JOHN T. GLOVER v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: July 22, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000848-MR
JOHN T. GLOVER
v.
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL E. BRADEN, JUDGE
ACTION NO. 98-CR-00126
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; HENRY AND TACKETT, JUDGES.
COMBS, CHIEF JUDGE:
John T. Glover appeals from an order of
March 25, 2004, of the Whitley Circuit Court that denied his
motion filed pursuant to RCr1 11.42 to vacate, set aside, or
correct the final judgment and sentence of imprisonment as well
as his motion for a new trial filed pursuant to the provisions
1
Kentucky Rules of Criminal Procedure.
of CR2 60.02.
Finding no error in the decision of the trial
court concerning either motion, we affirm.
Following his conviction on charges of murder,
robbery, and arson, Glover directly appealed his sentence to the
Supreme Court of Kentucky.
We quote the pertinent facts of this
case from its unanimous opinion affirming the conviction and
sentence as follows:
On the morning of May 27, 1998, the police
and fire departments responded to a fire at
the home of Alice Sumner where a number of
small fires had been set . . . . As the
fire department put out the fires, Kentucky
State Police Detective Colan Harrell
discovered the body of Ms. Sumner lying on
the bed in one of the bedrooms. Her hands
and feet had been “hog tied,” and she had
been stabbed multiple times in the head and
chest.3 Appellant, age fifteen at the time,
and his friend, Clifford Taylor, age
eighteen, were present at the scene that
morning “helping” to extinguish the fire.
2
Kentucky Rules of Civil Procedure.
3
At trial, the Commonwealth’s Associate Chief Medical Examiner described his
findings as follows:
I opened this [zipper disaster pouch (body
bag)] myself to discover the body of a
partially burned, elderly white female. . .
. She was clad in one nightshirt and a pair
of white panties. Her extremities were
behind her; her upper extremities were
behind her, somewhat in this fashion behind
her back, flexed at the elbow. I noticed an
aromatic odor that permeated the disaster
pouch in the clothing. She had skin
slippage, which is very commonly seen
whenever an accelerant or hydrocarbon
compound such as gasoline or related
compound is put on the skin. There was
-2-
black sooty material around the upper
extremities and lower extremities as well as
around her nose, and she was bound in a
complex ligature . . . .
* * * * *
I found . . . . blunt force injuries of the
head with at least two discreet lacerations.
. . . There were . . . a total of 34 stab
sounds of the head, chest, back, and
abdomen.
* * * * *
The first wound that I described was to the
upper part of the right ear that extended
through the ear and into the scalp. The
second was on the right temporal scalp. . .
. The third was immediately behind the
external ear hole of the right ear. The
fourth was in the right temporal parietal
scalp.
* * * * *
These were wounds that I numbered 5 through
16, so those are 11 wounds in all (to the
chest and abdomen), consisting of mainly
vertically oriented stab wounds clustered in
that area.
In the back area were an additional 18 stab
wounds clustered in an area . . . extending
from the right shoulder blade area to the
mid-back and from the left shoulder blade
area to the mid-back and from the left
shoulder blade area on over towards the
right. . . . Defects 28 through 33 were
roughly circular, which indicates some
[twisting] motion of the knife or motion of
the body as the stabs occurred. . . .
-3-
Police suspicion soon focused on the two
boys, and the police asked [Glover’s]
mother, Gail Loy, for permission to
interview [Glover] at the courthouse. Both
[Glover] and Taylor were questioned by
police on May 27, 1998, and both told police
that they believed the crime had been
committed by Kenny Frye and Steven Liszka
who were both sixteen years of age at the
time. After [Glover] and Taylor made their
statements, they were released, and the
police proceeded to arrest Frye and Liszka.
Based upon statements made by Kenny Frye,
the police then arrested [Glover] and Taylor
on May 28, 1998. A detention hearing was
held, and Glover was ordered detained.
Police interviewed Taylor again on May 28,
1998. During this interview, Taylor
admitted his and [Glover’s] involvement in
the crime but continued to say that Frye and
Liszka were also involved. According to
Taylor, Frye and [Glover] killed Ms. Sumner.
On August 5, 1998, [Glover] was transferred
from juvenile court to circuit court to be
tried as an adult. The cases against Frye
and Liszka were also transferred.
Prior to trial, Taylor entered into a plea
agreement in which he agreed to testify
against [Glover] in exchange for a sentence
of life without parole for twenty-five
years. Also, prior to trial, Taylor
exonerated Frye and Liszka of all
involvement in the crime. He stated that he
and [Glover] were the only ones involved.
