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Ellerbee v. State

Supreme Court of Florida

December 21, 2017

TERRY MARVIN ELLERBEE, JR., Appellant/Cross-Appellee,
STATE OF FLORIDA, Appellee/Cross-Appellant. TERRY MARVIN ELLERBEE, JR., Petitioner,
JULIE L. JONES, etc., Respondent.


         An Appeal from the Circuit Court in and for Okeechobee County, Dan Lewis Vaughn, Judge - Case No. 472006CF000814CFAXMX And an Original Proceeding - Habeas Corpus.

          Neal A. Dupree, Capital Collateral Regional Counsel, Nicole M. Noël, Assistant Capital Collateral Regional Counsel, and Marta Jaszczolt, Staff Attorney, Southern Region, Fort Lauderdale, Florida, for Appellant/Cross-Appellee/Petitioner

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, Florida, for Appellee/Cross-Appellant/Respondent

          PER CURIAM.

         Terry Marvin Ellerbee, Jr., appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851, and petitions this Court for a writ of habeas corpus. The State cross-appeals the circuit court's finding of deficient performance of penalty phase trial counsel. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the postconviction court's order to the extent that it denies Ellerbee relief based upon his claim of ineffective assistance of guilt phase counsel. However, we conclude that Ellerbee is entitled to a new penalty phase proceeding pursuant to Hurst v. State, 202 So.3d 40 (Fla. 2016), cert. denied, 137 S.Ct. 2161 (2017), and Mosley v. State, 209 So.3d 1248 (Fla. 2016), and based on his claim of ineffective assistance of penalty phase counsel.


This Court detailed the following facts on direct appeal:
[O]n September 29, 2006, the body of Thomas Dellarco was found dead and decomposing, hidden under a blanket in the garage of his home. Dellarco was killed by a single .22 caliber bullet which entered the center of the top of his skull and traveled through his brain. Dellarco was seventy-two at the time of his death and had a number of health problems including gout, arthritis, partial blindness, trouble with his hearing, and difficulty with walking. Notwithstanding these infirmities, Dellarco lived alone with his pet dogs in a clean house on the Viking Prairie (the Prairie), a desolate, rural, and wooded area in Okeechobee County.
The sheriff deputies investigating the scene of the killing found cigarette butts strewn throughout Dellarco's house, blood stain patterns consistent with Dellarco having been shot from a distance greater than eighteen inches while he was sitting in the kitchen area of the home, and blood stains indicating that someone had attempted to clean the scene and dragged Dellarco's body into the garage. One of Dellarco's large German shepherd dogs-the one most protective of his master-was found dead outside the home with fatal bullet wounds. Further investigation conducted by law enforcement revealed that, in the days following Dellarco's demise, someone was using Dellarco's bank card to obtain cash and make retail purchases, and someone unsuccessfully attempted to cash a $1000 check drawn on Dellarco's bank account-and in doing so left an inked thumbprint with a bank in Sebring, Florida.
The cigarette butts found in Dellarco's house contained saliva deposits which, when tested, contained DNA that uniquely linked Terry Marvin Ellerbee, Jr.-a twenty-one-year-old man who was living with his girlfriend and her infant child in various hunting camps on the Prairie-to the scene of the crime. The thumbprint and video footage obtained from the Sebring bank confirmed that Ellerbee was the individual who attempted to cash the check purportedly signed by Dellarco. Moreover, additional evidence, including receipts, eyewitness testimony, banking records, and video surveillance, established that Ellerbee was using Dellarco's vehicle and was the individual using Dellarco's bank card in the days following his death. When apprehended, Ellerbee ultimately confessed to entering Dellarco's house and killing him.

. . . .

