author:
PER CURIAM.
      PARIENTE, J., POLSTON, J.,

text:
    David Beasher SNELGROVE, Appellant, v. STATE of Florida, Appellee. David Beasher Snelgrove, Petitioner, v. Julie L. Jones, etc., Respondent.
    No. SC15-1659 No. SC16-124
    Supreme Court of Florida.
    [May 11, 2017]

      James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Richard E. Kiley and Ai Andrew Shakoor, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Scott A. Browne, Senior Assistant Attorney General, Tampa, Florida, for Appellee/Respondent
   PER CURIAM.

David Beasher Snelgrove appeals an order of the circuit court denying his post-conviction 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, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (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).

I. BACKGROUND

Following a jury trial in May 2002, Snel-grove 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 the head.
Evidence at the crime scene and in the surrounding area linked David Snel-grove, 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 Snel-grove, 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 Snel-grove 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).

On appeal, this Court affirmed Snel-grove’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 phase. Id.

The 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 as follows:

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 Snel-grove’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 Snel-grove to proceed with the desired testing.
[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.

After Snelgrove’s IQ was retested by Dr. Bloomfield, the parties presented the following evidence to the penalty phase jury:

[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 Snel-grove 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 retardation.
[FN3] On cross-examination, Dr. Ber-land 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 murder.” Id. at 249.

Following the penalty phase, Snelgrove was granted a 15-month continuance of the Spencer hearing to conduct further testing to determine whether he was intellectually disabled. Id. After the testing was complete, Snelgrove filed a motion to prohibit the death penalty due to an alleged intellectual disability, which was taken up at the Spencer hearing in June 2009. Id. This Court summarized the evidence from that hearing as follows:

At the Spencer hearing, Snelgrove presented evidence regarding possible mental retardation. His family members reiterated testimony given at the penalty phase that Snelgrove was twice hospitalized as a child, once when he fell out of a shopping cart and once when he overdosed on a relative’s prescription medication. Family members offered their observations that Snelgrove was a hyperactive child and mentally “slow,” and an older cousin recalled that Snel-grove grew depressed after his parents died. Snelgrove also presented testimony from Dr. Bloomfield, who added to his penalty-phase testimony by detailing his findings that Snelgrove had a significant deficit in adaptive functioning and that the adaptive deficit “likely” manifested prior to age 18. Dr. Bloomfield testified that he inferred both findings from the fact that, when Snelgrove was a child, he was classified by the public school system as “emotionally handicapped” (EMO) and, as a result of the classification, placed in exceptional student education (ESE) classes. Dr. Bloomfield could not locate any records to explain Snelgrove’s ESE/EMO designation. However, he testified that such a designation—made before Snelgrove was 18—would have resulted from “some combination” of observable “maladaptive behavior” which serves to define an emotional handicap and could be roughly transferred to a determination that Snelgrove had deficient adaptive functioning. Dr. Bloomfield clarified that he could not provide a definitive answer as to intellectual functioning prior to age 18 because he could not find an IQ score on Snelgrove prior to age 18.
In response to Dr. Bloomfield’s testimony, the prosecution presented expert testimony from Dr. Gregory Prichard, a forensic psychologist who evaluated Snelgrove for mental retardation and reviewed the same documentation used by Dr. Bloomfield. Dr. Prichard administered the Stanford-Binet 5 test and determined that Snelgrove’s full-scale IQ was 75, above the retarded range. [Dr.] Prichard further testified that, while Snelgrove’s ESE/EMO designation likely indicated behavioral problems beginning prior to age 18, it also meant that the school system had likely ruled out the possibility of intellectual problems first by testing Snelgrove’s IQ and declining to classify him as mentally retarded. Placing a mentally retarded child in EMO classes, he said, would be illegal. Dr. Prichard did not see any evidence of intellectual limitations in his four-hour interview with Snelgrove or in Snelgrove’s records.

Id.

After the Spencer hearing, but before sentencing, the tidal court issued an order denying Snelgrove’s claim of intellectual disability.

In its order, the trial court noted the conflict among Drs. Bloomfield (IQ of 70) and Prichard (IQ of 75) regarding Snelgrove’s intellectual functioning. It further found that Snelgrove was not deficient in adaptive functioning, citing evidence that Snelgrove had no trouble communicating, maintaining relationships, keeping full-time employment, and caring for himself. Finally, the trial court determined that the record conclusively refuted manifestation of the condition prior to the age of 18 because Snel-grove’s placement in ESE/EMO classes did not constitute evidence of mental retardation.

Id. at 249-50. Thereafter, the trial court followed the jury’s recommendation and imposed two death sentences for the murders of Glyn and Vivian Fowler. Id. at 250.

In December 2009, Snelgrove appealed the result of his second penalty phase, raising seven issues. As to the denial of his claim of intellectual disability, this Court held that the trial court’s determination that Snelgrove was not intellectually disabled was supported by competent, substantial evidence:

First, competent, substantial evidence supports the conclusion that Snelgrove failed to establish subaverage general intellectual functioning. We have found support for a finding against subaverage general intellectual functioning where the IQ scores did not definitively suggest mental retardation. See Phillips v. State, 984 So.2d 503, 511 (Fla. 2008) (“[T]he majority of Phillips’s IQ scores exceed that required under section 921.137. Moreover, the court questioned the validity of the only IQ score falling within the statutory range for mental retardation.”); Jones v. State, 966 So.2d 319, 329 (Fla. 2007) (“Jones’s scores on the WAIS were as follows: 72 (1991), 70 (1993), 67 (1999), 72 (2003), and 75 (2005). In other words, the scores did not indicate ‘significantly subaverage general intellectual functioning.’ ”). Snel-grove scored a 78 on the WAIS-R, a 70 on the WAIS-III, and a 75 on the Stanford-Binet 5. The trial court found the last score of 75 to be more credible than the score of 70, given Snelgrove’s childhood placement in “emotionally handicapped” classes instead of “educable mentally handicapped” or “trainable mentally handicapped” classes. See Burns v. State, 944 So.2d 234, 247 (Fla. 2006) (finding competent, substantial evidence in spite of one IQ score of 69 because the more credible expert scored Burns’ IQ at 74).
Second, competent, substantial evidence supports the conclusion that Snel-grove failed to demonstrate deficits in adaptive behavior. Section 921.137(1), Florida Statutes, defines “adaptive behavior” as “the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.” Along these lines, the prosecution’s expert testified that Snelgrove was able to use abstractions in communication and had no trouble communicating or comprehending questions. Snelgrove’s family testified that he maintained significant family relationships, especially with his mother, and had no trouble maintaining employment in businesses inside and outside of family ownership. Snelgrove had a driver’s license, drove company vehicles, and babysat for the family. Additionally, while in prison, Snelgrove lodged several complaints, sought services for basic needs, and requested items that included a dictionary, pinochle cards, and prior medical reports. In short, there was evidence to support the finding that Snelgrove met “the standards of personal independence and social responsibility.”
Finally, there was competent, substantial evidence to support the trial court’s finding regarding the age of manifestation. Though the school records indicated academic problems beginning prior to age 18, Snelgrove offered no evidence to explain them or his placement in ESE/EMO classes. In the absence of records, Snelgrove and the prosecution offered conflicting expert testimony regarding why a child- may receive such a designation.™83 Yet Snel-grove’s expert limited his discussion to the manifestation of deficient adaptive behavior and admitted that he could not provide a definitive answer as to intellectual functioning prior to age 18. Based on the lack of information to support the claim, Snelgrove could not satisfy the third prong of the mental retardar tion statute. See Phillips, 984 So.2d at 512 (“As the trial court found, ‘there was no evidence [t]o support the Defendant’s contention that his poor grades were a result of mental retardation.’ ”); Cherry [v. State, 959 So.2d 702, 711 (Fla. 2007) ] (clarifying the statutory requirement by explaining that the defendant must establish that both “subaverage general intellectual functioning and deficits in adaptive behavior manifested before the age of eighteen”).
[FN8] In its order rejecting the mental retardation claim, the trial court found the expert for the prosecution to offer the more credible explanation—that Snelgrove was likely tested and determined not to be retarded because it would have been illegal to place a retarded child .in EMO classes.

