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Tundidor v. State

Supreme Court of Florida

April 27, 2017



         An Appeal from the Circuit Court in and for Broward County, Cynthia G. Imperato, Judge - Case No. 062010CF006496A88810

          Carol Stafford Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Appellant

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellee

          PER CURIAM.

         Randy 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.

         I. BACKGROUND

         Randy 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 crimes.

         At 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.

         Tundidor 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 business.

         Once at 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' house.

         Once at 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.

         Next, 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.

         After 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.

         Next, 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.

         Wearing 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 oxygen.

         Next, 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.

         Linda 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.

         Linda 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.

         An 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.

         Detective 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.

         Dr. 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.

         Junior 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.

         Junior 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.

         Junior 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.

         The 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.

         Hilda 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.

         Later 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 clothing.

         On 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.

         Shawn 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.

         The 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 material.

         Following 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.

         As a 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.

         During 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.

         Tundidor waived mitigation for the penalty phase. On October 12, 2012, an ex parte Koon/Muhammad[1] 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.

         At the 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 death.

         At the Spencer[2] 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.

         On 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).


         Tundidor 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 warrants relief.

         A. Junior's Statement to Detective Kendall

         Tundidor 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.

         When 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, ...

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