. . . Ellerbee admitted that on the day of the murder he approached Dellarco's home and spoke in a friendly and "neighborly" manner to Dellarco, whom he otherwise did not know. Dellarco gave Ellerbee a cigarette and informed Ellerbee that he would be travelling into town, a considerable distance, to run errands. Ellerbee then walked into the woods adjoining Dellarco's home and, after watching Dellarco leave for town, he shot one of Dellarco's dogs that was in the yard. Ellerbee entered the house armed with a single-shot .22 caliber rifle and a pistol that he brought to "back [him] up, for the dogs." Ellerbee told police that he remained in Dellarco's house while Dellarco was away on his trip to town for a "good hour, " and that he watched from inside the house as Dellarco returned and parked his vehicle outside the gate to the yard. Ellerbee stated that Dellarco, after first parking his vehicle, observed the dead dog and then walked across the yard. Thereafter, Dellarco came into the house angered, and then left the house to attend to his other dogs. During this time, Ellerbee remained in the house and hid in Dellarco's bedroom. After Dellarco was finished tending to his dogs outside, he came back inside the house and sat down at the kitchen table to make telephone calls. At this time, Ellerbee emerged from the bedroom, braced himself in a doorway across the room, raised the .22 caliber rifle and fired it, killing Dellarco. According to Ellerbee, Dellarco did not threaten him in "any way"; rather, the victim was not aware of Ellerbee's presence in the house. Ellerbee admitted that after he killed Dellarco, he took a wallet and cash from the dead man's pants, and he then took and used Dellarco's vehicle. Ellerbee admitted to using Dellarco's bank card and trying to cash a check drawn on Dellarco's bank account, and taking a .20 gauge shotgun that he found in the house. Ellerbee also admitted that he moved Dellarco's body to the garage and covered it with a blanket when he could no longer "stand the smell."
. . . And, later in his confession, Ellerbee told police that, although he shot and killed Dellarco, he intended his single shot- which was fatal and hit the victim in the center of the top of the skull-to be a "miss shot" so as to distract the victim to facilitate an escape. Further, Ellerbee stated that he entered Dellarco's house looking for food and money.

Ellerbee v. State, 87 So.3d 730, 734-37 (Fla. 2012), cert. denied, 568 U.S. 1093 (2013).

         Following a jury trial, Ellerbee was convicted of the first-degree murder of Dellarco. Id. at 733. He was also charged with and convicted of cruelty to animals for shooting and killing one of Dellarco's dogs; burglary with an assault or battery while armed; grand theft of a firearm for stealing Dellarco's shotgun; and grand theft of a motor vehicle for stealing Dellarco's automobile. Id. The jury recommended a sentence of death for the murder by a vote of eleven to one. Id. After a Spencer[1] hearing, the trial court entered a sentencing order that accepted the jury's recommendation. Id.

          The trial court found the existence of four statutory aggravators, which it merged into three: (1) the capital crime was committed while the defendant was on felony probation; (2) the capital crime was committed during the commission of a burglary, merged with pecuniary gain; and (3) the capital crime was cold, calculated, and premeditated without any pretense of moral or legal justification (CCP). Id. at 738.[2]

The trial court's findings as to mitigation were as follows:
(1) [Ellerbee] grew up without his mother, felt rejected by her, and was raised by his father (proven, but assigned little weight); (2) he did not have proper parental guidance from his father (proven in part- father was less than perfect, but loved Ellerbee, and never physically abused, neglected, or abandoned, him-very little weight); (3) he had a difficult childhood (proven, minimal weight); (4) he had a history of drug and alcohol abuse (proven, very little weight); (5) he suffers from a poor self-concept (proven, very little weight); (6) his parents were divorced, and he was from a broken home (proven, very minimal weight); (7) his mother suffered from mental illness (proven, very little weight); (8) his father abused his mother in front of him (proven, little weight); (9) his mother was cruel and unpredictable (proven, little weight); (10) he would go long periods without maternal contact (proven, very little weight); (11) his father abused drugs and alcohol (proven, little weight); (12) he has limited education (proven, very little weight); (13) he has a low IQ of 83 (proven, very little weight); (14) he suffered childhood trauma (proven, very little weight); (15) he has a history of suicide attempts and self-destructive behavior (proven, little weight); (16) he showed kindness to others (proven, minimal weight); (17) he was under the influence of intoxicants before, during, and after this incident (to the extent the evidence established that Ellerbee used drugs before and after the murder, the trial court found these factors warranted very little weight- nevertheless, the court found that Ellerbee did not prove he was using or under the influence of drugs on the day of the murder, and the court specifically found that Ellerbee was able to "plan things"); (18) Ellerbee cooperated with authorities (proven, in part-Ellerbee cooperated after he was caught-little weight); (19) Ellerbee was a hard worker at several trades ("some evidence, " little weight); (20)Ellerbee will adjust to prison life (proven, very little weight); (21)Ellerbee has "mental health issues, " . . . (the trial court found that Ellerbee did not prove he suffered from fetal alcohol syndrome, a significant brain injury, bipolar disorder, ADD/ADHD, or memory deficits, and assigned little weight "to the defendant having a cognitive disorder"); (22) Ellerbee suffers from poor dental hygiene (proven, but no relationship established with murder-very little weight); (23) Ellerbee exhibited appropriate courtroom behavior (proven, little weight).

