                                                              FILED
                                                         Aug 07 2019, 1:10 pm

                                                              CLERK
                                                          Indiana Supreme Court
                                                             Court of Appeals
                                                               and Tax Court




                          IN THE

  Indiana Supreme Court
            Supreme Court Case No. 18S-LW-181

                     Derrick Cardosi
                  Appellant (Defendant below)

                              –v–

                     State of Indiana
                    Appellee (Plaintiff below)


        Argued: January 10, 2019 | Decided: August 7, 2019

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

                        On Direct Appeal



                   Opinion by Justice Massa
Chief Justice Rush and Justices David, Slaughter, and Goff concur.
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withdrawn accomplice liability instruction, and (V) the trial court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



Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019       Page 2 of 21
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



1This wasn’t the first time that officers had been to that house. A few months earlier, officers
found a baggie of marijuana on the lawn when they were dispatched there after Ricky and
Kim reported that masked burglars stole money from them.



Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019                          Page 3 of 21
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



Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019      Page 4 of 21
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



Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019       Page 5 of 21
(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.



Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019          Page 6 of 21
   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(l).

  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 and Decision
    Cardosi argues five issues, contending that




2In a sentencing order issued after the hearing, the trial court, on top of memorializing all the
factors it discussed at the hearing, also noted “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.” App. Vol. III, p.105.



Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019                          Page 7 of 21
        I.   insufficient evidence supported his convictions for auto
             theft and felony murder,

        II. the trial court failed to properly admonish the jury each
            time they were separated,

        III. the trial court improperly admitted Wedding’s post-
             crime text messages,

        IV. the trial court erred by reading the withdrawn accomplice
            liability instruction, and

        V. the trial court improperly considered non-statutory
             aggravators when sentencing him to life without parole.

     We address each argument below.


I. Cardosi’s insufficient-evidence arguments fail.
   When a defendant challenges the sufficiency of the evidence
supporting a conviction, “we neither reweigh evidence nor judge witness
credibility.” McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018). Instead,
this Court will “consider only the evidence most favorable to the
judgment together with all reasonable inferences that may be drawn from
the evidence.” Id. If substantial evidence supports the judgment, we’ll
affirm the convictions. Id.

   Cardosi argues that the State presented insufficient evidence to support
his convictions for auto theft and two counts of felony murder. We
address both convictions in turn.


   A. Sufficient evidence supports Cardosi’s auto-theft
      conviction.
   A defendant is guilty of auto theft if he “knowingly or intentionally
exerts unauthorized control over the motor vehicle of another person,
with intent to deprive the owner of . . . the vehicle’s value or use.” I.C.
§ 35-43-4-2.5(b)(1). Ordinarily, “an individual’s mere presence as a
passenger in a stolen automobile” can’t support a conviction for auto


Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019          Page 8 of 21
theft. Irvin v. State, 501 N.E.2d 1139, 1140 (Ind. Ct. App. 1986); see also
Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010) (holding that “the mere
unexplained possession of recently stolen property standing alone does
not automatically support a conviction for theft”). But even in cases with
no “direct evidence that [a defendant] was ever behind the wheel of” a
stolen car, we will affirm an auto-theft conviction if other substantial
evidence supports it. Alvies v. State, 905 N.E.2d 57, 62 (Ind. Ct. App. 2009)
(holding that a reasonable jury could conclude that the defendant was
guilty of auto theft when he “took part in the initial burglary,” “rode in
the car on the way to the woods,” and “was in the car when it left the
scene of the murder”).

  Cardosi argues that the State provided no evidence that he stole Ricky’s
Grand Marquis. Instead, Cardosi insists, only Wedding could be charged
with auto theft because it was found near his grandparents’ house and
surveillance footage showed him driving the car. The State counters that,
despite Wedding driving the vehicle, Cardosi used it for his own purposes
without Ricky’s permission.

   Like the defendant in Alvies, no evidence showed Cardosi was “behind
the wheel of” the stolen vehicle. But, also like the defendant in Alvies,
other substantial evidence supports his conviction. Cardosi rode in the
Grand Marquis with Wedding to Dollar General, and then to the gas
station where they met up with friends. While there, Cardosi put gas in
the car, opened the trunk, put bags in the trunk, and closed the trunk.
Cardosi then rode in the car with Wedding and the friends to a local lake,
where Cardosi texted Wedding about getting rid of the car. Later that
night, Cardosi and Wedding again texted about ditching the car, which
Wedding had temporarily abandoned in a cul-de-sac near his
grandparents’ house. When officers found the car, they discovered
incriminating evidence in and around it. Finally, after he was in police
custody, Cardosi admitted to an investigating officer that he and Wedding
discussed how to dispose of the car. Although no evidence shows Cardosi
drove the vehicle, substantial evidence supported his conviction for auto
theft because he used the car to travel around and to cover up crimes with
his co-conspirator.



Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019         Page 9 of 21
   B. We needn’t address Cardosi’s felony-murder challenge
      because the court merged those verdicts with his
      murder convictions.
   A defendant commits felony murder if he “kills another human being
while committing or attempting to commit,” among other things, burglary
or robbery. I.C. § 35-42-1-1(2). The State charged Cardosi with felony
murder for killing Ricky while committing burglary and robbery. Cardosi
argues that the State failed to provide sufficient evidence to convict him
for felony murder because “there was no evidence” that he killed Ricky
while committing burglary or robbery.

  The State contends that Cardosi’s challenge fails because the trial court
merged Cardosi’s felony-murder convictions with the three murder
verdicts. We agree. As this Court has held before, when a trial court
merges a felony-murder and murder conviction, we don’t need to address
the sufficiency of the evidence supporting the felony-murder conviction
because there is no judgment on that charge. Cutter v. State, 725 N.E.2d
401, 407 n.2 (Ind. 2000); see also Alford v. State, 699 N.E.2d 247, 252 (Ind.
1998) (“Because the trial court merged the felony murder conviction into
the murder conviction any claim of error with respect to the felony
murder charge is moot.”). “There being no judgment to appeal from,”
Cardosi’s claim fails. See Bd. of Comm'rs of Marion Cty. v. Hutson, 55 Ind.
App. 447, 447, 103 N.E. 1090, 1090 (1914).


II. Because Cardosi doesn’t show how any harm or
    potential for harm was substantial, any error in the
    trial court’s admonishments wasn’t fundamental.
   Instructing the jury is a matter within the discretion of the trial court,
and we’ll reverse only if there’s an abuse of that discretion. Pattison v.
State, 54 N.E.3d 361, 365 (Ind. 2016).

   Trial courts must “admonish the jurors in the preliminary instruction,
before separating for meals, and at the end of the day,” to inform them of
“their duty not to converse among themselves or permit others to


Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019         Page 10 of 21
converse with them on any subject connected with the trial, or to form or
express any opinion about the case until the cause is finally submitted to
them.” I.C. § 35-37-2-4(a) (1981). 3 Failure to provide this admonishment,
however, doesn’t lead to automatic reversal. Instead, a defendant must
show he was “harmed by failure of the court to instruct or admonish the
jury as to conduct during recess.” Brown v. State, 245 Ind. 604, 608, 201
N.E.2d 281, 283 (1964); see also Merry v. State, 166 Ind. App. 199, 216, 335
N.E.2d 249, 259 (1975) (“[I]t is incumbent on the defendant to show
prejudice by the failure to admonish.”).

   Cardosi concedes that he “failed to object throughout his trial” to what
he considers inadequate jury admonishments, waiving his argument for
traditional appellate review. Br. of Appellant at 22. See Lake v. State, 565
N.E.2d 332, 335 (Ind. 1991) (reiterating that, “while the terms of the statute
are mandatory in their call for an admonition of the jurors at specific
times, no error is preserved for appeal where there was no objection
interposed at the time of the action complained of”). Waiver aside,
Cardosi claims fundamental error. This exception is “extremely narrow
and encompasses only errors so blatant that the trial judge should have
acted independently to correct the situation.” Durden v. State, 99 N.E.3d
645, 652 (Ind. 2018) (internal quotation marks removed). We afford relief
under this standard “only when the error constitutes a blatant violation of
basic principles, the harm or potential for harm is substantial, and the
resulting error denies the defendant fundamental due process.” Hale v.




3 In his appellant’s brief, Cardosi cites Indiana Code section 34-36-1-5 for the proposition that

the trial court erred by inconsistently admonishing the jury. But that statute applies to civil
cases, while here we are presented with a criminal case. Generally, appellate arguments
“must be supported by citations to the authorities” on which they rely. Ind. Appellate Rule
46(A)(8)(a). And failing to do so “waives those arguments for our review.” Pierce v. State, 29
N.E.3d 1258, 1267 (Ind. 2015). Whenever possible, however, “we prefer to resolve cases on the
merits instead of on procedural grounds like waiver.” Id. (internal quotation marks removed).
Despite Cardosi citing the wrong statute to support his argument, his “non-compliance with
the rule” doesn’t “impede our consideration of the issue raised” because we can readily
determine that section 34-36-1-5’s criminal equivalent is section 35-37-2-4(a). See id. (internal
quotation marks removed).



Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019                        Page 11 of 21
State, 54 N.E.3d 355, 359 n.2 (Ind. 2016) (internal quotation marks
removed).

   During Cardosi’s trial, the court admonished the jury (1) after jury
selection and before adjournment on the first day, (2) during preliminary
instructions, (3) at the end of the second day, (4) at the end of the third
day, (5) at the end of the fourth day, (6) before lunch on and at the end of
the fifth day, and (7) after the jury returned its verdict on the eighth day.
At most, the trial court failed to admonish jurors before six meals and at
the end of two days during Cardosi’s eight-day trial.

    To be sure, the trial court didn’t strictly adhere to the command of
section 35-37-2-4(a). But this deficiency didn’t amount to fundamental
error because Cardosi hasn’t shown that any “harm or potential for harm
is substantial.” See Hale, 54 N.E.3d at 359 n.2. Cardosi’s closest claim to
harm is that he was “charged and convicted of the most serious felony
available in Indiana, Murder.” Br. of Appellant at 24. But “harm is not
shown by the fact that a defendant was ultimately convicted.” Pope v.
State, 737 N.E.2d 374, 380 (Ind. 2000). Indeed, on appeal, Cardosi doesn’t
challenge the sufficiency of the evidence supporting his murder
convictions. 4 Because Cardosi failed to show any substantial harm or
potential for substantial harm, any trial court error wasn’t “so prejudicial
to the rights of the defendant as to make a fair trial impossible.” Shoun v.
State, 67 N.E.3d 635, 640 (Ind. 2017).




4Certainly, Cardosi argues that insufficient evidence supported his felony-murder
convictions. See infra section I. But the trial court merged these verdicts with Cardosi’s first-
degree-murder convictions, which he doesn’t challenge as unsupported by sufficient
evidence.



Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019                           Page 12 of 21
III. The trial court didn’t violate Cardosi’s
     Confrontation Clause rights because Wedding’s
     post-crime text messages weren’t testimonial.
   Although a trial court generally has broad discretion in ruling on the
admissibility of evidence, when a defendant challenges the admission as a
constitutional violation of his rights, we review the issue de novo. Dycus v.
State, 108 N.E.3d 301, 303–04 (Ind. 2018).

   The Sixth Amendment's Confrontation Clause provides that “In all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI. In
Crawford v. Washington, the U.S. Supreme Court held that this clause
prohibits “admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the defendant had
had a prior opportunity for cross-examination.” 541 U.S. 36, 53–54 (2004).
Though leaving “testimonial statement” undefined, the Court stated that
the label “applies at a minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police
interrogations.” Id. at 68. In other words, the “core” types of testimonial
statements protected under the Confrontation Clause are

        [1] ex parte in-court testimony or its functional equivalent—
        that is, material such as affidavits, custodial examinations,
        prior testimony that the defendant was unable to cross-
        examine, or similar pretrial statements that declarants would
        reasonably expect to be used prosecutorially;

        [2] extrajudicial statements contained in formalized
        testimonial materials, such as affidavits, depositions, prior
        testimony, or confessions; [or]

        [3] statements that were made under circumstances which
        would lead an objective witness reasonably to believe that
        the statement would be available for use at a later trial.




Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019        Page 13 of 21
Id. at 51–52 (cleaned up). 5

   A few years later, in the combined cases of Davis v. Washington and
Hammon v. Indiana, the Court held that statements made to a 911
emergency operator during and shortly after an attack weren’t
testimonial, while statements made to police officers after a victim was
isolated from her abuser were testimonial. 547 U.S. 813, 828, 832 (2006).
Declaring a new “primary purpose” test, the Court explained that the
statements to the 911 operator were made with the primary purpose of
helping end an ongoing emergency, while the statements to the police
officers were made with the primary purpose of establishing past events
potentially relevant to a later criminal prosecution. Id. at 822. In sum, the
statements to the 911 operator didn’t violate the Confrontation Clause,
while the statements to the police officers did.

