A man convicted of a northern Indiana triple slaying will continue to serve a life sentence after the Indiana Supreme Court rejected his challenges to his convictions and sentence.
In Derrick Cardosi v. State of Indiana, 18S-LW-181, Ricky Thomas lived with his grandmother, his girlfriend, Kim Spears, and his friend, Justin Babbs. Another friend, Sebastian Wedding, also lived in the home at times, while Wedding’s friend Derrick Cardosi lived across the street.
One evening, Wedding texted Cardosi telling him that he could get marijuana, but Cardosi said “maybe tomorrow.” The following morning, Wedding texted Cardosi asking if he was “a go” and telling him the door was open and he could “go to work.”
The grandmother woke up a few hours later to find Babbs unresponsive and bloody in the living room. The elderly woman went outside to flag down help, and while outside, she noticed Thomas’ vehicle was gone.
Meanwhile, at about the same time, Wedding drove himself and Cardosi to a Dollar General store and a gas station in Thomas’ car. The two men then met some friends at a nearby lake, where Cardosi asked Wedding if he was telling the friends “anything [a]bout today.”
Wedding answered negatively, but when Cardosi returned home, Wedding texted him to ask if anything was happening “over there.” Cardosi said no, but the grandmother had flagged down two teenagers, who went into the home and called 911. When officers arrived, they determined Babbs was dead and also found Thomas and Spears’ lifeless bodies in Thomas’ bedroom.
The bedroom was covered in blood and a crowbar was found next to a cracked-open safe. Examinations later showed that all three victims died from multiple stab wounds.
As police investigated, Cardosi and Wedding began texting each other about how they needed to dispose of the car. Wedding was visited by his ex-girlfriend later that night, who reported him to police after she noticed Thomas’ car nearby and observed Wedding acting nervously.
Police arrested Wedding a short time later and found the car, with Dollar General bags and bloody knives inside. Cardosi was arrested the next day, and inside his home officers found a bloodstained bedsheet that held DNA matches to Cardosi and the three victims. Other DNA evidence found later also tied Cardosi to the slayings.
Cardosi was eventually charged with nine offenses, including murder, felony murder, auto theft and assisting a criminal. The jurors were told several times to only discuss the case among themselves in the juror room, though they didn’t receive that admonishment every time they were separated.
As the trial progressed, the text messages between Cardosi and Wedding were admitted over Cardosi’s objection. Then at the end of the trial, the Newton Superior Court inadvertently read an instruction on accomplice liability that the parties had agreed would be withdrawn. The verbal instruction was not part of the written instructions, so the trial court determined reading it had been harmless.
The jury found Cardosi guilty as charged and recommended a sentence of life without parole. After merging his felony murder convictions with knowing/intentional murder convictions, the trial court imposed the LWOP sentence, citing the “brutality of these offenses of murder,” a nonstatutory factor, as an aggravator.
In his direct appeal to the Indiana Supreme Corut pursuant to Indiana Appellate Rule 4(A)(1)(a), Cardosi first argued there was insufficient evidence to support his auto theft conviction. But relying on Alvies v. State, 905 N.E.2d 57 (Ind. Ct. App. 2009), the Supreme Court said “substantial evidence” supports the conviction, even though there was no evidence showing Cardosi was the one behind the wheel.
Specifically, Justice Mark Massa said Cardosi rode in the stolen vehicle with Wedding, pumped the gas and placed bags in the trunk. Massa also pointed to the men’s texts about getting rid of the vehicle, and Cardosi’s later admission to police that he and Wedding had discussed how to dispose of it.
Cardosi also challenged the evidence supporting his felony murder convictions, but the justices declined to address that challenge because the felony murder convictions were merged with his three knowing/intentional murder convictions.
Next, Cardosi argued the trial court committed fundamental error when it failed to admonish the jury not to discuss the case every time the jurors were separated. But the high court pointed to seven instances when jurors were admonished, adding that the court failed to admonish them only before six meals and at the end of two days of the eight-day trial.
“To be sure, the trial court didn’t strictly adhere to the command of (Indiana Code) section 35-37-2-4(a),” Massa wrote. “But this deficiency didn’t amount to fundamental error because Cardosi hasn’t shown that any ‘harm or potential for harm is substantial.’”
The defendant also raised a constitutional challenge to the admission of his post-crime text messages with Wedding. Bringing a claim under the Sixth Amendment’s Confrontation Clause, Cardosi argued the texts were testimonial because the men could “reasonably expect” their statements would “be used against them in a criminal prosecution.”
But “(r)ather than serving as out-of-court substitutes for trial testimony, the messages were created for the primary purposes of planning and covering up crimes,” Massa wrote. Thus, the admission of the messages didn’t violate the Sixth Amendment.
The high court likewise rejected Cardosi’s challenge to the erroneously read accomplice-liability instruction, finding that even if the trial court erred in reading the instruction, the error was harmless.
“Here, the accomplice instruction was tethered to no specific charge, so it is hard to discern, without his guidance, which conviction Cardosi believes isn’t supportable without the instruction being given,” Massa wrote. “But strong evidence sustains all his convictions.”
Finally, Cardosi challenged his LWOP sentence, arguing the trial court manifestly abused its discretion when it listed the “brutality” of the murders as an aggravator.
“But the trial court’s consideration of any non-statutory aggravating circumstance was inconsequential because ‘there is only one sentencing determination, which is made by the jury, and the judge must apply the jury’s determination,’” Massa wrote, quoting Stroud v. State, 809 N.E.2d 274, 287 (Ind. 2004). “In other words, any later musings by the judge was irrelevant when the court was bound by the jury’s recommendation of life without parole.”
“Here,” the justice continued, “the jury recommended life without parole based solely on statutory aggravators with no evidence showing it considered any other aggravating circumstances.”