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Cardosi v. State

Supreme Court of Indiana

August 7, 2019

Derrick Cardosi Appellant (Defendant below)
State of Indiana Appellee (Plaintiff below)

          Argued: January 10, 2019

          Appeal from the Newton Superior Court, No. 56D01-1608-MR-2 The Honorable Daniel J. Molter, Judge On Direct Appeal

          ATTORNEYS FOR APPELLANT Linda L. Harris Harry J. Falk Kentland, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana


          MASSA, JUSTICE.

         Derrick Cardosi was charged with crimes arising from the deaths of three acquaintances. A jury found him guilty of murder, among other things, and sentenced him to life without parole for that crime. Cardosi now directly appeals five issues, arguing that (I) insufficient evidence supported his convictions for auto theft and felony murder, (II) the trial court failed to properly admonish the jurors each time they were separated, (III) the trial court improperly admitted his co-conspirator's post-crime text messages, (IV) the trial court erred by reading a withdrawn accomplice liability instruction, and (V) the trial court improperly considered a non-statutory aggravator when sentencing him to life without parole. Finding each contention without merit, we affirm the trial court.

         Facts and Procedural History

         Ricky Thomas, along with his girlfriend Kim Spears and friend Justin Babbs, lived with his Grandma. From time to time, Sebastian Wedding, another of Ricky's friends, lived there too. Wedding's friend Derrick Cardosi lived in an apartment across the street.

         One August night, Wedding sent a text message to Cardosi saying that he could get marijuana, with Cardosi responding, "maybe tomorrow bro haha." St. Ex. 125. The next morning, at about six or six thirty, Grandma heard Ricky and Kim talking through a shared bedroom wall, with Kim at one point saying, "Ricky no." Tr. Vol. IV, p.20. Thinking nothing of it, Grandma went back to sleep. Around this time, Wedding and Cardosi exchanged a couple of text messages (later deleted), with Wedding asking if Cardosi was "a go" and telling him that a door was open and that he should "go to work." St. Ex. 124. The two also traded several phone calls during these early morning hours.

         When Grandma woke up a few hours later, she went out to the living room to find Justin unresponsive, his head and arm covered with blood. Grandma knocked on Ricky's door to get assistance, but no one responded. Grandma then tried to call for help, but her phone didn't work. Because an oxygen tank hobbled her mobility, Grandma waited outside her home for help from any passersby. While waiting, she noticed that Ricky's 1997 Mercury Grand Marquis was gone.

         Around that time, Cardosi (wearing black shoes with gray soles and a black, cut-off t-shirt reading "Please, KEEP ON THE GRASS") and Wedding entered a Dollar General store and bought a package of Hanes tank tops, two pairs of pants, slippers, and Pampers baby wipes. A few minutes later, Wedding and Cardosi arrived at a nearby gas station in Ricky's car. Wedding, who was driving, parked the car and put the gas pump nozzle into the car's gas tank. Cardosi then got out of the car and returned the nozzle to its holder before opening the trunk and putting two plastic bags inside. After two friends met them there, Cardosi got back into the passenger side of the car, and Wedding then drove them to a nearby lake to hangout. There, while Wedding and one of the friends were speaking alone, Cardosi texted to ask if he was telling the friend "anything [a]bout today." St. Ex. 126. Wedding replied "No." Id. When Cardosi later returned to the neighborhood where he and Grandma lived, Wedding asked what was happening "over there." St. Ex. 127. Cardosi responded "nothing since" he had gotten back. Id.

         Meanwhile, Grandma had flagged down a couple of teenage neighbors passing by. Seeing her in shock, the teenagers ran into the house and called 911 to report that Justin wasn't breathing, had blood all over his body, and that a "chunk" was missing from his neck. Tr. Vol. III, p.34. When emergency personnel arrived, EMTs confirmed that Justin was dead.[1] A police officer then kicked open Ricky's bedroom door and found Kim and Ricky's lifeless bodies inside. Blood was spattered across the walls and the police saw a pry bar next to a cracked-open safe. Ricky's cell phone was also in the room, with the last activity showing a text message sent around midnight. A text message from around ten that morning hadn't been read. The officer found no signs of forced entry into the home but noted that one of the exterior doors was unlocked. Post-mortem examinations showed Ricky, Kim, and Justin each died from multiple stab wounds.