Id. at 252-54 (some citations omitted). This Court also rejected the other six issues raised by Snelgrove and affirmed the trial court’s imposition of the two death sentences. Id. at 262.

In September 2014, Snelgrove filed a posteonviction motion pursuant to rule 3.851. After summarily denying several claims and holding an evidentiary hearing on Snelgrove’s claims of ineffective assistance of trial counsel during the penalty phase, the postconviction court denied relief. Snelgrove now appeals the denial of his postconviction motion. He also petitions this Court for a writ of habeas corpus.

II. INTELLECTUAL DISABILITY

Snelgrove claims that his trial counsel was ineffective during the second penalty-phase for failing to secure Christine Mack, his high school’s special education program administrator, as a -witness to establish that he has an intellectual disability that manifested before the age of 18 and to provide mitigating evidence of his diminished intellectual functioning. Because Snelgrove did not prove his trial counsel performed deficiently, thereby causing him prejudice, we affirm the postconviction court’s denial of this claim.

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court explained that two requirements must be met for claims of ineffective assistance of counsel to succeed:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Bolin v. State, 41 So.3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986)).

Regarding the deficiency requirement, “[t]here is a strong presumption that trial counsel’s performance was not ineffective.” Id. (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Regarding the prejudice requirement, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “A reasonable probability is a ‘probability sufficient to undermine confidence in the outcome.’” Henry v. State, 948 So.2d 609, 617 (Fla. 2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the postconviction court’s factual findings that are supported by competent substantial evidence, but reviewing legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla. 2004).

In Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the United States Supreme Court ruled that the execution of a “mentally retarded” defendant constitutes cruel and unusual punishment and is therefore prohibited by the Eighth Amendment. Under Florida law, claims of intellectual disability as a bar to the imposition of the death penalty are governed by a three-prong test. Salazar v. State, 188 So.3d 799, 811 (Fla. 2016). To establish such a.claim, a defendant must demonstrate the following: “(1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen,” Id.; see also § 921.137(1), Fla. Stat. (defining “intellectually disabled” or “intellectual disability” to include these three factors). The defendant has the burden to prove by clear and convincing evidence that he is intellectually disabled. Salazar, 188 So.3d at 811-12. “If the defendant fails to prove any one of these components, the defendant will not be found to be intellectually disabled.” Id. at 812.

Snelgrove did not demonstrate that his trial counsel’s performance in preparing for the second penalty phase was deficient. It is undisputed that under prevailing'professional norms trial counsel has an “obligation to conduct a thorough investigation of [a] defendant’s background.” Porter v. McCollum, 558 U.S. 30, 39, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (quoting Williams, 529 U.S. at 396, 120 S.Ct. 1495). Here, the postconviction court’s conclusion that Snelgrove’s trial counsel conducted a sufficient investigation is supported by the record.

The record reflects that trial counsel conducted a thorough investigation into Snelgrove’s background after Snelgrove scored a 70 on the WAIS-III test administered by Dr. Bloomfield during jury selection for the second penalty phase. At the evidentiary hearing, trial counsel testified that after being granted a year-long continuance for the Spencer hearing he met with Snelgrove to discuss a claim of intellectual disability. Snelgrove gave trial counsel the names of two people who Snel-grove said knew him as a child, but trial counsel was unable to locate them to serve as witnesses. In addition, trial counsel and his team contacted the Miami-Dafle County school district about obtaining test scores and additional records for Snel-grove, but no such records were available. As Snelgrove’s own witness testified at the evidentiary hearing, some of his schooi records had been destroyed pursuant to state guidelines more than a year before he committed the murders in this case. Trial counsel cannot be faulted for not discovering records that no longer existed at the time of his investigation. Cf. Rivera v. State, 995 So.2d 191, 205 (Fla. 2008) (holding that trial counsel was not deficient for not discovering evidence that did not exist until after trial).

Trial counsel’s failure to locate Christine Mack and present her as a witness was not deficient in light of counsel’s reasonable investigation and the evidence presented during the penalty phase. At the jury proceeding, trial counsel called multiple members of Snelgrove’s family as mitigation witnesses to testify about his background, as well as four expert witnesses to discuss his psychological and intellectual functioning. Trial counsel also entered into evidence Snelgrove’s high school transcripts, which reflected his ESE designation and failing grades. As to the Spencer hearing, trial counsel testified that without the benefit of a childhood IQ score or a nonfamily lay witness, he chose to rely on the same testimony from Snelgrove’s family and the expert witnesses to establish that Snel-grove had an intellectual disability that manifested before the age of 18. Snelgrove failed to demonstrate that this presentation of the evidence during the second penalty phase was not a sound strategic decision by his trial counsel. See Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000).

Snelgrove also failed to demonstrate how trial counsel’s alleged deficient performance caused him prejudice. As to Snelgrove’s claim that Ms. Mack’s testimony would have established the third prong of the test for an intellectual disability, at best, her testimony would have been cumulative of other evidence presented at the Spencer hearing and thus would have made little, if any, difference in the outcome. See Wong v. Belmontes, 558 U.S. 15, 22, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) (holding that a defendant cannot establish the prejudice prong of Strickland with evidence that is “merely cumulative” of evidence already presented). For example, like Dr. Bloomfield, at the evidentiary hearing Ms. Mack pointed to Snelgrove’s designation as emotionally handicapped and his placement in ESE classes as evidence that he may have had subaverage intellectual functioning prior to the age of 18. Although Ms. Mack testified that it was possible for a student to score 70 or below on an IQ test yet still be placed in ESE/ EMO classes, like Dr. Bloomfield, she could not definitively state that this is what happened to Snelgrove. Instead, Ms. Mack was clear in her testimony that to her knowledge Snelgrove had never been deemed to be intellectually disabled and she did not know what his IQ score was at the time he was a student. Because Ms. Mack’s testimony added nothing new to the question of whether Snelgrove had an intellectual disability that manifested prior to the age of 18, Snelgrove failed to prove that there is a reasonable probability the trial court would have ruled differently on his claim of intellectual disability had Ms. Mack been called as a witness.

Similarly, Ms. Mack’s testimony would have been cumulative of other mitigating evidence presented to the jury during the second penalty phase. Snelgrove’s claim that Ms. Mack would have provided “non-relative” testimony about his “problems with learning” overlooks the fact that his high school transcripts were entered into evidence, that Dr. Berland testified about Snelgrove’s placement in ESE classes, and that Dr. Bloomfield testified that Snel-grove’s 2008 IQ score of 70 was suggestive of “mild mental retardation.” Ms. Mack’s testimony about Snelgrove’s EMO/ESE designation would not have added anything new to the evidence that was presented to the jury. Thus, Snelgrove failed to prove that there is a reasonable probability the jury’s recommendations of death would have been different had Ms. Mack been called as a mitigation witness. In other words, our confidence in the outcome of the.penalty phase is not undermined. See Brant v. State, 197 So.3d 1051, 1073-74 (Fla. 2016) (“There is no reasonable probability that re-presenting virtually the same evidence through other [mitigation] witnesses would have altered the outcome- in any manner.” (quoting Atwater v. State, 788 So.2d 223, 234 (Fla. 2001))).

Lastly, Snelgrove is not entitled to postconviction relief pursuant to the United States Supreme Court’s decision in Hall v. Florida, — U.S. —, 134 S.Ct. 1986, 188 L.Ed,2d 1007 (2014). In Hall, the Supreme Court held that the definition of significantly subaverage general intellectual functioning establishing a strict IQ score cutoff of 70 “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” Id. at 1990. Accordingly, the Supreme Court held that the five-point standard error of measurement must be taken into account when assessing the subaverage intellectual functioning prong of the test for an intellectual disability. Id. at 2001. “[W]hen 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. This Court has recently determined that Hall should be applied retroactively. Walls v. State, 213 So.3d 340, 342-43 (Fla. Oct. 20, 2016).