Id. at 742 n.3. The trial court concluded "the proven aggravating circumstances substantially outweigh the non-statutory mitigating factors, " and imposed a sentence of death. Id. at 738-39.

         Direct Appeal Proceedings

         Ellerbee raised eleven issues on direct appeal: (1) whether trial counsel presented an invalid defense to felony murder, and if so, whether Ellerbee was thereby denied due process, his right to a jury trial, and effective assistance of counsel; (2) whether the trial court erred in finding CCP; (3) whether the trial court erred in instructing the jury on the aggravating circumstance that the victim was particularly vulnerable due to advanced age or disability; (4) whether the trial court erred in overruling Ellerbee's objection to the prosecutor asking defense expert

          Dr. Michael Riordan whether he telephoned the jail to advise that Ellerbee needed psychotropic medications; (5) whether the trial court erred in failing to consider certain statutory mitigating circumstances proposed by Ellerbee; (6) whether the trial court erred in denying Ellerbee's motion to suppress the evidence from the location where Ellerbee temporarily resided on the Prairie; (7) whether the trial court erred in denying Ellerbee's motion for special verdict forms; (8) whether the felony murder aggravator in section 921.141(5)(d), Florida Statutes (2006), is unconstitutional on its face and as applied; (9) whether the trial court failed to make the findings necessary for the imposition of the death penalty; (10) whether it was error for the trial court to use the aggravating circumstance that Ellerbee committed the murder while on probation; and (11) whether Florida's death penalty statute violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Id. at 739-48. This Court rejected all claims and affirmed Ellerbee's convictions and sentences. Id. at 748.

         Postconviction Proceedings

         On December 20, 2013, Ellerbee timely filed a Motion to Vacate Judgment of Conviction and Sentence pursuant to Florida Rule of Criminal Procedure 3.851. Ellerbee filed an amended motion on May 27, 2014. In his amended motion, Ellerbee raised the following claims: (1) the application of rule 3.851 to Ellerbee's case violates his rights to due process and equal protection because the rule applies only to capital defendants and allows only one year to file a capital postconviction motion; (2) section 27.7081, Florida Statutes (2016), and Florida Rule of Criminal Procedure 3.852 are unconstitutional both facially and as applied because they impermissibly restrict capital defendants' access to public records; (3) Florida Rule of Professional Responsibility 4-3.5(d)(4) is unconstitutional both facially and as applied because it prohibits a defendant from investigating claims of juror misconduct and bias that may be inherent in the jury's verdict; (4) the State failed to disclose exculpatory or impeachment evidence or both in violation of Brady v. Maryland, 373 U.S. 83 (1963); (5) trial counsel failed to disclose a conflict of interest; (6) trial counsel was ineffective during the guilt phase for (a) failing to move for a change of venue, (b) failing to object to prosecutorial misconduct during voir dire, (c) failing to properly challenge Ellerbee's waiver of his Miranda[3]rights and the voluntariness of his confession, (d) failing to move in limine to prevent the admission of irrelevant and unfairly prejudicial evidence, and (e) presenting an invalid defense to felony murder; (7) trial counsel was ineffective during the penalty phase for (a) failing to challenge the CCP aggravator, and (b) failing to investigate and present available mitigation evidence; and (8) section 922.105, Florida Statutes (2016), which governs execution of the death sentence and the existing lethal injection protocol, is unconstitutional.

          An evidentiary hearing was granted on claims 4, 5, 6(c), 6(e), and 7. The hearing was conducted in two phases: Phase I was held on October 20-21, 2014, October 23, 2014, and January 22, 2015. Ellerbee presented twelve witnesses: attorney Stanley Glenn (trial defense second chair), [4] Amy Perron (trial defense investigator), Dr. Michael Riordan (trial defense mental health expert), attorney Norman Tebrugge (American Bar Association death penalty guidelines expert), Marvin Mosely, Sr. (Ellerbee's great uncle), Linda Mosely (wife of Marvin Mosely, Sr.), Marvin Mosely, Jr. (Ellerbee's second cousin), Starla Mosely (wife of Marvin Mosely, Jr.), Robert Ellerbee (Ellerbee's uncle), Randall Ellerbee (Ellerbee's uncle), Joshua Ellerbee (Ellerbee's cousin), and Cheryl Smith (Ellerbee's childhood guidance counselor). Phase II was conducted on June 25-26, 2015. Ellerbee presented two mental health experts: James Garbarino, Ph.D., and Marlyne Israelian, Ph.D. The State presented testimony from Dr. Riordan.