         As the investigation unfolded, Cardosi and Wedding exchanged a flurry of text messages. Cardosi informed Wedding that there was a "[l]ot of activity this way now." St. Ex. 127. Wedding responded that they needed to dispose "of that car like now," with Cardosi replying that they'd "get rid of it tonight." Id. Later, when Wedding asked for a ride, Cardosi responded that "cops have [the neighborhood] almost locked down." Id. After assuring Wedding that "we all know [you]" didn't commit the murders, Cardosi hoped Wedding had found "somewhere safe for now" and that he wouldn't "tell anyone where" he was. Id. Cardosi urged Wedding to "remember" that since he hadn't "been [at Grandma's house] since yesterday," there was "no way" he could be involved in the murders. Id. Wedding responded that he was at his grandparents' house and confirmed that he had disposed of the car in a nearby cul-de-sac. As the two ended text messaging for the night, Cardosi told Wedding that "no one knows anything," and that Grandma "says there was no one else in the house." Id. After Wedding "thank[ed] god" for this news, Cardosi concluded that the police didn't "have any murder weapons yet." Id.

         During that text-messaging spree, Wedding's ex-girlfriend visited him at his grandparents' house. While there, Wedding, acting strangely and nervously, offered her gas money and jewelry. This ex-girlfriend then noticed Ricky's car and, after observing Wedding's behavior and learning that Ricky had been murdered, called 911 to report her suspicion that Wedding had killed him.

         A few hours later, police arrested Wedding at his grandparents' house, seizing his cell phone in the process. Officers found Ricky's car in the nearby cul-de-sac, just a three-minute walk from his grandparents' house. In and around the car, officers found a Dollar General bag, a price tag for shoes, a package of Pampers baby wipes, Hanes tank top packaging, two black shoes with gray soles, a black rubber glove, and a black, cut-off t-shirt reading "Please, KEEP ON THE GRASS." Officers also found a cell phone likely belonging to Ricky's mother, a white plastic bag, a red bandana, a paper towel, a cloth, a pair of sweatpants, a black hooded sweatshirt, bloody sheathed knives belonging to Cardosi and his roommate, a camouflage jacket, and a grey bandana.

         The next day, officers arrested Cardosi at his home and seized his cell phone too. The phone revealed that, in the days after the deaths, Cardosi had visited numerous websites with stories about the three homicides, the police investigation, the victims' autopsies, and Wedding's arrest. Although Cardosi eventually acknowledged that he and Wedding had talked about what to do with Ricky's car on the day the bodies were found, he denied having anything to do with the deaths. But inside Cardosi's home, officers found a bloodstained bedsheet and a box of black rubber gloves. Forensic testing later showed DNA profile matches for Ricky, Kim, Justin, and Cardosi on that sheet and the items found in and around Ricky's car: blood on the sheet matched Justin's profile; the knives found near the car had blood with DNA consistent with Justin, Kim, Ricky, and Cardosi; blood on the black rubber gloves found near the car had DNA consistent with Justin and Ricky; blood on the black shoes with gray soles had DNA consistent with Cardosi, Justin, Ricky, and Kim; blood on the black "Please, KEEP ON THE GRASS" t-shirt had DNA consistent with Ricky; and blood on the sweatpants had DNA consistent with Cardosi, Ricky, Kim, and Justin.