Here, during the second penalty phase, Snelgrove 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 Snelgrove was not intellectually disabled; no single factor was considered dispositive. See id. at 346 (“The Hall decision requires courts to consider all prongs of the test in tandem.”). This Court previously reviewed the trial court’s determination and concluded that all of its findings were supported by competent, substantial evidence. Snelgrove, 107 So.3d at 252-53 (affirming trial court’s conclusion that Snelgrove is not intellectually disabled). Snelgrove did not present any additional argument or evidence on his claim of intellectual disability at the evidentiary hearing on his postconviction motion.

Accordingly, Snelgrove is not entitled to postconviction relief regarding his claim of intellectual disability.

III. HURST

While Snelgrove’s appeal from the denial of his postconviction motion was pending, the United States Supreme Court issued its decision in Hurst v. Florida, in which it held that Florida’s capital sentencing scheme violated the Sixth Amendment. The Supreme Court concluded 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.” Hurst v. Florida, 136 S.Ct. at 619. On remand from the Supreme Court, 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.” Hurst v. State, 202 So.3d at 54, 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 a Hurst error is capable of harmless error review. Id. at 67.

In Mosley v. State, 209 So.3d 1248, 1283 (Fla. 2016), we held that Hurst v. Florida and Hurst v. State apply retroactively to those postconviction defendants whose sentences became final after the United States Supreme Court’s 2002 decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). There is no dispute that Snelgrove’s death sentence became final during this timeframe. Therefore, Snelgrove falls into the category of defendants to whom Hurst is applicable. In light of the two nonunanimous jury recommendations to impose death in this case, it cannot be said that the failure to require a unanimous recommendation was harmless beyond a reasonable doubt. See Kopsho v. State, 209 So.3d 568, 569-70 (Fla. 2017). We therefore vacate Snelgrove’s death sentences and remand for a new penalty phase.

IV. CONCLUSION

For the reasons stated above, we affirm the denial of Snelgrove’s rule 3.851 motion and deny the petition for writ of habeas corpus, but we vacate his death sentences and remand for a new penalty phase.

It is so ordered.

LABARGA, C.J., and LEWIS, and QUINCE, JJ., concur.

PARIENTE, J., concurs in part and dissents in part with an opinion.

POLSTON, J., concurs in part and dissents in part with an opinion, in which CANADY and LAWSON, JJ., concur.

PARIENTE, J.,

concurring in part and dissenting in part.

I concur that Snelgrove is entitled to relief pursuant to Hurst. Majority op. at 1004. I dissent, however, as to the majority’s conclusion that “Snelgrove is not entitled to postconviction relief regarding his claim of intellectual disability.” Majority op. at 1004. Instead, I would remand for a new evidentiary hearing on Snelgrove’s possible intellectual disability in light of the fact that the first evidentiary hearing on that matter occurred in 2009, prior to the United States Supreme Court’s decision in Hall v. Florida, — U.S. —, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). As I previously explained, “Hall changed the manner in which evidence of intellectual disability must be considered.” Walls v. State, 2016 WL 6137287, at *7, 213 So.3d 340, 346 (Fla. Oct. 20, 2016) (Pariente, J., concurring). Courts must now “consider all three prongs in determining an intellectual disability, as opposed to relying on just one factor as dispositive.... [B]ecause these factors are interdependent, if one of the prongs is relatively less strong, a finding of intellectual disability may still be warranted based on the strength of the other prongs.” Oats v. State, 181 So.3d 467, 467-68 (Fla. 2015).

When this Court last affirmed the trial court’s denial of Snelgrove’s intellectual disability claim, the Court cited Cherry v. State, 959 So.2d 702 (Fla. 2007), and the trial court relied on Nixon v. State, 2 So.3d 137, 142 (Fla. 2009), which affirmed the bright-line cutoff IQ score of 70 for determining intellectual disability as stated in Cherry. See Snelgrove v. State, 107 So.3d 242, 252 (Fla. 2012). Hall has since “specifically disapproved of the bright-line cutoff of 70 for IQ scores stated by this Court in Cherry,” in assessing the first prong of the test for intellectual disability. Thompson v. State, 208 So.3d 49, 50 (Fla. 2016). Thus, while the trial court had evidence from Snelgrove’s and the State’s experts that Snelgrove’s full scale IQ scores ranged from 70 to 75, “it is impossible to know the true effect of this Court’s holding in Cherry on the circuit court’s review of the evidence presented at [Snelgrove’s] intellectual disability hearing.” Id. at 60.

Further, the majority apparently bases its conclusion that Snelgrove’s pre-Hall intellectual disability hearing complied with the commands of Hall because the trial court permitted Snelgrove “to present evidence of all three prongs of the test for an intellectual disability.” Majority op. at 1004. Yet, as this Court explained in Thompson, “it is not enough that a defendant be allowed to present evidence on all three prongs of the intellectual disability test.” 208 So.3d at 59. The inquiry must instead focus on whether the court conducted a “conjunctive and interrelated assessment” of all prongs. Id. (quoting Hall, 134 S.Ct. at 2001).

I acknowledge that a defendant is not always entitled to another hearing on intellectual disability following Hall. However, in this case, there is a risk that the trial court and this Court were unduly influenced by an IQ score exceeding the prior bright-line cut off score of 70, requiring a new evidentiary hearing or at the very least a reevaluation of the evidence previously presented. Indeed, a review of the trial court’s order rejecting Snelgrove’s intellectual disability claim reveals that the trial court prefaced its analysis by emphasizing that this Court “has consistently interpreted” the statutory definition of significantly subaverage general intellectual functioning “to require a defendant seeking exemption from execution to establish he has an IQ of 70 or below.” State v. Snelgrove, No.: 00-323-CFFA, 2009 WL 9557139 (Fla. 7th Cir. July 2, 2009) (quoting Nixon, 2 So.3d at 142) (denying Defendant’s Motion to Prohibit the Imposition of the Sentence of Death/Mental Retardation).

In fact, the trial court’s order denying Snelgrove’s intellectual disability claim reveals that the court relied on the State’s expert, Dr. Prichard, who testified that the defendant had a “full scale IQ of 75 and therefore was not mentally retarded.” As we explained in Walls, 2016 WL 6137287 at *6, 213 So.3d at 347, “[b]ecause [the defendant’s] prior evidentiary hearing was directed toward satisfying the former definition of intellectual disability and was reviewed by the circuit court with the former IQ score cutoff rule in mind,” remanding for a new evidentiary hearing on intellectual disability was necessary. It is also necessary here. Accordingly, I would conclude that a new intellectual disability hearing should be held prior to the commencement of the penalty phase to ensure that Snelgrove “receive[s] the type of conjunctive and interrelated assessment that Hall requires.” Thompson, 208 So.3d at 59.

POLSTON, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision except its vacating of the death sentences pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(1), (9), I?la. Const.

      . Because the terms "mental retardation” or "mentally retarded” and "intellectual disability” or “intellectually disabled” have the same meaning, they will be used interchangeably throughout this opinion. See § 921.137(9), Fla. Stat. (2016).

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

      . The trial court found five aggravators applicable to each of the murders:
      (1) the murder was committed when Snel-grove was on community control for a felony offense of tampering with physical evidence (little to some weight); (2) prior violent felony based on the contemporaneous murder (great weight); (3) the murder was committed during the commission of robbery and/or burglary, merged with pecuniary gain (significant weight); (4) the murder was especially heinous, atrocious, or cruel (HAC) (great weight); and (5) the victim was particularly vulnerable due to advanced age (significant weight).
      Snelgrove, 107 So.3d at 250. The trial court found one statutory mitigator—extreme mental or emotional disturbance (significant weight)—and the following nonstatutory miti-gators:

        (1) Snelgrove was a hard worker (some weight); (2) Snelgrove was a loving and caring person who was loved by his family (some weight); (3) Snelgrove had a long history of drug addiction (significant weight); (4) Snelgrove was greatly impacted by the death of his parents (some weight); (5) Snelgrove is a model inmate and has adjusted well to a structured environment (little weight); (6) Snelgrove suffers from some abnormal brain functioning and has a somewhat limited level of intelligence (some weight).
      Id.

