RANDY W. TUNDIDOR, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
Appeal from the Circuit Court in and for Broward County,
Cynthia G. Imperato, Judge - Case No. 062010CF006496A88810
Stafford Haughwout, Public Defender, and Gary Lee Caldwell,
Assistant Public Defender, Fifteenth Judicial Circuit, West
Palm Beach, Florida, for Appellant
Jo Bondi, Attorney General, Tallahassee, Florida; and Leslie
T. Campbell, Assistant Attorney General, West Palm Beach,
Florida, for Appellee
W. Tundidor appeals his conviction of first-degree murder and
sentence of death as well as his two convictions for
attempted felony murder. We have jurisdiction. See
art. V, § 3(b)(1), Fla. Const. For the reasons stated
below, we vacate Tundidor's two convictions of attempted
felony murder, deny all other claims raised on appeal, and
affirm Tundidor's conviction for first-degree murder and
sentence of death.
W. Tundidor was convicted of first-degree murder of Joseph
Morrissey (Count I), two counts of attempted first-degree
murder and two counts of attempted felony murder of Linda
Morrissey and Patrick Morrissey (Counts II- V), two counts of
armed kidnapping of Joseph Morrissey and Linda Morrissey
(Counts VI-VII), armed burglary (Count VIII), armed robbery
of Joseph Morrissey and Linda Morrissey (Count IX), and arson
(Count X). Joseph and Linda Morrissey, husband and wife, were
Tundidor's landlords. Patrick Morrissey is Joseph and
Linda's son, who was five years old at the time of the
trial, the State presented the testimony of Linda Morrissey
and Tundidor's son, Randy H. Tundidor
("Junior"), among other evidence that demonstrated
the following. In December 2009, Tundidor rented a townhouse
from the Morrisseys and moved in with his fiancée,
Hilda Mendieta, Hilda's children and mother, and
Tundidor's other son, Shawn Tundidor. Shortly after
moving in, Tundidor began conducting repairs on the townhouse
and then deducting the costs from his rent payment, which
caused a dispute with the Morrisseys. In a letter dated April
2, 2010, Joseph informed Tundidor that he was in violation of
the lease. On April 5, 2010, Tundidor received the letter at
his townhouse and became very upset and angry with Joseph.
left the townhouse and called his son, Junior, to ask him if
he knew someone who could hurt Joseph. Junior offered to help
Tundidor scare Joseph if Tundidor would let Junior stay with
him at the townhouse. Later that evening, Tundidor picked
Junior up in Hollywood and then drove to Tundidor's
the business, Tundidor told Junior that Joseph was evicting
him and destroying his family. During the conversation,
Tundidor gathered some items, including a cleaned and loaded
silver .380-caliber gun, eight to ten sets of wire cuffs made
from zip ties, a screw driver, a big knife, and a set of
walkie-talkies, placing these items inside a box. The plan
was for Junior to enter the Morrisseys' house, tie them
up, and then search for anything of value. Tundidor told
Junior to use the walkie-talkies for communication and to
turn off his cell phone so the police could not track it.
From the business phone line, Tundidor called Hilda, his
fiancée, and asked her to "MapQuest"
directions to the Morrisseys' house, and she read the
results to Tundidor over the phone. Tundidor and Junior left
the business at 10:37 p.m. and drove to the Morrisseys'
the Morrisseys' house, Junior armed himself with the gun
and entered the house through an open window. Junior did not
hide his face, but he wore two layers of gloves. Junior
walked through the house to a lighted room where he found
Linda. Junior asked for Joseph, and Linda brought Junior to
the living room where Joseph was sleeping on the couch.
Junior yelled to wake Joseph. Next, Junior used the zip tie
cuffs to bind Linda's and Joseph's hands, and then he
directed them to the master bedroom. Patrick was sleeping on
the bed in the master bedroom, but Junior did not wake him.
