FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
Appeal from the Circuit Court in and for Flagler County,
Joseph David Walsh, Judge - Case No. 182000CF000323XXXXXX And
an Original Proceeding - Habeas Corpus
Vincent Viggiano, Jr., Capital Collateral Regional Counsel,
and Richard E. Kiley and Ali Andrew Shakoor, Assistant
Capital Collateral Regional Counsel, Middle Region, Temple
Terrace, Florida, for Appellant/Petitioner.
Jo Bondi, Attorney General, Tallahassee, Florida; and Scott
A. Browne, Senior Assistant Attorney General, Tampa, Florida,
Beasher Snelgrove appeals an order of the circuit court
denying his postconviction motion filed pursuant to Florida
Rule of Criminal Procedure 3.851 and simultaneously petitions
this Court for a writ of habeas corpus. For the reasons
that follow, we affirm the denial of the postconviction
motion and deny the petition for writ of habeas corpus, but
vacate the two death sentences and order that Snelgrove
receive a new penalty phase proceeding based on the United
States Supreme Court's decision in Hurst v.
Florida, 136 S.Ct. 616 (2016), and this Court's
decision in Hurst v. State, 202 So.3d 40 (Fla.
2016), petition for cert. filed, No. 16-998 (U.S.
Feb. 13, 2017).
a jury trial in May 2002, Snelgrove was convicted and
sentenced to death for the June 2000 murders of Glyn and
Vivian Fowler. In Snelgrove's initial direct appeal, this
Court described the case as follows:
On Sunday, June 25, 2000, Glyn and Vivian Fowler were found
dead in their home. The elderly couple had been brutally
beaten and stabbed to death, as evidenced by multiple
fractures and stab wounds spread throughout their bodies.
Ultimately, Vivian died from a stab wound to the heart, and
Glyn died of a brain injury caused by blunt force trauma to
Evidence at the crime scene and in the surrounding area
linked David Snelgrove, the twenty-seven-year-old nephew of
one of the Fowlers' neighbors, to the murder. Snelgrove
had recently moved in with his aunt and his cousin, Jeff
McCrae, after being expelled from a drug rehabilitation
program. Blood droplets matching Snelgrove's DNA were
found throughout the house, as were bloody fingerprints and
footprints matching Snelgrove's. A trained bloodhound
followed a scent from the blood on the Fowlers' broken
window to Snelgrove, and the police recovered a knife in the
woods next to the Snelgrove home with blood matching
Snelgrove's DNA. . . . .
Defense counsel . . . offered a defense to the State's
case. It admitted to the burglary, but denied the murders.
Specifically, the defense claimed that Snelgrove did, indeed,
enter the Fowlers' home through the broken window, but
only after the Fowlers had been killed by someone else. In
the process of coming through the window, Snelgrove cut his
hand. . . .
The jury . . . found Snelgrove guilty of two counts of
first-degree murder, one count of robbery with a deadly
weapon, and one count of burglary of a dwelling with battery.
On the two counts of first-degree murder, the jury found
Snelgrove guilty of both premeditated and felony
murder. In the penalty phase, the jury recommended the
sentence of death by a vote of seven to five. However, this
recommendation did not individually address the two capital
murder convictions for which Snelgrove was to be sentenced. .
The circuit court sentenced Snelgrove to death on both
capital murder convictions . . . .
Snelgrove v. State, 921 So.2d 560, 562-65 (Fla.
2005) (footnote omitted).
appeal, this Court affirmed Snelgrove's convictions but
reversed his death sentences, holding that they were invalid
because "the jury returned only a single,
undifferentiated advisory sentence." Id. at
566. Accordingly, the case was remanded for a new penalty
second penalty phase began in January 2008. On the first day
of jury selection, Snelgrove moved for a continuance for
additional time to "test for mental
retardation." Snelgrove v. State, 107 So.3d
242, 247 (Fla. 2012). This Court explained the circumstances
According to defense counsel, on the night before jury
selection, Dr. Robert M. Berland, a forensic psychologist who
examined Snelgrove and testified at the first penalty phase,
notified defense counsel of his recommendation to again test
Snelgrove to determine whether Snelgrove was mentally
retarded.[FN2] As Dr. Berland later explained, his
recommendation was based on his understanding of the
"Flynn Effect, " which describes the tendency of
revisions to the Weshler [sic] Adult Intelligence Scale
(WAIS) test to produce lower scores for the same person than
previous versions. Dr. Berland testified that, because
Snelgrove's previous score on the WAIS-R test was
"borderline, " the WAIS-III test might produce a
score in the retarded range. The trial court denied the
motion to continue but allowed Snelgrove to proceed with the
[FN2] In preparation for his first trial, Snelgrove completed
the revised Weshler [sic] Adult Intelligence Scale (WAIS-R)
test and scored a 78, within the "borderline range of
intellectual functioning" and above the retarded range.
