Petition for Writ of Certiorari — Jared Thomas Cardwell, Petitioner v. Arizona

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Appendix A: Court of Appeals of Arizona, Division One,

Memorandum Decision Affirming Conviction,

September 6, 2022.

State v. Cardwell, Not Reported in Pac. Rptr. (2022)

2022 WL 4075333

Only the Westlaw citation is currently available.

NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS

NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Court of Appeals of Arizona, Division 1.

STATE of Arizona, Appellee,

Jared Thomas CARDWELL, Appellant.

No. 1 CA-CR 21-0181

Filed September 6, 2022

As Amended September 7, 2022

As Amended January 25, 2023

Review Denied April 04, 2023

Appeal from the Superior Court in Yuma County, No. $1400CR201600404, The Honorable Brandon S. Kinsey, Judge,

AFFIRMED

Attorneys and Law Firms

Arizona Attorney General's Office, Phoenix, By Linley Wilson, Counsel for Appellee

Yuma County Public Defender, Yuma, By Joshua B. Tesoriero, Counsel for Appellant

Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge Brian

Y. Furuya joined.

MEMORANDUM DECISION

PERKINS, Judge:

*1 1 Jared Thomas Cardwell appeals his conviction and sentence for second-degree murder. For the following reasons, we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

{2 We view and thus recount the facts in the light most favorable to sustaining the verdict. See 2 siate y. Payne, 233 Ariz. 484,

509, | 93 (2013). For privacy purposes, we refer to the victims by pseudonyms. See Ariz. R. Sup. Ct. LL.

3 In May 2015, Cardwell, a Lance Corporal in the United States Marine Corps, lived with his wife Barbara and twenty-monthold stepdaughter Cara in on-base housing at the Marine Corps Air Station in Yuma (“Yuma Base”). On May 18, Barbara spent

State v. Cardwell, Not Reported in Pac. Rptr. (2022)

the day with a then-healthy Cara, taking videos and photographs of her. That evening, their neighbors watched Cara while

Cardwell drove Barbara to work, Neither Barbara nor the neighbors saw any scalp bruises or facial burns on Cara, and Barbara's

videos and photographs depicted no such injuries.

44 When Cardwell picked up Barbara that night, she was upset he had not brought Cara with him because she never left Cara

alone at home. Cardwell told Barbara on the drive home that he “spanked [Cara] on her butt” earlier that evening because he

“had taken Cara to the potty; she said that she was done; and she had an accident.” Barbara had repeatedly told Cardwell she

was not okay with him spanking Cara. Barbara went directly to bed once they arrived home while Cardwell checked on Cara.

45 The next morning, after Cardwell left for work, Barbara went to Cara's room and found her “laying halfway off her bed with

her head on the floor.” Cara's body was cold and stiff, and Barbara could not move her or open her eyes or mouth. Barbara saw

“dark red marks” on Cara's face that resembled burns and called 911.

6 When the paramedics arrived, they unsuccessfully tried to resuscitate Cara, who was unresponsive and had no pulse. Cara

showed signs of rigor mortis and had a bright red face with dried blood near her mouth and nostrils. The paramedics transported

Cara to the hospital, where an emergency-room doctor pronounced her dead. Based on her physical signs, including a core

temperature of 80 degrees, the doctor concluded she died several hours earlier. Once Cardwell arrived atthe hospital, Barbara

immediately demanded to know what happened the night before. Cardwell apologized but denied any wrongdoing.

{7 At the hospital, a Naval Criminal Investigative Service (“NCIS”) agent spoke with Cardwell and Barbara about Cara's death.

Barbara insisted she needed to tell her mother Nancy that Cara died, but she allowed the agent to examine Cara. The agent

observed “large circle areas” on Cara's face that appeared burn-like. Meanwhile, other NCIS agents went to Cardwell's home

to investigate.

48 Cardwell, Barbara, and the NCIS agent then went to Nancy's home to inform her of Cara's death. Yuma Police Department

detectives arrived soon after at Nancy's home, and Cardwell agreed to go to the Yuma police station to be interviewed by a

Yuma detective. During the interview, Cardwell recounted that while Barbara was at work, Cara “pooped on the floor,” and he

“emacked her on the butt for it.” When the detective asked Cardwell how Cara died, Cardwell answered, “I really don't know,

she seemed fine ... she was just fussy more than normal when I was trying to put her to bed.” Cardwell later explained the only

thing he “regretted was when [he] smacked her on the butt” after he “got upset with her[.]”

*2 49 A few days later, Dr. Greg Hess, the chief medical examiner for Pima County and a forensic pathologist, conducted

Cara's autopsy. Dr. Hess noted she had ten subscalp bruises and many more bruises on her body. Dr. Hess concluded Cara's

cause of death was a “subdural hemorrhage due to blunt force head trauma.” Dr. Hess declared Cara would have died “relatively

rapidly” after the impact. He also asserted that any of the head bruises could have caused the fatal hemorrhage. Dr. Hess believed

Cara's facial burns were either chemical burns or scald burns from hot water.

