Dennis T. Glover v. State of Florida

Supreme Court of Florida
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No. SC15-1578
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DENNIS T. GLOVER,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[September 14, 2017]
PER CURIAM.
Dennis T. Glover appeals his conviction for first-degree murder and his
sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the
reasons below, we affirm Glover’s conviction but vacate his sentence and remand
for a new penalty phase.
BACKGROUND
The evidence presented at trial established that Glover, Brenda LaCounte,
Mary and Daryl Alvin, and the victim, Sandra Allen, were all neighbors on a dead-
end street in Jacksonville, Florida, with LaCounte and Allen living across from
each other at the dead end. On the morning of May 30, 2012, at approximately 7
a.m., while sitting on her front porch, LaCounte saw a dark-skinned black male of
medium height, generally matching Glover’s description, enter the front door of
Allen’s trailer. The man did not come back outside during the approximately
fifteen minutes that LaCounte remained on her porch. That same morning, Mary
Alvin (Mary) saw Glover walk past her house toward the dead end of their street
three separate times: the first time between 8 and 9 a.m., the second time somewhat
later, and the final time between 10 and 11 a.m. Neither LaCounte nor Mary saw
anyone else or any vehicles on their street that morning, although according to
Mary, there were generally “[a]lways vehicles going back and forth from [Allen’s]
residence.”
Shortly after the third time that Mary saw Glover walk past her house toward
the dead end of the street, Glover rang her doorbell. “[H]ollering” and “in
distress,” Glover told Mary and her husband, Daryl Alvin (Daryl), that
“somebody’s killed Jeremy’s mom,” referring to the victim, Sandra Allen. When
the Alvins, accompanied by Glover, ran across the street to the victim’s trailer
(which she shared with one of her daughters), they found the front door pushed
open and the victim lying on the floor near the front door, on her back, naked from
the waist down, her shorts and underwear around her right ankle, with blood
coming out of the back of her head.
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After entering the trailer to try and render aid to the victim, and touching the
victim’s neck but finding no pulse, Daryl became concerned that the victim’s
daughter might also be in danger, so he searched the trailer and determined that she
was not at home.1 While Daryl was inside the trailer, Mary remained on the porch
with Glover, who did not enter the trailer. Mary observed no bloody footprints on
the porch, and Daryl did not get any blood on his shoes or clothing while he was
inside the trailer.
Law enforcement responded to the scene following a 911 call. The ensuing
investigation revealed Glover’s touch DNA on the victim’s head, neck, and left
hand, the victim’s blood in fourteen different locations on the tops of Glover’s
shoes (which were photographed and inspected the day the victim’s body was
found but not collected until the following day), and no bloody footprints at the
crime scene visible to the naked eye or with an alternate light source. Glover was
arrested and charged with Allen’s first-degree murder.
At trial, the medical examiner testified that the victim’s cause of death was
exsanguination resulting from stab wounds to her neck, but that strangulation also
1. The victim’s daughter, Joyce Allen, would later confirm that she last
spoke with her mother on the telephone between 9 and 9:30 p.m. the evening
before and that the victim “sounded fine.” As the last known person to speak with
the victim before her murder, Joyce’s testimony established an approximate
thirteen-hour window during which the murder could have been committed, from
9:30 p.m. on May 29, 2012, through 10:30 a.m. on May 30, 2012.
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contributed by depriving the victim of oxygen and making it easier and quicker for
her to die. More specifically, the victim was stabbed twelve times in the front of
her neck, likely by a single-edged knife,2 and had several blunt force injuries to the
same area, along with several scrapes and abrasions. Four of the stab wounds were
fatal, severing the victim’s jugular vein and cutting her carotid and vertebral
arteries. In addition, the victim was manually strangled with enough force to break
her hyoid bone, fracture her thyroid cartilage, and crush her voice box. Although
the medical examiner testified that there were no injuries on the victim’s hands,
there were cuts in her shirt that did not correspond to wounds on her body,
indicating either that her shirt was bunched up, with a few stabs creating multiple
holes, or that her shirt was pushed up around her neck, where she was stabbed
multiple times. The medical examiner testified that the victim sustained all of her
injuries at or near the same time and that it would have taken a small number of
minutes or a large number of seconds for her to die.
In addition to the medical examiner’s testimony regarding the victim’s
clothes, Glover’s own bloodstain and blood spatter expert testified to evidence
evincing a struggle. Specifically, Glover’s expert testified that the blood flowed
from the victim’s injuries while she was in different positions and that blood
2. The murder weapon was not recovered.
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spatter low on a wall indicated that the victim sustained some of her injuries in a
position between standing up and lying down.
Although the medical examiner testified that there were no injuries to the
victim’s vagina or anal area, the DNA expert testified that a trace amount of semen
was present on the victim’s genital swab, but it was not enough material to test. In
addition to Glover’s touch DNA on the victim’s head, neck, and left hand, which
the DNA expert testified was not likely left by casual contact, the DNA expert
testified that although there was a DNA mixture on the victim’s right hand with
three contributors (one of whom she expected to be the victim), the sample was not
sufficient for testing and therefore could not exclude or include anyone.3 The
DNA expert further testified that of the six hairs found on the victim, DNA testing
was performed on the one from her vaginal swab, which was found to match the
victim, but that testing was not performed on any of the other hairs in light of the
blood and touch DNA evidence of higher probative value. The DNA expert
confirmed that other environmental items, such as soda cans, cups, cigarette butts,
a glove, and tools were collected from the scene but not tested.
