Cardwell v. Com., s. 940345

Citation248 Va. 501, 450 S.E.2d 146
Case DateNovember 04, 1994
CourtSupreme Court of Virginia

Page 146

450 S.E.2d 146
248 Va. 501
Kevin DeWayne CARDWELL
Record Nos. 940345, 940346.
Supreme Court of Virginia.
Nov. 4, 1994.

Page 148

[248 Va. 503] Robert P. Geary, Richmond (John F. McGarvey, on brief), for appellant.

John H. McLees, Jr., Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

[248 Va. 501] Present: All the Justices.

[248 Va. 503] STEPHENSON, Justice.

In these appeals, we review two capital murder convictions and a sentence of death imposed upon Kevin DeWayne Cardwell (Record No. 940345) and other related convictions (Record No. 940346).

248 Va. 504



In the first phase of a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, Cardwell was found guilty of two charges of capital murder, i.e., the willful, deliberate, and premeditated killing of Anthony Brown (1) in the commission of abduction with intent to extort money or pecuniary benefit, in violation of Code § 18.2-31(1), and (2) in the commission of robbery while armed with a deadly weapon, in violation of Code § 18.2-31(4). The jury also found Cardwell

Page 149

guilty of (1) abduction; (2) robbery; (3) using a firearm while committing murder; (4) using a firearm while committing abduction; and (5) using a firearm in the commission of robbery. The jury then fixed Cardwell's punishment at (1) life imprisonment for the abduction; (2) 20 years' imprisonment for the robbery; and (3) 10 years' imprisonment for the firearms charges. The jury also imposed a fine of $100,000 for the abduction.

In the second phase of the trial, the jury fixed Cardwell's punishment at death for capital murder, based upon the "vileness" predicate. Code § 19.2-264.2. After considering a post sentence report, prepared by a probation officer pursuant to Code § 19.2-264.5, the trial court sentenced Cardwell in accord with the jury verdicts.

Pursuant to Code § 17-110.1(F), we have consolidated the automatic review of Cardwell's death sentence with his appeal of the capital murder convictions. By order entered March 4, 1994, Cardwell's appeals of his other convictions were certified from the Court of Appeals, and we have consolidated those appeals with the capital murder appeal. Code § 17-116.06. We have given all the appeals priority on our docket. Code § 17-110.2.


On November 20, 1991, 15-year-old Anthony Brown travelled by bus from New York City to Richmond, ostensibly to visit Tina Poindexter. Poindexter told Cardwell that she was going to meet Brown at the bus station and that Brown would be carrying drugs. Cardwell related this information to his friends, Jermaine Jones, Richard Claiborne, and Craig Coles.

[248 Va. 505] Shortly before the bus was to arrive, Poindexter drove her car to the bus station. Claiborne drove Cardwell, Coles, and Jones to the bus station in Coles' car. After Poindexter met Brown and the two got into Poindexter's car, Cardwell, Coles, and Jones got into the back seat of the car. While Coles held Brown, Cardwell, armed with both his inoperable .25 caliber pistol and Claiborne's operable .380 caliber automatic pistol, took Brown's duffle bag. The robbers also took Brown's shoes in order to make any flight difficult. They then fled to an apartment shared by Cardwell and Jones where Cardwell discovered that Brown's duffle bag contained no drugs.

A short time later, Cardwell received a telephone call from Poindexter, informing him that Brown had the drugs strapped to the inside of his thigh and that she was bringing Brown to the apartment. When Cardwell announced that he planned to rob Brown again and either knock him out or kill him, Jones and Coles wanted nothing to do with the plan and left the apartment.

Poindexter brought Brown to Cardwell's apartment on the pretext of helping Brown retrieve his duffle bag. Soon after their arrival, Cardwell threatened Brown with a pistol and demanded the drugs. Claiborne then pulled down Brown's pants and took the drugs that were strapped to Brown's thigh.

Cardwell, holding Brown at gunpoint, forced Brown to lie facedown on the floor of the back seat of Poindexter's car. Poindexter drove, Cardwell rode in the back seat, and Claiborne rode in the front, passenger seat. They intended to take Brown to Goochland County.

Brown repeatedly begged for his life, and Cardwell told him to "shut up." Poindexter realized that she did not have enough gasoline to drive to Goochland County, so Cardwell told her to drive behind a shopping center at the intersection of Patterson Avenue and Pump Road in Henrico County.

Once behind the shopping center, Cardwell demanded Claiborne's pistol. Claiborne believed that Cardwell intended to use the larger handgun to knock Brown unconscious. After obtaining Claiborne's pistol, Cardwell led Brown into woods behind the shopping center, and Claiborne followed.

