Argued: January 10, 2019
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
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Lyubov Gore Deputy Attorney General Indianapolis,
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court erred by reading a withdrawn accomplice liability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
and Procedural History
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.
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
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.
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.
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. 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.
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.
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.
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
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.
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).
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
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.
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
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.
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. §
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. After Cardosi objected to
this consideration, the trial court replied that it was
merely addressing the "[m]ultiple offenses" of
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