Faced with the State’s circumstantial case against Glover, in his opening
statement, defense counsel foreshadowed what was to be Glover’s reasonable
3. One of the first officers to arrive on the scene testified that he checked the
victim’s right wrist for a pulse.
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hypothesis of innocence: that the DNA evidence connected Glover to the victim
but not to her murder. More specifically, defense counsel argued that the evidence
would show that Glover and Allen were involved in a sexual relationship and had
sexual contact the morning of her murder; that Glover left the victim alive after she
told him she was expecting visitors; that Glover later heard a scream or commotion
from the area of the victim’s trailer, looked that way, and saw two African
American individuals run from the victim’s home, get into a vehicle, and drive
away; that Glover then went to the victim’s home and found the front door ajar and
the victim lying on the floor with blood pooling around her, some of which got on
his shoes; and that Glover then ran over to the Alvins’ home.
In support of his explanation for the victim’s blood on his shoes, Glover
presented the testimony of a forensic consultant and expert in crime scene
reconstruction, bloodstains, and blood spatter analysis. Glover’s expert testified
that in addition to the possibility that the victim’s blood got on Glover’s shoes
when he murdered the victim, there were two innocent possibilities: first, that
Glover stepped in blood when he found the victim, blood splashed on his shoe, and
the blood continued to pool and covered his footprint, or, second, that an item
dropped in the pooled blood and splashed his shoes when Glover found the victim.
Regarding the possibility that Glover innocently stepped in the victim’s blood,
Glover’s expert acknowledged that there was no evidence of Glover’s leaving a
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footprint when he stepped out of the blood as would have been expected, but the
expert also faulted law enforcement for failing to use luminol or amido black in
addition to the alternate light source that law enforcement used to look for
footprints. Regarding the two items that could have dropped into the victim’s
blood—a shoe and a pair of eyeglasses—Glover’s expert testified that he did not
see anything that would allow him to testify “with certainty” that the shoe was
dropped in the blood, and while he also could not “totally rule it out,” he would not
expect the glasses to be heavy enough to generate the spatter present on Glover’s
shoes.
The defense rested without presenting or eliciting on cross-examination any
evidence establishing a relationship between Glover and Allen or placing him in
her home prior to the murder. To the contrary, Allen’s daughter, who lived with
Allen but was away from home when the murder occurred, testified that Allen did
not “have any kind of relationship with [Glover]” and that, to her knowledge,
Glover had never been inside their home. Before the defense rested, Glover
exercised his right not to testify after inquiry by the trial court, during which
Glover confirmed that he understood “there [would] be no other evidence
presented.”
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On December 12, 2013, Glover’s jury found him guilty of first-degree
premeditated murder.4
During the penalty phase, the State introduced Glover’s three prior felony
convictions from the State of Georgia for a 1984 attempted armed robbery and
aggravated assault (during which Glover shot at the victim) and a 1992 aggravated
assault (during which Glover assaulted the victim with a wrench). The State also
presented victim impact testimony of four of the victim’s family members and
several photographs of the victim, both alone and with family members.
Glover presented the testimony of his fiancée and numerous family
members, including five of his seven living siblings. Glover’s counsel further read
into the record several letters from Glover to his biological daughter, with whom
he had reunited following his arrest; a letter from Glover’s biological daughter to
the court; and a report establishing Glover’s lack of disciplinary issues while in jail
awaiting trial.
Glover also presented testimony of a doctor of family medicine, Dr. Jossie
Burton, who never personally treated Glover but worked for the clinic where
Glover received treatment from July 2009 through February 2012. Dr. Burton
relied on her office’s records to testify that Glover had bipolar disorder, diabetes,
4. The jury was not instructed on felony murder.
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and hypertension and that he had problems sleeping and with pain. Dr. Burton
further testified that in addition to medication for his diabetes and hypertension,
Glover had been prescribed medication to treat his mood disorder. Dr. Burton
testified that Glover’s prescriptions, including his bipolar medications, were
refilled at his last visit, in February 2012 (approximately three and a half months
before the victim’s murder).
In addition to Dr. Burton, Glover presented the testimony of forensic
psychologist Dr. Jerry Valente, who testified that Glover “falls on the cusp of the
borderline to intellectually disabled range” based upon a full-scale IQ score of 72
that Glover achieved on a 2013 IQ test. Dr. Valente further diagnosed Glover with
borderline intellectual functioning, polysubstance dependence, psychoactive
substance abuse, bipolar disorder, major depression recurrent with psychotic
features, and borderline personality (but not rising to the level of borderline
personality disorder).
The State did not present any rebuttal testimony. Following inquiry by the
trial court, Glover waived his right to testify to his penalty phase jury.
On December 20, 2013, the jury recommended the death penalty by a vote
of ten to two.
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A Spencer5 hearing was held on March 7, 2014, at which Glover presented
one witness who verified that Glover still had not received any disciplinary reports
from the jail. In addition, defense counsel filed several records with the court,
including Dr. Valente’s forensic report, Glover’s school records, mental health
records from several different facilities, five letters from Glover evincing his
loving relationship with his biological daughter, and Glover’s substance abuse
class attendance card from the jail. Thereafter, defense counsel presented a brief
legal argument asking the court to consider Glover’s impoverished upbringing and
lack of role models, connections with his loving family, and his mentoring of
younger jail inmates, along with other issues that would be addressed in the
defense sentencing memorandum.
Glover, who had not previously testified, also made the following statement:
“I want to state for the record that I still maintain my innocence, but I want to
express my sympathy for the victim and their family because that was a great loss
to them. That’s all I have to say.”
The State presented no evidence or argument but stated that it would be
submitting a sentencing memorandum.
5. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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Approximately one month after the sentencing memoranda were filed, the
United States Supreme Court issued its decision in Hall v. Florida, 134 S. Ct. 1986
(2014), invalidating Florida’s bright-line rule precluding defendants with IQs
above 70 from establishing intellectual disability as a bar to execution. In light of
Hall, defense counsel filed a motion for a new penalty phase or, alternatively, to
reopen the Spencer hearing to address intellectual disability. Defense counsel also
subsequently filed a notice alleging that Glover’s intellectual disability barred his
execution. The trial court denied Glover’s request for a new penalty phase but
granted his request to reopen the Spencer hearing.
By this time, Glover’s relationship with his defense counsel had
deteriorated, and Glover’s refusals to meet with his defense counsel or submit to
additional mental health evaluations complicated the progress of the reopened
Spencer hearing. Despite urging from both defense counsel and the trial court,
Glover never submitted to an evaluation by his or the State’s mental health expert
for purposes of providing additional information relevant to his intellectual
disability claim. Ultimately, however, three additional hearings were held as part
of the reopened Spencer hearing, on August 21, 2014, and May 1 and May 29,
2015, at which the trial court heard testimony from one of Glover’s brothers,
Glover’s mental health expert Dr. Larry Neidigh, and the State’s mental health
expert, Dr. Gregory Prichard. Glover’s expert testified that he could not
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definitively say that Glover is intellectually disabled, and the State’s expert
testified that Glover is not intellectually disabled.
Thereafter, in a detailed sentencing order, the trial court found that Glover is
not intellectually disabled, concluded that the aggravating circumstances6
outweighed the mitigating circumstances,7 and sentenced Glover to death in
accordance with the jury’s recommendation.
6. The trial court found the following aggravating circumstances and
assigned them both great weight: (1) prior violent felony based on Glover’s three
prior violent felony convictions; and (2) the capital murder was especially heinous,
atrocious, or cruel.
7. The trial court found no statutory mitigating circumstances and the
following nonstatutory mitigating circumstances, to which it assigned the noted
weight: (1) Glover has the opportunity to become involved in his biological
daughter’s life (slight weight); (2) Glover encouraged both his daughters to work
hard and achieve all the goals they set for themselves (partially established as to
one daughter and given slight weight); (3) Glover encouraged his biological
daughter to strive to own her own business (slight weight); (4) Glover can guide
his daughters and grandchildren emotionally and spiritually while he is
incarcerated (partially established as to one daughter and given slight weight); (5)
Glover’s daughters intend to continue and maintain a relationship with their father
while he is incarcerated (partially established as to one daughter and given slight
weight); (6) Glover loves his daughters, and his daughters love him (partially
established as to one daughter and given slight weight); (7) Glover is a hard worker
(moderate weight); (8) Glover’s siblings express mutual love for one another
(slight weight); (9) Glover has the capacity to form loving relationships (slight
weight); (10) Glover and his siblings love one another and will maintain a
relationship with him while he is incarcerated (slight weight); (11) Glover’s father
walked out on the family (some weight); (12) Glover, his siblings, and his parents
have been diagnosed with mental illness (some weight); (13) Glover suffered from
physical abnormalities because he was born cross-eyed (slight weight); (14)
Glover’s father was in and out of mental institutions throughout his life (slight
weight); (15) Glover’s parents were alcoholics (slight weight); (16) Glover did not
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ISSUES ON APPEAL
Glover raises the following guilt phase issues on appeal: (1) whether the
evidence is sufficient to support his conviction; (2) whether the trial court erred in
excluding evidence of the victim’s drug use; (3) whether pretrial complaints
Glover made about discovery and communication with defense counsel should
have triggered an inquiry into counsel’s effectiveness pursuant to Nelson v. State,
274 So. 2d 256 (Fla. 4th DCA 1973); and (4) whether defense counsel was
ineffective. As the fifth and sixth issues, we review two more of Glover’s claims,
namely, whether the trial court erred in finding that Glover is not intellectually
disabled and whether Glover is entitled to relief pursuant to Hurst v. State, 202 So.
3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017).8
have a strong role model growing up (slight weight); (17) Glover’s friends say that
he has a good reputation as a nice guy and good person (slight weight); (18) Glover
is very dependable and trustworthy (slight weight); (19) Glover’s friends will
continue to foster a relationship and visit him while he is incarcerated (slight
weight); (20) Glover is a good boyfriend and companion (slight weight); (21)
Glover has psychiatric, mental, and emotional disabilities (some weight); (22)
Glover suffers from the effects of long-term alcohol and drug abuse (some weight);
(23) Glover dropped out of high school in the tenth grade after his mother’s death
(slight weight); (24) Glover received a GED while he was incarcerated (minimal
weight); (25) Glover believes in God (slight weight); and (26) Glover can
contribute positively to open population (slight weight).
8. Because we are remanding for a new penalty phase, we do not address
the remaining issues that Glover raises on appeal alleging errors in the penalty
phase and challenging the proportionality of his sentence. Cf. Wood v. State, 209
So. 3d 1217, 1233 (Fla. 2017).
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1. Sufficiency
Glover first argues that the evidence is insufficient to support his first-degree
murder conviction, both as to his identity as the perpetrator and as to
premeditation.9
“To prove first-degree premeditated murder, the State was required to
establish that: (1) the victim, [Allen], is dead; (2) [Allen’s] death was
premeditated; and (3) [Allen’s] death resulted from the criminal act of the
defendant, [Glover].” Hodgkins v. State, 175 So. 3d 741, 747 (Fla. 2015). In a
typical case, “[t]here is sufficient evidence to sustain a conviction ‘if, after viewing
the evidence in the light most favorable to the State, a rational trier of fact could
find the existence of the elements of the crime beyond a reasonable doubt.’ ” Id. at
746 (quoting Johnston v. State, 863 So. 2d 271, 283 (Fla. 2003)).