Junior had Linda and Joseph kneel by the bed, and he covered
their heads with towels so they could not see. During this
time, Junior was communicating with Tundidor using the
walkie-talkies to tell him what steps had been completed.
Junior left the Morrisseys in the bedroom and let Tundidor
into the house through the front door. Once inside, Tundidor
directed Junior to look for valuables. Junior returned to the
bedroom and demanded things of value. Linda offered Junior
her wedding ring and some other jewelry, but Junior did not
take it because he did not think it was valuable. Junior went
through Joseph's wallet, but only found a few dollars and
some euros. Junior left the bedroom to go talk to Tundidor.
Tundidor told Junior that he wanted money and that Junior had
to take the Morrisseys to the ATM to withdraw $5, 000. Junior
returned to the bedroom and told the Morrisseys that they
were going to the bank to withdraw $5, 000. They took the
Morrisseys' car, and Junior made Joseph drive with Linda
in the front passenger seat while Junior sat in the back seat
with the gun. Junior left Patrick at the house because he did
not want to wake him. When at the ATM machine, Linda was only
able to withdraw $500, which she gave to Junior.
returning to the house, Junior brought Linda and Joseph back
into the master bedroom, where he used a new set of zip ties
to bind their wrists. Junior covered Joseph's and
Linda's heads again. Patrick was still asleep on the bed.
Junior used the walkie-talkie to report to Tundidor that the
Morrisseys were tied up and scared and that he had obtained
some money from them. Tundidor reentered the house, and
Junior gave Tundidor the $500. Tundidor began looking around
at the Morrisseys' electronic equipment. Tundidor
directed Junior to take the Morrisseys' two laptops and
put them in Tundidor's car; the laptops were later found
at Tundidor's business during a search of the premises.
Tundidor announced to Junior that Joseph had to die. Junior
argued with Tundidor, but ultimately, Junior gave the gun to
his father and retrieved Joseph from the master bedroom.
Junior entered the master bedroom and first bound the
Morrisseys' feet together with sets of zip ties. Junior
then forced Joseph to hop to the living room. Tundidor threw
Joseph on the couch as Junior watched. With gun in hand,
Tundidor put a pillow to Joseph's head and pulled the
trigger, but the gun jammed. Tundidor gave the gun to Junior
and then retrieved the large knife from the box.
gloves borrowed from Junior, Tundidor stabbed Joseph in the
stomach area. Joseph begged for his life as he was being
stabbed. Eventually, Joseph stood up, bleeding from the
stomach area and his hands. Tundidor swung the knife at
Joseph's head and neck area, making contact there. Joseph
fell to the floor. After stabbing Joseph, Tundidor handed the
knife to Junior and told him to put it back in the box and to
put the box in the car. Junior complied. Junior testified
that Tundidor had no difficulty swinging the knife or moving
about the house; Tundidor was not limping and was not using
Junior and Tundidor went into the garage. Tundidor saw a gas
can and directed Junior to pick it up. Junior handed the gas
can to Tundidor, and Tundidor started spreading gasoline
around the house, starting in the living room and kitchen.
Tundidor announced he wanted to kill Linda and Patrick too,
saying, "They got to go too." Junior protested,
angering his father. Tundidor then lit a fire near Joseph.
Junior left the house, and Tundidor followed him out the
front door. Tundidor left Linda and Patrick in the bedroom;
Linda had her hands tied behind her back and feet tied
together, but Patrick was unrestrained.
testified that she struggled and managed to get one hand free
from her restraints. During the stabbing, she heard Joseph
cry and plead, but was unable to get to him because her feet
were bound. She was able to see Joseph moving and twitching
like he was being hurt. Then, she saw an orange light coming
from the kitchen and heard the fire alarm go off. Linda next
heard the two men leave the house through the front door.
