Cardwell v. State, 54490

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtPRATHER; PATTERSON; DAN M. LEE
Citation461 So.2d 754
PartiesThomas CARDWELL and Lynn Cardwell v. STATE of Mississippi.
Docket NumberNo. 54490,54490
Decision Date19 December 1984

Page 754

461 So.2d 754
Thomas CARDWELL and Lynn Cardwell
STATE of Mississippi.
No. 54490.
Supreme Court of Mississippi.
Dec. 19, 1984.
Rehearing Denied Jan. 16, 1985.

Page 756

F.W. Mitts, III, Earl P. Jordan, Jr., Meridian, for appellants.

Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.


PRATHER, Justice, for the Court:

A murder conviction against Lynn Cardwell and Thomas Cardwell for the death of their child and step-child, respectively, Shawn Everett Newton, was returned by the Circuit Court of Lauderdale County. The court sentenced both defendants to life imprisonment in the state penitentiary.

Thomas Cardwell and Lynn Cardwell appeal, assigning as error:

(1) The trial court erred in overruling defendants' motions for a severance;

(2) The trial court erred in admitting testimony of Mississippi Welfare Department employees without the proper predicate required by statute;

(3) The trial court erred in allowing into evidence:

(a) Proof of prior acts and offenses by the appellants; and

(b) Photographs of the deceased and

(4) The trial court erred in overruling defendant's motion for a new trial on the ground that the jury verdict was against the overwhelming weight of the evidence.


On April 11, 1982, in the early afternoon, seven-year old Shawn Everett Newton, the natural child of appellant Lynn Cardwell and the stepchild of appellant Thomas Cardwell, was admitted to the emergency room of Matty Hersee Hospital in Meridian, MS. Shawn, who weighed 27 pounds, was unconscious; his right pupil was dilated and fixed; his upper and lower extremities moved spastically. There was a large knot on the left side of his head and multiple bruises on his face. Because severe head injury was indicated, Shawn was rushed by ambulance to the University Medical Center in Jackson.

Shawn arrived at the University Medical Center in a state of cardio-respiratory arrest. A CAT scan indicated subdural hematoma (blood clotting beneath the skull) and swelling of the brain. Emergency brain surgery was performed, and the blood clot successfully removed, but the prognosis was very poor. On April 14th, brain function ceased, and on April 17th, death occurred.

On May 7, 1982, the grand jury returned an indictment jointly charging appellants Thomas Cardwell and Lynn Cardwell with the murder of Shawn Everett Newton. Motions for severance filed by both defendants were overruled by the trial court.

Page 757

The State's case consisted of the following evidence. Robert Ryals, Thomas Cardwell's half-brother who lived next door to Thomas and Lynn at the Vance Trailer Park in Meridian, testified that, around noon on April 11, 1982, Lynn Cardwell came to his trailer and asked Ryals to go check on Shawn. According to Ryals, Lynn said she had caught Shawn eating out of the garbage can and had slapped him down to the floor. Carolyn Runyon, a social worker at the University Medical Center who interviewed Lynn Cardwell on April 11, 1982, testified that Mrs. Cardwell gave her the same explanation for Shawn's injuries. Velda Roberts, a social worker for the Lauderdale County Welfare Department who questioned Thomas and Lynn on April 12, 1982, was also told by Mrs. Cardwell that she slapped Shawn to the floor when she found him eating out of a garbage can.

Dr. Reeda Lyons, of the University Medical Center found a two inch by one inch bruise on the child's inner left leg, left side of the neck, left thigh and buttocks and three other bruises. The coloring of the bruises indicated that they were fairly new, having occurred within the last three or four days. According to Dr. Lyons, a bruise on the child's back was older than the others. The coloring of a bruise on the child's hip indicated that it was between 7 and 10 days old. Dr. Lyons opined that bruises of this sort could not be self-inflicted or the result of an accidental fall. Dr. Lyons' testimony regarding the location of bruises on the child and the probable cause was corroborated by Dr. Dennis Roland.

Dr. Sanford, associate professor of neurosurgery at University Medical Center, testified that a great deal of force was required to cause an acute subdural hematoma and that a push by an adult to the floor of a trailer could not cause an injury as severe as Shawn's. This opinion was also shared by Dr. Rodrigo Galvez, the physician who performed the autopsy on the child.

Joyce Garrett, the principal of College Park Elementary School in Gautier, MS, testified that on October 5, 1981, Shawn was brought to her office by his teacher. Shawn had a cut on the top of his head, red marks across his forehead, a large bruise on his left cheek, bruises on his mouth, a handprint on his right hip, and bruises on the left buttocks. Ms. Garrett's testimony was corroborated by Joyce Hammond, the school nurse at College Park Elementary. Dorothy Banks, a neighbor of the Cardwells during 1981, described Shawn as skinny and undernourished. Ms. Banks testified that she once saw Lynn Cardwell hit Shawn with a spoon so hard that it made a welt and that on another occasion Lynn hit Shawn with a spoon leaving a one and one-half inch gash. Another neighbor of the Cardwells, John Crocker, testified that he had never seen Tom Cardwell strike Shawn.

Ermie Windham, who owned a wood shop where Tom Cardwell's father worked, saw Shawn frequently during 1982. Ms. Windham testified that Tom called Shawn "S______ O__ B______" and "Bastard" and that Tom once bragged that he had made Shawn eat ex-lax until he was so sick that he fainted. According to Ms. Windham, Tom Cardwell also bragged that he threw Shawn out in the yard at 4:00 o'clock a.m. one morning.

At the conclusion of the State's case, both defendants renewed their motions for a severance on the ground that the evidence presented required antagonistic defenses. The motion was overruled, and the defendants rested.



The first issue raised by this assignment of error is whether a defendant jointly indicted for a capital crime not involving the death penalty has an absolute right to a separate trial or whether the question of severance is discretionary with the trial court.

Page 758

Severance in felony cases is governed by Miss.Code Ann. Sec. 99-15-47 (1972), which provides as follows:

Any of several persons jointly indicted for a felony may be tried separately on making application therefor before the order for a special venire in capital cases and before arraignment in other cases.

In Price v. State, 336 So.2d 1311 (Miss.1976), this Court addressed the question of whether a separate trial is a matter of right where two or more persons are jointly indicted for a felony. This Court noted that the statutory language regarding severance had been changed from "shall" to "may" in 1880, held that the word "may" in section 99-15-47 should be given its ordinary meaning, and concluded that whether a severance should be granted is addressed to the sound discretion of the trial judge. 336 So.2d at 1310.

Appellants' argument is based upon Miss.Code Ann. section 1-3-4 and Rule 4.04 Mississippi Uniform Rules of Circuit Court Practice. Miss.Code Ann. Sec. 1-3-4 (Supp.1983) defines "capital cases" as follows:

The terms "capital case," "capital cases," "capital offense," "capital offenses," and "capital crime" when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary. The term "capital murder" when used in any statute shall denote criminal cases, offenses and crimes punishable by death, or imprisonment for life in the state penitentiary.

At the time this case was tried, Rule 4.04 of the Mississippi Uniform Rules of Circuit Court Practice provided that "the...

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