IN THE INDIANA SUPREME COURT CAUSE NO. 18S-LW-181 · 1 IN THE INDIANA SUPREME COURT CAUSE NO....

1

IN THE INDIANA SUPREME COURT

CAUSE NO. 18S-LW-181

DERRICK T. CARDOSI ) Appeal from the Newton Superior

) Court

Appellant/Defendant, )

)

vs. ) Trial Court Case No:

) 56D01-1608-MR-000002

)

STATE OF INDIANA, )

)

Appellee. ) The Honorable Daniel J. Molter

) Judge

BRIEF OF APPELLANT

LINDA L. HARRIS

ATTORNEY AT LAW, P.C.

214 N. Third Street

Kentland, IN 47951

Phone: 219-474-3355

Fax: 219-474-3972

Email: [email protected]

ATTORNEY FOR APPELLANT

ATTY NO. 17914-79A

Filed: 8/10/2018 2:43 PM

2

Brief of Appellant Derrick T. Cardosi

TABLE OF CONTENTS

Page

Table of Contents ……………………………………………………………… 2

Table of Authorities……………………………………………………............ 3

Statement of Issue Presented for Review…………………………………….... 5

Statement of Supreme Court Jurisdiction ……………………………………... 6

Statement of the Case…………………………………………………………. 7

Statement of Facts……………………………………………………………. 11

Summary of Argument………………………………………………………. 15

Argument……………………………………………………………………. 16

There was insufficient evidence to convict the Defendant of

Count 6: Auto Theft; Count 8: Murder; and Count 9: Murder …….. 16

The Trial Court erred when it failed to admonish the Jury

when they separated during the trial and after the cause was

submitted to them ………………………………..…………………. 20

The Trial Court abused its discretion by admitting the

co-conspirator’s statement …………………………………………. 24

The Trial Court erred when it read a Final Jury Instruction

to the Jury after the State of Indiana and the Defendant agreed

that said Final Jury Instruction should not be read to the jury………. 26

The Defendant should not have been given Life Without

Possibility of Parole ………………………………………………… 27

Conclusion…………………………………………………………………… 30

Word Count Certificate ……………………………………………………… 30

Certificate of Service ………………………………………………………… 31

3


TABLE OF AUTHORITIES

CASES

Pages

Ajabu v. State, 693 N.E.2d 921 (Ind. 1998) ………………………………. 28

Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) …………………………. 27

Baker v. State, 93 N.E. 14 (Ind. 1910) ……………………………………. 25

Bevins v. State, 642 N.E.2d 928 (Ind. 1994) ……………………………… 29

Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) ………………………….. 27

Cooper v. State, 854 N.E.2d 831 (Ind. 2006) ……………………………… 28

Corder v. State, 467 N.E.2d 409 (Ind. 1984) ……………………………… 23

Crawford v. Washington, 541 U.S. 36,

124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ………………………... 25

Drollinger v. State, 408 N.E.2d 1228 (Ind. 1980) ………………………… 23

Dye v. State, 717 N.E.2d 5 (Ind. 1999) …………………………………… 26

Farris v. State, 818 N.E.2d 63 (Ind. Ct. App. 2004) ………………………. 24

Forte v. State, 759 N.E.2d 206 (Ind. 2001) ………………………………… 26

Hall v. State, 769 N.E.2d 250 (Ind. Ct. App. 2002) ………………………… 26

Harris v. State, 480 N.E.2d 932 (Ind. 1985) ………………………………… 23

Howard v. State, 853 N.E.2d 461 (Ind. 2006) ………………………………. 26

In re Middlefork Watershed Conservancy Dist.,

508 N.E.2d 574 (Ind. Ct. App. 1987) ……………………………….. 23

Jones v. State, 783 N.E.2d 1132 (Ind. 2003) ……………………………….. 16

Landis v. State, 726 N.E.2d 801 (Ind. Ct. App. 2000) ……………………… 22, 23

Lee v. State, 91 N.E.3d 978 (Ind. Ct. App. 2017) …………………………... 27

4


Pages

Mayhew v. State, 537 N.E.2d 1188 (Ind. 1989) …………………………… 25

Mitchell v. State, 726 N.E.2d 1228 (Ind. 2000) …………………………… 22

Nicholson v. State, 734 N.E.2d 1047 (Ind. 2000) …………………………. 28

Oldham v. State, 779 N.E.2d 1162 (Ind. Ct. App. 2002) ………………….. 24

Pavey v. State, 764 N.E.2d 692 (Ind. Ct. App. 2002) ……………………… 24

Pope v. State, 737 N.E.2d 374 (Ind. 2000) ………………………………… 28

Rawley v. State, 724 N.E.2d 1087 (Ind. 2000) ……………………………. 28

Rice v. State, 6 N.E.3d 940 (Ind. 2014) …………………………………… 27

Schweitzer v. State, 531 N.E.2d 1386 (Ind. 1989) ………………………… 23

State v. Holloway, 980 N.E.2d 331 (Ind. Ct. App. 2012) …………………. 27

State v. Moss-Dwyer, 686 N.E.2d 109 (Ind. 1997) ……………………….. 27

Taylor v. State, 891 N.E.2d 155 (Ind. Ct. App. 2008) ……………………. 24

Wiggins v. State, 727 N.E.2d 1 (Ind. Ct. App. 2000) …………………….. 22

Witte v. State, 550 N.E.2d 68 (Ind. 1990) ………………………………… 23

OTHER AUTHORITIES

Ind. Code 34-36-1-5 ………………………………………………………. 20, 23, 24

Ind. Code 35-50-2-9 ………………………………………………………. 28, 29

Ind. Evid. R. 804 ………………………………………………………….. 25, 26

U.S. Const. amend VI …………………………………………………….. 25, 26

5


STATEMENT OF ISSUE PRESENTED FOR REVIEW

1. WHETHER THERE WAS SUFFICIENT EVIDENCE TO

CONVICT THE DEFENDANT

2. WHETHER THE TRIAL COURT ERRED BY FAILING TO

PROPERLY ADMONISH THE JURY

3. WHETHER THE TRIAL COURT ERRED BY PERMITTING

THE CO-CONSPIRATOR’S STATEMENT

4. WHETHER THE TRIAL COURT ERRED BY READING

A FINAL JURY INSTRUCTION AFTER THE STATE AND

THE DEFENDANT STIPULATED THAT IT SHOULDN’T

BE READ TO THE JURY

5. WHETHER THE DEFENDANT SHOULD HAVE BEEN

SENTENCED TO LIFE WITHOUT THE POSSIBILITY OF

PAROLE

6


STATEMENT OF SUPREME COURT JURISDICTION

This Court has mandatory and exclusive jurisdiction of this appeal because

Derrick T. Cardosi received a sentence of life imprisonment without parole. See Ind.