However, where, as in Glover’s case, the conviction is based wholly upon
circumstantial evidence, the following “special standard of review” applies:
Where the only proof of guilt is circumstantial, no matter how
strongly the evidence may suggest guilt, a conviction cannot be
sustained unless the evidence is inconsistent with any reasonable
hypothesis of innocence. McArthur v. State, 351 So. 2d 972 (Fla.
1977); Mayo v. State, 71 So. 2d 899 (Fla. 1954). The question of
whether the evidence fails to exclude all reasonable hypotheses of
9. In capital cases, this Court also has an independent obligation to ensure
that the evidence is sufficient to support the conviction. Dausch v. State, 141 So.
3d 513, 517 (Fla. 2014).
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innocence is for the jury to determine, and where there is substantial,
competent evidence to support the jury verdict, we will not reverse.
Id. (emphasis added) (some citations omitted).
Further, to meet its burden in a purely circumstantial case,
the State is not required to rebut conclusively, every possible variation
of events which could be inferred from the evidence, but must
introduce competent evidence which is inconsistent with the
defendant’s theory of events. Once the State meets this threshold
burden, it becomes the jury’s duty to determine whether the evidence
is sufficient to exclude every reasonable hypothesis of innocence
beyond a reasonable doubt.
Id. (quotation and citations omitted).
In this case, Glover stipulated to the fact of Allen’s death, and as explained
below, the State carried its burden with respect to the two remaining elements,
namely, Glover’s identity as the killer and premeditation.
a. Identity
As previously mentioned, in his opening statement to the jury, defense
counsel argued that the evidence would establish that Glover and Allen were
involved in a sexual relationship, including sexual contact on the morning of her
murder. However, the evidence presented was not as foreshadowed; no evidence
was introduced evincing a sexual relationship between Glover and Allen. To the
contrary, Allen’s daughter (who lived with Allen but was not at home when the
murder occurred) testified that Allen did not “have any kind of relationship with
[Glover]” and that, to her knowledge, Glover had never been inside their home.
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With no evidence of a relationship between Glover and the victim and thus
no innocent explanation for how Glover’s DNA got on the victim’s body, defense
counsel emphasized the importance of Mary Alvin’s testimony that there were
always cars going back and forth from the victim’s home, although Ms. Alvin
testified that she did not see any vehicles or anyone other than Glover on their
street the morning the victim’s body was found. Defense counsel further faulted
law enforcement’s investigation, particularly for failing to collect Glover’s shoes
until the day after the victim’s body was found and for failing to find the actual
killer because law enforcement did not test all six hairs recovered from the victim’s
body (the one they did test matched the victim) or other evidence recovered from
the scene (such as a glove, tools, cigarette butts, and soda cans).
Considering these arguments and the record as a whole, we find that the
State met its burden to introduce competent evidence inconsistent with Glover’s
theory that he was not the killer. See Hodgkins, 175 So. 3d at 746. Specifically,
through Alvin, the State placed Glover walking toward the victim’s trailer three
times in the hours before Glover allegedly discovered the victim’s body. In
addition, LaCounte testified to seeing someone matching Glover’s general
description go into the victim’s trailer. Glover’s touch DNA was recovered from
the victim’s left hand, head, and neck (where the majority of the victim’s injuries
were located), and the State’s DNA expert testified that this DNA was not likely
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left by casual contact. Finally, the victim’s blood spatter was found on the top of
Glover’s shoes. Even Glover’s own blood spatter expert acknowledged that one
explanation for the victim’s blood on Glover’s shoes was that Glover was the
killer. Indeed, this is by far the most reasonable explanation. Additionally, the
State’s evidence that there were no bloody footprints observed, even using an
alternate light source, along with the other evidence already discussed, demonstrate
the unreasonableness of Glover’s alternative explanation.
Because the State met its burden to rebut Glover’s hypothesis that someone
else murdered the victim, Glover’s identity as the perpetrator was a proper jury
question.10 See Hodgkins, 175 So. 3d at 747.
b. Premeditation
Although Glover did not present evidence in support of a non-premeditation
theory below, this Court nevertheless has the independent obligation to determine
whether the evidence is sufficient. As this Court has explained,
Premeditation is defined as more than a mere intent to kill; it is a fully
formed conscious purpose to kill. Premeditation may be formed in a
moment and need only exist for such a time as will allow the accused
to be conscious of the nature of the act he is about to commit and the
10. Because the evidence on the identity element is sufficient under the
reasonable-hypothesis-of-innocence special standard of review, it is necessarily
sufficient under the standard of review that applies to cases in which the evidence
of guilt is not wholly circumstantial. See Pagan v. State, 830 So. 2d 792, 803 (Fla.
2002) (“If, after viewing the evidence in the light most favorable to the State, a
rational trier of fact could find the existence of the elements of the crime beyond a
reasonable doubt, sufficient evidence exists to sustain a conviction.”).
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probable result of that act. Premeditation can be shown by
circumstantial evidence.
Morrison v. State, 818 So. 2d 432, 452 (Fla. 2002) (quotations and citations
omitted). Further, “[e]vidence from which premeditation may be inferred includes
such matters as the nature of the weapon used, the presence or absence of adequate
provocation, previous difficulties between the parties, the manner in which the
homicide was committed, and the nature and manner of the wounds inflicted.”
