& SC16-922 Terry Marvin Ellerbee, Jr. v. State of Florida & Terry Marvin Ellerbee, Jr. v. Julie L. Jones, etc., 232 So.3d 909

Terry Marvin Ellerbee, Jr. (age 21 at offense) confessed to entering Thomas Dellarco’s home, shooting him once with a .22 rifle (fatal wound to top of skull), stealing property, using the victim’s bank card, and moving the body to the garage; jury convicted him of first‑degree murder and related offenses.
Jury recommended death by an 11–1 vote; trial court imposed death after finding multiple aggravators (including murder while on felony probation, commission during burglary/pecuniary gain, and CCP).
On postconviction review under Fla. R. Crim. P. 3.851, Ellerbee raised multiple claims including ineffective assistance at guilt and penalty phases, Brady, conflicts, evidentiary objections, and constitutional challenges to Florida’s capital scheme; an evidentiary hearing was held on several claims.
The postconviction court found penalty‑phase counsel deficient for failing to discover noncumulative evidence of paternal neglect/abuse and substance abuse, but denied relief after reweighting mitigation.
On appeal and habeas, the Florida Supreme Court affirmed denial of guilt‑phase ineffectiveness claims, but (1) granted Hurst/Mosley relief vacating the death sentence for nonunanimous jury recommendation, and (2) held penalty‑phase counsel was ineffective for failing to investigate and present substantial childhood‑abuse and neurodevelopmental mitigation, warranting a new penalty phase.

Issue	Plaintiff's Argument (Ellerbee)	Defendant's Argument (State)	Held
Ineffective assistance — change of venue	Counsel should have moved for change of venue due to community knowledge/prejudice	Pretrial publicity minimal; voir dire and individual questioning showed impartial jurors; no pervasive bias	Denied — no reasonable probability motion would have succeeded; counsel not ineffective
Prosecutor voir dire remarks about religion	Remarks minimized jury responsibility (Caldwell) and counsel should have objected	Remarks sought to test a pastor's ability to follow law; did not absolve jury responsibility	Denied — remarks proper in context; no prejudice; counsel not ineffective
Admission of answering‑machine tape	Tape was inflammatory, prejudicial, counsel should have redacted or excluded	Tape used for nonhearsay purpose (timeline/investigation); many messages contained time references; overwhelming evidence of guilt	Denied — even if deficient, no prejudice to guilt verdict given confession and evidence
Ineffective assistance — penalty phase mitigation	Counsel failed to discover/present extensive paternal physical abuse, neglect, substance exposure, and expert neurodevelopmental testimony explaining effect of Adverse Childhood Experiences and drug use	State contends mitigation was presented and reweighting shows no prejudice	Granted — counsel was deficient and prejudice established; new penalty phase required (also Hurst/Mosley relief vacating death sentence)

Strickland v. Washington, 466 U.S. 668 (establishes two‑part ineffective assistance test)
Hurst v. Florida, 136 S. Ct. 616 (Sixth Amendment requires jury findings for death penalty)
Hurst v. State, 202 So. 3d 40 (Fla.) (Florida’s Hurst framework requires unanimous jury findings before judge may impose death)
Mosley v. State, 209 So. 3d 1248 (Fla.) (Hurst applied retroactively to post‑Ring finality class)
Caldwell v. Mississippi, 472 U.S. 320 (prohibits minimizing jury’s sentencing responsibility in capital cases)
Ring v. Arizona, 536 U.S. 584 (jury must find aggravating facts necessary for death sentence)
Maxwell v. Wainwright, 490 So. 2d 927 (Fla.) (standards for proving counsel deficiency)