Kormondy v. State

• Decision Date: 13 February 2003
• Docket Number: No. SC96197.,SC96197.
• Parties: Johnny Shane KORMONDY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

845 So.2d 41

Johnny Shane KORMONDY, Appellant, v. STATE of Florida, Appellee.

No. SC96197.

Supreme Court of Florida.

February 13, 2003.

Rehearing Denied May 2, 2003.

Nancy Daniels, Public Defender, and Chet Kaufman, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.

Charlie J. Crist, Jr., Attorney General, and Curtis M. French, Assistant Attorney General, Tallahassee, FL, for Appellee.

PER CURIAM.

Johnny Shane Kormondy appeals an order of the trial court sentencing him to death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons outlined in this opinion, we affirm the death sentence.

FACTUAL AND PROCEDURAL BACKGROUND

We summarized the facts of this case on Kormondy's previous direct appeal as follows:

The victim Gary McAdams was murdered, with a single gunshot wound to the back of his head, in the early morning of July 11, 1993. He and his wife, Cecilia McAdams, had returned home from Mrs. McAdams' twenty-year high-school reunion. They heard a knock at the door. When Mr. McAdams opened the door, Curtis Buffkin was there holding a gun. He forced himself into the house. He ordered the couple to get on the kitchen floor and keep their heads down. James Hazen and Johnny Kormondy then entered the house. They both had socks on their hands. The three intruders took personal valuables from the couple. The blinds were closed and phone cords disconnected.

At this point, one of the intruders took Mrs. McAdams to a bedroom in the back. He forced her to remove her dress. He then forced her to perform oral sex on him. She was being held at gun point.

Another of the intruders then entered the room. He was described as having sandy-colored hair that hung down to the collarbone. This intruder proceeded to rape Mrs. McAdams while the first intruder again forced her to perform oral sex on him.

She was taken back to the kitchen, naked, and placed with her husband. Subsequently, one of the intruders took Mrs. McAdams to the bedroom and raped her. While he was raping her, a gunshot was fired in the front of the house. Mrs. McAdams heard someone yell for "Bubba" or "Buff" and the man stopped raping her and ran from the bedroom. Mrs. McAdams then left the bedroom and was going towards the front of the house when she heard a gunshot come from the bedroom. When she arrived at the kitchen, she found her husband on the floor with blood coming from the back of his head. The medical examiner testified that Mr. McAdams' death was caused by a contact gunshot wound. This means that the barrel of the gun was held to Mr. McAdams' head.

Kormondy was married to Valerie Kormondy. They have one child. After the murder, Mrs. Kormondy asked Kormondy to leave the family home. He left and stayed with Willie Long. Kormondy told Long about the murder and admitted that he had shot Mr. McAdams. He explained, though, that the gun had gone off accidentally. Long went to the police because of the $50,000 reward for information.

Kormondy v. State, 703 So.2d 454, 456-57 (Fla.1997) (footnote omitted).

We also noted the following factual dispute between Kormondy's account of the crime and that of accomplice Hazen:

Kormondy, in this case, and Hazen, in Hazen v. State, 700 So.2d 1207 (Fla. 1997), present different factual scenarios. The trial records are inconsistent as to the locations of Hazen and Buffkin at the time of the fatal shot. During Kormondy's trial, Mrs. McAdams testified that Buffkin was with her in the back of the house when she heard a shot fired. Officer Hall testified that Kormondy told him in an unrecorded statement that Buffkin fired the fatal shot and Hazen was in the back of the house with Mrs. McAdams. In a tape-recorded confession played for the jury, Kormondy again said that Buffkin shot the victim. During Hazen's trial, Buffkin testified that Kormondy killed the victim and Hazen was in the back room with Mrs. McAdams. Hazen testified that he was not present at the scene when the crimes against the McAdamses were committed.

Id. at 456 n. 1.

Kormondy, Buffkin, and Hazen were indicted on July 27, 1993, and ultimately tried separately. Buffkin was offered a plea bargain by the State in return for assistance in the prosecution of Kormondy and Hazen. On July 7, 1994, Kormondy was found guilty of first-degree murder, three counts of sexual battery with the use of a deadly weapon or physical force, burglary of a dwelling with an assault or while armed, and robbery while armed. After Kormondy's motion for judgment of acquittal as to premeditated murder and motion for a new trial were denied, a jury recommended, by a margin of eight to four, that death be imposed. The trial court ultimately imposed a sentence of death.

