Spencer hearing

Randy W. Tundidor wants to avoid the death penalty for the murder of Joseph Morrissey because he insists the jury got it wrong - he's innocent. (Rafael Olmeda / July 29, 2014)

Randy W. Tundidor was following a lawyer's advice when he dismantled a gun that was used in the kidnapping of his landlord, Nova Southeastern University professor Joseph Morrissey, and Morrissey's wife in April 2010, a Broward judge was told Tuesday.

At the time, defense lawyer Jim Lewis was representing Tundidor's son, Randy H. Tundidor, who was referred to as "junior" during court proceedings to distinguish him from his father.

Another defense lawyer, Joseph Pappacoda, took the stand Tuesday during a hearing to determine whether Tundidor Sr. should get the death penalty for his role in Morrissey's murder. Pappacoda, the first lawyer to represent the elder Tundidor, said he learned early in the case that Lewis had instructed his client to get rid of the weapon.

"Jim Lewis told him, 'Randy, you can't have that gun in your house. You have to get rid of the gun,'" said Pappacoda, testifying before Broward Circuit Judge Cynthia Imperato.

Lewis denied telling anyone to get rid of evidence in a criminal case.

"I didn't even know about the gun until the police had already found it," he said in an interview later Tuesday. "I don't know where Joe [Pappacoda] is coming up with this."

Lewis had already testified on Monday, before Pappacoda's accusation was disclosed, and said he told the elder Tundidor to cooperate with police when they came with search warrants. "I never would knowingly be a part of hiding evidence in a serious crime," he said.

Tundidor Jr. would later be represented by defense lawyer Charles Rastatter. The defendant pleaded guilty to second-degree murder, kidnapping, arson and other charges, and was sentenced to 40 years in prison. In return for prosecutors taking the death penalty off the table, he agreed to testify against his father.

Tundidor Sr. was tried in the spring of 2012. A jury found him guilty and later voted 12-0 to recommend the death sentence. The recommendation is not binding on Imperato, who scheduled this week's "Spencer hearing" to consider whether to adopt the jury's decision or sentence Tundidor to life in prison instead.

But Tunidor doesn't want mercy, said his current lawyer, Richard Rosenbaum. He wants to avoid the death penalty because he says he's not guilty.

"If Jim Lewis hadn't given him the advice to destroy the firearm, it would have been just a weapon that Randy Jr. had access to," Rosenbaum said. Instead, because he followed the lawyer's advice, it appeared to the jury that the elder Tundidor was protecting himself when he scattered pieces of the weapon in various parts of the Plantation townhome he rented from Morrissey, Rosenbaum said.

Assistant State Attorney Tom Coleman, who prosecuted the case, said the issue of the gun was incidental to the question of whether the elder Tundidor participated in the crime.

Prosecutors say Tundidor Sr. stabbed Morrissey to death after the gun jammed, then he and his son set fire to the Morrisseys' Plantation home to kill Morrissey's wife and 5-year-old son — although mother and son escaped unharmed.

Robert Oulton, charged with murdering his wife and jailed the same week as the Tundidors in April 2010, told the judge on Monday that Tundidor Jr. had said his father was not guilty of the murder.

Two more former jailmates of the younger Tundidor testified on Tuesday that he admitted to them that his father played no role in Morrissey's murder.

Robert Mackey, who is serving a 30-year sentence for accessory to murder in the 2007 death of Lorraine Hatzakorzian, said he tried to talk the younger Tundidor out of betraying his father.

"You're dragging somebody down into your nightmare, for what?" Mackey recalled asking Tundidor Jr..

Seth Penalver, a former death row inmate who was acquitted after a third trial for the 1994 Casey's Nickelodeon triple murder, also said the younger Tundidor professed his father's innocence.

Prosecutors and Rosenbaum have until Sept. 22 to file written motions explaining why the elder Tundidor's life should be taken or spared.

Imperato will issue a ruling on Oct. 24.

rolmeda@sunsentinel.com, 954-356-4457, Twitter @SSCourts