tried to hop, but she fell and hurt her arms. Linda called to
Patrick and asked him to get scissors; Patrick found a pair
and was able to cut Linda free from her restraints. At this
point, the house was full of smoke. Patrick crawled to the
front door, and Linda looked for Joseph, finding his body in
the family room. Linda called to Joseph, but he did not
respond. Linda ran outside and screamed for help. Getting no
immediate response, Linda ran back inside to Joseph and
realized there was "slippery stuff" on the floor
and that Joseph was on fire. Linda struggled to pull Joseph
out of the house and eventually got Joseph outside on the
patio, but he was unresponsive.
officer who responded to the scene testified that he found
the house filled with smoke and Joseph with his hands and
feet bound together, covered in blood, lying on the back
patio. The officer smelled gasoline and saw a gas can in the
living room and a fire in the kitchen. A fireman testified
that he saw a gas can near the front door and could smell
gasoline in the air. Linda testified that she had last seen
her gas can near the garage door and that she did not know
how it came to be near the front door. Junior's DNA was
found on the gas can. Also, the shirt Junior wore at the time
of his arrest had Joseph's blood on it.
Kendall testified that he arrived on the scene in the early
morning hours on April 6, 2010. Based on an interview with
Linda, he initially suspected Junior, and he put a warrant
out for Junior's arrest. Detective Kendall also sent an
officer to observe Tundidor's home in an unmarked car.
Trelka, the medical examiner, testified that Joseph suffered
multiple stab wounds, blunt force trauma, and thermal
injuries. Dr. Trelka noted burns to Joseph's scalp and
the right side of his neck and shoulder. Joseph may have been
alive when he was burned based on the redness of his skin
around the burn areas; however, the carbon monoxide level in
his blood was negative. If Joseph was alive when burned, it
was not for long. Dr. Trelka noted that there was movement
between Joseph and his assailant during the stabbings. The
stabbing injury to Joseph's hand and finger was
potentially fatal and could have been a defensive wound. A
knife capable of causing the injuries to Joseph had to be a
very sharp, solid weapon and at least seven or eight inches
long. The knife the police obtained, a bowie knife, which was
the same as the knife missing from Tundidor's collection,
was consistent with the injuries Dr. Trelka observed.
testified that after leaving the Morrisseys' house,
Tundidor and Junior drove back to Tundidor's business.
Once there, Tundidor gave Junior $60 so Junior could go buy
drugs. About an hour later, Junior returned and found that
Tundidor had burned the clothes he wore to the
Morrisseys' house and changed into a different set of
clothes. Tundidor and Junior then left the business and drove
to Tundidor's townhouse. Tundidor gave Junior the knife,
which had been cleaned and ground down, and asked Junior to
get rid of it. Junior threw the knife into a nearby lake.
testified that after arriving home, he went into
Tundidor's garage to use coke. Junior did not change his
clothes. Later in the day on April 6, 2010, the police came
to the house to talk to Tundidor, and Junior hid in the
attic. After the police left, Tundidor told Junior that the
police were looking for Junior. Junior spent the rest of the
day in the attic taking drugs. Tundidor woke Junior up in the
early hours of April 7, 2010, and told Junior to leave.
Junior went to a gas station where he made some phone calls.
Within about 45 minutes of arriving at the gas station,
Junior was arrested.
was taken to the police station where he met with Detective
Kendall. In that meeting on April 7, 2010, Junior "gave
him a story, " making up names of people that he said
were involved in the crimes because he did not want to be
charged with murder. Later, on April 29, 2010, Junior spoke
with Detective Kendall again, disclosing much, but not all,
of what had transpired. Junior testified that he changed his
mind and decided to tell the truth and testify against
Tundidor because Tundidor was blaming the crimes on Junior
and Shawn (Junior's brother and Tundidor's son). In
exchange for Junior's testimony against Tundidor, the
State reduced the charge to second-degree murder, eliminating
the possibility of a death sentence, and Junior agreed to
plead guilty to all other charges.
police searched Tundidor's business and found zip ties
similar to those used to bind the Morrisseys, a set of
walkie-talkies, and euros in the garbage can. Police
documented a burn area in the parking lot, and residue from
the area was collected. A surveillance video recorded the
burning at 2:30 a.m. on April 6, 2010.
testified that on April 6, 2010, she learned about the murder
on the 6 a.m. news. Junior was at home, which was uncommon.
