Cardwell charge dismissed in General District court
BY MARGO OXENDINE • STAFF WRITER
WARM SPRINGS– A misdemeanor charge of disorderly conduct againstDanny CardwellofHot Springswas dismissed by JudgeGregory Mooneyin Bath General District Court Wednesday.
Judge Mooney heard the case, which was prosecuted byAlleghanycommonwealth’s attorneyEd Steinand, after closing arguments from Stein and defense attorneyTaylor Baker, dismissed the charge.
The case stemmed from an Oct. 5 incident atFast BreakinMitchelltown. According toCarl Chestnutof Hot Springs, who filed a complaint against Cardwell, Chestnut was inside Fast Break about 8:45 a.m., and Cardwell came in, talking toRichard Hise. Hise manages the local radio station where Cardwell is employed.
Cardwell said he went inside Fast Break to pay for his gas and buy some juice. When he left the store, Chestnut followed him outside and asked if he could ask Cardwell a question.
Chestnut testified, “He (Cardwell) done a taping of me of a meeting I had (at the Hot Springs firehouse in September). I asked him why he left a man out (of the video). He told me it was none of my (expletive) business… He got into my face.”
When Stein asked, Chestnut held his fingers about two inches apart. “(Cardwell) was this close to my nose,” he testified. Chestnut also said Cardwell threatened to “kill my (expletive) ass … He said, ‘I know I am going to have to go back to jail, but I am going to do it.’”
Chestnut said when Cardwell reached into his pocket, “I didn’t know what the hell was in his pocket,” he said.
“Excuse me?” shouted Judge Mooney, referring to the vulgarity.
“Sorry,” said Chestnut.
Chestnut said Cardwell took out his cell phone and began filming, saying, “I got your ass, homeboy.”
About that time, store managerPatti Troutcame outside and asked both men to get in their cars and leave the premises.
Chestnut said he drove to the sheriff’s office later that morning and reported the incident.
Cardwell’s attorney, Taylor Baker, then asked Chestnut if he was “upset” about the video.
“Yeah,” he said. “I wasn’t mad; I just asked him about it.”
“Were you scared of him?” Baker asked.
“Why were you upset there was a portion of the video missing?” asked Baker.
Stein objected, citing relevance. Mooney sustained the objection.
“When you reported it to the sheriff’s office, did they bring charges?” asked Baker.
Stein again objected, which Mooney sustained.
Chestnut said he later spoke toSheriff Robert Pleckerand Virginia State TrooperTim Mayabout the incident. They directed him to go to the magistrate and swear out a warrant.
Next, Stein called Trout to the stand. She said she was busy with store duties, and at first did not pay much attention to the two men in the parking lot, between the door and the gas pumps.
“The next thing I know, my assistant told me things were getting a little excited out there,” she said. “I went outside and asked them to please stop; this isn’t the place for it … I asked Danny to please put his phone away … I did hear Danny call Carl a homeboy,” she said.
Asked if she ever thought there was “going to be any violence,” Trout said she did not.
Trout said the store is equipped with a surveillance camera that records what occurs in the lot and at the pumps. She watched the recording, she said, and then saved it, because she figured the sheriff’s office would want to see it at some time.
“Carl told me he was going to file charges against Danny… (The) sheriff’s office came a couple days later and got it.”
There is no audio on the store video, which recorded about three minutes, 50 seconds of tape.
Baker keyed up the recording on his computer, and the judge watched it carefully.
The tape clearly shows the two men outside the store. Each is pointing a finger at the other from time to time; however, at no time did Cardwell get within a few inches of Chestnut’s nose.
The commonwealth rested its case after Trout’s testimony, and the airing of the store tape.
Baker immediately moved to strike testimony by the complaining witness. He noted that, in the opinion of the defense, what Cardwell did “was not disorderly conduct.”
Stein disagreed, stating that, “even though there may have been a few more words exchanged than Mr. Chestnut re- membered,” there were sufficient words and conduct to support the charge.
Baker countered, “Mr. Chestnut instigated the entire conversation.Mr. Cardwellhad every right to take out his phone and record” the incident.
Judge Mooney overruled Baker’s move to strike.
Baker calledSheriff Pleckeras his first witness. Plecker said he and May advised Chestnut how to contact the magistrate to obtain “whatever warrant he was trying to get.”
“Did you take any further action?” Baker asked.
“No, we did not,” Plecker replied, noting Trout had “asked me to tell both men that they were welcome to come back into the store at any time.”
Then Baker put Cardwell on the stand. He testified about going inside the store to pay for his gas and buy some grapefruit juice. Once inside, he said, he encountered his boss, Hise, and they had a conversation. “We walked out together. Mr. Chestnut approached and asked to ask me a question. That leads up to what I’d call a gray area,” Cardwell said.
Cardwell digressed a little about what his job at the radio station entails – “It is an audio medium … there is no video.” He noted the video he made of the meeting at the firehouse was not done as part of his radio station job. He also noted he has “no idea” how to manipulate, change or delete a live-streaming video.
Outside Fast Break, Cardwell said, “Mr. Chestnut accused me of willfully trying to make him look stupid … I was arguing, but finally figured out we were not going to get anywhere … It was plain there was some kind of confrontation he was looking for … I decided I’d better pull out my phone.”
He added, “There is one thing Mr. Chestnut and I agree on: He followed me outside when I was leaving the store.”
“Did you say you were going to kill him?” Baker asked.
“Did you make any threat of violence?”
“Did you make any reference to going back to jail?”
“No … I did say, ‘Carl, you need to get out of my face.’”
“You stepped toward Mr. Chestnut to tell him to get out of your face?”
“My intention was to get him out of my face.”
“You could have gone toward your vehicle at any time? You made no threats?”
“I asked him to get out of my face.”
“How many felony convictions are on your record?”
Cardwell mused a moment, and then replied, “Three.”
Both Baker and Stein made closing arguments reiterating various points that underscored those that had been testified to as evidence.
Then, Judge Mooney took the case under advisement for a few minutes, making notes on a pad. Finally, he spoke.
“The burden of proof rests with the commonwealth,” he began. “I have a degree of doubt. I am going to dismiss the charge. We have two competing versions; neither tops the other.”
He added, “I found the video very significant. I observed it very carefully. I watched the timer, and it took 90 seconds … That was sufficient for me to conclude … what I saw was a vehement disagreement, that very clearly leads to uncivil behavior on … both parts. I see two people who are close to each other; I don’t see much in terms of advancement. I see finger-pointing by both parties. That leaves a significant degree of doubt in my mind.”
The judge suggested either party may ask the court to rule that the other party have no contact. Both Stein and Baker asked for that no-contact order. It prohibits contact in person, by phone, letter, notes, email, or any other means, in public or private, directly or indirectly.
The small downstairs courtroom was packed with spectators, most of whom filed out after the verdict. They gathered in groups at separate ends of the hallway, Cardwell family and supporters on one end, Chestnut family and supporters on the other. Deputies stood in between the two groups, who dispersed peacefully.