App. R. 4(A)(1)(a).

7


STATEMENT OF THE CASE

On September 6, 2016 Derrick T. Cardosi [hereinafter “Cardosi”] was

charged in the Newton Superior Court with the following offenses: Count 1: Murder, a

Felony; Count 2: Murder, a Felony; Count 3: Murder, a Felony, Count 4: Assisting a

Criminal, a Level 5 Felony; Count 5: Assisting a Criminal, a Level 5 Felony; Count 6:

Auto Theft, a Level 6 Felony; and Count 7: Theft, a Class A Misdemeanor. (Appellant’s

Appendix Vol. II p. 26-32). Both Counts 4 and 5 alleged that Cardosi assisted Sebastian

Wedding [“Wedding”], a person who had committed the crime of murder, a felony. (Tr.

Vol. III p. 7-8).

Cardosi had his initial hearing on September 7, 2016 and entered a plea of not

guilty. (Appellant’s Appendix Vol. II p. 33). Attorney Robert T. Miller was appointed to

represent Cardosi. (Appellant’s Appendix Vol. II p. 33). The Court set an Omnibus

Hearing for November 9, 2016. (Appellant’s Appendix Vol. II p. 33).

On September 19, 2016 Cardosi filed a Motion for Discovery and Request for

Rule 404 and 405 Evidence. (Appellant’s Appendix Vol. II p. 55-57). Additionally, on

September 19, 2016 Cardosi filed a Motion to Set Bond and the same was set for Hearing

on October 3, 2016. (Appellant’s Appendix Vol. II p. 53-54). The Court denied the

Defendant’s Motion to Set Bond and reaffirmed the Omnibus Hearing. (Appellant’s

Appendix Vol. II p. 62).

At the Omnibus Hearing on November 9, 2016, Cardosi requested the Court reset

the Omnibus Hearing and the Court granted said request. (Appellant’s Appendix Vol. II

8


p. 77). The Court set the status of discovery for review on January 23, 2017. (Appellant’s

Appendix Vol. II p. 77).

On December 1, 2016, the State of Indiana filed a Motion to Amend Charging

Information adding Count 8: Murder; Count 9: Murder and Life Without Parole to the

charging information and the Court set the State’s Motion for Hearing on December 7,

2016. (Appellant’s Appendix Vol. II p. 88-92). On December 7, 2016 the Court granted

the State’s Motion to Amend Charging Information and arraigned the Defendant on the

additional charges. (Appellant’s Appendix Vol. II p. 93). The Defendant entered pleas

of not guilty to the additional charges. (Appellant’s Appendix Vol. II p. 93).

On January 6, 2017 Robert T. Miller requested the Court withdraw his

representation on behalf of the Cardosi. (Appellant’s Appendix Vol. II p. 97-98). On

January 12, 2017 the Court appointed Harry J. Falk to represent Cardosi and reaffirmed

the Status Hearing on January 23, 2017. (Appellant’s Appendix Vol. II p. 99).

At the Status Hearing on January 23, 2017 the Court granted the Defendant’s

request to continue the Omnibus date and the Court reset Cardosi’s case for further

review on April 28, 2017. (Appellant’s Appendix Vol. II p. 117). Additionally, on

January 23, 2017 Cardosi filed a Waiver of Criminal Rule 4(C). (Appellant’s Appendix

Vol. II p. 118). On April 28, 2017, upon request by the State, the Court set a jury trial

commencing November 27, 2017. (Appellant’s Appendix Vol. II p. 137). The parties

stipulated to a stay of the jury trial on December 1, 2017 with the trial resuming on

December 4, 2017. (Appellant’s Appendix Vol. II p. 137). The Court set a Pre-trial

Conference for June 23, 2017. (Appellant’s Appendix Vol. II p. 137).

9


On May 25, 2017 Cardosi filed a Motion for Leave to Inspect and the Court set

said Motion for Hearing on June 23, 2017. (Appellant’s Appendix Vol. II p. 193-195).

On June 23, 2017 the Court granted Cardosi’s Motion for Leave to Inspect; reaffirmed

the jury trial date of November 27, 2017; and set a Pre-Trial Conference for August 11,

2017. (Appellant’s Appendix Vol. II p. 203-204).

On July 7, 2017, Cardosi filed a Motion in Limine requesting that the State be

prohibited from offering autopsy photographs to the jury. (Appellant’s Appendix Vol. II

p. 206-207). On July 13, 2017 the State of Indiana requested a continuance of the Jury

Trial and because Cardosi did not object the Court vacated the trial date and reaffirmed

the Pre-trial Conference of August 11, 2017. (Appellant’s Appendix Vol. II p. 208-210).

At the Pre-Trial Conference on August 11, 2017 the Court reset the Jury Trial for January

29, 2018. (Appellant’s Appendix Vol. II p. 214).

