Ellerbee v. State

• Decision Date: 07 May 2012
• Docket Number: No. SC10–238.,SC10–238.
• Citation: 87 So.3d 730
• Parties: Terry Marvin ELLERBEE, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

87 So.3d 730

Terry Marvin ELLERBEE, Jr., Appellant,

v.STATE of Florida, Appellee.

No. SC10–238.

Supreme Court of Florida.

March 1, 2012.

Rehearing Denied May 7, 2012.

Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Lisa–Marie Krause Lerner, Assistant Attorney General, West Palm Beach, FL, for Appellee.

PER CURIAM.

Terry Marvin Ellerbee, Jr., appeals his judgment of conviction for first-degree murder and sentence of death. We have jurisdiction. Seeart. V, § 3(b)(1), Fla. Const. For reasons set forth below, we affirm Ellerbee's convictions and death sentence.

FACTUAL AND PROCEDURAL HISTORY

Overview

After a jury trial, Terry Marvin Ellerbee, Jr., was convicted of the September 2006, first-degree murder of Thomas Dellarco in Okeechobee County, Florida. In addition to first-degree murder, Ellerbee was charged with and convicted of the contemporaneous burglary of Dellarco's home with an assault or battery while armed; grand theft of a firearm for stealing Dellarco's shotgun; cruelty to animals for thrice shooting one of Dellarco's dogs before entering the home; and grand theft of a motor vehicle, for stealing Dellarco's automobile. At the penalty phase, the jury recommended death by an eleven-to-one vote. After conducting a Spencer hearing,¹ the trial court entered a Sentencing Order accepting the jury's recommendation and imposing the death penalty. In this direct appeal of his judgment of conviction and death sentence, Ellerbee raises twelve issues challenging the effectiveness of his trial counsel and various rulings and conclusions made by the trial court at both the guilt and sentencing phases—including an issue regarding the proportionality of the death sentence. He also challenges the constitutionality of Florida's capital sentencing scheme. We first discuss the factual and procedural history of the case. We then address the various legal issues raised through this appeal. Lastly, although neither party challenges the sufficiency of the evidence supporting Ellerbee's conviction for first-degree murder, we examine the evidence in accordance with our independent duty to do so, and conclude that competent, substantial evidence supports the jury's verdict of guilt for Ellerbee's first-degree murder of Dellarco.

The Guilt Phase

The evidence introduced at the guilt phase of trial established that on 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.

During the guilt phase of the trial, the jury was presented additional evidence that demonstrated the facts and events leading up to and following Dellarco's death. Ellerbee first met his girlfriend Amber Reed in a cell phone chat room and the two eventually began to date. In the spring of 2006, Amber Reed, who was pregnant with another man's child, decided to move to Okeechobee, Florida, to live with Ellerbee. Ellerbee did not have a place of his own, but lived with a friend, Evadean Hutchison, and her children. Ellerbee moved Amber Reed into Evadean's home, but after a few months Evadean ordered him to leave, allowing Amber Reed and her child to remain. Ellerbee moved into a slaughterhouse for a few days and then moved into his father's house, where he slept for a couple of nights.

On the morning of September 13, 2006, Amber Reed asked Evadean if she could borrow her Ford Explorer to go to a social services office to get food stamps for the baby. Evadean acquiesced, but stated that she needed the car back by ten that morning. Amber Reed never returned the vehicle. Instead, she picked up Ellerbee from his father's house, purportedly to give Ellerbee a ride to work, at which time Ellerbee got behind the wheel and drove Amber Reed and the baby out to the Prairie. After calling Ellerbee and Amber Reed several times, Evadean reported her car as stolen to the Okeechobee Sheriff's Office.

Once on the Prairie, Ellerbee drove around until he found a “very secluded” recreational vehicle camper (RV camper). He broke into the RV camper and moved Amber and the baby in. Although the RV camper had no electricity, Ellerbee ran wires from the battery of Evadean's Explorer into the camper. In the following days, Ellerbee made numerous trips away from the RV camper bringing back items such as a pistol, a .22 rifle, and a shotgun. Ellerbee would later admit that he burglarized at least three hunting camps on the Prairie during this period.

The RV camper and the property on which it sat belonged to Anna Jones, who also owned a separate home on the Prairie. In the early morning hours of September 21, 2006, Anna Jones drove out to the RV camper and noticed the Explorer (later established as Evadean's stolen vehicle) parked nearby. Jones testified that it looked as if someone had “taken up residence” in the RV camper. She noticed a clothesline with clothes on it and a commercial mower that had been used to cut the grass round the camper. She took down the license plate number of the Explorer and knocked on the door; a skinny girl—Amber Reed—answered the door carrying a “newborn” baby. Amber Reed told Jones that her boyfriend, who was out walking on the Prairie, said they had permission to be there. Jones told Amber Reed to leave or she (Jones) would call the police. Ellerbee, who was watching from afar, returned to the RV camper, and he and Amber Reed hurriedly packed up their things and left.

After being evicted from the RV camper, Ellerbee drove Amber Reed and the baby around on the Prairie until they came upon “the red house” (Red Camp), where they “basically set up residence.” Red Camp was old and “very dirty.” Ellerbee was dissatisfied with his living conditions and declared that he “deserved to live better than this”; he then set out on the Prairie by foot, armed with three guns, a “bunch of ammo,” and four to six throwing knives in his boots. Thomas Dellarco—the victim—owned a nice, clean home one mile north of Red Camp. According to Amber Reed, a “couple of hours” after Ellerbee declared his right to better living conditions, he returned to Red Camp, “very happy,” driving a “very clean” light blue Ford Explorer—it was Dellarco's automobile. He told Amber Reed that he borrowed the truck from a man and was late coming back to Red Camp because he “had to wait for the man to get home.” They left Red Camp for the night and stayed in a motel in Sebring.

In Sebring, Ellerbee and Amber Reed used the victim's bank card to obtain money and make purchases and unsuccessfully attempted to cash a check drawn on Dellarco's checking account. The next day, they returned to Red Camp. According to Amber Reed, it was then that Ellerbee told her that he killed Dellarco. Ellerbee told her that he planned to bury Dellarco's body in the backyard and that they could move into Dellarco's house. According to Ellerbee, it was a “very nice” home with a pool. Ellerbee told Amber Reed that Dellarco had no family and no one would care if he was gone. Ellerbee and Amber Reed stayed on the Prairie for several days until they sensed an increased presence of law enforcement in the area. According to Ellerbee, he was hiding in the woods and watched law enforcement officers recover Evadean's Explorer from Red Camp. And, on the same day, he was spying on the police from the woods outside Dellarco's house when Dellarco's body was discovered. Ellerbee then left the Prairie in a hurry in Dellarco's vehicle, discarded the .22 caliber rifle, and moved into a friend's trailer in Osceola County where he remained with Amber Reed and her baby until Ellerbee was arrested several days later by the ...