Tundidor v. State, SC14–2276
| Decision Date | 27 April 2017 |
| Docket Number | No. SC14–2276,SC14–2276 |
| Citation | 221 So.3d 587 |
| Parties | Randy W. TUNDIDOR, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
221 So.3d 587
Randy W. TUNDIDOR, Appellant,
v.
STATE of Florida, Appellee.
No. SC14–2276
Supreme Court of Florida.
April 27, 2017
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, § (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...
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