Phase I of the trial by jury began on January 29, 2018 in the Newton Superior

Court. (Appellant’s Appendix Vol. III p. 13). On January 30, 2018 the second day trial

Cardosi requested a mistrial and the Court denied the request. (Appellant’s Appendix

Vol. III p. 14). On February 7, 2018 the eighth day of trial, at the conclusion of the

evidence and before the Court read the Final Instructions, the State of Indiana moved the

Court to dismiss Count 7: Theft, a Class A Misdemeanor and the Court granted said

request. (Appellant’s Appendix Vol. III p. 20-21) On February 7, 2017 the jury returned

a verdict of guilty on Count 1: Murder, a Felony; Count 2: Murder, a Felony; Count 3:

Murder, a Felony, Count 4: Assisting a Criminal, a Level 5 Felony; Count 5: Assisting a

10


Criminal, a Level 5 Felony; Count 6: Auto Theft, a Level 6 Felony; Count 8, Murder; and

Count 9, Murder. (Appellant’s Appendix Vol. III p. 21).

Phase II of the trial by jury was held on February 8, 2018. (Appellant’s Appendix

Vol. III p. 21). Following the presentation of the evidence, the jury unanimously

recommended a sentence of life imprisonment without parole. (Appellant’s Appendix

Vol. III p. 22).

On February 15, 2018, Cardosi was sentenced to life without parole on Count 1:

Murder; Count 2: Murder; and Count 3: Murder, Count 2 concurrent with Count 1 and

Count 3 concurrent with Count 2. (Appellant’s Appendix Vol. III p. 105). On Counts 4

and 5, both Assisting a Criminal a Level 5 Felony, the Court sentenced Cardosi to three

(3) years with Court 4 concurrent with Count 3 and Count 5 concurrent with Count 4.

(Appellant’s Appendix Vol. III p. 105). On Count 6, Auto Theft, a Level 6 Felony

Cardosi was sentenced to an eighteen (18) month term of incarceration concurrent with

Count 5. (Appellant’s Appendix Vol. III p. 105). The Court found that Counts 8 and 9

merged with Counts 1, 2 and 3 for purposes of sentencing. (Appellant’s Appendix Vol.

III p. 105). Cardosi was given credit for time served of Five Hundred Thirty Three (533)

actual days. (Appellant’s Appendix Vol. III p. 105). The trial court’s Sentencing Order

was entered on February 23, 2018. (Appellant’s Appendix Vol. III p. 106).

The Notice of Appeal was filed on March 24, 2018, and the Clerk’s Transcript

was completed and filed on April 26, 2018. The Brief of Appellant is being timely filed

after this Honorable Court granted two (2) Motions for Extension of Time within which

to file Appellant’s Brief, to and including August 10, 2018.

11


STATEMENT OF FACTS

On August 28, 2016 in Sumava Resorts, Indiana at the residence of Diane Buck,

[“Buck”] three people, Justin Babbs [“Babbs”], Kimberly Spears [“Spears”], and Richard

Thomas [“Ricky”] were stabbed to death. (Tr. Vol. III p. 84, p. 88). Buck was the eighty

year old grandmother of Ricky. (Tr. Vol. IV p. 5, p. 14). Buck awoke to use the

bathroom at approximately 9:00 o’clock a.m. and when she came out of the bathroom she

noticed Babbs on the floor, not moving, with blood under his head. (Tr. Vol. IV p. 16).

Buck’s phone was not working so she waited for someone to walk by her home so she

could get help. (Tr. Vol. IV p. 13-15). Jacob Rose and his friend were walking by

Buck’s home and she called for them. (Tr. Vol. III p. 44). Rose went into the home and

saw Babb’s on the floor and called 911. (Tr. Vol. III p. 44-49).

Newton County Sheriff’s Deputy David Hoaks [“Hoaks”] was the first duty unit

to respond to the Buck residence. (Tr. Vol. III p. 77). When he arrived there were

EMT’s, volunteer firemen and Buck in the home. (Tr. Vol. III p. 82-83). Hoaks saw a

paramedic, Trask Darabaris, near a body (Babbs) and he requested Trask step back away

from the body. (Tr. Vol. III p. 80). Deputy Hoaks then requested the assistance of a

scene tech and asked everyone to exit the home. (Tr. Vol. III p. 82). Hoaks was asked to

check a closed door to another bedroom and it was locked. (Tr. Vol. III p. 84). He

proceeded to kick the door in and immediately saw blood everywhere in the room. Id.

He then saw two bodies, Spears and Ricky on the bedroom floor. Id. Babbs, Spears, and

Ricky all died from fatal stab wounds. (Tr. Vol. IV p. 79). Ricky’s silver Mercury Grand

12


Marquis vehicle was missing from Buck’s residence. (Tr. Vol. IV p. 22; Tr. Vol. IV p.

105).

On August 28, 2016 around midnight Alexandra Moses, former girlfriend of

Wedding, saw him by his grandmother’s house in Cedar Lake, Indiana. (Tr. Vol. IV p.

92). Wedding was acting very nervous and kind of strange. (Tr. Vol. IV p. 93).

Alexandra also saw Ricky’s silver Mercury Grand Marquis in the driveway of Wedding’s

grandmother’s home. (Tr. Vol. IV p. 93-94 and State’s Exhibit 48). Later that evening

Alexandra learned that Ricky had been killed and she called 911 to report that she

believed her ex-boyfriend (Wedding) had killed someone. (Tr. Vol. IV p. 95).

Alexandra testified that in late 2014, when she was trying to break up with Wedding he

tried to kill both of them by intentionally crashing his car when they both were in the

vehicle. (Tr. Vol. IV p. 100-101).

Officer Keith Wood of the Cedar Lake Police Department was advised of a triple

homicide south of Cedar Lake and was told to be on the lookout for a silver Grand

Marquis. (Tr. Vol IV p. 105). Officer Wood was also told to be on the lookout for a

suspect by the name of Sebastian Wedding. (Tr. Vol. IV p. 105). Officer Wood was

familiar with Wedding as he had responded to loud music calls; fight calls; and

ambulance calls involving Wedding. (Tr. Vol. IV p. 108). Wood located the silver

Grand Marquis three minutes from Wedding’s residence. (Tr. Vol. IV p. 109). Officer

Wood ran the license plate number on the silver Grand Marquis and it returned belonging

to Ricky. (Tr. Vol. IV p. 106). Sergeant Michalak of the Indiana State Police took

pictures of the exterior and interior of the Grand Marquis. (Tr. Vol. IV p. 119). He

13


found a Dollar General bag and a Dollar General price tag in the interior of the vehicle.