{10 On May 22, NCIS agents interviewed Cardwell at the Yuma police station. After Cardwell read and signed an “Article 3 1(b)

Waiver” form, which contains the military's version of the constitutional-rights advisory required by Fl Miranda y. Arizona,

384 U.S. 436 (1966), he agreed to answer questions. Cardwell told the agents: (1) when he saw that Cara had an accident, he

looked at her and said, “are you freakin serious”; (2) he then “yanked” Cara toward him, grabbed her, put her over his leg,

and “smacked” her behind; (3) she “lost her mind” when he did so, experiencing one of her worst “temper tantrums”; (4) he

told her that he was sorry for yanking her; (5) her reaction resembled someone who had just been “sucker punched”; and (6)

she sustained her fatal injuries “under [his] watch.” On a scale of one to ten, with ten being the highest, he described his anger

level when he spanked Cara as a seven. Cardwell asserted neither Barbara nor his neighbors harmed Cara, and no intruders

entered his house that night.

{11 NCIS agents again interviewed Cardwell on May 26. After signing another Article 31(b) Waiver, Cardwell repeated his

earlier accounts that he spanked Cara after she accidentally defecated on the floor. In this interview, at the agent's request, he

State v. Cardwell, Not Reported in Pac. Rptr. (2022)

demonstrated how hard he yanked Cara by grabbing and pulling the agent's arm. Cardwell's force surprised the agent. An agent

asked Cardwell to describe on a scale of one to ten, with ten being the highest, the likelihood that his actions caused Cara's

fatal injuries, and Cardwell answered that he would “probably say a nine.” Cardwell explained he “never yanked her that hard

and she'd never had a reaction as that to anything [he'd] done before[.]” Cardwell believed she might have sustained a “coup”

injury, meaning a “contusion on the brain close to that side of the impact.”

12 Military prosecutors charged Cardwell under the Uniform Code of Military Justice with three specifications of murder and

one specification of manslaughter. In the court-martial proceedings, the military court granted Cardwell's motion to suppress

the statements he made to law-enforcement officers during the three interviews, finding (1) the officers violated Article 31()

of the military code, 10 U.S.C. § 831(b), at the May 19 interview, and (2) Cardwell's statements were involuntary. The military

prosecutors then dismissed the charges without prejudice.

qi3 A Yuma County Grand Jury next indicted Cardwell on one count of second-degree murder, a class one felony. Before trial,

Cardwell unsuccessfully moved to suppress the statements he gave in the interviews. During trial, the superior court (1) denied

Cardwell's motion to dismiss based on a lack-of-jurisdiction claim; and (2) precluded him from calling two expert witnesses:

John Weil, a retired Marine Colonel, and Randy Papetti, an attorney.

4114 At trial, the State introduced the expert testimony of Dr. Carole Jenny, a practicing physician, professor of pediatrics, and

director of a fellowship program specializing in child-abuse pediatrics. Based on her review of the medical records, autopsy

report, interviews, and a May 18 video of Cara, Dr. Jenny opined Cara “died of abusive head trauma,” meaning “head trauma

that occurs for infants and young children that is inflicted by another rather than an accident.” Dr. Jenny said Cara suffered “a

very severe fatal brain injury associated with multiple impact sites to her head” resulting from “severe blows.” She noted Cara

looked normal in the May 18 video. Dr, Jenny described the bruises on Cara's scalp as “new,” caused by “direct impact to the

skull,” and in “very unusual places for kids to get accidental bruises.” She confirmed Cara's facial burns matched bleach burns.

And although Dr. Jenny independently reached her conclusions, she agreed with Dr. Hess's autopsy findings.

*3 415 Cardwell's defense theory was that Cara sustained the fatal injuries from a short, accidental fall in her bedroom that

night. And that Cara may have suffered from a bleeding disorder which contributed to her death. Cardwell called Dr. Evan

Matshes, a physician and forensic pathologist, as an expert witness. Dr. Matshes agreed Cara “died of blunt head trauma” and

explained “[t]he two possibilities are that it was intentional or that it was not intentional.” He agreed Cara suffered “multiple

blows to her head that showed up in the form of bruises across her scalp” and “a large fresh subdural hematoma.” Dr. Matshes

testified that “[s]ubdural hemorrhages can be the result of a short fall,” but it “is a rare event” for a child to be “killed by a short

fall.” Dr. Matshes asserted Cara would have died within within 30 to 60 minutes after suffering the trauma.

4116 Dr. Matshes determined the marks on Cara's face were chemical burns and they “gecurred at or around the time of death.”

The burns could have been “sinister,” but Dr. Matshes did not “rule out” the possibility that the burns were caused by Cara's own

vomit. Nor did he exclude the possibility that “the deliberate act of someone throwing a caustic chemical” caused the burns.

{17 Cardwell also called Dutch Johnson, a forensic biomechanical engineer specializing in “reconstructing injuries and deaths

that are associated with criminal cases.” Johnson explained that various studies showed children had died from short falls less

than three feet. He offered no opinion on how Cara hit her head or how she died.

{18 The jury found Cardwell guilty as charged. The jury also found that Cara was under 12 years old and that the State had

proven two aggravating circumstances (“aggravators”): (1) Cara suffered physical and emotional harm, and (2) Cardwell was

in a position of trust. The superior court sentenced Cardwell to life imprisonment with the possibility of release after serving

35 years. Cardwell appealed, and we have jurisdiction under Article 6, Section 9, of the Arizona Constitution, Faars. §§

13-4031, and -4033(A).