Junior saw the news and looked scared. When Hilda confronted
Tundidor about the murder, he asked whether she really wanted
to know, and Hilda replied that she did not.
that morning, Hilda and Shawn went to work at Tundidor's
business and noticed that a bowie-like knife was missing.
They also smelled gasoline and a burning odor. The smells
were coming from the bathroom and back of the shop. They also
saw burn marks in the bathroom and ashes in the parking lot,
which had not been there previously. Tundidor told Hilda that
he burned Junior's crack pipe and asked her to sweep it
away, which she did. Hilda testified that the pile she swept
up was "pretty big" and looked like pieces of
April 9, 2010, Tundidor asked Hilda to get rid of his silver
and black gun. When she refused, he said, "[Y]ou want me
to go to jail?" He then locked himself in his room, and
she heard him using power tools. Later that day, Hilda found
holes and gouges in the drywall of her bedroom where no such
marks had existed before.
testified that on April 5, 2010, he returned home between
9:30 and 10 p.m., before the crime took place, and
immediately made a phone call. He did not leave the house
again that evening and was on the phone until 1 or 2 a.m.
Tundidor was not home when Shawn fell asleep on the couch.
Yoska Guillen confirmed that Shawn was on the phone with her
on April 5, 2010. This call lasted from 11:20 p.m. until
12:10 a.m. the next morning. During that time, Shawn did not
disconnect, and Yoska said she did not hear noises in the
background or Shawn talking to anyone else. Hilda also
testified that on April 5, Shawn returned home that evening
at about 8 p.m. and was on the phone for a very long time,
until 10 to 10:30 p.m. While she did not see him the rest of
the night, she heard him in the house. Hilda believes she
would have been alerted by the alarm noises if Shawn had left
the house the night of the crimes.
following morning, Shawn learned about the Morrisseys on the
news and asked Junior what happened. Junior replied that he
should ask Tundidor. When Shawn confronted Tundidor, who was
also watching the news, Tundidor said: "Nobody f***s
with [Tundidor] and gets away with it." Shawn did not
press his father any further and just went to work at
Tundidor's business. When Shawn arrived at Tundidor's
business, he found the doors locked and alarm set. Upon
entering, he noticed that a knife was missing from the
display case and its box was on the floor. He found the sink
stained with burn marks and a big black burn stain outside
near the garage door with ash, clothing pieces, and other
Junior's arrest, Shawn confronted Tundidor. Tundidor
admitted to Shawn that Junior did not know that Joseph was
going to die that night; Junior only thought they were going
to rob the Morrisseys and that Junior would get money for
crack cocaine. Tundidor admitted to Shawn that he sent Junior
into the Morrisseys' house to tie up the Morrisseys.
Shawn inquired about white sneakers he had left in the car,
and Tundidor replied that "they were not white when I
was done with them." Tundidor also complained that
Joseph was trying to evict him, and Tundidor said he could
not let his family be thrown out on the streets, following up
with "nobody f***s with [Tundidor]" and
"nobody gets away with it." Also, Tundidor asked
Shawn to retrieve the rent checks from the mailbox as he no
longer had to pay the landlord since he was dead.
result of this conversation, Shawn asked the police to let
him wear a wire. The resulting recording was played for the
jury. On the tape, Tundidor said that Junior had the
Morrisseys drive to the bank and withdraw money, that Linda
could not identify either him or Junior, that the worst
things the police had were the laptops from the house, and
that he would pin the murder on "Will" before
letting Junior take the blame for murder. Also, Tundidor is
heard on the tape saying, "The murder weapon, they
ain't gonna find it." Tundidor then told Hilda and
Shawn to "look the other way" and not
"ask" him things or try to figure things out. On
cross-examination, the defense explored Shawn's police
statements in which he initially lied to give Junior an
alibi, only to later state that Tundidor admitted to going to
the Morrisseys' house and killing Joseph.
the guilt phase, Tundidor's counsel argued that Junior
and Shawn were responsible for the murder. Tundidor's
counsel emphasized Junior's inconsistent statements to
the police and statements that Junior made to other jail
inmates. Tundidor's counsel also highlighted
Tundidor's medical problems and physical limitations.