(Tr. Vol. IV p. 119).

Trooper Heflin of the Indiana State Police Department canvassed the area where

the silver Grand Marquis was found and located a red bandana; a white grocery bag that

appeared to have a sheath of a knife sticking out the bottom of the bag and a camouflaged

cloth sticking out; a gray bandana; and a yellow Dollar Store grocery bag. (Tr. Vol. IV p.

111-114). All items were collected and placed in the trunk of a police vehicle. (Tr. Vol.

IV p. 114). The items were transported to the Lowell State Police Post for processing.

(Tr. Vol. IV p. 114).

Detective Brian McCall of the Indiana State Police went to the Dollar General

store in Cedar Lake, Indiana to look for an item that matched the tag that was found

inside the Mercury Grand Marquis. (Tr. Vol. IV p. 199). The tag was for a pair of shoes.

(Tr. Vol. IV p. 199). Detective McCall was able to review the stores surveillance video

and saw two males enter the store on August 28, 2016 at approximately 8:53 a.m. (Tr.

Vol. IV p. 200). McCall was able to identify the two males as Sebastian Wedding and

Derrick Cardosi. (Tr. Vol. IV p. 206).

After Detective McCall left the Dollar General Store he went around the corner to

Luke Gas Station. (Tr. Vol. IV p. 209). McCall reviewed the video surveillance system.

(Tr. Vol. IV p. 209). McCall recognized Sebastian Wedding and Derrick Cardosi in the

video and a silver Mercury Grand Marquis. (Tr. Vol. IV p. 213). Detective McCall

testified that Wedding was driving the Grand Marquis, not Derrick Cardosi. (Tr. Vol. IV

p. 216).

Briefoprpellant Derrick T. Cardosi

A T-Mobile cell phone was found in the white grocery bag that Trooper Heflin

recovered. (Tr. V01. IV., p. 219). Crime scene investigator Gerald Michalak testified

that he never attempted t0 turn the phone 0n. (Tr. V01. IV, p. 221). Alva Whited, a

Sergeant with the Indiana State Police conducted an investigation into the ownership 0f

T-Mobile cell phone and he could not conclusively say who the owner was. (Tr. Vol V.,

p. 38). Whited advised there was a Gmail address 0f bucksusie798788(a)gmai1.c0m but

the phone hadn’t been used since 2014. (Tr. Vol. V., p. 38).

Sebastian Wedding was taken into custody 0n August 29, 2016 for his

involvement in the murders of Babbs, Spears and Ricky. (Tr. V01. IV p. 222). During

his arrest, Wedding’s cell phone was confiscated as evidence. (Tr. Vol. IV p. 224).

On September 6, 2016 Derrick T. Cardosi [hereinafier “Cardosi”] was charged in

the Newton Superior Court with the following offenses: Count 1: Murder, a Felony;

Count 2: Murder, a Felony; Count 3: Murder, a Felony, Count 4: Assisting a Criminal, a

Level 5 Felony; Count 5: Assisting a Criminal, a Level 5 Felony; Count 6: Auto Theft, a

Level 6 Felony; and Count 7: Theft, a Class A Misdemeanor (Appellant’s Appendix Vol.

II, p. 26-32). On December 1, 2016, the State of Indiana Amended the Charging

Information adding Count 8: Murder; Count 9: Murder and Life Without Parole.

Cardosi's jury trial commenced on January 29, 2018 (Tr. Vol. II, p. 3). The State

0f Indiana presented twenty—eight (28) witnesses in their case in chief (Tr. V01. III, p. 21-

212; Tr. V01. IV, p. 2—248; and Tr. Vol. V, p. 2-93). The Defense presented n0 witnesses

(Tr. V01. V. p. 93).

14

15


The jury returned a verdict of guilty on Count 1: Murder, a Felony; Count 2:

Murder, a Felony; Count 3: Murder, a Felony, Count 4: Assisting a Criminal, a Level 5

Felony; Count 5: Assisting a Criminal, a Level 5 Felony; Count 6: Auto Theft, a Level 6

Felony; Count 8, Murder; and Count 9, Murder (Appellant’s Appendix Vol. III, p. 21).

The trial was continued on the State’s intention to seek life without parole to February 8,

2018 (Appellant’s Appendix Vol. III, p. 21). On February 8, 2018 the jury unanimously

recommended a sentence of life imprisonment without parole (Appellant’s Appendix

Vol. III, p. 22).

SUMMARY OF THE ARGUMENT

1. There was insufficient evidence to convict Cardosi of Count 6: Auto Theft;

Count 8: Murder; and Count 9: Murder. There was no evidence presented that Cardosi

stole a motor vehicle. Further, the evidence was insufficient to prove the statutory

aggravating circumstance that Cardosi intentionally killed Richard Thomas while

committing or attempting to commit robbery and/or burglary.

2. The Trial Court failed to property admonish the jury when they were

permitted to separate pursuant to Indiana Code 34-36-1-5. This Indiana Code section

mandates that a trial court admonish the jury and the trial court failed to do so.

3. The Trial Court erred by allowing the co-conspirator’s statement. The co-

conspirator’s statements made after the crime had occurred were admitted and this

violated Cardosi’s right to confrontation.

16


4. The Trial Court erred by reading a final jury instruction. The Trial Court read

an accomplice liability instruction after the State and Cardosi agreed it shouldn’t be a

Final Instruction.

5. Life without possibility of parole was an inappropriate sentence. The Trial

Court erroneously considered nonstatutory aggravating circumstances when imposing the

life without parole sentence in violation of Indiana’s capital and life sentencing statute.