State v. Cardwell, Not Reported in Pac. Rptr. (2022)

DISCUSSION

I. Separation of Powers

{19 Cardwell contends the State's prosecution of his crime violated Arizona's separation-of-powers doctrine. In support, he

cites a 2005 “Law Enforcement Agreement and Understanding” (“Agreement”) between Yuma Base and Yuma County and

City that authorized military authorities to investigate and prosecute serious felonies committed on the base, arguing the county

attomey's prosecution invaded the military's jurisdiction. We review de novo whether “the State of Arizona has jurisdiction

concurrent with the United States over federal lands situated within the State of Arizona.” State v. Galvan-Cardenas, 165 Ariz.

399, 401 (App. 1990).

{20 The State of Arizona generally has jurisdiction to prosecute crimes committed within its territorial borders. State v. Vaughn,

163 Ariz. 200, 203 (App. 1989); see A.R.S. § 13-108(A)(1). Once the State carries its “initial burden of proving that the offense

occurred within this state[,]” the burden shifts to the defendant to prove the federal government possesses exclusive jurisdiction

over the charged offense. State v. Verdugo, 183 Ariz. 135, 138 (App. 1995). “The federal government can acquire exclusive

jurisdiction over state land in any one of three ways: (1) by purchase of land from a state, (2) by a cession of jurisdiction to the

United States by a state after statehood, or (3) by an affirmation of exclusive jurisdiction to the United States prior to a state's

admission to the Union.” Vaughn, 163 Ariz. at 203. “The United States also acquires exclusive jurisdiction over land located

within the boundaries of a state to which the United States holds title where there is a cession of jurisdiction by the state and

an acceptance of jurisdiction by the United States.” Jd

*4 21 Cardwell first raised this argument when he moved to dismiss the indictment during trial, arguing there, as he does

here, that the Agreement vested jurisdiction “solely and exclusively with the military courts-martial.” In denying the motion,

the superior court found that (1) the Agreement “cannot divest the State of Arizona” of jurisdiction and (2) even if “the Board

of Supervisors could divest the State of Arizona of jurisdiction[,] ... [the Agreement] specifically includes a prosecution for this

offense to be conducted by the county attorney's office.”

22 Cardwell does not challenge the superior court's denial of his dismissal motion. Thus, he has waived any claim of error in

that ruling. See Fa state v. Carver, 160 Ariz. 167, 175 (1989) (abandoning and waiving unargued claims). This alone dooms

his argument, given the court's finding that the Agreement authorized the county attorney's prosecution of his crime.

{23 Even so, Cardwell has not shown exclusive federal jurisdiction. For the first time in the reply brief, Cardwell cites F2state

y. Willoughby, 181 Ariz. 530 (1995), proposing that the State must prove jurisdictional facts beyond a reasonable doubt. Because

this argument addresses points made in the State's answering brief, we will consider it..See Ariz. R. Crim. P. 31.10(c).

24 The defendant in Willoughby was convicted of premeditated first-degree murder and conspiracy to commit several felony

offenses, including murder. Pa 181 Ariz. at 532-33. The evidence presented a jurisdictional question because the defendant was

“charged with an offense only part of which is alleged to have taken place in Arizona: the fatal blow and the death occurred in

Mexico, and only acts of preparation allegedly took place in Arizona.” Paya at 536. So “[t]o prosecute and convict Defendant

for first-degree murder in Arizona, the state had to prove that acts of premeditation were committed in Arizona.” Jd.

25 The supreme court in Willoughby considered “who properly resolves jurisdictional facts in a criminal case and by what

standard.” Parag at 535, It concluded that, when jurisdictional facts are in conflict, “Arizona's territorial jurisdiction must be

established beyond a reasonable doubt by the jury.” “Jd at 538. But when “the jurisdictional facts are undisputed, as in almost

all cases, the court may decide the issue.” Jd. A defendant challenging jurisdiction must, therefore, first identify a conflict in

State v. Cardwell, Not Reported in Pac. Rptr. (2022)

jurisdictional facts before the burden shifts to the State to prove jurisdiction beyond a reasonable doubt to the jury. See raj

at 538-39.

426 At trial, Cardwell did not present evidence of a factual conflict on the jurisdictional issue. Instead, he expressly conceded

that the state and military prosecuting agencies had concurrent jurisdiction over his case. The superior court was therefore not

required to submit the jurisdictional question to the jury.

27 Nor is there merit to Cardwell's claim that military and state prosecutors engaged in improper forum shopping. “Under the

‘dualsovereignty’ doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted

him for the same conduct under a federal statute.” a Gamble vy. United States, 139 S. Ct. 1960, 1964 (2019); FS State v. Poland,

132 Ariz. 269, 276 (1982) (same rule). And the county attorney's prosecution similarly did not constitute a “horizontal appeal.”

See Powell-Cerkonery v. TCR Mont. Ranch Joint Venture, II, 176 Ariz. 275, 278-79 (App. 1993) (improper horizontal appeals

involve decisions of the same court and occur when a party unjustifiably seeks a second trial judge to reconsider the first trial

judge's decision in the same matter). We find no separation-of-powers violation.

Il. Autopsy Photegraph

*5 §28 Cardwell next challenges the superior court's admission of “unduly gruesome” autopsy photographs of Cara's face. We

review the court's ruling for abuse of discretion. State y Morris, 215 Ariz. 324, 339, {69 (2007).

