Cardwell v. Netherland

• Decision Date: 01 August 1997
• Docket Number: Civil Action No. 96-1516-AM.
• Parties: Kevin DeWayne CARDWELL, Petitioner, v. J.D. NETHERLAND, Warden, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

971 F.Supp. 997

Kevin DeWayne CARDWELL, Petitioner, v. J.D. NETHERLAND, Warden, Respondent.

Civil Action No. 96-1516-AM.

United States District Court, E.D. Virginia, Alexandria Division.

August 1, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Dennis W. Dohnal, Brenner, Dohnal, Evans & Yoffy, P.C., Richmond, VA, Pleasant S. Brodnax, III, Bullock & Brodnax, Alexandria, VA, Robert L. Jenkins, Jr., Robert L. Jenkins, Jr., P.C., Alexandria, VA, for Petitioner.

Robert Q. Harris, Asst. Atty. Gen., Office of the Attorney General, Richmond, VA, for Respondent.

POST-CONVICTION PROCEEDING

MEMORANDUM OPINION

ELLIS, District Judge.

The matter comes before the Court on a petition by Kevin DeWayne Cardwell ("Cardwell") for relief from the sentence of death imposed on him by the Commonwealth of Virginia, pursuant to 28 U.S.C. § 2254. For the reasons that follow, Cardwell's petition must be dismissed.

I.¹

Kevin DeWayne Cardwell robbed and murdered Anthony Brown on November 20 1991. Brown, a fifteen year-old boy from New York City, had traveled by bus from New York to Richmond on November 20 carrying drugs strapped to the inside of his thigh. Tina Poindexter was to meet Brown when he arrived at the Richmond bus station. Before meeting Brown, Poindexter informed Cardwell that Brown was traveling from New York to Richmond with a shipment of drugs, information that Cardwell shared with his friends, Jermaine Jones, Richard Claiborne, and Craig Coles. Poindexter drove her car to the bus station and met Brown as planned. Claiborne had also driven to the bus station in Coles' car with Cardwell, Coles, and Jones aboard as passengers. After meeting Brown, Poindexter led him to her car. As soon as Poindexter and Brown entered Poindexter's car, Cardwell, Coles, and Jones jumped into the back seat for the purpose of taking the drugs from Brown. To this end, Coles held Brown, while Cardwell, armed with both his inoperable .25 caliber pistol and Claiborne's operable .380 caliber automatic pistol, stole Brown's duffle bag and his shoes. The robbers then fled to Cardwell's and Jones' apartment to survey their spoils.

The robbery's yield disappointed the robbers. It consisted of Brown's boots, some clothes in the duffle bag, and about twelve to fifteen dollars, but no drugs. The conspirators' disappointment was allayed somewhat when Poindexter, betraying Brown a second time, called Cardwell to disclose that Brown still possessed the drugs, as he had concealed them by strapping them to his inner thigh. Cardwell instructed Poindexter to lure Brown to Cardwell's apartment under the ruse that she had some friends who could help Brown retrieve his belongings. This time Cardwell had more in mind than robbery. He announced to his confederates that after acquiring the drugs, he would kill Brown or knock Brown out, so that Brown could not implicate them. Jones and Coles, apparently uninterested in this new plan involving escalating violence, left the apartment claiming concern that Brown would recognize their clothes or voices. Cardwell, who had changed clothes, and Claiborne, who had stayed in Coles' car during the first robbery, were apparently unconcerned about identification and remained in the apartment.

When Poindexter and Brown arrived at the apartment, Cardwell feigned sympathy over Brown's plight, provided Brown with a pair of shoes and promised assistance in recovering Brown's belongings. The four left the apartment heading for Poindexter's car, when suddenly, Cardwell turned on Brown and held him at gunpoint, pulled down his pants and removed the drugs from Brown's inner thigh. Thereafter, Cardwell forced Brown to lie down on the floor of the back seat of Poindexter's car. Poindexter and Claiborne got into the front seat and, with Poindexter driving, the four headed for Goochland County where Cardwell had planned to dispose of Brown. Brown, begging that his life be spared, never made it to Goochland County. Poindexter soon realized that she did not have enough gasoline to drive to the intended site in Goochland County. Moreover, the conspirators were concerned with the prospect of going to a filling station with Brown lying face down on the floor of the car at gunpoint. Thus, Cardwell directed Poindexter to drive behind a shopping center at the intersection of Patterson Avenue and Pump Road in Henrico County. There, in the woods behind the shopping center, Cardwell murdered Brown. The particular sequence of events is relevant.