Thus, the charges against Liszka were
dropped while the charges against Frye were
amended to facilitation, and his case was
remanded to juvenile court.
At trial, Taylor testified that he and
[Glover] broke into Ms. Sumner’s house,
killed her, set the house on fire, and took
the items they had stolen into the woods and
hid them. . . . [Glover] was convicted of
-4-
murder, first-degree robbery and firstdegree arson. He was sentenced to life
without parole for twenty-five years for
murder, ten years for robbery and twenty
years for arson.
Supreme Court of Kentucky Case No. 2000-SC-0664-MR, rendered
August 22, 2002, Not To Be Published, at 1-3.
On February 12, 2004, while represented by the
Department of Public Advocacy, Glover filed a motion to vacate,
set aside, or correct his sentence pursuant to RCr 11.424 as well
as a motion for new trial pursuant to the provisions of CR
60.02.
On March 5, 2004, Glover filed a motion requesting the
trial court to grant his motions or -- in the alternative -- to
grant his request for an evidentiary hearing on the claims.
On
March 11, 2004, the Commonwealth filed its objections to
Glover’s motions for relief.
In a comprehensive written order,
the trial court denied Glover’s motions on March 25, 2004,
without holding an evidentiary hearing.
On appeal, Glover argues:
This appeal followed.
(1) that trial counsel was
ineffective for failing to call an alibi witness; (2) that
counsel was ineffective for failing to investigate fully his
mental state and by presenting damaging mental health expert
testimony during the penalty phase of trial; and (3) that the
trial court erred by failing to grant his request for a new
4
This motion is absent from the trial court record, but a copy was attached
to the appellant’s brief.
-5-
trial based on the Commonwealth’s presentation of the perjured
testimony of Clifford Taylor.
In conjunction with these alleged errors, Glover
contends that the trial court also erred in failing to conduct
an evidentiary hearing on these claims.
A movant is not
entitled to an evidentiary hearing on an RCr 11.42 motion unless
there is an issue of fact that cannot be determined on the face
of the record.
1993).
Stanford v. Commonwealth, 854 S.W.2d 742 (Ky.
However, we have examined the record carefully and have
determined that Glover’s allegations of inadequate
representation by counsel are refuted on the face of the record.
Consequently, the trial court did not err by denying his motion
for relief without conducting an evidentiary hearing.
In order to establish a claim of ineffective
assistance of counsel, a movant must satisfy a two-part test
showing both that counsel’s performance was deficient and that
the deficiency caused actual prejudice to the defendant by
producing a proceeding that was fundamentally unfair and
resulted in an ultimately unreliable result.
Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
Commonwealth v. Tamme, 83 S.W.3d 465 (Ky. 2002).
The movant
bears the burden of overcoming a strong presumption that
counsel’s assistance was constitutionally sufficient or that
under the circumstances counsel’s action might have been
-6-
considered legitimate “trial strategy.”
Strickland, 466 U.S. at
689; Sanborn v. Commonwealth, 975 S.W.2d 905 (Ky. 1998).
An appellate court must be highly deferential in
reviewing the performance of defense counsel and should avoid
second-guessing counsel’s decisions based on hindsight.
v. Commonwealth, 41 S.W.3d 436 (Ky. 2001).
Haight
In assessing defense
counsel’s performance, our standard is whether the alleged acts
or omissions were outside the wide range of prevailing
professional norms based on an objective standard of
reasonableness.
Strickland, 466 U.S. at 688-89.
is not guaranteed errorless counsel. . . .”
“A defendant
Sanborn v.
Commonwealth, 975 S.W.2d 905, 911 (quoting McQueen v.
Commonwealth, 949 S.W.2d 70 (Ky. 1997).
In order to establish
actual prejudice, a movant must show a reasonable probability
that the outcome of the proceeding would have been different or
that it was rendered fundamentally unfair and unreliable as a
result of the alleged deficiency.
Strickland, 466 U.S. at 694.
When the movant is convicted in a jury trial, a reasonable
probability is deemed to be a probability sufficient to
undermine confidence in the outcome of the proceedings in light
of the totality of the evidence before the jury.
Id.
Glover argues first that his defense counsel was
ineffective for failing to present the testimony of an alibi
witness, Donald McFadden, of Southern Telephone Company, the
-7-
agency responsible for monitoring transmitter signal problems
for individuals who are incarcerated at home.
Glover
specifically indicates that McFadden would have testified that
Glover was under home incarceration by order of the Whitley
District Court for an unrelated offense at the time of the
murder-robbery; that he was required to wear a transmitter
around his ankle to track his location; and that he was under
the surveillance of Central Inmate Monitoring on the date in
question.