{29 When determining whether the superior court erred in admitting photographs, reviewing courts consider the following

factors: (1) “the photograph's relevance,” (2) “its tendency to inflame the jury,” and (3) “its probative value compared with its

potential to cause unfair prejudice.” Id.

430 A photograph “is relevant if it aids the jury in understanding any issue in dispute.” FD siatc y. Amaya-Ruiz, 166 Ariz. 152,

170 (1990). Any photograph of a deceased victim in a murder case is relevant “because the fact and cause of death are always

relevant in a murder prosecution.” Fl state y, Anderson, 210 Ariz. 327, 340, 439 (2005). Yet gruesome photographs may not be

introduced solely to inflame the jurors. PO sate v. Gerlaugh, 134 Ariz. 164, 169 (1982). Photographs of a deceased victim

may be relevant to show the nature and location of an injury, show or explain testimony, corroborate the evidence, determine

the degree of a crime, or support the State's theory of the case. PS anderson, 210 Ariz. at 339-40, 4 39.

{31 Here, the superior court denied Cardwell's motion to preclude a series of autopsy photographs depicting Cara's face, finding

they were relevant and admissible to establish the events that ocourred the night of Cara's death. Cardwell disputed both the

cause and manner of Cara's death. The jury heard detailed testimony from medical experts about the nature of Cara's injuries and

their likely causes. The autopsy photographs depicted her injuries and helped the jury evaluate the expert testimony in light of

Cardwell's disputes. The court acknowledged—and we agree—that the photographs were disturbing to look at and “prejudicial

in a way.” But we agree with the court that the potential for prejudice did not outweigh the photographs’ probative value. We

find no abuse of discretion.

I. Suppression Motions

{32 Cardwell next argues the superior court should have excluded all statements he made to investigators during their interviews,

claiming “three distinct legal avenues of analysis” required suppression: (1) analysis under military code Article 31; (2)

application of collateral estoppel under Crosby-Garbotz v. Fell, 246 Ariz. 54 (2019); and (3) traditional voluntariness analysis.

We address each argument in turn.

State v. Cardwell, Not Reported in Pac. Rptr. (2022)

433 “We review the denial of a motion to suppress evidence for an abuse of discretion, considering only the evidence presented

at the suppression hearing and viewing the facts in the light most favorable to sustaining the trial court's ruling.” State v. Wilson,

237 Ariz. 296, 298, | 7 (2015); see also Fa state vy, Moran, 232 Ariz. 528, 531, 4 5 (App. 2013) (deferring to the trial court on

credibility findings). We review legal and constitutional issues de novo. State v. Huerta, 223 Ariz. 424, 426, | 4 (App. 2010).

A. Article 31 Argument

{34 The military court's.suppression ruling concluded that the Yuma detective should have given Cardwell an Article 31(b)

warning at the May 19 interview. Because the detective failed to give an Article 31(b) warning at the May 19 interview, the

military court found all of Cardwell's later statements involuntary. On appeal, Cardwell argues the superior court should have

likewise suppressed his statements based on the same reasoning.

*6 35 Article 31(b) provides “technical warning requirements similar to those prescribed in Miranda.” United States v.

Steward, 31 M.J. 259, 263 (C.M.A. 1990) (internal footnote omitted). “The protections of Article 31(b) are broader than Miranda

warnings in that a suspect must receive warnings even if the suspect is not in custody.” Faunited States v. Baird, 851 F.2d 376,

383 (D.C. Cir. 1988); see also United States v. Rogers, 47 M.J. 135, 136 (C.A.A.F. 1997) (comparing Article 31(b) requirements

with Miranda). Evidence obtained in violation of Article 3 1(b) is excluded from any “trial by court-martial.” 10 U.S.C. § 831(d).

{36 Federal courts have strictly construed Article'31 to apply only to evidence in court-martial trials and have refused to expand

its reach to civilian-court proceedings. See Fe United Siates v. Santiago, 966 F. Supp. 2d 247, 258-59 (S.D.N.Y. 2013) (holding

“Article 31 does not apply to a trial in a civilian court” and collecting cases). State courts have similarly refused to suppress

evidence in civilian trials based on an Article 31(b) violation. See Maj. Michael J. Davidson, The Effect of the Military's Article

31 Rights Warning Violations in Federal and State Courts, 44 Fed. Law. 22, 24-26 (Aug. 1997) (collecting state court cases

and observing that “the limited number of state courts to address this issue ... have held that a violation of Article 31 does not

require the suppression of a defendant's statements” in civilian trials).

37 Cardwell has identified no case in which a civilian court excluded evidence in a civilian trial based on a violation of Article

31. Rather, he contends the NCIS and Yuma police investigations “merged,” citing two military court-martial cases: P" United

States v. Swift, 38 C.M.R. 25 (1967) and United States v. Grisham, 16 C.MLR. 268 (1954). But neither Swift nor Grisham address

the application of Article 31 protections in civilian proceedings. See PA swift 38 CMR. at 29-30; Grisham, 16 C.M.R. at 270—

71. Article 31(b) does not require suppression here.

B. Collateral Estoppel

438 Cardwell next argues the superior court erred by denying his request to hold the State collaterally estopped from

“relitigating” the military court's suppression ruling. We review his claim de novo. Crosby-Garbotz, 246 Ariz. at 56, 4 9.