ARGUMENT

I. There was insufficient evidence to convict Cardosi

The State presented insufficient evidence to support Cardosi’s convictions for

Count 6: Auto Theft; Count 8: Felony Murder; and Count 9: Felony Murder. When

reviewing the claim of sufficiency of the evidence, this Court will not reweigh the

evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139

(Ind. 2003). The Court will look only to the probative evidence supporting the verdict

and the reasonable inferences therein to determine whether a reasonable trier of fact

could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is

substantial evidence of probative value to support the conviction, it will not be set aside.

Id.

The State charged Cardosi with Count 6: Auto Theft and the jury was instructed

as follows:

17


Before you may convict the Defendant, the State must have proved each

of the following elements: 1) The Defendant, 2) knowingly, 3) exerted

unauthorized control over a motor vehicle or Richard Thomas, 4) with the

intent to deprive Richard Thomas, as the owner of the vehicle its value or

use.

(Tr. Vol. V p. 117). The State did not present any evidence that Cardosi stole Ricky’s

motor vehicle. On the contrary, the evidence was that Ricky’s silver Mercury Grand

Marquis was found not three minutes from Wedding’s residence in Cedar Lake, Indiana.

Furthermore, Wedding was seen driving the vehicle into the Luke Gas Station in Cedar

Lake. (Tr. Vol. IV p. 216).

The State charged Cardosi with Count 8: Murder and the jury was instructed as

follows:

Before you may convict the Defendant, the State must have proved each

of the following beyond a reasonable doubt: 1) The Defendant, 2) killed,

3) Richard Thomas, 4) while committing burglary which is defined as 5)

the Defendant, 6) knowingly and intentionally, 7) broke and entered the

structure of Richard Thomas, 8) with the intent to commit a felony, theft.

And the offense was committed in a building or structure that was a

dwelling. Theft is defined as a person who knowingly or intentionally

exerts unauthorized control over the property of another person with

intent to deprive the other person of any part of its value or use. If the

State failed to prove each of these elements beyond a reasonable doubt,

you must find the Defendant not guilty of murder, a felony as charged in

Count 8. The crime of burglary is defined by law as follows: A person

who breaks and enters the building or structure of another person and the

building or structure was a dwelling with the intent to commit a felony or

theft in it commits burglary.

(Tr. Vol. V p. 117-118). The State also charged Cardosi with Count 9: Murder and the

jury was instructed as follows:

The undersigned, and being duly sworn upon his oath, says that in

Newton County, State of Indiana, on or about August 28, 2016,

Derrick T. Cardosi did kill another human being, to-wit: Richard

18


Thomas; while committing robbery, to-wit: taking property from

another person by using or threatening force. The crime of murder

is defined by law as follows: A person who kills another person,

another human being while committing or attempting to commit

robbery commits murder, a felony. Before you may convict the

Defendant, the State must have proved each of the following beyond

a reasonable doubt: 1) The Defendant, 2) killed, 3) Richard Thomas,

4) while committing robbery, which is defined as follows, 5) the

Defendant, 6) knowingly or intentionally, 7) took property from

another, by using or threatening force.

(Tr. Vol. V p. 118, p. 121). The State initially charged Cardosi with Count 7: Theft,

alleging Cardosi exerted unauthorized control over the property of Richard Thomas,

specifically a Play Station 3 and an electronic tablet with cracked screen with the intent to

deprive Richard Thomas of any part of the use of value of the property. (Tr. Vol. III p.

9). However, the State dismissed Count 7 before the jury was read the Final Instructions

(Tr. Vol. V p. 112.).

The State presented evidence of a partially opened safe that was found in Richard

Thomas’ bedroom but there was no evidence that anything was missing from this safe.

(Tr. Vol. III p. 140). The State Police didn’t even process the safe for fingerprints nor

seize the safe as evidence (Tr. Vol. III p. 150).

The State introduced Exhibit 109, a sealed paper bag, with item #228 described as

a T-Mobile cell phone. (Tr. Vol. IV p. 219). Crime scene investigator Gerald Michalak

was asked if the T-Mobile cell phone worked and Michalak stated he never attempted to

turn the phone on (Tr. Vol. IV p. 221). States Exhibit 109 also had the initials of Trooper

Heflin and the initials of Detective Campione on the sealed paper bag. Id. Trooper

Heflin only testified as to finding a red bandana; a white grocery bag; and a Dollar


General grocery bag (Tr. Vol. IV p. 110-1 16). He placed all 0f these items in a paper bag

and put in Michalak’s vehicle’s trunk for transportation to the State Police lab for

processing. (Tr. Vol. IV p. 110-1 16). Detective Campione did not testify regarding

State’s Exhibit 109. (Tr. V01. IV p. 229-238).

State’s Witness Alva Whited, [“Whited”], a Sargent with the Indiana State Police

testified that he conducted an investigation into the ownership of Item #228 and could not

conclusively say who the owner was. (Tr. Vol V p. 38). Whited advised there was a

Gmail address 0f [email protected] but the phone hadn’t been used since

2014. (Tr. Vol. V p. 38). Over Cardosi’s objection Whited was asked ifthere was a

Susie Buck involved in this case and he stated, “I believe that is the mother of Ricky

Thomas.” (Tr. V01. V p3 8). This was the only piece of evidence presented by the State

0f Indiana of an alleged burglary and/or robbery and was insufficient t0 prove Cardosi

stole or robbed any person of any property.

There was no evidence presented by the State of Indiana that Cardosi killed

Richard Thomas while committing burglary which is defined as Cardosi knowingly and

intentionally broke and entered the structure of Richard Thomas with the intent t0

commit theft. Additionally, there was n0 evidence presented by the State that Cardosi

killed Richard Thomas while committing robbery which is defined as Cardosi knowingly

0r intentionally took property from another, by using 0r threatening force.

The State of Indiana argued in its Closing Statements: “Drugs, money and sex,

that’s What murders are usually about and this case is full 0f drugs and money." (Tr. V01.