      . Snelgrove raised the following issues on direct appeal:
      (A) whether the trial court erred in denying Snelgrove's motion for continuance before the penalty phase to further explore the possibility that Snelgrove was retarded; (B) whether the trial court erred in finding that Snelgrove was not mentally retarded; (C) whether the trial court erred in admitting video of Snelgrove’s statement to law enforcement; (D) whether the trial court erred in instructing the jury on its advisory role; (E) whether the trial court erred in allowing the prosecution to’ cross-examine mental health experts Dr. Berland and Dr. Edwards regarding their knowledge of the facts surrounding the murders; (F) whether the prosecution’s comments and the trial court's instructions regarding victim impact evidence together constituted reversible error; and (G) whether the trial court erred in considering and weighing several aggra-vators and mitigators.
      Id.

      . The postconviction claims were: (1) trial counsel was ineffective during the penalty phase for failing to call Christine Mack as a mitigation witness and to testify regarding the claim of intellectual disability; (2) trial counsel was ineffective during the penalty phase for failing to object to improper prosecutorial comments; (3) the cumulative effect of trial counsel's errors deprived Snelgrove of a fair trial; (4) trial counsel was ineffective during the guilt phase for failing to request a colloquy regarding Snelgrove’s right to testify; (5) section 921.141, Florida Statutes (2000), violates the Eighth Amendment because it is vague and overbroad; (6) Snelgrove's Eighth Amendment rights will be violated if he is incompetent at the time of execution; and (7) Florida's capital sentencing statute is unconstitutional on its face for failing to prevent the arbitrary and capricious imposition of the death penalty and for violating the guarantee against cruel and unusual punishment, and trial counsel was ineffective for failing to litigate these issues.

      . The habeas claims are: (1) appellate counsel was ineffective for not raising on direct appeal a claim of fundamental error regarding the unavailability of Snelgrove's school records; (2) appellate counsel was ineffective for not raising on direct appeal a claim of cumulative error; and (3) appellate counsel was ineffective for failing to raise on direct appeal several constitutional challenges to section 921.141, Florida Statutes, and Snel-grove’s death sentences, including whether the sentences are unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . We also affirm the denial of the other claims raised in Snelgrove's motion because he failed to demonstrate that he was entitled to postconviction relief.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Barry Trynell DAVIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC15-1794
    Supreme Court of Florida.
    [May 11, 2017]

      Andy Thomas, Public Defender, and Richard M. Bracey, III, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

Barry Trynell Davis, Jr., appeals his convictions and sentences of death for the murders of John Gregory Hughes and Heidi Ann Rhodes. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm Davis’s convictions but vacate the sentences of death and remand for a new penalty phase pursuant to Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), petition for cert. filed, No.16-998 (U.S. Feb. 13, 2017), due to the jury’s nonunanimous recommendations of death for both victims, which are not harmless beyond a reasonable doubt.

FACTS AND BACKGROUND

The murders occurred on May 7, 2012. At the time of the murders, Davis was twenty-six years old and had one child, Andreian (“Drey”), with Tiffani Steward, his on-and-off girlfriend of several years.

The victims, John Gregory Hughes and Heidi Ann Rhodes, were last seen on May 7, 2012. Hughes was forty-nine years old. Rhodes was almost forty-one years old. Rhodes’ dog, Molly, who went almost everywhere with Rhodes, was also missing. At the time of their disappearance, Hughes and Rhodes had been dating for approximately one year. The victims lived together in Hughes’ house in Santa Rosa Beach, Florida, although Rhodes also rented another property.

Davis and Hughes knew each other from previously being incarcerated at the same time. According to witnesses, the two stayed in contact after them independent releases. Davis sold drugs to Hughes.

On May 9, 2012, Rhodes’ employer, Ray Webb, became concerned about Rhodes’ well-being after she did not show up for an appointment. Webb drove to Hughes’ house and Rhodes’ house and found no one at either place. There was no sign of Molly at either house. Webb, however, noticed “a lot of cleaning materials, buckets and mops and things sitting in the edge of the driveway” of Hughes’ house.

A few days later, Webb reported Rhodes missing. At Webb’s request, the Walton County Sheriffs Office (WCSO) went to Hughes’ house to conduct a welfare check on Rhodes. WCSO found no persons or vehicles present, but nothing seemed out of the ordinary.

WCSO then received a missing-persons report from Rhodes’ sister, Cecaire McPherson. Rhodes’ family had become worried when Rhodes did not contact her mother on Mother’s Day. WCSO conducted welfare checks on Rhodes at both Rhodes’ house, which appeared to be in a normal, lived-in condition, and Hughes’ house, which appeared to be empty. When the welfare checks did not locate Hughes or Rhodes, WCSO initiated missing-person investigations.

Rhodes’ sisters also went to Rhodes’ house and Hughes’ house looking for the victims. Both houses were vacant, and Rhodes’ mailbox was completely filled. When they looked inside Hughes’ house, they saw a commercial mop bucket in the middle of the living room floor. The only furniture in Hughes’ house was a pool table, and it looked like the TV had been pulled off the wall. Hughes’ 2003 Cadillac Escalade EXT was not visible on the property.

Officers were led to Davis as a person of interest in Hughes’ and Rhodes’ disappearance through a series of transactions on Hughes’ bank card and several checks written to the order of Davis from Hughes’ bank account. When asked about Hughes’ disappearance in a series of interviews, Davis told officers that Hughes paid him to load Hughes’ furniture into a rental truck and to later clean and manage Hughes’ residential property. Daws stated that (1) he last saw Hughes and Rhodes when they left Hughes’ house in the rental truck full of furniture, though he did not know where Hughes moved or how to contact him; (2) he remembered Hughes saying that he was moving to Barbados to hide from people to whom he owed money for drugs; and (3) Molly no longer belonged to Rhodes.

On June 18, 2012, officers executed a search warrant on a storage unit at Free-port Storage that Davis and Donna Gee, Davis’s friend, were renting. Inside the storage unit, officers found four barstools that belonged to Hughes. Also that day, investigators interviewed Cecil Galloway, Davis’s friend, who said he had helped Davis move furniture out of a house in Santa Rosa Beach. Galloway did not remember seeing a male owner or female at the house but remembered that, when he arrived, “the dressers [in the house] were already emptied,” although “the house appeared to have everything in it.” According to Galloway, everything in the house was loaded into a yellow Ryder pick-up truck in about three hours.

On July 10, 2012, officers executed a search warrant on Davis’s home in Argyle, Florida, looking for Hughes’ Regions Bank debit card, which they did not find. Later that day, Davis was arrested for grand theft of Hughes’ vehicle and credit card fraud related to use of Hughes’ bank card.

While Davis was in jail, law enforcement officers interviewed Steward several times. However, she was not forthcoming with information. On September 25, 2012, Davis was released from jail. Following his release, Davis and Steward moved from Argyle to Destín, Florida and rented for several months a house referred to as “the Grand Key Loop house.”

In October 2012, WCSO found Hughes’ Escalade, which had been reported stolen, parked in the back of Kenneth Ingram’s property in DeFuniak Springs, Florida, covered by a tarp. Ingram told officers that Davis had asked to park the Escalade on his property. Upon searching the Esca-lade, officers discovered that the back bench seat was missing, and the back carpet had been roughly cut out. The carpet remaining inside the Escalade had bleach stains, and the interior was covered in mold. Cadaver dogs used in law enforcement’s investigation detected human remains inside the Escalade. Galloway stated that he last saw the vehicle at Davis’s home in Argyle, where he helped Davis remove the seat and carpet, which Galloway remembered being moist. According to Galloway, when he asked Davis why they were removing the seat and carpet from the Escalade, Davis said that a body had been in the vehicle. Galloway also reported seeing remnants of burnt carpet at Davis’s home in Argyle. Likewise, Steward recalled Davis burning the back seat of the Escalade at his home in Argyle.