   Five years later, in Michigan v. Bryant, the Supreme Court held that a
dying victim’s statements about his assailant weren’t testimonial because
the conversation’s primary purpose was to end an ongoing emergency.
562 U.S. 344, 377–78 (2011). While emphasizing that courts must consider
“all of the relevant circumstances” when determining the primary
purpose of a statement, the Court clarified that an “ongoing emergency”
wasn’t the only circumstance where a nontestimonial statement could be
made. Id. at 369. In fact, “whether an ongoing emergency exists is simply
one factor” in a court’s inquiry, with the formality of the questioning
serving as another. Id. at 366, 377. Ultimately, the Court determined that a
statement is testimonial if—considering all the circumstances and viewed
objectively—the primary purpose of the conversation was to create “an
out-of-court substitute for trial testimony.” Id. at 358.




5 The parenthetical “(cleaned up)” signifies that the author “has removed extraneous, non-

substantive material like brackets, quotation marks, ellipses, footnote reference numbers, and
internal citations; may have changed capitalization without using brackets to indicate that
change; and affirmatively represents that the alterations were made solely to enhance
readability and that the quotation otherwise faithfully reproduces the quoted text.” Jack
Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 154 (2017).



Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019                      Page 14 of 21
   Applying this test in Ohio v. Clark, the Supreme Court held that the trial
court’s admission of statements made by a three-year-old boy to his
teachers identifying his mother’s boyfriend as the source of his injuries
didn’t violate the Confrontation Clause. 135 S. Ct. 2173, 2181 (2015).
Looking at all the circumstances objectively, the Court determined that the
statements weren’t made with the primary purpose of creating evidence
for prosecution. Id. Instead, the primary purpose of the conversation was
to protect the child. Id. While declining to categorically exclude
“statements to individuals who are not law enforcement officers” from
Sixth Amendment protections, the Court recognized that statements to
these individuals “are significantly less likely to be testimonial than
statements given to law enforcement officers.” Id. at 2182.

   We most recently applied this test in Ward v. State, 50 N.E.3d 752 (Ind.
2016). There, a woman named her boyfriend as her batterer to a paramedic
and a forensic nurse who were treating her injuries. Id. at 753. When the
woman couldn’t take the stand, the State successfully sought to admit the
statements of the health professionals instead. Id. at 753–54. Though at
trial and on appeal the woman’s boyfriend argued that admission of the
evidence violated his Confrontation Clause rights, we held her statements
were nontestimonial because asking the woman who attacked her was “a
vital part of providing appropriate medical and psychological treatment
and service referrals.” Id. at 754. First, the paramedic obtained the name of
the attacker to make sure the batterer wasn’t near, ensuring the
“obviously battered victim who apparently was suffering in pain” was
safe. Id. at 760. And second, the nurse “needed to know who beat [the
woman] in order to classify her status while in the hospital,” “discharge
her home to a safe place,” “and make proper post-discharge referrals.” Id.
at 763. Because the primary purpose of neither conversation was to gather
information to create a substitute for trial testimony, their admission
didn’t violate the Confrontation Clause.

 Cardosi argues that his Sixth Amendment rights were violated when
Wedding’s post-crime text messages were admitted because he and
Wedding could “reasonably expect” the statements “to be used against




Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019      Page 15 of 21
them in a criminal prosecution.” Reply Br. of Appellant at 6. 6 Cardosi
borrows the phrase “reasonably expect” from Crawford’s list of examples
of the core types of statements considered testimonial. Id. at 5. But,
contrary to Cardosi’s position, Crawford’s list—which includes in-court
testimony, affidavits, pretrial custodial statements, depositions, and so
on—shows that any expectation of use at trial isn’t based on a defendant
knowing a statement is incriminatory.

   Instead, the Sixth Amendment compels us to look at the circumstances
objectively to determine whether the statements were made with the
primary purpose to create “an out-of-court substitute for trial testimony.”
Bryant, 562 U.S. at 358. These circumstances include whether the
statements were made with the primary purpose of ending an ongoing
emergency, whether the statements were made in a formal setting, and
whether the statements were made to law enforcement personnel. See
Clark, 135 S. Ct. at 2180, 2182. Wedding made the statements to try to
conceal an ongoing emergency instead of to end one. Wedding made the
statements informally over text messages—with most being later
deleted—instead of permanently memorializing them in a formal setting.
And Wedding made the statements to a co-conspirator instead of to law
enforcement personnel. An objective analysis of the circumstances shows
that Wedding’s text-message statements weren’t testimonial. Rather than
serving as out-of-court substitutes for trial testimony, the messages were