V. p. 95). There was no evidence that this case was full of drugs and money. The jury

19

20


was instructed that reasonable doubt may arise either from the evidence or from the lack

of evidence. (Tr. Vol. V., p. 122). They were further instructed that statements made by

the attorneys are not evidence and that Cardosi must not be convicted of suspicion or

speculation. (Tr. Vol. V, p. 122, p. 124). There was insufficient evidence to convict

Cardosi of Count 6: Auto Theft; Count 8: Murder; and Count 9: Murder.

II. The Trial Court failed to properly admonish the jury.

The Trial Court committed fundamental, reversible error when it failed to

properly admonish the jury when they were permitted to separate during the trial.

Indiana Code 34-36-1-5 provides:

(a) If the members of the jury are permitted to separate, either during the trial or

after the cause is submitted to them, the court shall admonish the jurors that it is

their duty not to:

(1) converse with each other; or

(2) permit themselves to be addressed by any other person, on any subject of the

trial.

(b) If the members of the jury are permitted to separate during the trial, the court

shall admonish the jurors that it is their duty not to form or express among

themselves an opinion on the cause until the cause is finally submitted to them.

I.C. 34-36-1-5. The first day of trial consisted of jury selection. When the Court

adjourned for the evening the Court failed to properly admonish the jury (Tr. Vol. II, p.

184-187). The second day of trial consisted of preliminary instructions; opening

statements; and five (5) witnesses for the State testified. The Court took three (3) breaks

before lunch and the Court failed to admonish the jury that it is their duty not to form or

express among themselves an opinion on the case until the case it fully submitted to them

(Tr. Vol. III, p. 38, p. 55, p. 63). The Court took a recess for lunch and did not properly

admonish the jury (Tr. Vol. III, p. 75-76). After the second day of trial the Court stated:

21


“Thank you. Be careful not to discuss this case with anyone, don’t read the newspapers.”

(Tr. Vol. III, p. 113-114).

The third day of trial the Court took one (1) morning break and a lunch break

without admonishing the jury (Tr. Vol. III, p. 146-147, p. 163). The Court then took one

(1) afternoon break and the only admonishment given was “[n]ow you can go to the

bathroom.” (Tr. Vol. III, p. 188). At the conclusion of day three (3) stated: “I must

remind you not to discuss this case with anyone out of the presence of each other.” (Tr.

Vol. III, p. 216).

During the fourth day of trial the jury took a morning break; a lunch break; and an

afternoon break without any instruction being given pursuant to I.C. 34-36-1-5. The

Court did, at the end of day four (4) state: “That’s it. Make sure not to discuss this case

with anyone outside the jury room.” (Tr. Vol. IV, p. 103). The fifth day of trial had one

(1) morning break without any admonishment and a lunch break with the instruction of

“[j]ury’s on notice not to discuss (Tr. Vol. IV, p. 124, p. 143). The afternoon there were

three (3) breaks without any admonishments (Tr. Vol. IV, p. 156, p. 166, p. 189). At the

end of day five (5) the trial Court did state:

Have a good weekend. Again, this is when it becomes a little challenging

for you. Be careful not to discuss this case with anyone. I’m sure people

are interested and I don’t know, press will have papers coming out weekly

so stay away from all that stuff until the case is over. And then many of

you will be absolutely fascinated when you read the papers and think; did

I go to the same trial. We’re adjourned and I hope you all have a good

weekend.

(Tr. Vol. IV, p. 192).

22


Day six (6) of the jury trial had one (1) morning break; a lunch break; three (3)

afternoon breaks and the break for the day without any admonishments as dictated in I.C.

34-36-1-5 (Tr. Vol. IV, p. 209, p. 218, p. 224, p. 246, Tr. Vol. V, p. 6, p. 25). Day seven

(7) the Court took a morning break, a lunch break, an afternoon break and the break for

the day with again, no admonishments given to the jury (Tr. Vol. V. p. 47, p. 65, p. 92, p.

94). Day eight (8) began with closing arguments. At the conclusion of closing

arguments the Court took a lunch recess without any admonishments to the jury (Tr. Vol.

V., p. 112). During Final Instructions the Court took a brief recess without admonishing

the jury (Tr. Vol. V., p. 118). The jury returned verdicts of guilty and the Court, during

its colloquy with the jury stated:

So I will dismiss you for the night. Frankly, I think it would be helpful

even though this portion of the trial is over, to still not – I know we have

press here – but really, I wouldn’t discuss your verdict or anything until

phase two is complete. Will that work with everybody? Okay, you will

be excused.

(Tr. Vol. V p. 133).

Admittedly, Cardosi failed to object throughout his trial on the trial court’s failure

to follow I.C. 34-36-1-5. Failure to object to alleged error results in waiver and precludes

appellate review. Mitchell v. State, 726 N.E.2d 1228, 1235 (Ind. 2000). However,

waiver can be avoided if the claimed error is fundamental in nature. Wiggins v. State,

727 N.E.2d 1, 10 (Ind. Ct. App. 2000), trans. denied. The fundamental error exception to

waiver is extremely narrow and is available “only when the record reveals clearly blatant

violations of basic and elementary principles of due process, and the harm or potential for

harm cannot be denied.” Landis v. State, 726 N.E.2d 801, 805 (Ind. Ct. App. 2000). “In

23


order to constitute fundamental error, the error must prejudice the rights of a defendant to

such an extent that is makes a fair trial impossible.” Id.