From a distance of approximately 10 feet, Claiborne heard Brown beg, "Please don't kill me," and Cardwell say, "Shut up." Then Claiborne heard a "gargling noise" which he recognized "[f]rom the movies" as the sound of someone's throat being cut. [248 Va. 506] Cardwell told Claiborne, "I'm going to shoot him and he's

Page 150

going to die," and Claiborne said, "No." As Claiborne started back toward the car, he heard two gunshots, and, a minute or so later, Cardwell arrived at the car. Claiborne asked for the pistol, and Cardwell returned it.

Back at Cardwell's apartment, Cardwell asked for the gun in order to dispose of it. Claiborne unloaded the weapon so Cardwell could not use it against him and gave the pistol to Cardwell. Cardwell then put the pistol and a steak knife with a six-inch blade into a bag. Later, Cardwell threw the bag containing the pistol and knife into a dumpster at his apartment complex.

On January 26, 1992, Brown's decomposed body was discovered in the woods behind the shopping center. The body was identified by using dental records. It was determined, from the age of insects found on the body, that death had occurred in November 1991.

An autopsy revealed that Brown had sustained injuries in the throat area and on one wrist. Brown also had sustained two gunshot wounds to the back of the head, both of which passed through the right temple. Instantaneous unconsciousness and death would have resulted from either gunshot wound.


Constitutionality of the Death Penalty

In a pretrial written motion, Cardwell asserted certain constitutional challenges to the death penalty statutes. The trial court rejected all the challenges, and Cardwell makes the same claims on appeal.

First, Cardwell claims that the death penalty statutes "on their face and as applied violate the Eighth Amendment prohibition against cruel and unusual punishment, the Sixth Amendment guarantee to a fair trial, and the Fourteenth Amendment guarantee that no person shall be deprived of life, liberty or property without due process of law." Next, he contends that the death penalty statutory scheme is unconstitutional because "it fails to guide the jury's discretion." Finally, Cardwell asserts that the death penalty statutory scheme is unconstitutional because "it denies [him] any meaningful appellate review."

[248 Va. 507] Cardwell advances no arguments in support of these contentions, and concedes, as he must, that we have decided all these issues adverse to his position. For the reasons expressed in our prior decisions, we reject Cardwell's claims. See, e.g., Stewart v. Commonwealth, 245 Va. 222, 427 S.E.2d 394, cert. denied, 510 U.S. 848, 114 S.Ct. 143, 126 L.Ed.2d 105 (1993); Yeatts v. Commonwealth, 242 Va. 121, 410 S.E.2d 254 (1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1500, 117 L.Ed.2d 639 (1992); Quesinberry v. Commonwealth, 241 Va. 364, 402 S.E.2d 218, cert. denied, 502 U.S. 834, 112 S.Ct. 113, 116 L.Ed.2d 82 (1991); Stockton v. Commonwealth, 241 Va. 192, 402 S.E.2d 196, cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 231 (1991); Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990); Edmonds v. Commonwealth, 229 Va. 303, 329 S.E.2d 807, cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985); Briley v. Commonwealth, 221 Va. 563, 273 S.E.2d 57 (1980); M. Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).


Denial of a Continuance

Cardwell contends that the trial court committed reversible error in denying his second request for a continuance of the trial. Cardwell was indicted on May 10, 1993. Counsel was appointed to represent him on May 20, and, at that time and with the agreement of counsel, the trial was scheduled to commence on July 19, 1993.

On June 22, Cardwell filed a motion for a continuance. At a hearing on June 24, Cardwell's counsel represented that additional time was needed to prepare for trial and that a trial date in September 1993 would be preferable. The trial court granted the continuance, rescheduled the trial to commence

Page 151

on September 7, 1993, and reserved four days on its calendar for the trial. In granting the continuance, the judge informed counsel as follows:

I want to reemphasize to counsel that the Court fully expects to try the case commencing on September 7, therefore that any additional motions or if the defense ... is not satisfied with the discovery, then I expect either party to bring those matters promptly to the Court's attention. I'm not going to [248 Va. 508] be waiting until the last minute to rule on motions of this nature.

On August 2, 1993, Cardwell requested the court to appoint Dr. Randy Thomas, a psychologist, to assist him in the penalty phase of the trial. The trial court appointed Dr. Thomas on August 3.

On August 23, 1993, Cardwell filed a motion for a second continuance of the trial. In the motion, Cardwell's counsel stated that, immediately after Dr. Thomas had...

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