FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Appeal from the Circuit Court in and for Okeechobee County,
Dan Lewis Vaughn, Judge - Case No. 472006CF000814CFAXMX And
an Original Proceeding - Habeas Corpus
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
Jo Bondi, Attorney General, Tallahassee, Florida, and
Lisa-Marie Lerner, Assistant Attorney General, West Palm
Beach, Florida, for Appellee/Cross-Appellant/Respondent.
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
AND PROCEDURAL HISTORY
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
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).
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 hearing, the trial court entered a
sentencing order that accepted the jury's recommendation.
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.
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.
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.
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
Mirandarights 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.
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),  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.
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
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).
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.
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
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
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).
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.
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).
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
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).
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.
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
Id. (emphasis added).
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