There is limited case law in Indiana pertaining to a trial court’s failure to follow

the dictates of I.C. 34-36-1-5. Most of the pertinent case law relating to this issue

pertains to sequestration of jurors. One such case, Witte v. State, alleged the trial court

erred in failing to sequester the jury during the trial as requested by appellant. 550

N.E.2d 68, 71-72 (Ind. 1990). Witte was originally charged with murder, subjecting her

to the death penalty. Id. at 71-72. The State later amended the charging information

eliminating the death penalty allegation. Id. Witte argued that the only admonition the

trial judge gave was at the close of each day and that such admonition should have been

given at the beginning of each day and before each recess during the day. Id. at 72. Our

Supreme Court found that Witte made no showing that the jurors were exposed to any

trial publicity nor that the jurors violated the admonition given to them at the close of

each day. Therefore, the Court found no reversible error in the manner the jurors were

admonished. Id. citing, Schweitzer v. State, 531 N.E.2d 1386 (Ind. 1989); Harris v. State,

480 N.E.2d 932 (Ind. 1985); Corder v. State, 467 N.E.2d 409 (Ind. 1984); Drollinger v.

State, 408 N.E.2d 1228 (Ind. 1980).

In this case, Cardosi’s jurors were never admonished pursuant to I.C. 34-36-1-5.

This statute specifies in both parts (a) and (b) that the court “shall admonish the jurors.”

A statute containing the term “shall” generally connotes a mandatory as opposed to a

discretionary import. In re Middlefork Watershed Conservancy District, 508 N.E.2d 574

(Ind. Ct. App. 1987). Granted, any criminal conviction is serious to the person convicted,

24


however, Cardosi, was charged and convicted of the most serious felony available in

Indiana, Murder and the trial court’s failure to follow I.C. 34-36-1-5 is fundamental

reversable error.

III. The Trial Court erred by permitting the co-conspirator’s statement

The trial court abused its discretion when it allowed statements by Sebastian

Wedding, an alleged co-conspirator. Wedding’s statements should not have been

admitted because they were statements made after the crime had been perpetrated and

they violated Cardosi’s rights under the Confrontation Clause.

The admission or exclusion of evidence is entrusted to the discretion of the trial

court. Farris v. State, 818 N.E.2d 63, 67 (Ind. Ct. App. 2004), trans. denied. The

reviewing court will reverse a trial court’s decision only for an abuse of discretion. Id.

Further, the reviewing court will consider the conflicting evidence most favorable to the

trial court’s ruling and any uncontested evidence favorable to the defendant. Taylor v.

State, 891 N.E.2d 155, 158 (Ind. Ct. App. 2008), trans. denied. An abuse of discretion

occurs when the trial court’s decision is clearly against the logic and effect of the facts

and circumstances before the court or it misinterprets the law. Id. In determining

whether an error in the introduction of evidence affected an appellant’s substantial rights,

the reviewing court assesses the probable impact of the evidence on the jury. Oldham v.

State, 779 N.E.2d 1162, 1170 (Ind. Ct. App. 2002). Admission of evidence is harmless

and is not grounds for reversal where the evidence is merely cumulative of other evidence

admitted. Pavey v. State, 764 N.E.2d 692, 703 (Ind. Ct. App. 2002), trans. denied.

25


In this case the State introduced text messages between Wedding and Cardosi.

(Tr. Vol. V p. 4-6). Cardosi objected under Evidence Rule 804(b)(3). (Tr. Vol. V p. 7-

18). Rule 804 of the Indiana Rules of Evidence is entitled: Exceptions to the Rule

Against Hearsay – When the Declarant is Unavailable as a Witness; part (b) is entitled

Hearsay Exceptions; and subpart (3) states in pertinent part “[a] statement or confession

offered against the accused in a criminal case, made by a codefendant or other person

implicating both the declarant and the accused, is not within this exception. Ind. Rule

Evid. 804(b)(3). Cardosi further argued that the only co-conspirator statements that can

come in are the statements made in the course of the conspiracy and the conspiracy stops

when the act has occurred. (Tr. Vol. V p. 7). In Mayhew v. State, this Court stated that

declarations made after the conspiracy has been effected and the crime perpetrated are

not admissible in evidence against any except the persons making them. Mayhew v.

State, 537 N.E.2d 1188, 1190 (Ind. 1989), citing Baker v. State, 93 N.E. 14 (Ind. 1910).

In this case the Court allowed the text messages between Wedding and Cardosi over

Cardosi’s objections.

Additionally, the admission of Wedding’s statements was a violation of Cardosi’s

right to confrontation under the United States Constitution. The Confrontation Clause of

the Sixth Amendment of the United States Constitution provides that, “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him.” Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004). Under Crawford, “the admission of a hearsay statement made by a declarant who

does not testify at trial violates the Sixth Amendment if (1) the statement was testimonial

26


and (2) the declarant is unavailable and the defendant lacked a prior opportunity for

cross-examination.” Howard v. State, 853 N.E.2d 461, 465 (Ind. 2006). In order for the

admission of the statements at issue to constitute a violation of the Confrontation Clause,

they must be hearsay statements. Here, Wedding’s statements are hearsay as they were

statements being offered against the accused in a criminal case, made by a co-defendant

or other person implicating both the declarant and the accused. Ind. Rules of Evidence

804(b)(3). Further, Cardosi repeatedly objected because he was never afforded the

opportunity to depose Wedding which is a violation of his Sixth Amendment right of

confrontation. (Tr. Vol. V, p. 8, p. 13, p. 14-15). The trial court erred by allowing

Weddings’ texts with Cardosi into evidence.

IV. The trial court erred by reading a Final Jury Instruction

The trial court is afforded broad discretion in the manner of instructing a jury and

the appellate court will review the trial court’s decision on how to instruct a jury for

abuse of discretion. Forte v. State, 759 N.E.2d 206, 209 (Ind. 2001). When evaluating

the jury instructions on appeal this Court looks to whether the tendered instructions

correctly state the law; whether there is evidence in the record to support giving the

instruction; and whether the substance of the proffered instruction is covered by other

instructions. Dye v. State, 717 N.E.2d 5, 20 (Ind. 1999), reh’g denied. This Court will

reverse a conviction only if the appellant demonstrates that the instruction error

prejudices his substantial rights. Hall v. State, 769 N.E.2d 250, 254 (Ind. Ct. App. 2002).