On November 12, 2012, Steward met in secret with Investigator Armstrong at her and Davis’s previous home. Eventually, the interview was relocated to the sheriffs office, where Chief Assistant State Attorney Greg Anchors and Steward’s attorney were also present. After the interview, Armstrong arrested Steward under a warrant for dealing in stolen property and took her to jail.

The next day, Steward, with her attorney, met with the State Attorney and recounted the entire story of what she witnessed on May 7, 2012, and the weeks following, Steward was told she would be given immunity for testifying against Davis. While Steward had previously withheld information from law enforcement as to the details of what happened that night, she was the only witness, other than Davis, who could recount at trial what happened at Hughes’ house that night.

Steward testified at trial that, on May 7, 2012, Davis was on his way to Hughes’ house when he stopped to see Steward. Because she did not trust that Davis was loyal in their relationship, Steward demanded that she go with him. On their way, Davis told Steward that he knew Hughes was wealthy and intended to kidnap Hughes and hold him for ransom. When they arrived at Hughes’ house, Steward observed that Hughes did not seem to be expecting Davis. Nevertheless, Hughes invited Davis and Steward to come inside and stay for dinner.

Before dinner, Steward drove Rhodes to Publix to purchase beverages. Before they left the house, Hughes gave Rhodes his debit card with the PIN to use for the purchase. At Publix, Steward waited in the car while Rhodes went inside. While Steward waited in the car for Rhodes, Davis called Steward’s cell phone several times, telling her to return to Hughes’ house immediately.

When Steward and Rhodes returned to Hughes’ house, Steward entered through the front door ahead of Rhodes. According to Steward, when Rhodes entered, Davis grabbed her, began strangling and hitting her, and told Steward to lock the door. Davis rendered Rhodes unconscious and then “drug [Rhodes] into the bedroom” by her foot.

Steward testified at trial that she saw Hughes’ body lying motionless on the floor in the master bedroom and heard noises that sounded like snoring coming from Hughes. According to Steward, “there was blood everywhere”—around Hughes’ head and on the floor, wall, and nightstand in the master bedroom and on Davis’s clothing. In her statement to police that was read at trial, Steward said Davis told her that while she and Rhodes were at Publix, “he made Hughes open a safe and there was pills, weed, and car title in the safe,” Then, “[Davis] said Hughes tried to run to his cell phone located on the night stand.” Steward told police that when she saw the blood, Hughes was lying in front of the night stand.

After both Hughes and Rhodes were unconscious and in the master bedroom, Davis began filling the bathtub in the master bathroom with water. While the bathtub was filling, Davis asked Steward to get his backpack out of the car. Steward did not know what was in the backpack.

Steward testified that when she returned with the backpack, Davis took duct tape out of the backpack and “wrapped it around [Hughes’ and Rhodes’] ankles.” While Davis wrapped their ankles with duct tape, the victims’ heads and shoulders were submerged in the bathtub. At this point, Steward thought she heard a noise and told Davis that the victims were still alive, to which Davis responded that the noise was just gas leaving their bodies and that the victims were dead.

Throughout the events that took place at Hughes’ house on May 7, 2012, Steward begged Davis to let her leave and return home to their son, Drey. Finally, after the victims were submerged and bound in the bathtub, Davis let Steward leave Hughes’ house and indicated that he would be right behind her. Steward testified that she last saw the victims submerged in the bathtub in the master bathroom of Hughes’ house. Steward left Hughes’ house in her Ford Edge that she and Davis had driven to Hughes’ house that night. Davis left Hughes’ house in Hughes’ Escalade, following Steward. Davis told Steward that he would return later to Hughes’ house to “clean up and get the bodies.” Steward testified that Davis threatened “that he would kill [her] family ... if [she] ever said anything [or] admitted] to being there with him” that night. Steward testified that she believed these threats to be credible because Davis had previously threatened her family’s safety.

In the days following the murders, Davis returned to Hughes’ house to clean, which included bleaching Hughes’ entire house and removing a portion of drywall that was covéred in blood. Davis told Steward that “he pulled the wall out at the house, the wall that Mr. Hughes was laying on the floor beside, because there was blood everywhere.” Investigator Sunday stated that “a large section of drywall [in Hughes’ house] ... appeared to have been cut away and did not appear to be anywhere on the premises.” Steward testified that Davis told her thát “he wrapped [the bodies] up and put them in the Escalade for a couple of days.”

The next time Steward saw Davis—a day or two after the murders—he was dragging a blue container from behind his house over to a burn pit. Steward remembered that the “blue container” “smelled really bad, and it looked like it was really heavy.” Steward assumed the victims’ bodies were inside the container. Davis later told Steward that he had cut up the victims’ bodies and burned them in the burn pit. During her deposition, Steward remembered that she heard Davis using a saw late one night. She said that she believed Davis used a saw to cut up the victims’ bodies before burning them. Steward also remembered Davis “bleaching the porch around the same area that [she] heard the saw.” Steward also saw a bench car seat in the burn pit at Davis’s house, which she knew was from Hughes’ Escalade.

Davis told Steward that he gave a bag of ashes to Galloway, who did not know what the bag contained, and told him to dispose of it. Steward also told law enforcement officers that she saw Davis hand Galloway a trash bag. Galloway confirmed to law enforcement that Davis gave him a trash bag of burned wood and ashes in June 2012 and told him to get rid of it, which he placed into the garbage can at the end of the driveway at Davis’s house in Argyle.

In the weeks following the murders, Davis rented a U-Haul and moved Hughes’ furniture and personal belongings out of Hughes’ house. Hughes’ family testified that several of these items had sentimental value and had been passed down through Hughes’ family. Davis hired “laborers” to help him load Hughes’ furniture into the moving truck. Davis paid the laborers in cash and gave them several of Hughes’ items, including scuba tanks, fishing rods and reels, and pool cues. Davis instructed those close to him to lie consistent with his story—for example, that the rental truck was a Ryder truck rather than a U-Haul. Hughes’ neighbors testified to seeing a moving truck outside Hughes’ house around this time. Davis took some of Hughes’ furniture to a storage unit at Freeport Storage, which he and Gee rented. Other furniture was taken to Davis’s home. At Davis’s instruction, Steward sold some of Hughes’ belongings to pawn shops and on Craigslist.

In the weeks following, Davis forged three of Hughes’ checks, which he wrote out to himself. Davis also checked the voi-cemail on Hughes’ cell phone and used Hughes’ cell phone to call the 800 number on Hughes’ bank cards to check the account balances. In its sentencing order, the trial court stated that Davis “looted John Gregory’s Hughes’s bank accounts and stole nearly every piece of property from his home.”

Once Steward began cooperating with law enforcement, she gave Investigator Armstrong permission to enter the Grand Key Loop house. Steward then directed officers to some of Hughes’ clothes that were inside the house. Armstrong and Steward then went to Hughes’ house for Steward to show Armstrong what happened on May 7, 2012. That same day, Davis was arrested for a narcotics violation during a traffic stop due to an outstanding arrest warrant from Okaloosa County, Florida. During that stop, officers found a backpack that matched Steward’s description of the backpack in which Davis stored the duct tape that he used in murdering Hughes and Rhodes.

Davis was indicted and arrested on two counts of first-degree murder for the deaths of Hughes and Rhodes. Following the guilt phase, the jury convicted Davis of the first-degree murder of Hughes and the first-degree murder of Rhodes. At the penalty phase, Davis’s family—mother, uncle, father, and stepmother—testified about his childhood experiences, including his relationship with his grandfather, his academic struggles, and his moving between Los Angeles, California, and Florida. Several childhood photographs of Davis were presented to the jury. Several doctors, specializing in neurology and psychology, opined on Davis’s cognitive functioning, including his IQ, which Dr. Julie Harper, a psychologist, reported to be a combined 87, history of head trauma, depression, and anxiety. The jury recommended two sentences of death—by a vote of nine to three for the murder of Hughes and a vote of ten to two for the murder of Rhodes.