Kormondy raised six issues on direct appeal from his original conviction for first-degree murder and sentence of death, including: (1) whether the trial court erred by allowing Deputy Cotton to bolster Will Long's testimony about Kormondy's confession; (2) whether the motion for judgment of acquittal should have been granted since the evidence did not establish premeditation; (3) whether the trial court erred in admitting bad character evidence in the form of unconvicted crimes or nonstatutory aggravating circumstances; (4) whether the trial court erred in its treatment of aggravating circumstances; (5) whether the trial court erred in its treatment of mitigation; and (6) whether the death sentence is unconstitutional or, more specifically, disproportionate. This Court found no merit in the first two claims, but did find reversible error in the admission of evidence concerning nonstatutory aggravation and ordered a new penalty phase. See Kormondy, 703 So.2d at 463

. Because a new sentencing was ordered, this Court did not address the other penalty phase issues raised by the defendant.

At resentencing, several witnesses testified on behalf of the State including the victim's friends, family, neighbors, and members of law enforcement. The defense did not put on any witnesses, relying instead on cross-examination to attack the credibility of each witness. By a vote of eight to four, the new sentencing jury recommended a sentence of death, and the trial court imposed a sentence of death. This appeal followed.

Kormondy now raises seven issues in this appeal of his resentencing: (1) whether the death penalty is constitutional and whether this sentence was proportional in this case given that (a) the codefendants, Curtis Buffkin and James Hazen, were given life sentences and (b) the death was caused by an accidental firing of the weapon; (2) whether the resentencing trial and order violated this Court's mandate from the first appeal, violated principles of law protecting the accused from having questions of ultimate fact relitigated against him, and violated Kormondy's rights by finding aggravators not tried or argued; (3) whether the trial court reversibly erred in its mitigation findings because the trial court defied this court's mandate, committed legal and factual errors, and contradicted itself; (4) whether the trial court erred by allowing the State to present irrelevant, cumulative, and unduly prejudicial collateral crime and nonstatutory aggravating evidence about Kormondy's capture by a canine unit more than a week after the crime took place; (5) whether Kormondy was denied his right to cross-examine and confront state witness Cecilia McAdams concerning her ability to identify and distinguish the perpetrators; (6) whether the introduction of compound victim impact evidence, much of which was inadmissible, was fundamental error that undermined the reliability of the jury's recommendation; and (7) whether the imposition of death in the absence of notice of the aggravators sought or found, or of jury findings of the aggravators and death eligibility, offends due process and the protection against cruel and unusual punishment under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

DISCUSSION

Proportionality

Kormondy claims that his death sentence is disproportionate to the life sentences received by his coperpetrators, Curtis Buffkin, whom he designates as the leader and this Court called a prime instigator in Hazen v. State, 700 So.2d 1207 (Fla.1997), and James Hazen, whom he designates as the lead rapist. The record evidence in this case, however, refutes his claim.

Due to the uniqueness and finality of the death penalty, this Court addresses the propriety of all death sentences in a proportionality review. In deciding whether death is a proportionate penalty and to ensure uniformity in the application of this ultimate penalty, this Court independently reviews and considers all the circumstances in a case and compares those circumstances with other capital cases. See Morton v. State, 789 So.2d 324 (Fla.2001)

; Johnson v. State, 720 So.2d 232 (Fla.1998); Urbin v. State, 714 So.2d 411 (Fla.1998); Terry v. State, 668 So.2d 954, 965 (Fla.1996) (quoting Porter v. State, 564 So.2d 1060, 1064 (Fla. 1990)). The death penalty is reserved for those cases where the most aggravating and the least mitigating of circumstances exist.

Kormondy first argues as a part of the proportionality argument that his sentence is disproportionate because his codefendants received life sentences. The evidence from trial and the resentencing demonstrates that Kormondy committed the homicide and is more culpable than his codefendants; therefore, his sentence of death is not disproportional on this basis. In evaluating proportionality, one of the factors that can be considered is the disparate treatment among codefendants. Such an analysis, of necessity, includes the relative culpability of each codefendant. See Shere v. Moore, 830 So.2d 56 (Fla.2002)

. In Kight v. State, 784 So.2d 396, 400 (Fla. 2001),

cert. denied, 534 U.S. 1093, 122 S.Ct. 840, 151 L.Ed.2d 719 (2002), we noted that disparate treatment is permissible where one defendant is more culpable than...