Sochor v. State, 619 So. 2d 285, 288 (Fla. 1993) (quotation omitted).
In Glover’s case, the State presented evidence from which the jury could
find that Allen’s murder was premeditated. Chiefly, Allen was stabbed twelve
times, with four fatal wounds severing her jugular vein and cutting her carotid and
vertebral arteries. She was also manually strangled with enough force to break her
hyoid bone and voice box. During the large number of seconds to small number of
minutes it took for her to die, Allen also sustained blunt force wounds, scrapes, and
abrasions. Blood flowed while Allen was in different positions, and at least some
of her wounds were sustained in a position somewhere between standing and lying
down. Her shirt was moved during the attack, and her shorts and underwear were
removed and left hanging around her ankle, evincing at the very least a sustained
attack giving rise to the reasonable inference of a sexual motive. We have found
sufficient evidence of premeditation in analogous cases. See, e.g., Perry v. State,
801 So. 2d 78, 85-86 (Fla. 2001) (explaining that, “[a]lthough multiple stab
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wounds alone do not prove premeditation,” “the deliberate use of a knife to stab a
victim multiple times in vital organs is evidence that can support a finding of
premeditation” and, therefore, holding that seven wounds (four of which were
fatal) to the victim’s chest and neck, “both areas where an attack would produce
grievous wounds,” supported premeditation finding); Morrison, 818 So. 2d at 452
(finding, in a case involving two major knife wounds to the victim’s neck, that the
jury was “amply justified” in finding premeditation).
Furthermore, although Glover argues on appeal that his low IQ and drug use
(as well as the victim’s drug use) negated premeditation, no evidence supporting
those arguments—and no evidence of any prior quarrel between Glover and the
victim—was presented during the guilt phase. Rather, the evidence presented at
trial left the jury with only two options: Glover was either not present at the time of
the crime, or he committed premeditated murder.
On the record as a whole, the evidence was clearly sufficient to support the
jury’s finding of premeditation.
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2. Victim’s Drug Use
Glover next argues that the trial court abused its discretion by excluding
evidence of the victim’s drug use. We review the trial court’s ruling for abuse of
discretion, see Frances v. State, 970 So. 2d 806, 813 (Fla. 2007), and find none.11
The medical examiner’s report revealed that the victim had cocaine and
methadone in her system at the time of her death. The trial court granted the
State’s motion in limine to exclude the medical examiner’s findings and any
evidence of the victim’s use, purchase, or possession of illegal drugs, over
Glover’s argument that the findings showed the victim bought drugs from a dealer
and, in light of unidentified touch DNA on the victim’s right hand, supported the
inference that a drug dealer in the victim’s home was the actual killer. However,
the trial court qualified its ruling with the “proviso” that it might be necessary to
“reexamine the ruling” if the State opened the door to drug use or Glover relied on
drug use as a defense theory developed through his own witnesses. Neither
occurred.
Given the speculative nature of Glover’s argument, the trial court did not
abuse its discretion in excluding the evidence at issue. Cf. Pierre v. State, 990 So.
2d 565, 569 (Fla. 3d DCA 2008) (holding trial court did not err in limiting cross-
11. Of course, in the context of evidentiary rulings, the trial court’s
discretion is also constrained by the rules of evidence.
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examination of living victim’s “history as a drug dealer” despite defendant’s
argument that the limitation left him “unable to develop a key defense—that a third
party committed the crimes” because the defendant’s theory “was entirely
speculative and was not supported by any record evidence”); see also Persaud v.
State, 755 So. 2d 150, 154 (Fla. 4th DCA 2000) (“Trials are fluid proceedings
where evidentiary rulings are subject to change depending upon the state of the
evidence presented at the time the court is asked to rule.”).
3. Nelson
Glover next argues that his pretrial complaints regarding his failure to timely
receive certain discovery and communication difficulties with his defense counsel
should have triggered an inquiry to assess his defense counsel’s effectiveness
pursuant to Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973). We disagree.
A trial court’s decision regarding whether to conduct a Nelson inquiry is
subject to review for abuse of discretion. See Guardado v. State, 965 So. 2d 108,
113 (Fla. 2007). We have explained the purpose of and requirements for triggering
a Nelson hearing as follows:
The Sixth Amendment of the United States Constitution
guarantees the right to effective assistance of counsel at all critical
stages of a criminal prosecution. . . .
The right of a criminal defendant to effective assistance of
counsel includes the right to competent counsel. Mere unhappiness or
anger with the representation of counsel, or disagreement with regard
to counsel’s strategic decisions, does not render counsel ineffective.
If court-appointed counsel is alleged to be incompetent during the trial
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level proceedings, a trial court must conduct a Nelson hearing to
inquire into the effectiveness of counsel. See Hardwick v. State, 521
So. 2d 1071, 1074-75 (Fla. 1988) (approving the procedure provided
in Nelson v. State, 274 So. 2d 256, 258-59 (Fla. 4th DCA 1973), for
an inquiry with regard to a claim of alleged ineffective assistance of
counsel). However, a Nelson hearing is only required when the
defendant provides a specific complaint to the trial court with regard
to the ineffectiveness of counsel. See Guardado v. State, 965 So. 2d
108, 113 (Fla. 2007). A generalized complaint about counsel does not
trigger a required Nelson hearing. See id. (“However, any [Nelson]
inquiry by the trial court can only be as specific as the complaints
made by the defendant. When the defendant makes generalized
complaints about counsel, the trial court need not make a Nelson
inquiry.”).