At the Spencer hearing, the State did not present any additional aggravating evidence. The defense presented the testimony of one witness, Dr. Harper, who also testified during trial. The trial court imposed a sentence of death for both murders. In its sentencing order, the trial court found that the following aggravating factors were proven beyond a reasonable doubt as to the murder of Hughes and assigned them the noted weight: (1) prior conviction of capital felony or felony involving violence (FVF) (great weight), (2) committed for pecuniary gain (great weight), (3) committed while engaged in the commission of an attempt to commit robbery or burglary (no additional weight because merged with second aggravating factor), and (4) committed in a cold, calculated, and premeditated manner (CCP) (great weight). For the murder of Rhodes, the trial court found that the following aggravating factors were proven beyond a reasonable doubt and assigned them the noted weight: (1) PVF (great weight), (2) committed while engaged in the commission of an attempt to commit robbery or burglary (great weight), (3) committed for pecuniary gain (no additional weight because merged with second aggravating factor), (4) committed for the purpose of avoiding arrest (great weight), (5) CCP (great weight), and (6) the crime was especially heinous, atrocious, or cruel (HAC) (great weight). The trial court evaluated forty nonstatutory mitigating circumstances, many of which it assigned little or no weight. The nonstatutory mitigating circumstances that the trial court assigned more than “little weight” were that Davis has a special bond with his son (moderate weight); Davis has family who loves him very much (moderate weight); Davis has a history of traumatic brain injury (moderate weight); Davis saved an elderly man from drowning (substantial weight); Davis was a good father to his son (moderate weight); and' Davis has been diagnosed with mild neurocognitive disorder due to traumatic brain injury, major depressive disorder, generalized anxiety disorder, obsessive compulsive disorder, and post traumatic stress disorder (moderate weight). This is Davis’s direct appeal.

ANALYSIS

Davis raises the following claims: (1) the trial court erred in denying Davis’s motion to suppress evidence obtained during the July 10, 2012, search of Davis’s home in Argyle; (2) reversible error occurred when the trial court admitted evidence that Davis possessed a revolver “in the past”; (3) reversible error occurred when the trial court allowed the State to display a photo of Steward crying on the witness stand during closing argument; (4) Davis’s sentences were imposed in violation of Hurst v. Florida (Hurst v. Florida), 136 S.Ct. 616 (2016), and Hurst, 202 So.3d 40; (5) the trial court improperly found the avoid arrest aggravating factor for the murder of Rhodes; (6) the trial court improperly found the CCP aggravating factor for both murders; (7) reversible error occurred when the trial court failed to' properly evaluate multiple nonstatutory mitigating circumstances. We deny relief as to the guilt phase claims, and because we vacate Davis’s sentences of death and remand for a new penalty phase in light of Hurst, we do not address the other penalty phase claims.

I. Motion to Suppress Evidence Obtained During July 10, 2012, Search

Consistent with WCSO policy, officers photographed and videotaped their July 10, 2012, search of Davis’s home in Argyle, Florida, for Hughes’ bank card. Approximately 150 photos were taken during the search: twenty photos record serial numbers, vehicle identification numbers, brand names, title certificates, or other similar information of specific items inside Davis’s house; sixty photos depict specific items of furniture, furnishings, electronics, appliances, or personal property; fifty photos closely document paperwork, receipts, cards, books, or the like; fifteen photos detail hydroponic growing equipment and materials; seven photos depict marijuana and paraphernalia found in the bathroom closet that officers seized; and one photo focuses on an unattached building, Although officers did not find Hughes’ bank card during the search, officers used the photographs and videos gathered during the search to obtain a subsequent search warrant to seize Hughes’ items found inside Davis’s home. These photos were admitted into evidence and discussed at length at trial.

Davis filed a motion to suppress with the trial court, arguing that the photographs and video taken of the July 2012 search exceeded the scope of the search warrant. After an evidentiary hearing, the trial court denied Davis’s motion to suppress, finding in pertinent part:

[L]aw enforcement acted in a reasonable manner in obtaining and executing the search warrant in July 2012.
After reviewing the photographs taken during law enforcement’s July 10, 2012, search of [Davis’s] residence, the photographs do not reflect that an “inventory search” was conducted as the defendant alleges. Instead, the photographs support the testimony offered during the hearing that the policy and procedure of [WCSO] regarding execution of search warrants was followed.

Davis argues that law enforcement violated his constitutional right against improper search and seizure by exceeding the scope of the warrant during the July 2012 search of his residence. The State argues that officers acted properly during the search. We conclude that Davis is not entitled to relief on this claim.

“Both the federal and state constitutions prohibit the government from conducting unreasonable searches.” Harrell v. State, 162 So.3d 1128, 1130 (Fla. 4th DCA 2015); accord U.S. Const, amend. IV; art. I, § 12, Fla. Const. “[A] principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment ....” Jardines v. State, 73 So.3d 34, 51 (Fla. 2011) (quoting Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)), aff'd, 569 U.S. 1, 133 act 1409, 185 L.Ed.2d 495 (2013). This Court is “bound to follow the interpretar' tions of the United States Supreme Court with respect to the Fourth Amendment and provide to Florida citizens no greater protection than those interpretations.” Soca v. State, 673 So.2d 24, 27 (Fla. 1996) (citing Bernie v. State, 524 So.2d 988, 990-91 (Fla. 1988)).

We “accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts,” but we “independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth ... Amendment and, by extension, article I, section 9 of the Florida Constitution.” Fitzpatrick v. State, 900 So.2d 495, 510 (Fla. 2005) (quoting Nelson v. State, 850 So.2d 514, 521 (Fla. 2003)).

In this case, officers procured a warrant for their July 2012 search of Davis’s residence for Hughes’ debit card. It is well-settled that persons have a reasonable expectation of privacy in their homes. See Jardines, 78 So.3d at 36. “[T]he scope of a lawful search of fixed premises pursuant to a warrant extends to the entire area in which the object of the search may be found.” Jackson v. State, 18 So.3d 1016, 1028 (Fla. 2009) (citing United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). “This includes the authority to search through any containers, even those that are locked, that would reasonably contain the items specified in the warrant.” Id.

Turning to this case, the object of the warrant for the July 2012 search was Hughes’ bank card. The United States Supreme Court stated in Horton v. California 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), in which officers executed a warrant describing three stolen rings, “Because rings could be located almost anywhere inside or outside a house, it is unlikely that a warrant to search for and seize the lings would restrict the scope of the search.” Id. at 146, 110 S.Ct. 2301. Likewise, the scope of the July 2012 search encompassed areas in Davis’s home where officers had probable cause to believe Hughes’ bank card might be. Officers could search “almost anywhere inside” Davis’s home for Hughes’ bank card. Id. Thus, we conclude that the items photographed by officers during the July 2012 search were within the scope of the warrant, and the video recordings and photographs, taken pursuant to WCSO policy, did not cause any additional invasion into Davis’s privacy. See Arizona v. Hicks, 480 U.S. 321, 323-25, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). Therefore, officers did not violate Davis’s constitutional right against improper search and seizure by photographing and videotaping the July 2012 search. Accordingly, we affirm the trial court’s denial of Davis’s motion to suppress and deny relief on this claim.

II. Evidence that Davis Possessed a Revolver in the Past

Davis next argues that the trial court erred in admitting evidence of his prior possession of a revolver. Specifically, the following exchange took place between Steward and defense counsel at trial during Steward’s cross-examination about the night of May 7, 2012:

Q. Didn’t shoot anybody?
A. No. I never said [Davis] shot anybody.
Q. Okay. And you never saw a firearm ... that night; right?
A: No, sir, I did not.
Q. And what—what did you tell her in your note to Ms. Armstrong in January of 2013?
A. That [Davis] had told me he pulled out a gun and Mr. Hughes said, You’ve got to be kidding me.
Q. Well, you didn’t see a gun that night. A. No.
Q. You didn’t see any gun shells on the floor, did you?
A. No. To my understanding, [Davis] had just hit [Hughes] with it.

