          Supreme Court of Florida
                                    ____________

                                   No. SC17-1071
                                   ____________

                           NORMAN MEARLE GRIM,
                                Appellant,

                                          vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                  [March 29, 2018]

PER CURIAM.

      Norman Mearle Grim, a prisoner under sentence of death, appeals the circuit

court’s order summarily denying his first successive motion for postconviction

relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      In 2000, a jury convicted Grim of first-degree murder and sexual battery

upon a person twelve years of age or older with use of a deadly weapon. After

hearing evidence at the penalty phase, the jury unanimously recommended the

death sentence by a vote of twelve to zero. We affirmed Grim’s convictions and

sentence of death on direct appeal. Grim v. State, 841 So. 2d 455 (Fla. 2003). We
also upheld the denial of his initial motion for postconviction relief and denied his

petition for a writ of habeas corpus. Grim v. State, 971 So. 2d 85 (Fla. 2007).

      In June 2016, Grim filed his current first successive postconviction motion

in which he sought relief based on Hurst v. Florida (Hurst v. Florida), 136 S. Ct.

616 (2016). Grim subsequently filed a memorandum of law in which he further

argued that he was entitled to relief based on this Court’s decision in Hurst v. State

(Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). In May

2017, the circuit court entered an order summarily denying Grim’s successive

postconviction motion. This appeal followed. While Grim’s postconviction case

was pending in this Court, we directed the parties to file briefs addressing why the

circuit court’s order should not be affirmed based on this Court’s precedent in

Hurst, Davis v. State, 207 So. 3d 142 (Fla. 2016), cert. denied, 137 S. Ct. 2218

(2017), and Mosley v. State, 209 So. 3d 1248 (Fla. 2016).

      In Davis, this Court held that a jury’s unanimous recommendation of death

is “precisely what we determined in Hurst to be constitutionally necessary to

impose a sentence of death” because a “jury unanimously f[inds] all of the

necessary facts for the imposition of [a] death sentence[] by virtue of its unanimous

recommendation[].” Davis, 207 So. 3d at 175. This Court has consistently relied

on Davis to deny Hurst relief to defendants that have received a unanimous jury

recommendation of death. See, e.g., Bevel v. State, 221 So. 3d 1168, 1178 (Fla.


                                         -2-
2017); Guardado v. Jones, 226 So. 3d 213, 215 (Fla. 2017), petition for cert. filed,

No. 17-7171 (U.S. Dec. 18, 2017); Cozzie v. State, 225 So. 3d 717, 733 (Fla.

2017), petition for cert. filed, No. 17-7545 (U.S. Jan. 24, 2018); Morris v. State,

219 So. 3d 33, 46 (Fla.), cert. denied, 138 S. Ct. 452 (2017); Tundidor v. State, 221

So. 3d 587, 607-08 (Fla. 2017), cert. denied, 138 S. Ct. 829 (2018); Oliver v. State,

214 So. 3d 606, 617-18 (Fla.), cert. denied, 138 S. Ct. 3 (2017); Middleton v. State,

220 So. 3d 1152, 1184-85 (Fla. 2017), cert. denied, 138 S. Ct. 829 (2018); Truehill

v. State, 211 So. 3d 930, 956-57 (Fla.), cert. denied, 138 S. Ct. 3 (2017). Grim is

among those defendants who received a unanimous jury recommendation of death,

and his arguments do not compel departing from our precedent.1

      Accordingly, because we find that any Hurst error in this case was harmless

beyond a reasonable doubt, we affirm the circuit court’s order summarily denying

Grim’s first successive motion for postconviction relief.

      It is so ordered.

LABARGA, C.J., and LEWIS and LAWSON, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs.


      1. The fact that Grim declined to present mitigation to the jury during the
penalty phase has no bearing here. Grim’s waiver of that right was valid, and he
“cannot subvert the right to jury factfinding by waiving that right and then
suggesting that a subsequent development in the law has fundamentally
undermined his sentence.” Jones v. State, 212 So. 3d 321, 343 n.3 (Fla.) (quoting
Mullens v. State, 197 So. 3d 16, 40 (Fla. 2016), cert. denied, 137 S. Ct. 672
(2017)), cert. denied, 138 S. Ct. 175 (2017).

                                         -3-
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

PARIENTE, J., dissenting.

      The majority relies on the jury’s unanimous recommendation for death to

determine that the Hurst2 error is harmless beyond a reasonable doubt. However,

for the same reasons set forth in my concurring in part, dissenting in part opinion

in Kaczmar v. State, 228 So. 3d 1 (Fla. 2017), petition for cert. filed, No. 17-8148

(U.S. Mar. 14, 2018), I would reverse for a new penalty phase because the jury was

not presented with any evidence of the significant mitigation in Grim’s case, which

the trial judge subsequently heard, before making its recommendation. Due to the

jury’s critical role in capital sentencing after Hurst v. Florida, 136 S. Ct. 616

(2016), and Hurst, unless the defendant waives his right to a penalty phase jury,

available mitigation must be presented to the jury.

