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Justices hear murder, jurisdiction arguments

January 15, 2019

Indiana Supreme Court Justices heard oral argument in two cases Thursday, beginning with a man who argued there was insufficient evidence to sustain his triple-murder conviction and that certain evidence was improperly admitted.

After breaking and entering a Newton County home, Derrick Cardosi and a co-conspirator murderer three individuals asleep in the home, stole items and a truck and then fled.

Cardosi was convicted and sentenced to life without parole for three counts of murder, two counts of Level 5 felony assisting a criminal and Level 6 felony auto theft. On appeal before the high court Thursday, Cardosi contested his convictions and LWOP sentence in Derrick T. Cardosi v. State of Indiana, No. 18S-LW-00181.

Defense counsel Harry J. Falk first argued whether the trial court abused its discretion in admitting the co-conspirator's text messages to Cardosi into evidence over the objection of trial counsel.

Justice Geoffrey Slaughter immediately asked why Falk believed the text messages admitted into evidence were testimonial, and therefore implicate the Sixth Amendment rights to confrontation.

Citing Melendez-Diaz v. Massachusetts, which was not included in the appellant’s brief, Falk said the text messages were testimonial because the two men thought the messages would potentially be used against them later on, so they deleted them. However, Justice Steven David said he wasn’t satisfied with that defense, asking why the text messages of the other individual were inadmissible.

Chief Justice Loretta Rush additionally pointed out that most of the damage was already done by Cardosi’s own incriminating statements in the text messages he wrote specifically, which were unarguably admissible. Falk disagreed, continuing to rely on the language of Melendez, saying that one of the statements placed Cardosi at the scene of the burglary and murder, and was thus used as an LWOP aggravator.

State counsel Lyubov Gore countered that Melendez stood for the proposition that there would be certain statements made for the purposes of being used in future legal proceedings.

“They are not going to be the types of statements between a confidential informant and the person that he's dealing with,” Gore said. “These are the exact types of messages that are not going to be used for future legal proceedings. When somebody is sending these messages, that's not what is in their mind.”

Gore added that she has never heard of an appellate case that found deleted text messages to be testimonial because the appellant was afraid of them being used in legal proceedings.The high court also Thursday heard argument in the jurisdiction case of Daniel T. O'Bryant, et al. v. Alan P. Adams, et al., No. 18S-PL-00584.

Daniel O’Bryant sued A.L.A. Trucking in Madison Circuit Court, alleging breach of contract. A.L.A. filed a motion to dismiss the complaint under Trial Rule 12(B)(2) for lack of personal jurisdiction, arguing the complaint was barred because the contract included a forum-selection clause requiring O’Bryant to sue in Texas, not Indiana. There was nothing on the record that explicitly stated why the parties chose Texas.

The trial court dismissed the complaint, and the Indiana Court of Appeals affirmed, citing Rule 12(B)(2) and finding the forum selection clause unambiguous and enforceable, requiring O’Bryant to sue in Texas. 

Counsel for O’Bryant, Scott Norrick, contended Thursday that the specific language of the contract referencing “this state” as Texas, was not more general than Indiana. Rather, Norrick argued, the state of Indiana was very specific in reference to “this state,” thus leaving the Doctrine of Ejusdem Generis misplaced.

Norrick added that the clause was drafted by A.L.A. and suggested that if there is an ambiguity found, it should be found against the drafter of the contract. “My real argument is that its not reasonable under the circumstances.”

“You seem to suggest that there has to be something reasonable about a forum selection clause,” Justice Mark Massa said. “If the two parties freely bargained for this, what authority does an appellate court have to have to drill down deeper and decide whether or not it's reasonable to go to Texas? If the two parties decide that that's where we're going in the event of a dispute, isn't that the end of it?”

“The long and the short is that there's no tie, no nexus, no connection, no reasonableness of why the chosen forum is Texas,” Norrick said.

Opposing counsel Andrew F. Marquis admitted that it wasn’t clear why the parties chose Texas as the state to file suit, but noted that if O’Bryant would have to travel to Texas for litigation, so would A.L.A.

“These parties entered into this knowingly, voluntarily,” Marquis said. “There's no evidence that anything was snuck into the contract when someone wasn't looking. Instead, this is a contract that everyone saw, signed, agreed to, and here we are.”

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