On redirect examination, the following exchange took place between Steward and the prosecutor, Mr. Elmore:

Q. Ms. Steward, concerning the gun: You never did say that Mr. Hughes was shot, did you?
A. No, sir.
Q. Mr. Davis never told you he was shot?
A. No, sir.
Q. Okay. Did [Davis] ever even go into detail about how he hit [Hughes] or what he hit [Hughes] with?
A. He just said he hit him. I don’t remember.
Q. Okay. So you don’t know, and you didn’t know when you advised the officers of what you had been told, whether Mr. Davis hit him with a gun, whether he hit him with a fist, or whether he hit him with some other object in the house?
A. Correct.
Q. And you never said you saw a gun that night; is that correct?
A. Correct.
Q. You had only seen a gun in the past in the possession of Mr. Davis?

(Emphasis added.) Defense counsel objected, arguing that Davis’s prior possession of a firearm was not relevant and the question was “prejudicial and not probative.” See §§ 90.402, 90.403, Fla. Stat. (2016). The trial court overruled the objection, and the questioning proceeded: “Q. What kind of gun have you seen Mr. Davis possess in the past?” (Emphasis added.) Again, defense counsel raised a relevance objection, which the court overruled. See id. § 90.402. Mr. Elmore continued questioning Steward:

A. It was a type—like an old-timey looking one that like rolls; you know, rolls around.
Q. You’re not familiar with guns?
A. No, sir.
Q. You’re talking about a revolver instead of a—
A. Yes.

Later during closing argument, referring to this testimony, the prosecutor stated that Steward had “seen [Davis] with a black revolver in the past, and he’s not the first drug dealer to have one.” (Emphasis added.) The defense did not raise any additional objection to this statement by the prosecutor during closing argument, nor was it raised as a separate issue in this appeal. Because defense counsel raised specific objections to this line of questioning at trial, the error was preserved for appeal. E.g., Overton v. State, 976 So.2d 536, 547 (Fla. 2007); Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982). We conclude that Davis is not entitled to relief on this claim.

“The concept of ‘opening the door’ is ‘based on considerations of fairness and the truth-seeking function of a trial.’” Dennis v. State, 817 So.2d 741, 753 (Fla. 2002) (quoting Rodriguez v. State, 753 So.2d 29, 42 (Fla. 2000)). “[T]o open the door, ‘the defense must first offer misleading testimony or make a specific factual assertion which the state has the right to correct so that the jury will not be misled.’” Robertson v. State, 829 So.2d 901, 913 (Fla. 2002) (quoting Bozeman v. State, 698 So.2d 629, 630 (Fla. 4th DCA 1997)). “As an evidentiary principle, the concept of ‘opening the door’ allows the admission of otherwise inadmissible testimony to ‘qualify, explain, or limit’ testimony or evidence previously admitted.” Ramirez v. State, 739 So.2d 568, 579 (Fla. 1999) (quoting Tompkins v. State, 502 So.2d 415, 419 (Fla. 1986)).

In this case, defense counsel opened the door to the prosecution redirecting Steward to clarify the foundation for her belief that Davis had a gun on the night of the murders. On cross-examination, the defense presented the inconsistency between Steward’s prior statement to law enforcement that Davis had a gun at Hughes’ house that night and her testimony at trial that she never saw or heard a gun that night. Therefore, the disputed testimony that Davis possessed a revolver “in the past” served to explain why Steward believed Davis when he told her he had a gun at Hughes’ house that night, even though the murder weapon was not a firearm. Thus, we conclude that the trial court’s admission of this testimony was not error. Accordingly, we deny relief on this claim.

III. Photo of Steward Crying on the Witness Stand

At trial, Steward cried on the witness stand as she told the jury what she witnessed on the night of May 7, 2012, and in the weeks following. During closing argument, the prosecutor used a PowerPoint presentation consisting of over 100 slides that included photographs, some of which had been entered into evidence. It is unclear whether opposing counsel or the court reviewed the presentation before it was presented to the jury during closing argument. One slide included a picture of Steward crying on the witness stand during the guilt phase of the trial.

Davis argues that the trial court erred in allowing the State to present a photo of Steward crying on the witness stand because the photo likely caused the jury’s verdict to improperly rest upon emotional grounds rather than facts proven by the evidence, The State argues that the trial court did not abuse its discretion by allowing the photo to be presented and used as a demonstrative aid. Because defense counsel objected to the prosecution’s presentation of the picture during trial, this issue is preserved for appellate review. Wright v. State, 19 So.3d 277, 295 (Fla. 2009). We conclude, however, that there was no error and deny relief on this claim.

We reject Davis’s argument that Florida Rule of Judicial Administration 2.450(h) renders improper the prosecutor’s use of this picture during closing argument. Rule 2.450(h) states:

Impermissible Use of Media Material. None of the film, videotape, still photographs, or audio reproductions developed during or by virtue of coverage of a judicial proceeding shall be admissible as evidence in the proceeding out of which it arose, in any proceeding subsequent or collateral thereto, or upon retrial or appeal of such proceedings. The “still photograph” of Steward crying on the witness stand that Davis challenges was not admitted into “evidence” at trial. Thus, rule 2.450(h) does not entitle Davis to relief on this claim.

As this Court has explained, an attorney’s role in closing argument is “to assist the jury in analyzing, evaluating and applying the evidence.” Cardona v. State, 185 So.3d 514, 520 (Fla. 2016) (quoting Ruiz v. State, 743 So.2d 1, 4 (Fla. 1999)). We agree with the trial court’s finding that the picture of Steward accurately represented what the jurors witnessed first-hand during trial. Therefore, the picture was not misleading. Further, the presentation of the photo was brief. Moreover, defense counsel did not raise any advance objection to the State’s use of a slideshow during closing argument. Thus, the trial court did not err in denying defense counsel’s objection, nor did the trial court abuse its discretion in denying mistrial on these grounds. Accordingly, we deny relief on this claim.

IV. Sufficiency of the Evidence

“[T]his Court has a mandatory obligation to review the sufficiency of the evidence in every case in which a sentence of death has been imposed ....” Yacob v. State, 136 So.3d 539, 545 (Fla. 2014); see Fla. R. App. P. 9.142(a)(5). In determining the sufficiency of the evidence, our inquiry is “whether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Simmons v. State, 934 So.2d 1100, 1111 (Fla. 2006) (quoting Bradley v. State, 787 So.2d 732, 738 (Fla. 2001)).

Using a general verdict form, the jury found Davis guilty as charged on Counts 1 and 2 for first-degree murder. In closing argument, the State argued, “this is sort of an and/or situation. It can be both [felony or premediated murder] and it was in this case, or it can be either.” See Crain v. State, 894 So.2d 59, 73 (Fla. 2004). We conclude that the record contains competent, substantial evidence to support Davis’s convictions of first-degree murder.

Essentially Rhodes’ and Hughes’ entire network—family, Mends, and coworkers— testified that they did not see or hear from Rhodes or Hughes after May 7, 2012, the night that Steward says she and Davis went to Hughes’ house. There was no evidence of Hughes and Rhodes disappearing on their own free will, such as travel plans, forwarding addresses, or passport inquiries.

Steward, Davis’s on-and-off girlfriend and the mother of Davis’s child, testified at trial that Davis told her he was going to “get” Hughes. Steward also testified that she witnessed Davis murder the victims and gave details of what she witnessed the night of the murders, as well as in the weeks following the murders—including how Davis rendered the victims unconscious, how Davis drowned the victims in Hughes’ bathtub, how Davis disposed of the bodies, and how Davis distributed Hughes’ property. Further, consistent with Steward’s testimony that Davis’s motive for killing Hughes was financial gain, Davis was found with almost all of Hughes’ belongings. Indeed, Hughes’ neighbor “saw the defendant driving” a U-Haul on Hughes’ property on May 14, 2012. The jury also convicted Davis of two counts of burglary. Thus, we conclude that the record supports Davis’s convictions of first-degree murder. Accordingly, we affirm Davis’s convictions of first-degree murder for the murders of Hughes and Rhodes.