According to Glover, McFadden had explained to a
defense team trial investigator the nature of the operation of a
transmitter:
namely, that a monitoring station would be alerted
if an inmate’s transmitter were taken beyond a certain range.
If the transmitter did not come back inside range within a few
minutes, the monitoring station notified McFadden, who would
then attempt to make contact with the individual subject to home
incarceration.
McFadden indicated that the transmitter had a
normal range of approximately 150 feet from a monitoring unit
placed at the inmate’s home depending on various conditions.
The Department of Advocacy represented in its brief to this
Court that its post-conviction investigator measured
approximately 250 feet between Glover’s residence and the scene
of the crime.
-8-
Glover contends that if McFadden had been called as a
witness, he would have described to the jury the results of two
tests of the monitoring system that were conducted shortly
before Glover’s arrest.
During the first test, McFadden
escorted Glover to the scene of the crime where they remained
for ten minutes.
The transmitter was not detected as being out
of range at any point during this period.
During the second
test, McFadden removed the transmitter from Glover’s ankle and
left it at the scene of the crime for one hour.
After a period
of seventeen minutes, the system indicated that the transmitter
was out of range.
Glover notes that a monitoring system report
indicated that his transmitter was within acceptable range until
8:18 a.m. on May 27, 1998.
He believes that McFadden’s
testimony would have provided the jury with reasonable doubt as
to his participation in the crimes charged and that counsel’s
failure to call him to the stand amounted to ineffective
assistance.
We disagree.
Defense counsel might have reasonably concluded that
McFadden’s testimony was not particularly supportive of Glover’s
alibi for several reasons:
the inherent inaccuracies in the
monitoring system, the proximity of the crime scene to Glover’s
residence, and the erratic results of McFadden’s test of the
monitoring equipment.
(McFadden told investigators that before
he conducted any test of the equipment, he first had to locate
-9-
and retrieve part of the monitoring system from the Kentucky
State Police.
He then had to re-establish a connection with the
monitoring site.)
Counsel had to weigh any arguable benefit of this
testimony against the certainty that its admission would have
alerted the jury to the fact that Glover had been charged and
sentenced to home incarceration with respect to another offense
in another case; that Glover had admitted to tampering with the
ankle monitor; and that he had been detected as being out of
range during the period of surveillance with some regularity.
Counsel could have elected to pursue a strategy aimed at sparing
innuendoes as to Glover’s character and at attacking instead the
veracity of the only eyewitness, Clifford Taylor, who would have
been particularly susceptible to a death penalty but for his
incriminating testimony against Glover.
Defense counsel
skillfully illustrated this reality to the jury.
Defense counsel must be accorded broad discretion in
trying a case -- especially with regard to trial strategy and
tactics.
Under this criterion, counsel’s decision to refrain
from calling McFadden did not fall outside the wide range of
professionally competent assistance and did not necessarily or
potentially result in any actual prejudice to Glover’s defense.
Consequently, Glover has failed to demonstrate entitlement to
the relief sought.
-10-
Next, Glover argues that defense counsel was
ineffective for failing to present meaningful mitigation
evidence during the penalty phase of trial.
He claims that his
counsel proved ineffective by calling Dr. David Finke, a
licensed clinical psychologist, to testify regarding his mental
health evaluation.
Glover contends that his counsel should have
relied instead upon the testimony of Dr. John P. McGregor, who
would have offered a more sympathetic characterization of the
defendant.
Glover describes the results of the psychological
evaluations undertaken by the two experts as being vastly
different.
He contends that Dr. Finke’s testimony proved much
more helpful to the Commonwealth than it was for his defense and
that counsel should have called Dr. McGregor or consulted with
yet another mental health expert.
We have reviewed the reports prepared by each of the
mental health experts identified by Glover.
At best, we have
determined that they provided scant information or ammunition
for defense counsel.
Dr. McGregor’s report and evaluation
indicate an early and prolonged use of prescription drugs,
marijuana, and alcohol; violent behavioral problems; and a
noteworthy juvenile record.
The report indicates that
information favorable to Glover was derived from his relatives
and that malingering during the evaluation could not be ruled
out.
A diagnosis of mild mental retardation was provisional
-11-
since the validity of the cognitive evaluation was uncertain and
seemed to be contradictory in light of his adequate academic
performance.
Additionally, the results of the mental evaluation
were possibly questionable because Glover “simply was not
willing to provide much useful information about himself”
(Report at 6); that “he wants to gain attention and favor of
others not only by presenting himself in an attractive light,
but also by exposing his emotional distress” (Report at 7); and
finally that the report was otherwise incomplete.