{39 Collateral estoppel does not apply to successive state and federal prosecutions because “the parties in the two cases are

not the same.” 8 United States v. Ricks, 882 F.2d 885, 890 (4th Cir. 1989). “Collateral estoppel is an ingredient of the fifth

amendment protection against double jeopardy,” State v. Nunez, 167 Ariz. 272, 276 (1991), but double-jeopardy is not implicated

when separate sovereigns prosecute a defendant for the same conduct. See Gamble, 139 S. Ct. at 1964; P= Poland, 132 Ariz.

at 276. The superior court did not err.

C. Voluntariness

{40 Finally, Cardwell argues his statements were involuntary because “there was inherent compulsion in the manner in which

the interrogations were conducted.” Cardwell relies on the language in the military court's suppression ruling, as though the

State v. Cardwell, Not Reported in Pac. Rptr. (2022)

superior court had no discretion to reach different conclusions than the military court. But the superior court “rendered [its

suppression] decisions without knowing what happened in the court-martial case.” In any case, we will not consider the military

court's ruling because it was not submitted as evidence at the suppression hearing. See Wilson, 237 Ariz. at 298, ¥7 (“considering

only the evidence presented at the suppression hearing”).

*7 941 We review the admission of a defendant's statements to police for abuse of discretion. FA state v. Ellison, 213 Ariz.

116, 126, § 25 (2006). A finding of voluntariness “will be sustained absent clear and manifest error.” F~ State v. Poyson, 198

Ariz. 70, 75, 10 (2000).

{42 “Only voluntary statements made to law enforcement officials are admissible at trial,” and a “defendant's statement is

presumed involuntary until the state meets its burden of proving that the statement was freely and voluntarily made and was

not the product of coercion.” rl state v. Boggs, 218 Ariz. 325, 335, J 44 (2008). Statements are involuntary when there is

“coercive police conduct” and a “causal relation between the coercive behavior and [the] defendant's overborne will.” Fag

at 336, ¥ 44. Courts examine the “totality of the circumstances surrounding the confession” to decide whether the defendant's

will was overborne. FA sate v, Lopez, 174 Ariz. 131, 137 (1992); see also State v. Hatfield, 173 Ariz. 124, 126 (App. 1992)

(listing factors—including the accused's age and intelligence level, the length of detention, and whether the accused received a

constitutional-rights advisory—to assess whether the accused's will was overborne).

43 Cardwell asserts his military status and training caused his will to be overborne. But the court rejected this assertion and

partially denied Cardwell's motions after considering the conflicting evidence presented by the State and Cardwell during a fourday hearing. Nothing on this record overcomes our deference to the court's credibility determinations or its other factual findings.

Nor does Cardwell's general assertion that the interviewers exploited his emotionally “fragile state” to render his statements

involuntary. See Hatfield, 173 Ariz. at 126 (“In Arizona, confessions have been found to be voluntary notwithstanding the use

of psychological tactics and interviewing techniques that play upon a defendant's sympathies.”). And Cardwell's waiver of his

rights at the May 22 and 26 interviews suggests that his statements were voluntary. State v. Patterson, 105 Ariz. 16, 17-18

(1969); see also State v. Naranjo, 234 Ariz. 233, 238, 7 (2014) (“A knowing and intelligent waiver of Miranda rights occurs

when the suspect understands those rights and intends to waive them.”). We find no abuse of discretion.

IV. Abusive-Head-Trauma Testimony

(44 Cardwell next argues the superior court violated Arizona Rule of Evidence (“Rule”) 704 by admitting, against objection,

Dr. Jenny's testimony that the cause of Cara's death was “abusive head trauma.” He argues Dr. Jenny's opinion constituted an

impermissible legal conclusion. We review the admission of expert testimony for abuse of discretion. State v. Bernstein, 237

Ariz. 226, 228, 4 9 (2015).

445 An expert's testimony “is not objectionable just because it embraces an ultimate issue.” Ariz. R. Evid. 704(a). Yet “[i]n

a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state

or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.”

Ariz. R. Evid. 704(b). Under Arizona law, expert witnesses may testify that a child victim's injuries resulted from abuse. See

FA state v. Poehnelt, 150 Ariz. 136, 150 (App. 1985) (“[e]xpert testimony to establish that injuries were intentional and not

accidental [is] admissible”).

*8 46 Dr. Jenny did not improperly opine on Cardwell's guilt or mens rea, she testified that she had no opinion on who caused

Cara's injuries. Her testimony thus merely suggested that “a child of tender years found with a certain type of injury has not

suffered those injuries by accidental means, but rather is the victim of child abuse.” FAsiate y. Moyer, 151 Ariz. 253,255 (App.

1986). Such testimony is typically admissible because it is “not an opinion by a doctor as to whether any particular person has

done anything.” Jd. For that reason, the admission of Dr. Jenny's abusive-head-trauma opinion did not violate Rule 704.