27


The State of Indiana tendered a Final Jury Instruction regarding accomplice

liability. (Tr. Vol. V., p. 119). When Cardosi objected to said instruction the State

agreed to pull the accomplice liability instruction (Tr. Vol. V., p. 120-121). However,

when the trial court was reading the Final Instructions to the jury the Court read:

“[p]articular facts and circumstances of each case must be considered in determining

whether a person participated in the commission of the offense as an accomplice.” (Tr.

Vol. V., p. 124). At the conclusion of reading the Final Instructions and after the Jury

retired to deliberate the trial court acknowledged that it erroneously read the accomplice

liability instruction (Tr. Vol. V., p. 129-130). Cardosi argued that his objection to the

instruction was premised on Lee v. State, 91 N.E.3d 978 (Ind. Ct. App. 2017) and that the

instruction didn’t properly advise the jury on the elements of intent of the principal and

the agent. (Tr. Vol. V., p. 129-130). The trial court erred by reading the accomplice

liability instruction to the jury.

V. Cardosi should not have been given a sentence of life without parole

Sentencing is principally a discretionary function in which the trial court’s

judgment should receive considerable deference. Cardwell v. State, 895 N.E.2d 1219,

1222 (Ind. 2008). Accordingly, “[a] trial court’s sentencing order will be reviewed for an

abuse of discretion.” Rice v. State, 6 N.E.3d 940, 943 (Ind. 2014), citing Anglemyer v.

State, 868 N.E.2d 482, 490 (Ind. 2007). If, however, “the issue presented on appeal is a

pure question of law, we review the matter de novo.” State v. Holloway, 980 N.E.2d

331, 334 (Ind. Ct. App. 2012), quoting State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind.

1997).

28


A sentence of life imprisonment without parole is imposed under the same

standards and is subject to the same requirements as the death penalty. Pope v. State, 737

N.E.2d 374, 382 (Ind. 2000), reh’g denied; Nicholson v. State, 734 N.E.2d 1047, 1048

(Ind. 2000), reh’g denied; Rawley v. State, 724 N.E.2d 1087, 1091 (Ind. 2000); Ajabu v.

State, 693 N.E.2d 921, 936 (Ind. 1998). Under the death penalty statute, following the

completion of the guilt-determination phase of trial (Phase 1) and the rendering of the

jury’s verdict, the trial court reconvenes the jury for the penalty phase (Phase 2). Cooper

v. State, 854 N.E.2d 831, 838 (Ind. 2006). As with a death sentence, “the jury may

recommend . . . life imprisonment without parole” only if it finds: “(1) the state has

proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances

listed in subsection (b) exists; and (2) any mitigating circumstances that exist are

outweighed by the aggravating circumstance or circumstances.” Ind. Code 35-50-2-

9(e)(l).

In this case the State sought life without parole based on three aggravating

circumstances: murder by intentionally killing the victim while committing or attempting

to commit burglary, Indiana Code 35-50-2-9(b)(1)(B); murder by intentionally killing the

victim while committing or attempting to commit robbery, Indiana Code 35-50-2-

9(b)(1)(G); and murder by intentionally killing a victim when the Defendant had

committed another murder, Indiana Code 35-50-2-9(b)(8). As briefed earlier, Cardosi

contends that there was insufficient evidence to find that he committed or attempted to

commit burglary and/or robbery. Therefore, assuming the jury believed Cardosi

committed another murder, that would have left the State with only one statutory

29


aggravator. However, the trial court further considered non-statutory factors, specifically:

“the brutality of the murders and that the acts were committed at a time of the day when

the victims were most vulnerable when the victims were asleep and had no meaningful

way to defend themselves and that the crimes were calculated with a co-perpetrator.”

(Appellant’s App. Vol. III p. 105).

The trial court erred by considering non-statutory aggravating circumstances in

violation of Bivins v. State, 642 N.E.2d 928, 955 (Ind. 1994). In Bevins, the Court held

that the aggravating circumstances in a capital case are narrowed to those charged by the

State and found beyond a reasonable doubt. Id. “When the death sentence is sought,

courts must henceforth limit the aggravating circumstances eligible for consideration to

those specified in the death penalty statute, Indiana Code Section 35-50-2-9.” Id.

The Court adopted Cardosi’s mitigating factors including his youthful age; his

troubled childhood; and the undue hardship to Cardosi’s family and dependents that any

imprisonment including life without parole would cause. (Appellant’s App. Vol. III p.

105). Cardosi contends that the mitigating factors are outweighed by the aggravating

factor and he should not have been sentenced to life without parole.

30


CONCLUSION

For the reasons stated, Derrick T. Cardosi respectfully requests this Court reverse

his convictions.

/s/ Linda L. Harris

LINDA L. HARRIS

ATTORNEY AT LAW, P.C.

214 N. Third Street

Kentland, IN 47951

Phone: 219-474-3355

Fax: 219-474-3972

Email: [email protected]

ATTORNEY FOR APPELLANT

ATTY NO. 17914-79A

WORD COUNT CERTIFICATE

I verify that this brief contains no more than Fourteen Thousand (14,000) words

and I verify that this Brief contains Seven Thousand Seven Hundred Forty-Four (7,744)

words.

/s/ Linda L. Harris

Linda L. Harris, Attorney No. 17914-79A


CERTIFICATE OF SERVICE

I certify that 0n August 10, 2018 I electronically filed the foregoing documentusing the Indiana E-filing System (IEFS).

I also certify that 0n August 10, 201 8 the foregoing document was served upon

the following person(s) via IEFS:

Curtis T. Hill, Indiana Attorney General ([email protected])

Jeffrey D. Drinski, Newton County Prosecuting Attorney

([email protected])

/s/ Linda L. Harris

Linda L. Harris, Atty No. 17914-79A

31

IN THE INDIANA SUPREME COURT CAUSE NO. 18S-LW-181 · 1 IN THE INDIANA SUPREME COURT CAUSE NO....

Documents

Transcript of IN THE INDIANA SUPREME COURT CAUSE NO. 18S-LW-181 · 1 IN THE INDIANA SUPREME COURT CAUSE NO....