         On September 29, 2015, the postconviction court entered an order denying all claims. In its order, the court concluded trial counsel was deficient for "failing to discover the noncumulative evidence of paternal neglect, paternal abuse, and the extent of paternal substance abuse." As a result, the postconviction court reweighed the aggravating and mitigating circumstances. The court elevated the weight assigned to mitigating factors (2), (3), and (11) to "moderate weight, " but concluded the aggravating circumstances still substantially outweighed the mitigation. The court therefore determined Ellerbee was not prejudiced as a result of trial counsel's deficiency and denied relief on the claim of ineffective assistance of penalty phase counsel.

         This appeal follows. On May 27, 2016, Ellerbee filed a petition for writ of habeas corpus with this Court, seeking relief pursuant to Hurst v. Florida, 136 S.Ct. 616 (2016).


         Ellerbee presents several claims of ineffective assistance of trial counsel. A defendant alleging ineffective assistance of counsel must prove: (1) counsel's performance was deficient; and (2) the deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). If the defendant fails to establish prejudice, the reviewing court need not make a specific ruling regarding deficiency. Id.

         To establish deficiency, the defendant "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." Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986). The act or omission must constitute an error "so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687. However, there is a strong presumption that trial counsel's performance was not ineffective, and "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. We have held that "strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000). Therefore, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Moreover, "[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." Id.

         To establish prejudice, the defendant must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "Reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id. In other words, the defendant must show that counsel's "clear, substantial deficiency . . . so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined." Maxwell, 490 So.2d at 932. Mere speculation is not sufficient to form the basis for postconviction relief. See Derrick v. State, 983 So.2d 443, 462 (Fla. 2008) ("[I]n order to sufficiently undermine this Court's confidence in the outcome of resentencing, [the defendant] must rely on more than mere speculation."); see also Maharaj v. State, 778 So.2d 944, 951 (Fla. 2000) ("Postconviction relief cannot be based on speculation or possibility.").

         When reviewing a postconviction court's ruling on an ineffectiveness claim, this Court employs a mixed standard of review, deferring to the trial court's findings on factual issues that are supported by competent, substantial evidence, and reviewing the trial court's legal conclusions de novo. Bruno v. State, 807 So.2d 55, 62 (Fla. 2001).


         Ellerbee first contends that trial counsel was ineffective for failing to move for a change of venue. In considering this claim, we must determine whether there is a "reasonable probability that the trial court would have, or at least should have, granted a motion for change of venue" had counsel made such a motion. Griffin v. State, 866 So.2d 1, 12 (Fla. 2003) (quoting Wike v. State, 813 So.2d 12, 18 (Fla. 2002)). In other words, the inquiry "is whether a change of venue was proper and whether counsel would have been successful had he moved for a change of venue." Id.

          Under Florida law, a "defendant may move for a change of venue on the ground that a fair and impartial trial cannot be had in the county where the case is pending for any reason other than the interest and prejudice of the trial judge." Fla. R. Crim. P. 3.240. "The test for determining whether to grant a change of venue is whether the inhabitants of a community are so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom." Griffin, 866 So.2d at 12. "In exercising its discretion regarding a change of venue, a trial court must make a two-pronged analysis, evaluating: (1) the extent and nature of any pretrial publicity; and (2) the difficulty encountered in actually selecting a jury." Id. However, it is well-established that "pretrial publicity is normal and expected in certain kinds of cases, and that fact standing alone will not require a change of venue." Id. There are several factors to consider when evaluating pretrial publicity, including:

(1) when the publicity occurred in relation to the time of the crime and the trial; (2) whether the publicity was made up of factual or inflammatory stories; (3) whether the publicity favored the prosecution's side of the story; (4) the size of the community exposed to the publicity; and (5) whether the defendant exhausted all of his peremptory challenges in seating the jury.

State v. Knight, 866 So.2d 1195, 1209 (Fla. 2003).