Taylor v. State, 87 So. 3d 749, 758 (Fla. 2012) (citations omitted); see Davis v.
State, 136 So. 3d 1169, 1209 (Fla. 2014) (“[E]xpressions of disagreement with trial
counsel’s strategy or complaints about lack of communication . . . do not give
cause for a Nelson hearing.”).
In this case, Glover did not allege that his counsel was ineffective. Rather,
Glover’s letters to the trial court and his statements in response to the trial court’s
inquiries show that Glover attempted to ensure that defense counsel communicated
with him about the status of his case, including discovery received, and
complained that it took counsel longer to do those things than Glover believed it
should have. On these facts, a Nelson hearing was not required, and, therefore, the
trial court did not abuse its discretion by not conducting one. See Taylor v. State,
87 So. 3d at 758; Davis, 136 So. 3d at 1209.
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4. Ineffective Assistance of Counsel
As his final guilt phase claim, Glover argues that his defense counsel was
ineffective. We have repeatedly held that this claim is not cognizable on direct
appeal unless defense counsel’s ineffectiveness is apparent on the face of the
record. See Gore v. State, 784 So. 2d 418, 437-38 (Fla. 2001). Here, it is not.
Therefore, defense counsel’s alleged failings in handling Glover’s intellectual
disability claim and in not following through on his promise during opening
statements at Glover’s trial to establish a sexual relationship between Glover and
the victim are properly explored on postconviction.12 See Smith v. State, 998 So.
2d 516, 522-23 (Fla. 2008) (explaining that, only “in the rare case, where both
prongs of Strickland [v. Washington, 446 U.S. 668 (1984)]—the error and the
prejudice—are manifest in the record, an appellate court may address an
ineffective assistance claim” on direct appeal).
5. Intellectual Disability
Glover next argues that the trial court erred by rejecting his intellectual
disability claim. However, because the trial court analyzed Glover’s intellectual
disability claim as required by Hall v. Florida, 134 S. Ct. 1986 (2014), and
12. Glover also argues that his defense counsel was ineffective for failing to
preserve certain objections, but he only gives the example of a penalty phase issue
regarding victim impact testimony that we do not reach in light of our decision to
remand for a new penalty phase.
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competent, substantial evidence supports the trial court’s finding that Glover is not
intellectually disabled, we affirm the trial court’s finding.
The United States Supreme Court’s decision in Atkins v. Virginia, 536 U.S.
304 (2002), categorically bars executing the intellectually disabled. Under
Florida’s three-prong test for intellectual disability, a defendant must demonstrate
“(1) significantly subaverage general intellectual functioning; (2) concurrent
deficits in adaptive behavior; and (3) manifestation of the condition before age
eighteen.” Salazar v. State, 188 So. 3d 799, 811 (Fla. 2016); see also Fla. R. Crim.
P. 3.203; § 921.137(1), Fla. Stat. (2013). At the time of Glover’s penalty phase
presentation to his jury, Florida law precluded an individual with an IQ score
above 70 from establishing the first prong, thereby barring an intellectual disability
claim premised upon Glover’s full-scale IQ score of 72. See Cherry v. State, 959
So. 2d 702, 712-14 (Fla. 2007).
However, after Glover’s Spencer hearing—but before he was sentenced—
the United States Supreme Court held that Florida’s “strict IQ test score cutoff of
70” violates the Eighth Amendment prohibition against cruel and unusual
punishment. Hall, 134 S. Ct. at 1994. Recognizing that “intellectual disability is a
condition, not a number,” id. at 2001, the Supreme Court in Hall concluded that
Florida’s practice of barring a defendant with an IQ above 70 from establishing
intellectual disability improperly “fail[s] to take into account the SEM”—i.e., the
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standard error of measurement, which is generally five points on either side of the
recorded score, id. at 2000. Accordingly, the Supreme Court held that, “when a
defendant’s IQ test score falls within the test’s acknowledged and inherent margin
of error, the defendant must be able to present additional evidence of intellectual
disability, including testimony regarding adaptive deficits.” Id. at 2001. In so
holding, the Supreme Court emphasized that the requisite test for establishing
intellectual disability is a “conjunctive and interrelated assessment” under which
“[i]t is not sound to view a single factor as dispositive.” Id. (quoting the fifth (and
most recent) edition of the Diagnostic and Statistical Manual of Mental Disorders
for the proposition that “a person with an IQ score above 70 may have such severe
adaptive behavior problems . . . that the person’s actual functioning is comparable
to that of individuals with a lower IQ score”).
Although Hall authorizes defendants who, like Glover, have IQ scores
within the SEM to raise an intellectual disability claim, Hall does not alter the
standard for reviewing the trial court’s determination as to whether the defendant is
intellectually disabled:
In reviewing the circuit court’s determination that [the defendant] is
not intellectually disabled, “this Court examines the record for
whether competent, substantial evidence supports the determination of
the trial court.” State v. Herring, 76 So. 3d 891, 895 (Fla. 2011).
[This Court] “[does] not reweigh the evidence or second-guess the
circuit court’s findings as to the credibility of witnesses.” Brown v.
State, 959 So. 2d 146, 149 (Fla. 2007). However, [this Court]
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appl[ies] a de novo standard of review to any questions of law.
Herring, 76 So. 3d at 895.
Oats v. State, 181 So. 3d 457, 459 (Fla. 2015).