Y. Hurst v. Florida and Hurst

The United States Supreme Court’s decision in Hurst v. Florida was pending during Davis’s trial. The trial court denied Davis’s Motion to Continue Death Penalty Proceedings Pending U.S. Supreme Court’s Decision in Hurst v. Florida without discussion. Davis argues that his sentences of death were imposed in violation of Hurst v, Florida and this Court’s opinion on remand in Hurst, which held that “Hurst v. Florida requires that all the critical findings necessary before the trial court may consider imposing a sentence of death must be found unanimously by the jury.” 202 So.3d at 44. As we explained, “[i]n capital cases in Florida, these specific findings required to be made by the jury include the existence of each aggravating factor that has been proven beyond a reasonable doubt, the finding that the aggravating factors are sufficient, and the finding that the aggravating factors outweigh the mitigating circumstances.” Id. Further, “in order for the trial court to impose a sentence of death, the jury’s recommended sentence of death must be unanimous.” Id. Hurst applies to Davis because his sentences are before this Court on direct appeal.

This Court held in Hurst that the error that occurs when “the judge rather than the jury ma[kes] all the necessary findings to impose a death sentence, is not structural error incapable of harmless error review.” Id. This Court then established the test for determining whether a Hurst error is harmless beyond a reasonable doubt, which we summarized in Davis v. State, 207 So.3d 142 (Fla. 2016): “As applied to the right to a jury trial with regard to the facts necessary to impose the death penalty, it must be clear beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravating factors that outweighed the mitigating circumstances.” Id. at 174; see Hurst, 202 So.3d at 65-68. We turn now to review whether the Hurst error in Davis’s case was harmless beyond a reasonable doubt.

The trial court imposed Davis’s sentences following the jury’s nonunanimous recommendations for death—nine to three for the murder of Hughes and ten to two for the murder of Rhodes. As a result, this Court is unable to determine or speculate why the dissenting jurors—three for the sentence related to Hughes and two for the sentence related to Rhodes—voted for a sentence of life imprisonment rather than the death penalty. This Court cannot determine whether these jurors did not find that sufficient aggravating factors had been proven to impose a sentence of death, that the aggravation did not outweigh the mitigation, or, for some other reason, determined that death was not an appropriate sentence. Thus, we conclude that the Hurst error in Davis’s case was not harmless beyond a reasonable doubt. Accordingly, we vacate the sentences of death and remand for a new penalty phase. Because we remand for a new penalty phase under Hurst, we decline to address Davis’s other penalty phase claims and need not address the proportionality of his death sentences.

CONCLUSION

Based on the foregoing, we affirm Davis’s convictions, vacate Davis’s sentences of death, and remand for a new penalty phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANADY, POLSTON, and LAWSON, JJ., concur as to the conviction and dissent as to the sentence.

      . A neighbor of Hughes’ also recalled Davis saying that Hughes was moving to Barbados.

      . Kelly Kamens and William G. Smith, to whom Hughes had previously given power of attorney, identified the barstools as belonging to Hughes.

      .Davis and Steward moved to this house a few weeks after Hughes' and Rhodes’ murders after paying off the debt owed on their previous home, referred to as "the New Harmony house,” in cash.

      . Steward did not tell officers about the saw during prior interviews. At trial, Steward claimed that "something [they] were talking about or something in deposition ... made [her] remember about the saw.”

      . In another version of the story, Davis told Steward that he had scattered the ashes, or the parts of the bodies that would not bum.

      .Gee was also on the U-Haul rental and told law enforcement that "she rented the U-Haul for herself ... to move her dad who had just recently divorced.”

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

      . The jury also convicted Davis of (a) burglary of a dwelling, (b) theft, (c). two counts of grand theft of an automobile, (d) burglary of unoccupied structure, (e) fraudulent use of a credit card ($100 or more), (f) three counts of forgery of a check, and (g) three counts of uttering a forged check. The trial court imposed the following sentences for the other convictions (totaling seventy years of imprisonment to run consecutively with credit for time served): fifteen years' imprisonment for burglary of a dwelling and five years for burglary of an unoccupied structure, five years each for two counts of car theft and five years for theft, five years for fraudulent use of a credit card, five years each for three counts of forgery of a check, and five years each for three counts of uttering a forged instrument.

      . The forty nonstatutory mitigating circumstances that the trial judge found to be proven by a preponderance of the evidence and their respective assigned weights were: (1) Davis lived in a violent neighborhood for a significant period of time (little weight), (2) Davis lived in Los Angeles during the Rodney King riots (no weight), (3) Davis remembers seeing blood, chalk lines, and other evidence of homicides on his way to school in Los Angeles (little weight), (4) Davis’s mother was detached and unaffectionate and had very limited contact with him after he moved to Florida to live with his father (little weight), (5) Davis could not read and write at grade level until he was ten years old (no weight), (6) Davis had limited contact with his father between ages six and nine (no weight), (7) Davis has a close bond with his siblings (little weight), (8) Davis unexpectedly moved to Florida at nine years old (no weight), (9) Davis exhibited good courtroom behavior during trial (no weight), (10) Davis is capable of strong, loving relationships (little weight), (11) Davis has a special bond with his son (moderate weight), (12) Davis was homeschooled for two years to catch up academically (no weight), (13) Davis has a family who loves him very much (moderate' weight), (14) Davis has a history of traumatic brain injury (moderate weight), (15) Davis first encountered racism in Pop Warner football when a teammate called him the "n” word without being punished (no weight), (16) Davis was skilled in sports (no weight), (17) Davis suffers from anxiety (no weight), (18) Davis was helpful to an elderly neighbor (little weight), (19) Davis saved an elderly man from drowning (substantial weight), (20) Davis felt abandoned by his mother (little weight), (21) Davis felt abandoned by his father and stepmother after his arrest at seventeen years old (no weight), (22) Davis assisted Hughes (the victim) in prison when other inmates were planning to attack him (no weight), (23) Davis has a history of illegal drug use (little weight), (24) Davis was a victim of a stabbing and robberies during his early drug dealing years while estranged from his family (no weight), (25) Davis suffered from emotional distress due to his relationship with Steward in the weeks preceding the murders (no weight), (26) Davis has memory deficits as a result of traumatic brain injury (little weight), (27) Davis has a tic disorder (no weight), (28) Davis suffers from executive dysfunction (no weight), (29) Davis often stutters and has faced ridicule for this (no weight), (30) Davis’s parents had a dysfunctional relationship (no weight), (31) Davis suffered the loss of his paternal grandfather at a young age (little weight), (32) Davis was a good father to his son (moderate weight), (33) Davis received his GED (no weight), (34) Davis suffered the'loss of a family friend at a young age (litde weight), (35) Davis suffers from borderline intellectual functioning in the area of perceptual reasoning and a specific learning disorder with impairment in reading (no weight), (36) Davis has been diagnosed with mild neurocognitive disorder due to traumatic brain injury, major depressive disorder, generalized anxiety disorder, obsessive compulsive disorder, and post traumatic stress disorder (moderate weight), (37) Davis provided financial and other assistance to individuals in need of assistance (no weight), (38) Davis suffered the loss of an elderly gentlemen whom he would see in a p'ark when he was a child (no weight), (39) Davis was previously incarcerated in prison and exposed to shocking behavior by other inmates (little weight), and (40) Davis has a personality disorder (little weight).

      . This Court has already rejected the argument that section 775.082(2), Florida Statutes (2016), requires that Davis’s sentences of death be commuted to sentences of life imprisonment. See Hurst, 202 So.3d at 44.