Following the second day of jury selection, Dr. Stephen
Bloomfield, another forensic psychologist, conducted the
requested WAIS-III test. Snelgrove indicated that his IQ
score on the WAIS-III test was 70, a score consistent with
"mild mental retardation." Therefore, on the third
day of jury selection, defense counsel renewed the motion for
continuance, arguing that the WAIS-III results merited
additional testing and that the trial court should conduct a
hearing to determine mental retardation pursuant to Florida
Rule of Criminal Procedure 3.203. The trial court denied the
renewed motion after noting its belief that a delay was
unnecessary because a determination on retardation could be
made any time prior to sentencing.
Id. at 247-48.
Snelgrove's IQ was retested by Dr. Bloomfield, the
parties presented the following evidence to the penalty phase
[T]he prosecution presented extensive evidence detailing the
scene of the crime, injuries to the victims, and
incriminating injuries to Snelgrove. The prosecution's
evidence included expert testimony from forensic pathologist
Dr. Thomas Beaver, who testified that both victims bore
defensive wounds and had been severely beaten, strangled, and
stabbed in the context of a prolonged struggle involving
significant pain and suffering. Dr. Beaver further testified
that, unlike Mrs. Fowler, who lived through all inflicted
injuries, Mr. Fowler was alive only through the beating and
strangling and died just prior to the stabbings. There was no
sign of sexual assault.
Snelgrove presented testimony from corrections officers,
family members, and experts. Dr. Drew Edwards, an expert in
cocaine addiction, testified that cocaine impairs one's
judgment, decision-making, and behavioral control. Dr.
Edwards also provided his opinion that Snelgrove was addicted
to cocaine at the time of the murders, and he further
expressed his opinion on cross-examination that Snelgrove
would not have committed the crime if he was not intoxicated.
Dr. Joseph Wu, an expert in PET scanning, testified that
Snelgrove's temporal lobe and subcortical areas were
asymmetrical, abnormalities "consistent with a history
of possible trauma" and producing a
"disproportionate response to an insult or provocation
or threat." Dr. Wu also testified that cocaine can
exacerbate abnormal functioning of the brain. Dr. Berland
testified that Snelgrove exhibited signs of psychotic
disturbance, specifically, depression and delusional paranoid
thinking. Based on that result, Dr. Berland testified that
Snelgrove was acting under an extreme mental or emotional
disturbance and was substantially impaired in his capacity to
conform his conduct to the requirements of the law (but not
in his capacity to appreciate the criminality of his
conduct).[FN3] Snelgrove presented his educational
records to Dr. Berland, who was questioned regarding
Snelgrove's placement in special education classes (ESE)
as a child. And Dr. Bloomfield testified that he administered
the WAIS-III test and that Snelgrove scored a 70, suggestive
of mild mental retardation. However, Dr. Bloomfield testified
that further testing was necessary for a diagnosis of
[FN3] On cross-examination, Dr. Berland clarified that he did
not seek any information from Snelgrove or law enforcement
regarding the crime and did not have the information
necessary to form a causal link between Snelgrove's
psychosis and the crime.
In rebuttal, the prosecution presented testimony from Dr.
Lawrence Holder, a radiologist and nuclear medicine
physician, who reviewed PET scan video and images prepared
and analyzed by Dr. Wu. Dr. Holder testified that he observed
no abnormality in the PET scan and instead found that
Snelgrove's brain operated normally. The prosecution also
played video of Snelgrove's statement to law enforcement
and presented testimony from the officer who interrogated
Snelgrove. The interrogating officer testified that Snelgrove
appeared sober and aware throughout their contact.
Id. at 248. Based on this evidence, "[t]he jury
recommended, by separate votes of 8-4 and 8-4, death
sentences for each ...