In Glover’s case, in response to Hall, the trial court properly granted
Glover’s request to reopen the Spencer hearing to determine whether he is
intellectually disabled. By that time, however, Glover’s relationship with his
appointed counsel had deteriorated to the point that Glover refused to meet with
defense counsel or submit to evaluations, despite the trial court’s urging him to do
so. Although Glover never submitted to further evaluation, the trial court held
three additional proceedings as part of the reopened Spencer hearing, at which
Glover’s brother, Anthony, and two mental health experts testified. Glover’s
expert, Dr. Neidigh, testified that he could not definitively say that Glover is
intellectually disabled. In contrast, the State’s expert, Dr. Prichard, testified that
Glover is not intellectually disabled, citing a full-scale IQ score of 80 that Glover
achieved at age sixteen and school records demonstrating that Glover was placed
in specific learning disabled classes because he was underperforming academically
rather than intellectually disabled, and attributing any deficits in adaptive
functioning to Glover’s behavioral problems, drug use, and mental health issues.
Thereafter, the trial court entered a detailed order that, as required by Hall,
includes an interrelated assessment of all three statutory factors for establishing
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intellectual disability and finding, based on the greater weight of the evidence, that
Glover is not intellectually disabled.
On appeal, Glover argues that the trial court improperly considered
dispositive the full-scale IQ score of 80 that he achieved at age sixteen and that the
trial court’s finding is otherwise not supported by competent, substantial evidence.
We disagree.
The record belies Glover’s argument that the trial court used his 80 IQ score
to end the intellectual disability inquiry. In addition to his IQ score of 80 (that
does not fall within the SEM), Glover presented evidence of an adult-achieved full-
scale IQ score of 72 (that does fall within the SEM), as well as two scores that,
while not as reliable as the other scores according to the experts, actually fall
within the range of intellectual disability—i.e., a childhood score of 69 from an
achievement test used to estimate IQ and an adult-achieved score of 67 on the
Wechsler Abbreviated Scale of Intelligence. In light of these scores, Glover was
permitted to present—and the trial court actually considered—evidence regarding
deficits in his adaptive functioning in support of his argument that his alleged
intellectual disability manifested before the age of eighteen. Cf. Oats, 181 So. 3d
at 467-68 (“[T]he Supreme Court has now stated [in Hall] that courts must
consider all three prongs in determining an intellectual disability, as opposed to
relying on just one factor as dispositive. . . . [B]ecause these factors are
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interdependent, if one of the prongs is relatively less strong, a finding of
intellectual disability may still be warranted based on the strength of other
prongs.”).
That the trial court ultimately rejected testimony from Glover’s expert that
the full-scale 80 IQ score is an outlier and accepted testimony from the State’s
expert that this score is the most reliable evidence as to whether Glover
demonstrated significantly subaverage general intellectual functioning prior to the
age of eighteen—especially in light of school records documenting that Glover was
underperforming academically rather than intellectually disabled—does not violate
Hall. See Rodriguez v. State, 219 So. 3d 751, 756 (Fla. 2017) (“[T]his Court does
not reweigh evidence or second guess a circuit court’s credibility
determinations.”); see also Hampton v. State, 219 So. 3d 760, 777 n.7 (Fla. 2017)
(rejecting “unapproved” tests for purposes of determining intellectual disability).
Additionally, the trial court’s determination that Glover’s troublemaking and
criminal activity prior to age eighteen indicate that Glover’s adaptive deficits were
the result of behavioral or psychological issues (rather than intellectual disability)
is supported by competent, substantial evidence and does not run afoul of Hall. As
the trial court further found, “[t]estimony and records provide substantial and
competent evidence [Glover] was able to communicate, care for himself, and live
normally in his home with others,” and “his performance at school belies any
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contention of intellectual disability.” Cf. Hampton, 219 So. 3d 779 (explaining
that, under the DSM-5, which the experts in Glover’s case testified that they relied
upon, “[t]he [adaptive functioning] deficits ‘must be directly related to the
intellectual impairments’ associated with the first prong; namely, ‘reasoning,
problem solving, planning, abstract thinking, judgment, learning from instruction
and experience, and practical understanding.’ ”) (quoting American Psychiatric
Ass’n, Diagnostic & Statistical Manual of Mental Disorders, 37-38 (5th ed. 2013)).
Moreover, although Glover thwarted attempts to evaluate his adaptive
functioning through formal testing, abundant evidence regarding Glover’s
functioning, both prior to age eighteen and as an adult, supports the trial court’s
finding that the requisite connection between Glover’s alleged adaptive functioning
deficits and intellectual disability is lacking. For example, Glover excelled as a
wrestler in school, and his school records include comments such as Glover “has
good potential,” “is a very good math student,” and “has shown a great deal of
improvement in all areas.” While these records also recommend that Glover “be
placed in the 10th grade and given remedial work,” they encourage his pursuit of
“a vocational program in which he can take a trade of his interest.” Similarly,
evidence regarding Glover’s adaptive functioning after the age of eighteen shows
that Glover successfully obtained his GED, performed various types of work
(including restoring buildings, landscaping, and plumbing and electrical work),
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took care of his daily needs, made meals, helped his sister take care of herself and
her home following her husband’s death, and gave good life advice to his daughter.
As required by Hall, Glover “was permitted to present evidence of all three
prongs of the test for an intellectual disability. The trial court considered each
prong in tandem in determining that [Glover] was not intellectually disabled; no
single factor was considered dispositive.” Snelgrove v. State, 217 So. 3d 992,
1004 (Fla. 2017). Even Glover’s own mental health expert testified that, while
“there’s information that [Glover] is [intellectually disabled],” there is also “a case
that could be made that he isn’t,” leaving the ultimate “judgment call” for the trial
court. (R12: 2095-96).13 Because, in Glover’s case, the trial court made a call
supported by competent, substantial evidence, we affirm its determination that
Glover is not intellectually disabled.14 See Oats, 181 So. 3d at 465-66.