         The State then charged Cardosi with (1) murder, knowing or intentional killing of Justin; (2) murder, knowing or intentional killing of Ricky; (3) murder, knowing or intentional killing of Kim; (4) assisting a criminal (Wedding) by communicating police actions at the crime scene; (5) assisting a criminal (Wedding) by disposing of evidence; (6) auto theft of Ricky's vehicle; (7) theft of a gaming system and electronic tablet found in the back of the Grand Marquis; (8) felony murder of Ricky while committing or attempting burglary; and (9) felony murder of Ricky while committing or attempting robbery. See Ind. Code §§ 35-42-1-1 (2014), 35-44.1-2-5(a)(2) (2016), 35-43-4-2.5(b)(1) (2014), 35-43-4-2(a) (2014).

         A jury trial followed, with the theft charge being dropped. After voir dire, during preliminary instructions, and several times during the trial (but not every time the jurors separated), the court admonished the jurors that, while they could discuss the case in the juror room together, they couldn't talk about the case in any other instance. During the trial, and over Cardosi's objection, the trial court admitted the text messages Cardosi exchanged with Wedding.

         At the end of the trial, while the court read the final instructions, counsel for the State and Cardosi asked to discuss an instruction. After the jury left the courtroom, Cardosi asked the court to supplement a not-yet-given instruction on accomplice liability. The State, however, suggested removing the accomplice liability instruction altogether. Cardosi agreed to the removal after consulting with counsel. The court, in turn, agreed to omit any reference to accomplice liability. But after reconvening the jury and continuing with the final instructions, the court inadvertently read one of the withdrawn instructions.

         After concluding giving its final instructions to the jury, and after the jurors retired to deliberate, the trial court acknowledged its mistake but noted that the instruction was omitted "from the written instructions we're going to give the jury." Tr. Vol. V, p.129. Cardosi then objected, noting his belief that the instruction "didn't properly advise on the elements of intent of the principal and the agent." Id. In response, the court opined that the instruction said "nothing about" convicting Cardosi as an accomplice. Id. The trial court concluded that, although it "would have liked to have avoided" reading it, its reading was harmless because it didn't "direct the jury to do anything that has to do with the case." Id. at 130, 129.

         The jury then found Cardosi guilty of all the crimes charged. At the sentencing portion of trial, the State sought life without parole for the murder convictions. Along with incorporating all the evidence from the guilt phase, the State presented evidence that Cardosi had possessed marijuana stolen from Ricky's house and that Wedding had intended to sell that marijuana and the electronic devices found in the car. To the detective presenting this evidence, this was a "classic example of a burglary or robbery case where subjects enter a residence, take something from the residence[, ] and leave." Tr. Vol. V, p.141.

         Ultimately, the jury determined that the State proved the existence of three statutory aggravating circumstances beyond a reasonable doubt, finding that Cardosi committed murder by intentionally killing the victims (1) while committing or attempting to commit burglary, (2) while committing or attempting to commit robbery, and (3) when he had committed another murder. See I.C. § 35-50-2-9(b)(1)(B), (b)(1)(G), (b)(8) (2016). After resolving this, the jurors found that the aggravators outweighed any mitigators, and recommended a life sentence without parole. See I.C. § 35-50-2-9(1).

         The court, after merging the felony-murder convictions with the knowing/intentional murder verdicts, then sentenced Cardosi consistent with this binding recommendation. See I.C. § 35-50-2-9(e). When imposing this sentence, the trial court adopted the mitigators offered by Cardosi, including his age, his minor child, his family's hardship, and his inability to recover from drug abuse. Along with the statutory aggravators found by the jury, the trial court considered the "brutality of these offenses of murder." Tr. Vol. V, p.176.[2] After Cardosi objected to this consideration, the trial court replied that it was merely addressing the "[m]ultiple offenses" of murder. Id.

         Cardosi now directly appeals. See Ind. Appellate Rule 4(A)(1)(a) ("The Supreme Court shall have mandatory and exclusive jurisdiction over . . . Criminal Appeals in which a sentence of . . . life imprisonment without parole is imposed.").

         Discussion ...

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