                                       FACTS

      After being convicted of first-degree murder and sexual battery upon a

person twelve years of age or older with the use of a deadly weapon, Grim

“insisted on not presenting any mitigation” to the jury during the penalty phase.

Grim v. State (Grim I), 841 So. 2d 455, 459 (Fla. 2003). Grim explained to the



      2. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017).


                                         -4-
trial judge at the Koon3 hearing that he would rather receive the death penalty than

spend the rest of his life in prison. After a penalty phase, in which the jury did not

hear any evidence of mitigation, the jury unanimously recommended that Grim be

sentenced to death. Id.

      Despite the absence of mitigating evidence, pursuant to this Court’s opinion

in Muhammad v. State, 782 So. 2d 343 (Fla. 2001), the trial court was obligated to

determine the existence of mitigation anywhere in the record and had the discretion

to appoint special counsel to present mitigation. Id. at 364-65. Accordingly, the

trial court appointed special counsel to present available mitigating evidence at the

Spencer4 hearing.

      After the Spencer hearing, the trial court found three aggravating factors,

three statutory mitigating circumstances, and five nonstatutory mitigating

circumstances. Grim I, 841 So. 2d at 460. The three statutory mitigating

circumstances were: (1) disruptive home life and child abuse; (2) hard-working

employee; and (3) mental health problems that did not reach the level of section

921.141(6)(b), Florida Statutes (1997). Id. The nonstatutory mitigating

circumstances were: “(1) lack of long-term psychiatric care”; (2) “marital problems




      3. Koon v. Dugger, 619 So. 2d 246 (Fla. 1993).

      4. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

                                         -5-
and situational stresses”; (3) “errors of judgment under stress”; (4) “model prison

inmate”; and (5) “entered prison at a young age.” Id.

       As to statutory mental mitigation, the trial court’s sentencing order

explained that the evidence presented by special counsel—which included the

deposition testimony of psychologist Dr. James Larson and a 1983 psychiatric

evaluation by Dr. B. R. Ogburn—established the following: (1) Grim “suffers from

an impulse-control disorder known as ‘intermittent explosive disorder’ along with

a depressive disorder”; (2) a diagnosis of “antisocial personality disorder”; (3) a

diagnosis of “having a ‘[p]ersonality disorder, mixed type with avoidant, antisocial

and passive-aggressive features’ ”; and (4) at the time of the murder, Grim “was

taking two medications, Prozac and Depakote, which were targeted for the

intermittent explosive disorder,” however the impact of the medications was not

established.5

      As to other statutory mitigating circumstances, the trial court determined that

Grim (1) “had a disruptive home life,” which “certainly had an impact upon him,”

(2) had a “shining” employment background since returning to Northwest Florida

on parole from Texas; (3) had “a history of alcohol usage,” which included being



       5. The sentencing order stated that although “Dr. Larson was comfortable in
saying the murder did not occur while the Defendant was ‘experiencing psychosis
in the sense of responding to delusions or hallucinations,’ . . . Dr. Larson could not
rule out some kind of drug interaction with the Defendant’s disorders.”

                                         -6-
“discharged from the military for substance related charges,” and (4) “suffers from

significant, long-term mental problems.” This Court’s case law makes clear “the

importance and significance of this kind of mitigation evidence.” Williams v.

State, 987 So. 2d 1, 14 (Fla. 2008).

      As to nonstatutory mitigating circumstances, the trial court determined that

Grim (1) received psychiatric care in 1983; (2) “was in the throes of a divorce at

the time of this murder” and “had even sought legal advice from his victim”;

(3) makes “ ‘appalling errors of judgment’ when under stress”; (4) had “been a

model inmate . . . for over two years while awaiting trial”; and (5) “was first

confined for a short time while in the Navy” at twenty-two years old. After

weighing the aggravation and mitigation and “duly consider[ing] the jury

recommendation,” the trial court sentenced Grim to death.

      On direct appeal, consistent with Muhammad, this Court denied Grim’s

claim that the trial court should have required special counsel to present mitigation

evidence to the penalty phase jury, stating: “We . . . continue to hold that a trial

court should not be required to appoint special counsel for purposes of presenting

mitigating evidence to a penalty phase jury if the defendant has knowingly and

voluntarily waived the presentation of such evidence.” Grim I, 841 So. 2d at 461.

In my specially concurring opinion, I wrote that “I would adopt a uniform

procedure requiring the appointment of special counsel to present available


                                          -7-
mitigation.” Id. at 465 (Pariente, J., specially concurring). This kind of procedure

has yet to be adopted.

                                    ANALYSIS

      In 1978, in Goode v. State, 365 So. 2d 381 (Fla. 1978), this Court stated:

      [E]ven though [the defendant] expressed a desire to be executed, this
      Court must, nevertheless, examine the record to be sure that the
      imposition of the death sentence complies with all of the standards set
      by the Constitution, the Legislature and the courts.

Id. at 384. Subsequently, the Court set forth various procedures for doing so but,

as explained above, left any presentation of mitigating evidence beyond the

presentence investigation report to the trial court’s discretion. Muhammad, 782

So. 2d at 364.

