Summary
The Florida Supreme Court reviewed Terry Marvin Ellerbee, Jr.'s convictions for first-degree murder and related offenses and his death sentence arising from the killing of Thomas Dellarco in Okeechobee County. The court rejected or denied the claims presented on direct appeal, including challenges concerning ineffective assistance of counsel and the cold, calculated, and premeditated aggravating circumstance, and affirmed the convictions and sentence.
Topics
Practice areas
Questions Presented
- Whether ineffective-assistance-of-trial-counsel claims were cognizable on direct appeal.
- Whether competent, substantial evidence supported the cold, calculated, and premeditated aggravator.
- Whether the death sentence was proportionate in light of the aggravating and mitigating circumstances.
- Whether the evidence supported instructing the jury on the victim's particular vulnerability aggravator.
- Whether the State's cross-examination of the defense psychological expert required a new penalty phase.
- Whether the trial court erred by failing to expressly address statutory mitigators in its sentencing order.
- Whether the trial court erred in denying the motion to suppress evidence obtained from a search of Red Camp.
- Whether Florida's capital sentencing scheme violated Ring v. Arizona or otherwise failed to constitutionally narrow death-penalty eligibility.
- Whether sufficient evidence supported Ellerbee's first-degree-murder conviction under felony-murder and premeditated-murder theories.
Holdings
- Ellerbee's ineffective-assistance claims were not properly presented on direct appeal because any ineffectiveness was not apparent from the face of the record. The claims were denied without prejudice.
- Competent, substantial evidence supported the trial court's finding of the cold, calculated, and premeditated aggravator without a pretense of moral or legal justification.
- The death sentence was proportionate because the case involved highly weighty aggravators, including CCP, felony probation, and murder during burglary merged with pecuniary gain, while the mitigating circumstances received little weight.
- The evidence was sufficient to warrant a jury instruction on the statutory aggravator that the victim was particularly vulnerable due to age or disability, even though the trial court ultimately found the aggravator unproven.
- The trial court did not abuse its discretion by allowing the State to ask the defense psychologist whether he had notified the jail that Ellerbee was allegedly being denied needed medication.
- The trial court did not commit reversible error by omitting express discussion of statutory mitigators that Ellerbee had abandoned in his sentencing memorandum. Any error was invited or waived and harmless.
- The denial of the motion to suppress evidence found during the search of Red Camp was proper because Ellerbee, at most a trespasser, failed to establish a reasonable expectation of privacy and the owner consented to the search. Any error also would have been harmless.
- Ellerbee was not entitled to relief under Ring, and the challenged statutory aggravators and sentencing order complied with constitutional and statutory requirements.
- The evidence was sufficient to support Ellerbee's first-degree-murder conviction under both felony-murder and premeditated-murder theories.
Key quotations
“When this Court evaluates a trial court’s decision finding an aggravating circumstance: [I]t is not this Court’s function to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt — that is the trial court’s job. Rather, our task on appeal is to review the record to determine [1] whether the trial court applied the right rule of law for each aggravating circumstance and, if so [2] whether competent substantial evidence supports its finding.” (740-741)
“After reviewing the issues brought on appeal and conducting our own independent review of the sufficiency of the evidence, we affirm Ellerbee’s convictions for first-degree murder, burglary with a battery while armed with a firearm, animal cruelty, grand theft of a motor vehicle, and grand theft of a firearm and the sentences imposed for these offenses.” (749)
Factual background
Thomas Dellarco, a seventy-two-year-old man living alone in a rural area of Okeechobee County, was shot once in the head with a .22-caliber rifle. Evidence linked Ellerbee to the crime scene and subsequent use of Dellarco's vehicle and bank card, including DNA from cigarette butts, a thumbprint, surveillance footage, and banking records. Ellerbee confessed that he entered Dellarco's home, shot him, took property and the vehicle, used Dellarco's bank card, and moved the body. The State also presented evidence that Ellerbee had planned to collect weapons and supplies and occupy homes or structures on the Prairie.
Procedural history
After a jury trial, Ellerbee was convicted of first-degree murder, burglary with an assault or battery while armed, cruelty to animals, grand theft of a firearm, and grand theft of a motor vehicle. The jury recommended death by an eleven-to-one vote. Following a Spencer hearing, the trial court imposed a death sentence and entered a sentencing order finding three merged groupings of aggravating circumstances and assigning limited weight to the mitigating circumstances. Ellerbee appealed directly to the Supreme Court of Florida, which reviewed the raised claims and independently reviewed the sufficiency of the murder evidence.