Nonetheless, on May 9, 2012, the jury returned a verdict of
guilty on each count.
waived mitigation for the penalty phase. On October 12, 2012,
an ex parte Koon/Muhammad hearing was held
before Judge Bidwill. A psychologist testified that she found
Tundidor competent to proceed and waive mitigation and that
Tundidor's counsel and mitigation expert had discussed
the available mitigation with Tundidor. Judge Bidwill also
questioned Tundidor. Judge Bidwill determined that Tundidor
was making a knowing, intelligent, and voluntary waiver of
mitigation, and the case was returned to the trial judge.
penalty phase, the State presented evidence from the medical
examiner that Joseph was alive at the time of all of his
injuries. Additionally, the State presented victim impact
statements from Linda and Patrick, Joseph's widow and
son. Tundidor argued against aggravation but presented no
mitigation. The jury returned a unanimous recommendation for
Spencer hearing, Tundidor again waived mitigation.
However, Tundidor presented evidence of residual doubt,
proclaiming his innocence and blaming Junior and Shawn. The
trial judge appointed Mitch Polay to investigate and present
evidence on mitigation.
November 7, 2014, the trial court sentenced Tundidor to death
for the murder of Joseph Morrissey. The trial court found the
following aggravators: (1) Tundidor was previously convicted
of another capital felony or of a felony involving the use or
threat of violence (great weight); (2) the crime was
committed while he was engaged in the commission of, or an
attempt to commit, or flight after committing or attempting
to commit the crimes of armed kidnapping and arson (great
weight); (3) the capital felony was committed for pecuniary
gain (great weight); (4) the capital felony was especially
heinous, atrocious, or cruel (HAC) (great weight); and (5)
the crime was committed in a cold, calculated, and
premeditated manner (CCP) (great weight). Additionally, the
trial court found the following mitigators: (1) no
significant history of prior criminal activity (very little
weight); (2) Tundidor had a chaotic and dysfunctional family
upbringing (little weight); (3) Tundidor was forced to quit
school at a young age (very little weight); (4) Tundidor
suffered from physical injuries and pain (very little
weight); (5) Tundidor was gainfully employed and ran a
successful business (minimal weight); (6) Tundidor was a Red
Cross volunteer and did volunteer work for his church (very
little weight); (7) Tundidor was well-behaved while awaiting
trial in jail (slight weight); and (8) Tundidor has
maintained positive relationships (minimal weight).
ISSUES ON APPEAL
raises thirteen issues on appeal. We also review whether
there is sufficient evidence to support Tundidor's
conviction. However, as explained below, except for
Tundidor's double jeopardy claim, none of these issues
Junior's Statement to Detective Kendall
first argues that the trial court abused its discretion when
it allowed Detective Kendall to testify as to what Junior
said in his April 29, 2010, statement. We disagree.
Junior was arrested, he met with Detective Kendall and
initially claimed that two fictitious individuals were
responsible for Joseph's murder. Approximately three
weeks later, on April 29, 2010, Junior met with Detective
Kendall again and stated that he and Tundidor were
responsible for the murder. At trial, Junior testified
against Tundidor, consistent with his April 29, 2010,
statement. On cross-examination, Tundidor's counsel
questioned the truthfulness of Junior's testimony by
asking, "The lie that you want the jury to believe . . .
is the one that gets you off the hook[?]" Near the end
of the State's case-in-chief, ...