      Concurring specially in Muhammad, I set forth a proposed procedure for

trial courts appointing special counsel to present mitigation to the jury when a

defendant waives the same:

             Because of the tremendous responsibilities placed on the trial
      court and this Court in death penalty cases, rather than leave the
      appointment of counsel to the trial court’s discretion on a case-by-case
      basis, I would thus adopt a prospective rule that would provide for the
      appointment of special counsel to present available mitigation for the
      benefit of the jury, the trial court and this Court in order to assist the
      judiciary in performing our statutory and constitutional obligations.

Id. at 370 (Pariente, J., specially concurring) (emphasis added).

      In 2017, on remand from the United States Supreme Court’s decision in

Hurst v. Florida, this Court made clear in Hurst that the death penalty “must be

                                        -8-
reserved only for defendants convicted of the most aggravated and least mitigated

of murders,” as determined by a jury. 202 So. 3d at 60 (emphasis added).

Therefore, “Hurst changed the calculus for waiving the presentation of some or all

of the mitigating evidence to a jury.” Kaczmar, 228 So. 3d at 16 (Pariente, J.,

concurring in part and dissenting in part). Thus, in light of Hurst v. Florida and

Hurst, which “clearly changed the dynamics between the judge and the jury in

Florida capital sentencing,” id., this Court should adopt a “prospective rule that

would provide for the appointment of special counsel to present available

mitigation for the benefit of the jury,” whose role we now know is critical to the

constitutional imposition of the death penalty. Muhammad, 782 So. 2d at 370

(Pariente, J., specially concurring).

      Regardless of whether this Court alters the requirements of Muhammad, it is

clear that trial courts and litigants have an independent obligation to ensure that the

jury, as sentencer, receives all the necessary information to make the

constitutionally required findings of fact before recommending a sentence of death.

See Hurst, 202 So. 3d at 44. Those findings, of course, include finding

unanimously the existence of each aggravating factor, the sufficiency of the

aggravators to impose death, that the aggravation outweighs the mitigation, and,

finally, a unanimous vote that death is the appropriate sentence. See id.




                                         -9-
      Aside from addressing this issue prospectively, the question arises how a

defendant waiving mitigation affects whether a Hurst error is harmless beyond a

reasonable doubt. As I explained in Muhammad, “[a]lthough the defendant may

have a right to plead guilty, the defendant has no corresponding ‘right’ after

conviction to have the death penalty imposed based on a waiver of the right to

present mitigation.” 782 So. 2d at 369 (Pariente, J., specially concurring). Further,

“it is not necessarily those most deserving of the death penalty . . . who seek its

imposition and refuse to present mitigation. Rather, in some cases, those seeking

the death penalty, while competent, may suffer from serious underlying mental

illnesses.” Id. In fact, whether a defendant suffers from such mental illness is

exactly the type of mitigation that would be appropriately presented by special

counsel, as the trial court’s sentencing order in this case reflects.

      As the United States Supreme Court stated in Porter v. McCollum, 558 U.S.

30 (2009), “the Constitution requires that ‘the sentencer in capital cases must be

permitted to consider any relevant mitigating factor.’ ” Id. at 42 (quoting Eddings

v. Oklahoma, 455 U.S. 104, 112 (1982)). Likewise, it is clear that a jury not

apprised of mitigating evidence cannot properly make all of the requisite findings

of fact required to constitutionally impose death—namely, that the aggravation

outweighs the mitigation and, further, that death is an appropriate sentence. See

Hurst, 202 So. 3d at 40-42. In Hurst, this Court stated that “[i]f death is to be


                                         - 10 -
imposed, unanimous jury sentencing recommendations, when made in conjunction

with the other critical findings unanimously found by the jury, provide the highest

degree of reliability in meeting these constitutional requirements in the capital

sentencing process.” Id. at 60. Therefore, the Hurst error cannot be harmless

beyond a reasonable doubt in a case where mitigating evidence existed but was not

presented to the penalty phase jury. See Kaczmar, 228 So. 3d at 16-17 (Pariente,

J., concurring in part and dissenting in part).

                                     THIS CASE

         Hurst applies retroactively to Grim’s sentence of death, which became final

in 2003. See Mosley v. State, 209 So. 3d 1248, 1283 (Fla. 2016). Although the

trial court appointed special counsel to present mitigation at the Spencer hearing

and recognized in its sentencing order that the penalty phase jury did not have the

benefit of hearing mitigation, I cannot conclude, in light of Hurst, that the lack of

mitigation was remedied. The jury in Grim’s case was left with no choice but to

recommend death because they did not hear any evidence of mitigation. Thus, the

jury’s unanimous recommendation for death in Grim’s case is unreliable and

cannot support the conclusion that the Hurst error is harmless beyond a reasonable

doubt.




                                         - 11 -
                                 CONCLUSION

      For the reasons fully explained above, I cannot conclude that the Hurst error

was harmless beyond a reasonable doubt and would, therefore, reverse and remand

for a new penalty phase.

       Accordingly, I dissent.

QUINCE, J., concurs.

An Appeal from the Circuit Court in and for Santa Rosa County,
     Ross M. Goodman, Judge - Case No. 571998CF000510XXAXMX

Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,
Northern District of Florida, Tallahassee, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee




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