         Regarding the second prong of the analysis, the critical inquiry is "whether any difficulty encountered in selecting a jury . . . reflected a pervasive community bias against [the defendant] which so infected the jury selection process that it was impossible to seat an impartial jury" in the county where the trial was held. Rolling v. State, 695 So.2d 278, 287 (Fla. 1997). "The ability to seat an impartial jury in a high-profile case may be demonstrated by either a lack of extrinsic knowledge among members of the venire or, assuming such knowledge, a lack of partiality." Id. at 285. A change of venue is required if "it is impossible to select jurors who will decide the case on the basis of the evidence, rather than the jurors' extrinsic knowledge." Id. (citing Copeland v. State, 457 So.2d 1012, 1017 (Fla. 1984)). However, "jurors need not be totally ignorant of the facts of the case nor do they need to be free from any preconceived notion at all . . . . [I]f prospective jurors can assure the court during voir dire that they are impartial despite their extrinsic knowledge, they are qualified to serve on the jury, and a change of venue is not necessary." Id. (citing Davis v. State, 461 So.2d 67, 69 (Fla. 1984)). This Court has also recognized:

In some instances, the percentage of prospective jurors professing an extrinsic knowledge of the case or a fixed opinion has been used to determine whether pervasive community prejudice exists. However, even where a substantial number of prospective jurors admit a fixed opinion, community prejudice need not be presumed. For instance, in [Murphy v. Florida, 421 U.S. 794 (1975)], the United States Supreme Court evaluated these percentages as follows:
In the present case, . . . 20 of 78 persons [or 25.6%] questioned were excused because they indicated an opinion as to petitioner's guilt. This may indeed be 20 more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own.
421 U.S. at 803 (footnote omitted).

Id. (parallel citations omitted).

         Here, Ellerbee has failed to establish that a change of venue would have been proper or that trial counsel would have been successful had he moved for a change of venue. Pretrial publicity in this case was minimal: the local newspaper, the Okeechobee News, published only two articles about the murder. Ellerbee does not allege that these publications were either inflammatory or favored the prosecution. Further, the articles were published shortly after the murder occurred, approximately three years prior to jury selection.

         We have held that a change of venue was not warranted in several cases involving much more extensive pretrial publicity. In Rolling, the defendant was convicted of the murders of five local college students. 695 So.2d at 281. On direct appeal, this Court rejected Rolling's argument that the trial court abused its discretion when it denied his motion for a change of venue. Id. at 287-88. We acknowledged it was "undisputed that the brutal slaying of five young students deeply affected the college community of Gainesville, Florida and generated overwhelming local and national media attention. While the amount of media coverage in this case makes it unique, the extent of publicity it received was certainly not surprising or unwarranted given the circumstances of this case." Id. at 287 (emphasis added). In rejecting Rolling's contention "that the responses of both prospective and actual jurors during voir dire further demonstrated a real, community-wide prejudice and animosity toward him, " the Court explained:

Not surprisingly, of course, every member of the venire had some extrinsic knowledge of the facts and circumstances surrounding this case. Also as expected, the responses of certain prospective jurors showed that their knowledge of the case prevented them from sitting impartially on the jury. Nevertheless, the animus toward Rolling expressed by these individuals reflected nothing more than their own personal beliefs or opinions. Contrary to Rolling's assertions, we find no reason to believe that certain prospective jurors who voiced a bias against Rolling-none of whom sat on Rolling's jury-somehow spoke for the entire Alachua County community.

Id. (emphasis added).

         Similarly, in Copeland, the defendant was convicted of the kidnapping, rape, and murder of a nineteen-year-old woman in Wakulla County. 457 So.2d at 1014. The defendant argued the trial court erred in denying his motion for a change of venue because the "general atmosphere of hostility against him was established by testimony that the crimes were the main topic of conversation in the rural community of Wakulla County." Id. at 1017. We disagreed, holding a change of venue is not required "in every highly publicized criminal prosecution in a rural community." Id. Even where "every member of the jury panel had read or heard something about the crime, " a presumption of impartiality is supported by veniremembers' assurances that "they would be able to disregard the previously gained information and render a verdict based on the evidence presented in court." Id It is the defendant's burden to overcome this presumption and "demonstrate 'the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.' " Id. (quoting Murphy v. Florida, 421 U.S. 794, 800 (1975)).

         According to Ellerbee, the fact that so many jurors acknowledged having at least some extrinsic knowledge of the case reflects the existence of pervasive community prejudice. Roughly 32% of the veniremembers indicated they either had been previously exposed to the facts of the case or knew someone involved in the trial. However, as ...

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