13. The determination that Glover is not intellectually disabled was made
under “the generally accepted, uncontroversial intellectual-disability diagnostic
definition,” which is the same three-part standard that this Court follows. See
Rodriguez, 219 So. 3d 751, 756 n.6 (Fla. 2017) (quoting Moore v. Texas, 137 S.
Ct. 1039, 1045 (2017)). This distinguishes the trial court’s determination in
Glover’s case from a Texas court’s determination in a recent case, which the
Supreme Court invalidated, in part, because the Texas court relied upon superseded
medical standards to conclude that the defendant was not intellectually disabled.
See generally Moore, 137 S. Ct. 1039.
14. We further decline Glover’s invitation to consider arguments not raised
below, such as how adjusting for the Flynn Effect might impact Glover’s test
scores and that the 1980 full-scale IQ test was inappropriate for Glover’s age.
Neither mental health expert mentioned the Flynn Effect during their testimony, let
alone expressed concerns that the Flynn Effect, which “refers to a theory in which
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6. Hurst
Finally, Glover argues that Hurst error that is not harmless requires this
Court to reverse his death sentence. We agree, vacate Glover’s death sentence, and
remand for a new penalty phase.
In Hurst v. Florida, 136 S. Ct. 616, 619 (2016), the Supreme Court held that
“[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to
impose a sentence of death. A jury’s mere recommendation is not enough.” On
remand from the Supreme Court, in Hurst v. State, 202 So. 3d at 54, we held that,
“in addition to unanimously finding the existence of any aggravating factor, the
jury must also unanimously find that the aggravating factors are sufficient for the
imposition of death and unanimously find that the aggravating factors outweigh the
mitigation before a sentence of death may be considered by the judge.” We further
held that a unanimous jury recommendation is required before a trial court may
impose a sentence of death. Id. Finally, we determined that Hurst error is capable
of harmless error review. Id. at 67.
the intelligence of a population increases over time,” Wright v. State, 213 So. 3d
881, 897 n.4 (Fla. 2017), rendered Glover’s 80 IQ score unreliable. Further,
neither expert testified that the test by which Glover achieved this score was
unreliable, outdated, or age inappropriate. To the contrary, the State’s expert
testified that it was both appropriate for Glover at age sixteen and that although
revised, it remains “the gold standard” today.
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“New rules of law announced by this Court or the United States Supreme
Court will apply to all cases that are pending on direct review or are otherwise not
finalized.” Calloway v. State, 210 So. 3d 1160, 1200 (Fla. 2017). Accordingly,
Glover’s direct appeal is subject to Hurst v. Florida and Hurst v. State. See id. In
light of the ten-to-two jury recommendation for death, Hurst error occurred in
Glover’s case. See Kopsho v. State, 209 So. 3d 568, 570 (Fla. 2017) (“Because
Kopsho was condemned by a vote of ten to two, we find that Kopsho’s sentence is
the result of Hurst v. Florida error.”).
We must next consider whether the error is harmless beyond a reasonable
doubt:
“The harmless error test, as set forth in Chapman [v. California, 386
U.S. 18 (1967),] and progeny, places the burden on the state, as the
beneficiary of the error, to prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict or, alternatively
stated, that there is no reasonable possibility that the error contributed
to the conviction.” Where the error concerns sentencing, the error is
harmless only if there is no reasonable possibility that the error
contributed to the sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20
(Fla. 2000).
Hurst v. State, 202 So. 3d at 68 (quoting State v. DiGuilio, 491 So. 2d 1129, 1138
(Fla. 1986)).
Applying the required harmless error analysis, we have consistently held that
Hurst error is not harmless in cases where the jury makes a non-unanimous
recommendation of death. See, e.g., Kopsho, 209 So. 3d at 570. The ten-to-two
- 32 -
jury recommendation in Glover’s case compels the same conclusion because “we
cannot determine that the jury unanimously found that the aggravators outweighed
the mitigation.” Id. “We can only determine that the jury did not unanimously
recommend a sentence of death.” Id. Therefore, because we cannot say that there
is no reasonable possibility the Hurst error contributed to the sentence, the error in
Glover’s sentencing is not harmless beyond a reasonable doubt.
Accordingly, we vacate Glover’s death sentence and remand for a new
penalty phase pursuant to Hurst v. State.
CONCLUSION
For the foregoing reasons, we affirm Glover’s conviction for first-degree
murder but remand for a new penalty phase pursuant to Hurst v. State.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, and LAWSON, JJ., concur.
LEWIS, J., concurs in result.
CANADY and POLSTON, JJ., concur as to the conviction and dissent as to the
sentence.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Duval County,
Mallory Durden Cooper, Judge - Case No. 162012CF006463AXXXMA
Brian W. Stull, Senior Staff Attorney, and Anna Arceneaux, Staff Attorney,
American Civil Liberties Union, Capital Punishment Project, Durham, North
Carolina; Nancy G. Abudu of American Civil Liberties Union Foundation of
Florida, Inc., Miami, Florida; and N. Adam Tebrugge, Bradenton, Florida,
- 33 -
for Appellant
Pamela Jo Bondi, Attorney General, and Berdene Beckles, Assistant Attorney
General, Tallahassee, Florida; and Donna M. Perry, Assistant Attorney General,
West Palm Beach, Florida,
for Appellee
- 34 -