried for nearly eight days to decide whether he was the man who shot King, then 39, and killed his wife, Renee, 38, and a close friend, Clyde Oatts, 45, during the robbery attempt.

The jurors split 7 to 5 in favor of convicting Merrill, the prep-school-educated stepson of an Episcopal priest, on two counts of murder. They also split on the four other charges: conspiracy to commit robbery, attempted murder, burglary and robbery.

Several jurors said the evidence they heard during more than a month of testimony was often confusing. Other jurors said they felt the evidence was strong enough.

Merrill’s first trial ended in July, 1991, with his conviction and that of fellow Marine Eric J. Wick on all counts. Merrill, who prosecutors accused of being the actual gunman, was sentenced to two life sentences without the possibility of parole. Wick was sentenced to 37 years to life in prison.

But the trial judge overturned Merrill’s conviction and ordered another trial after new defense lawyers argued that the prosecution had illegally withheld information that pointed to Merrill’s innocence, and that the original defense lawyer had made serious mistakes in the case.

During Merrill’s second trial, Wick testified for the first time that he accompanied Merrill to the store near John Wayne Airport that sold precious metals and coins. Wick, the son of an FBI agent, testified that it was Merrill who fired the shots.

But William King took the stand and testified that Merrill was not even in his store when he was shot and that he had never seen him before. King said he was talking to Wick when he was shot, though he admitted he never saw Wick holding a gun.

Prosecutor Rick King told the jury that as William King was being rushed to the hospital, the shop owner told paramedics that two men were involved. William King also said, “Tom shot me,” the prosecutor said. He said William King’s memory of events leading up to the shooting was unreliable because of the trauma.

Defense attorney Barnett countered with testimony from a neurologist who said William King’s injuries made his statements to paramedics about a “Tom” just as unreliable.

Outside court Tuesday, flanked by King and his family, Merrill’s mother, Sara, vowed to keep fighting for her son’s acquittal.

“How does it feel to see him tried a third time for a crime he didn’t commit?” she asked. “The situation my family is put in has felt like nothing less than terrorism--terrorism imposed on us by people our taxes pay to uphold the law.”

Looking over the scene, Barnett said the case is unique.

William King’s “wife was killed and his eye was shot out, but just look at him standing next to Merrill’s mother,” Barnett said. That just doesn’t happen.”