State v. Cardwell, Not Reported in Pac. Rptr. (2022)

{47 Cardwell also suggests Dr. Jenny's testimony should have been excluded under Rule 703 because her reports purportedly

contained errors, she relied on unsworn statements, she did not personally speak with or interview any individual with firsthand

knowledge of the case, and she exhibited no doubts about her cause-of-death opinion. But Cardwell fails to explain how any of

his general complaints violate Rule 703, nor does he provide supporting authority for any such claims. Because Cardwell has

not adequately developed his argument in a manner permitting review, he has waived his Rule 703 claim. See State v. Thompson,

252 Ariz. 279, 300, 9 84 (2022) (waiving undeveloped, conclusory arguments).

V. Preclusion of Defense Witnesses

{48 Cardwell next asserts the superior court improperly precluded witnesses Weil and Papetti. We review such evidentiary

rulings for abuse of discretion, Ellison, 213 Ariz. at 129, | 42, and will “affirm on any basis supported by the record.” F2 state

y. Wassenaar, 215 Ariz. 565, 577, { 50 (App. 2007).

A. Preclusion of Weil

449 More than a year before trial, Cardwell filed a notice. of intent to present expert testimony from Col. John Weil, a retired

Marine colonel and judge advocate general. The notice contained Weil's contact information but did not summarize his testimony

or his qualifications. Cardwell did not provide any other information about Weil's proposed testimony or otherwise supplement

his initial disclosure before trial.

50 During trial, the superior court held multiple hearings on whether to allow Weil's testimony. At the first hearing, Cardwell

explained Weil would “testify to military culture and the issues surrounding [the] renewed motion for voluntariness.” Finding

the voluntariness issues had “already been litigated and been decided,” the court precluded Weil from testifying on related topics.

The court declined ruling on the rest of Weil's proposed testimony until it held an evidentiary hearing during which Weil could

testify. At the evidentiary hearing, Weil recounted his experience in the Marine Corps and explained the purpose of his testimony

was to assist the superior court in its voluntariness determination. The court precluded Weil's testimony, reasoning the proposed

testimony “would be confusing to the jury and would confuse the issues as to voluntariness of the defendant's statements.”

{51 The superior court did not err by precluding Weil from testifying, given that his opinions merely addressed the admissibility

of Cardwell's statements. See A.R.S. § 13-3988(A) (before a “confession is received in evidence, the trial judge shall, out of

the presence of the jury, determine any issue as to voluntariness”). Because Weil could not help the jurors determine an issue

of material fact, his testimony was not relevant. See Ariz. R. Evid. 702 (permitting expert-opinion testimony when it “will help

the trier of fact to understand the evidence or to determine a fact in issue”).

B. Preclusion of Papetti

*9 $52 Two months before trial, Cardwell disclosed his intent to call Papetti as an expert witness. A few weeks later, the State

objected to relevancy of Papetti's testimony and claimed Cardwell had not responded to the State's requests for its scope, Papetti's

CV, and his written reports. Cardwell eventually disclosed Papetti's CV and a general summary of his proposed testimony

several days after trial began but did not provide his opinions.

453 During trial, the superior court addressed the State's objection. The prosecutor argued preclusion was appropriate because

Cardwell ignored multiple requests to disclose Papetti's testimony. Cardwell countered there was “no discovery issue” and

asserted Papetti should be allowed to “testify as to legal and medical conclusions.” The court sanctioned Cardwell's disclosure

violation by precluding Papetti.

54 Defendants must disclose the names of all potential trial witnesses no later than 40 days after arraignment or within 10

days after the State's disclosure, whichever occurs first. Ariz. R. Crim. P. 15.2(d)(1). For experts who do not prepare a written

report, defendants must also disclose a “summary of the general subject matter and opinions on which the expert is expected

State v. Cardwell, Not Reported in Pac. Rptr. (2022)

to testify[.]” Ariz. R. Crim. P. 15.2(c)(2)(C). Arizona Rule of Criminal Procedure 15.7 authorizes courts to sanction parties for

disclosure violations, including the failure to timely disclose witnesses. Naranjo, 234 Ariz. at 242, { 30.

455 A sanction must be proportional to the disclosure violation, PA state v. Payne, 233 Ariz. 484, 518, 7 155 (2013), and

preclusion should be imposed only when less stringent sanctions do not accomplish the “ends of justice.” “State v. Smith,

123 Ariz. 243, 252 (1979). Before precluding a witness, courts must consider: “(1) how vital the precluded witness is to the

proponent's case; (2) whether the witness's testimony will surprise or prejudice the opposing party; (3) whether bad faith or

willfulness motivated the discovery violation; and (4) any other relevant circumstances.” Naranjo, 234 Ariz. at 242, {30 (citation

omitted). Preclusion is permissible “when a party engages in willful misconduct, such as an unexplained failure to do what the

rules require.” Jd. at 242, § 34 (citation omitted).

56 Cardwell's failure to properly disclose Papetti warranted imposing a sanction. And Cardwell has not shown Papetti was

vital to his case, given that he does not articulate any specific testimony he sought to elicit from Papetti. Jd. at 242, § 30. If

Cardwell sought to elicit legal-causation conclusions from Papetti, such testimony is inadmissible. See F3 sate vy. Sosnowicz,

229 Ariz. 90, 97, | 25 (App. 2012). Cardwell's late and incomplete disclosure, after trial had started, prejudiced the State. See

Naranjo, 234 Ariz. at 242, { 30; Fl yells y. Fell, 231 Ariz. 525, 528, | 13 (App. 2013) (“The underlying principle of disclosure

rules is the avoidance of undue delay or surprise.”) (cleaned up). And even assuming Cardwell did not act in bad faith, he gives

no explanation for his dilatory conduct. The court did not abuse its discretion in precluding Papetti.