On arriving behind the shopping center, Cardwell demanded Claiborne's working .380 caliber automatic pistol. Claiborne testified that he believed that Cardwell wanted this larger pistol, as opposed to the inoperable .25, because the larger pistol would be a more effective tool with which to knock Brown unconscious. Cardwell then led Brown into the woods behind the shopping center. Claiborne, who waited for a moment before following Cardwell into the woods, testified that as he walked up to Cardwell and Brown, he heard Brown begging for his life. From a distance of ten feet, Claiborne heard a "gurgling" sound which he recognized "from the movies" as the cutting of Brown's throat. Cardwell then noticed Claiborne, telling him "I'm going to shoot him and he's going to die". Claiborne testified that at this point he said "No", and turned to walk back to the car. Two shots were fired. Thereafter, Cardwell returned to the car, gave Claiborne back the .380, and Poindexter, Claiborne and Cardwell returned to the apartment. Brown's body was left in the woods.

After Brown's murder, Cardwell disposed of the murder weapons, a six-inch steak knife and Claiborne's pistol, by placing them in a bag that, in turn, was thrown into a dumpster at the apartment complex. Yet, despite his care in seeking to eliminate physical evidence, Cardwell was less cautious with respect to recounting his murderous deeds. Thus, Cardwell boasted to friends and associates of cutting Brown's wrists, giving Brown a "Cuban necktie" (cutting his throat), and shooting him when he did not die from the wounds. On one occasion, Cardwell, observing birds circling in the distance, suggested to a girlfriend that those birds were flying above Brown's body. Indeed, Cardwell made little effort to hide his murderous acts from friends and acquaintances.

Meanwhile, Brown's body was not discovered in the woods behind the shopping center until January 26, 1992, over two months after his death. A family on an afternoon walk in the woods behind their subdivision came across Brown's decomposed body on the spot where he had been killed by Cardwell. Medical examiners were able to identify Brown using dental records. They concluded from the autopsy that Brown had been murdered in November 1991 and that rapid decomposition of the wrists and neck suggested that knife-inflicted entry wounds on those areas had occurred prior to the decomposition process. Also identified were two gunshot wounds to the back of Brown's head, either of which would have resulted in immediate unconsciousness and death. Further, the medical examiner concluded that there were no marks on Brown's body suggesting that he had struggled or defended himself from the fatal attack.

The investigation that ensued led police to the conspirators who had robbed Brown and ultimately to Cardwell, who was indicted in the Circuit Court for Henrico County on May 10, 1993 for (i) capital murder committed during the commission of an abduction with the intent to obtain money or other benefit, (ii) capital murder committed during armed robbery, (iii) robbery, (iv) abduction with intent to obtain money or other benefit, (v) use of a firearm during the commission of a murder, (vi) use of a firearm during the commission of a robbery, and (vii) use of a firearm during the commission of an abduction. On May 20, 1993, attorney Robert Geary was appointed to represent Cardwell, and trial was set for July 19, 1993. Thereafter, on June 22, 1993, Geary requested a continuance of the trial so that he and his newly appointed co-counsel, John McGarvey, could prepare more adequately for Cardwell's defense. This motion was granted, and trial was set for September 7-10, 1993. But in granting the continuance, the trial judge admonished the parties to bring matters that might delay proceedings promptly to his attention, making clear that further continuances would be disfavored.²

On August 2, 1993, Cardwell moved for the appointment of experts to assist in the preparation of information concerning Cardwell's history, character and mental condition for use in the jury's consideration of the appropriate sentence should Cardwell be convicted of one of the capital offenses. The next day, August 3, the trial judge appointed Dr. Randy Thomas, an expert selected by Cardwell's trial counsel. On this date, trial counsel discovered that Thomas would be on vacation until August 25, and trial counsel subsequently learned that Thomas would be unable to complete an adequate evaluation in time for trial. Yet, Cardwell's trial counsel inexplicably waited until August 23 to ask for a continuance of the September 7 trial date. This tardy request was summarily denied by the trial judge in an order dated August 24, and trial commenced on September 7, 1993.

The guilt phase of Cardwell's trial consumed only two days, September 7 and 8. Cardwell pled not guilty to each charge of the indictment, and after a jury was empaneled, the Commonwealth adduced its evidence. Specifically, the Commonwealth adduced testimony from Henrico County officials involved in the investigation of the Brown homicide, including Officer Robert L. Bates, the police officer who first secured the crime scene, Investigator James D. Jamison, a forensics specialist who performed an initial investigation of the evidence at the scene, and Dr. Marcella F. Fierro, a forensic pathologist who performed the autopsy on Brown and testified as to the cause of death, the time of...