6 Cardosi separately argues that Wedding’s text messages were inadmissible hearsay under

the Indiana Rules of Evidence. To be sure, as Cardosi correctly notes, Indiana Evidence Rule
804(b)(3) bars courts from admitting any “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.” But for any statement to be hearsay, it must be “offered in evidence to prove the
truth of the matter asserted.” Ind. Evidence Rule 801(c)(2). Wedding’s text messages weren’t
offered to prove the truth of the matters asserted by Wedding. Instead, they provided context
for Cardosi’s own incriminating text messages, like what he meant when he said “lot of
activity this way now,” “we will get rid of it tonight,” “[d]id you thoroughly get it done,” and
“so far no one knows anything.” St. Ex. 127. Because statements “providing context for other
admissible statements are not hearsay,” Mack v. State, 23 N.E.3d 742, 754 (Ind. Ct. App. 2014)
(internal quotation marks removed), trans. denied, Wedding’s text messages were properly
admitted.




Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019                       Page 16 of 21
created for the primary purposes of planning and covering up crimes. Cf.
Bryant, 562 U.S. at 358 (“[T]he most important instances in which the
Clause restricts the introduction of out-of-court statements are those in
which state actors are involved in a formal, out-of-court interrogation of a
witness to obtain evidence for trial.”). Because Wedding’s text messages
weren’t testimonial, their admission didn’t violate Cardosi’s Sixth
Amendment rights.


IV. Even if the trial court abused its discretion by
    reading the withdrawn accomplice liability
    instruction, any error was harmless.
  A trial court has discretion when instructing the jury, and we’ll reverse
only if it abuses that discretion. Pattison, 54 N.E.3d at 365.

   Cardosi argues simply that the trial court “erred” by inadvertently
instructing that “‘particular facts and circumstances of each case must be
considered in determining whether a person participated in the
commission of the offense as an accomplice.’” Br. of Appellant at 27
(alterations removed) (quoting Tr. Vol. V, p.124). But error alone isn’t
enough. Despite correctly noting that “[t]his Court will reverse a
conviction only if the appellant demonstrates that the instruction error
prejudices his substantial rights,” Br. of Appellant at 26 (citing Hall v.
State, 769 N.E.2d 250, 254 (Ind. Ct. App. 2002)), Cardosi points to no
prejudice, and we independently find none. “Instructional error is
harmless where a conviction is clearly sustained by the evidence and the
jury could not properly have found otherwise.” Inman v. State, 4 N.E.3d
190, 200 (Ind. 2014) (internal quotation marks removed).

    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. But strong
evidence sustains all his convictions. The day before the murders,
Wedding and Cardosi texted about obtaining marijuana the next day. The
morning of the murders, they exchanged several early phone calls and
texted about whether Cardosi was “a go,” with Wedding telling Cardosi


Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019      Page 17 of 21
to “go to work.” Later that day, Cardosi arrived in Ricky’s stolen car at
Dollar General while wearing clothes that were later found near the
abandoned car. While at Dollar General, the two purchased items also
later found around the vehicle. Cardosi arrived at a gas station in the
stolen car, helped fill it with gas, and placed items into its trunk. After
arriving at the lake, Cardosi asked if Wedding was telling a friend
“anything [a]bout today.” Once the two returned to their homes, Cardosi
and Wedding exchanged several texts about the police investigation and
the disposal of the car. When police officers discovered the stolen car, they
found, along with the clothing and items purchased at Dollar General,
bloody knives belonging to Cardosi and his roommate (all the victims
died from multiple stab wounds) and a black, rubber glove (the same style
found in Cardosi’s house along with a bloody sheet). All these items,
including the clothing and items purchased at Dollar General, had DNA
matches for either the victims or Cardosi. In the days following the
murders, Cardosi used his phone to search the internet almost seventy
times for information about the murders. And while in custody, Cardosi
admitted to police officers that he and Wedding discussed getting rid of
the stolen car.

   Because this mass of evidence supports each of his convictions—for the
murders of Justin, Ricky, and Kim, for assisting Wedding by
communicating police action at the crime scene and by disposing of
evidence, and for auto theft—no error in giving the accomplice instruction
prejudiced Cardosi’s substantial rights, so the trial court didn’t abuse its
discretion.


V. The trial court didn’t manifestly abuse its
   discretion when—consistent with the jury’s
   binding recommendation—it sentenced Cardosi to
   life without parole.
   Because trial courts enjoy wide discretion in sentencing, we’ll reverse a
sentence “‘only upon a showing of a manifest abuse of that discretion.’”




Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019       Page 18 of 21
Weisheit v. State, 26 N.E.3d 3, 19 (Ind. 2015) (quoting Sims v. State, 585
N.E.2d 271, 272 (Ind. 1992)).

   Cardosi asserts that the “trial court erred by considering non-statutory
aggravating circumstances” (the “brutality” of the murders) when
sentencing him to life without parole. Br. of Appellant at 29. Specifically,
Cardosi asserts the trial court violated the mandate of Bivins v. State,
which held that judges and juries are confined to considering aggravators
specified in the statute permitting the death penalty or life without parole.
642 N.E.2d 928, 955 (Ind. 1994); see I.C. § 35-50-2-9.

     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.” Stroud v. State, 809 N.E.2d 274, 287 (Ind. 2004). In
other words, any later musing by the judge was irrelevant when the court
was bound by the jury’s recommendation of life without parole. See, e.g.,
McCallister, 91 N.E.3d at 565 (“It was the jury, not the court, that found the
. . . aggravator beyond a reasonable doubt, weighed it against mitigating
circumstances, and unanimously determined the proper sentence was life
without parole.”). Here, the jury recommended life without parole based
solely on statutory aggravators with no evidence showing it considered
any other aggravating circumstances. 7

   And even if the jury or trial court had considered non-statutory
aggravators, a sentence may still be upheld if other valid aggravating
circumstances exist. Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App.
2016), trans. denied. The jury determined that the State had proven three
statutory aggravators. Despite potentially challenging the sufficiency of



7Even if the trial court independently sentenced Cardosi, its additional contemplation merely
“provide[d] an appropriate context for consideration of” an aggravator. See Prowell v. State,
687 N.E.2d 563, 567 (Ind. 1997). Indeed, “trial courts are given some latitude in describing the
nature of the statutory aggravating circumstance in order to determine the appropriate weight
to give it.” Warlick v. State, 722 N.E.2d 809, 812 (Ind. 2000). Here, the trial court’s reflection
about the brutality of the crimes explained the increased weight given the multiple-murder
aggravator by specifically noting that the murders were committed at night while the victims
were at their most vulnerable.



Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019                         Page 19 of 21
the “burglary” and “robbery” aggravators,8 Cardosi doesn’t dispute the
“multiple-murder” aggravator, an aggravating circumstance this Court
considers especially weighty. See Isom v. State, 31 N.E.3d 469, 494 (Ind.
2015). Because this weighty aggravator found by the jury remains
uncontested, Cardosi’s sentence of life without parole is independently
supported by a valid statutory aggravating circumstance. We conclude
that the trial court didn’t abuse its discretion by sentencing Cardosi to life
without parole.


Conclusion
    We affirm Cardosi’s convictions and sentence because (I) sufficient
evidence supports Cardosi’s auto-theft conviction and we needn’t address
his felony-murder challenge, (II) any error in the trial court’s
admonishments wasn’t fundamental, (III) the trial court didn’t violate
Cardosi’s Confrontation Clause rights, (IV) any error in reading the
withdrawn accomplice liability instruction was harmless, and (V) the trial
court didn’t manifestly abuse its discretion when it sentenced Cardosi to
life without parole.


Rush, C.J., and David, Slaughter, and Goff, JJ., concur.




8 In the “insufficient evidence” section of his appellate brief, Cardosi contends that “no
evidence” showed he killed Ricky while committing burglary or robbery. Br. of Appellant at
19. But—on top of Cardosi admitting he and Wedding stole Ricky’s Grand Marquis—he at
times lived at Grandma’s house and was familiar with the home (including knowing when its
exterior doors were unlocked), he and Wedding discussed obtaining marijuana the night
before the murders, Grandma’s house was robbed by masked intruders with marijuana found
on the lawn a few months earlier, Grandma overheard Kim say “Ricky no” just before the
murders, Wedding told him he should “go to work” that morning, a cracked-open safe was
found in Ricky’s bedroom with a pry bar nearby, the likely cell phone of Ricky’s mother was
found near the Grand Marquis, and electronic devices were found in the Grand Marquis with
evidence showing that Wedding and he planned to sell those items along with stolen
marijuana.



Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019                   Page 20 of 21
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




Indiana Supreme Court | Case No. 18S-LW-181 | August 7, 2019   Page 21 of 21