VI. Evidentiary Rulings

57 Cardwell also asserts the superior court violated Rule 404(b) by admitting propensity evidence: (1) Cardwell's written

statements in a notebook; (2) testimony recounting Cardwell's criticism of Barbara's parenting approach; (3) testimony about

an incident when Cardwell punched a wall while arguing with Barbara; and (4) testimony that Cara “ran away from [Cardwell]

when he would go to pick her up.” We review evidentiary rulings for abuse of discretion. Fl zitison, 213 Ariz. at 129, § 42.

A. Notebook Entry

*10 958 Soon after getting married, Cardwell and Barbara began disagreeing over parenting styles and how to discipline Cara.

To improve their communications, Cardwell bought a notebook in which they would write to one another about those issues

and other marital matters.

459 At trial, over Cardwell's relevance objection, the superior court admitted one of his notebook entries. But contrary to

Cardwell's assertion, the superior court admitted his written statements as an opposing party's statement under Rule 801(d)(2).

And on appeal, Cardwell does not challenge the Rule 801(d)(2) ruling, thereby waiving that issue. See Fa carver, 160 Ariz.

at 175. We find no error.

B. Criticism of Barbara

460 During an exchange about Cardwell's criticisms of her parenting Barbara testified:

Q: But do you remember around what times, like what events that -- that he made those comments?

A: Sometimes when he would come home, she would see him and run towards me and she would just want me to hold her,

so I would hold her and I'd play with her and he would be like you baby her too much.

461 Cardwell did not object at the time, but now protests this testimony. We review for fundamental error only. = state v.

Escalante, 245 Ariz. 135, 140, J 12 (2018). Cardwell never explains how the admission of the brief, vague comments during

State v. Cardwell, Not Reported in Pac. Rptr. (2022)

several weeks of trial testimony amounted to fundamental, prejudicial error. See F4 zulison, 213 Ariz. at 133, | 62 (rejecting

fundamental-error claim when the challenged testimony was brief and not relied on in closing argument); see also state v

Cruz, 218 Ariz. 149, 166, § 102 (2008) (finding defendant “failed to show that the snippet of [other-act] testimony rendered his

trial fundamentally unfair”), And the testimony was cumulative to Cardwell's statements that Barbara was an overprotective

= state v. Moody, 208 Ariz. 424, 455, J 121 (2004) (no fundamental error

when the challenged evidence was cumulative to other properly admitted evidence).

mother who did not discipline Cara sufficiently. See

C. Wall-Punching Incident

62 Before trial, the superior court denied the State's Rule 404(b) request to introduce testimony that Cardwell had “punched a

hole in the wall during an argument” with Barbara. The State complied with the court's order on direct examination of Barbara.

On cross-examination, defense counsel's questioning suggested that Cardwell would merely “stop talking” during arguments

and he had never “laid hands” on her even though she had “pushed him a few times.” The prosecutor then argued the defense

had opened the door to the wall-punching incident. The superior court agreed and permitted the State to introduce rebuttal

testimony from Barbara about Cardwell's wall-punching act.

§63 On appeal, Cardwell does not argue the superior court erred by finding he had opened the door to the wall-punching incident's

admission as rebuttal evidence. Having abandoned any such challenge, his claim fails. See "Carver, 160 Ariz, at 175.

D. Cara's Behavior

(64 Cardwell next challenges the admission of evidence that Cara would run away from him when he tried to pick her up.

He supports his claim with two record citations, but those citations refer us only to the superior court's preliminary rulings

on the admissibility of the proposed testimony. Because he identifies neither the challenged testimony's content nor where the

statements were ultimately admitted into evidence, his argument is waived. See Facarver, 160 Ariz. at 175; of F Ramirez v

Health Partners of S. Ariz., 193 Ariz. 325, 326, § 2 n.2 (App. 1998) (“Judges are not like pigs, hunting for truffles buried in

[the record.]”) (citing E™* United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 199).

E. Limiting Instruction

*11 §65 Finally, Cardwell complains the superior court erroneously denied his request to give the jurors an other-act limiting

instruction. See RAJI (Criminal) Stand. 24 (Sth ed. 2019). But the court did not have to give such an instruction because no

other-act evidence was admitted under Rule 404(b). Cf FB sate y. Ferrero, 229 Ariz. 239, 244, § 23 (2012) (courts must grant

a request to give a limiting instruction when other-act evidence has been admitted).

Vil. Alleged Sentencing Errors

466 Cardwell challenges his sentence on two grounds, asserting the superior court (1) considered an improper aggravator in

imposing his sentence, and (2) violated "Blakely v. Washington, 542 U.S. 296 (2004) by sentencing him without the necessary

specific jury finding. Because Cardwell did not object on these grounds in the superior court, he has forfeited review absent

fundamental, prejudicial error. PS zscalante, 245 Ariz. at 140, 12.

A. Asserted Improper Aggravator

67 Cardwell argues the superior court unlawfully considered the harm-to-the-victim aggravator because it was an element of

his conviction, and the State may not use an element of the crime as an aggravating factor. But he relies on two provisions—

¥ «

State v. Cardwell, Not Reported in Pac. Rptr. (2022)

§§ 13-701(D)(1) and -701(D)(2)} that the State did not rely on. The State noticed, and the jury found, the harm-to-the-victim

aggravator under § 13-701(D)(9).