On the other hand, Dr. Finke’s report confirmed that
Glover appeared to present himself in a way that would make him
seem more psychologically disturbed, indicating that Glover
suffered with intermittent explosive disorder.
However, it also
suggested that Glover could be successfully treated for the
condition and could ultimately become a productive member of
society.
Many reasons could interact to cause counsel to call
or not to call one witness rather than another.
As noted in
Dorton v. Commonwealth, 433 S.W.2d 117, 118(Ky. 1968),
this court absolutely will not turn back the
clock and retry cases in an effort to second
guess what counsel should have or should not
have done at the time. . . . [The appellant]
is not entitled to try the court and his
lawyer and the law.
-12-
We cannot conclude that counsel’s decision to call Dr. Finke
rather than Dr. McGregor during the penalty phase of the
proceedings fell outside the wide range of professionally
competent assistance.
Glover has not met his burden of
demonstrating that there is a reasonable likelihood that
testimony from another mental health expert would necessarily
have changed the outcome of the proceeding.
He has not given
any proof that he knows of a specific expert who would be
willing or able to testify in a manner helpful to the defense;
nor less has he alluded as to the content of such testimony.
He
has utterly failed to demonstrate any basis for his claim that
counsel’s performance was inadequate on this basis.
We are
persuaded that Glover received a fundamentally fair trial and
that the trial court did not err by denying his RCr 11.42 motion
for relief.
Glover last argues that the trial court erred in
failing to grant his CR 60.02 motion for a new trial.
He
contends that he is entitled to a new trial because Clifford
Taylor recanted his testimony that Glover participated in the
crimes committed against Ms. Sumner.
Nearly five years after he
first implicated Glover and more than two years after Glover’s
conviction, the trial court ruled that Taylor’s statement
contradicting his previous testimony was not sufficient to
entitle Glover to a new trial.
Taylor recanted his testimony by
-13-
way of an affidavit filed March 20, 2003.
That ruling is
reviewable under a standard of abuse of discretion.
Averitte v.
Huchinson, 420 S.W.2d 581 (Ky. 1967).
In denying relief pursuant to CR 60.02, the trial
court explained the basis of its disbelief of Taylor’s statement
recanting as follows:
On January 10, 2001, Clifford Johnny Taylor
appeared before the Court and changed his
plea from one of not guilty to one of
guilty. This Court asked him under oath
about the events surrounding Mrs. Summer’s
(sic) death, the robbery and the arson. At
that time, in summary, Clifford Johnny
Taylor swore to the Court that John Glover
killed Mrs. Sumner and that he participated
with him in the murder, robbery and arson,
that Frye nor Liska (sic) had been present
nor participated in these events.
Clifford Johnny Taylor later testified in
the trial of John Glover in the same fashion
and was subjected to an intense crossexamination. He did not waiver in his
testimony.
Sometime later Taylor testified before this
Court as a result of a Motion to Dismiss the
charges against John Glover’s mother. The
Commonwealth indicated that Taylor was the
only one who could link her to these crimes.
He testified she was not involved.
As a result of Taylor’s testimony, the
charges against Liska (sic) and Frye were
either dismissed in their entirety or
remanded to Juvenile Court for further
proceedings. The charges against [Glover’s
mother] were dismissed.
-14-
Now this Court has Taylor’s affidavit in
which he attempts to recant his testimony
before it.
This Court had the opportunity to observe
Mr. Taylor and to talk to him during his
various appearances before him.
I am convinced without question that the
statements he gave to me during his guilty
plea, his testimony at the trial of John
Glover, and his testimony about the noninvolvement of Liska (sic), Frye and
[Glover’s mother] were true. I do not
believe the story that appears four years
later in his affidavit is true.
If the Defendant desired to absolve John
Glover, he would have done so when he
absolved Lizka (sic), Frye and John Glover’s
mother. . . .
Order at 2-3.
The court also cited Anderson v.Buchanan, 168
S.W.2d 48, 53 (Ky. 1943), for the proposition that a statement
of a trial witness recanting “is no more binding that his former
[testimony]” and does not -- without more -- warrant a new
trial.
See also Hensley v. Commonwealth, 488 S.W.2d 338 (Ky.
1972) (a sworn statement recanting previous testimony -- even
from a vital witness -- is not reliable, should be afforded
little weight, and is not sufficient to entitle the appellant to
a new trial).
The trial court did not find Taylor’s recanted
statement credible.
We cannot find any basis to conclude that
the court abused its discretion by denying the relief requested.
The order of the Whitley Circuit Court is affirmed.
-15-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Amy E. Robinson
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
-16-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