4168 And Cardwell is incorrect that the maximum possible sentence he faced was 20 years. The legislature has identified certain

“dangerous crimes against children” and set forth sentencing provisions for such crimes. As relevant here, “fA] person who is

at least eighteen years of age ... who is convicted of ... second degree murder of a minor who is under twelve years of age, may

be sentenced to life imprisonment.” FAaRS. § 13-705(C). The jury convicted Cardwell of second-degree murder against a

victim younger than twelve. The court did not need to rely on an aggravator to impose a life sentence on Cardwell.

B. Blakely Claim

469 Lastly, Cardwell argues the superior court improperly enhanced his sentence as a dangerous crime against children because

the jury did not determine whether his conduct focused on Cara. “Other than the fact ofa prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” F= Apprendi vy. New Jersey, 530 U.S. 466, 490 (2000). The statutory maximum for Apprendi purposes is the maximum

sentence a judge may impose based solely on the facts reflected in the verdict or admitted by the defendant FBlakely, 542

US. at 301-03.

{70 Cardwell did not raise this issue in the superior court, so we review for fundamental error. F zscalante, 245 Ariz. at 140,

4 12. Even if the absence of a specific, separate jury finding on this point constitutes fundamental error, his claim still fails

because he does not assert any resulting prejudice. See State v. Thompson, 252 Ariz. 279, | 58 (2022) (rejecting a fundamental

error challenge, when a defendant failed to articulate how such error prejudiced him because the defendant bears the burden

of establishing such prejudice).

CONCLUSION

{71 We affirm Cardwell's conviction and sentence.

All Citations

Not Reported in Pac. Rptr., 2022 WL 4075333

Appendix B: Arizona Supreme Court, Denial of Discretionary

Review, April 5, 2023.

Gees Osh, .

Say

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Seay

aS eE Re,

perce ne

3 act

curene Court

STATE OF ARIZONA

ROBERT BRUTINEL ARIZONA STATE COURTS BUILDING TRACIE K. LINDEMAN

Chief Justice 1801 WEST WASHINGTON STREET, SUITE 402 Clerk of the Court

PHOENIX, ARIZONA. 85007

TELEPHONE: (602) 452-3396

April 5, 2023

RE: STATE OF ARIZONA v JARED CARDWELL

Arizona Supreme Court No. CR-22-0235-PR

Court of Appeals, Division One No. 1 CA-CR 21-0181

Yuma County Superior Court No. §1400CR201600404

GREETINGS:

The following action was taken by the Supreme Court of the State

of Arizona on April 4, 2023, in regard to the above- referenced

cause:

ORDERED: Petition for Review = DENIED.

Tracie K. Lindeman, Clerk

TO:

Alice Jones

Kaitlin Marie Amos

Amy M Wood

tkl

Appendix C: Memorandum of Understanding Between

MCAS-Yuma and Yuma County Attorney,

December, 30, 2005.

LAW ENFORCEMENT AGREEMENT AND UNDERSTANDING

1. Purpose. The purpose of this agreement is to delineate an understanding between the

subscribing officials as representatives of the Marine Corps Air Station, Yuma, Arizona,

(hereinafter referred to as MCAS), the Yuma County Sheriffs Office for Yuma County,

Arizona (hereinafter referred to as the YCSO), the Yuma Cotmty Attorney’s Office

(hereinafter referred to as the County Attorney's Office), City of Yuma, Arizona Police

Department (hereinafter referred to as the YPD), and the City Prosecutor for the City of

Yuma, Arizona (hereinafter referred to as the City Prosecutor) relating to:

a, Investigation and prosecution of offenses which occur'on MCAS, to include the Air >

Station proper and the 16" StreevAvenue "B” Military Housing Area and thoseportions of the Barry. M. Goldwater Range managed by MCAS (hereinafter referred

to as the BMGR).

b. The reporting of certain types of offenses and injuries.

c. Arrests effected by the YCSO and the YPD on MCAS property.

_ d, Nothing herein shall -be inferred or understood as limiting in any. way the authority of

the Naval Criminal Investigative Service (hereinafter referred to as the NCIS) to

pursue such investigations as are not specifically contemplated hereby but are

properly contained. in investigative charter as. pronounced by the Secretary of the

Navy Instruction 5520.3, -

2, Policy, MCAS, the County Attorney’s Office, YCSO, the City Prosecutor and the YPD

| recognize the proper administration and discipline of the Armed Forces require that, .

| ordinarily, offenses committed by military personnel on MCAS be investigated and

| prosecuted by the military. However, there may be-occasions when such offenses should

be investigated and prosecuted by Arizona civil authorities. It is obvious that inflexible

rules to determine this responsibility are not feasible where there is proprietary or

concurrent military.and state jurisdiction. The procedures-set forth herein are intended to

make the investigation and prosecution of offenses more expeditions and efficient while.

giving appropriate consideration to the requirements of the Arméd Forces, the policies of

the civil government, and other matters of mutual interest, This agreement does not

apply to offenses cognizable only under the Uniform Code of Military Justice (hereinafter:

refetred'to as the UCMJ), nor:does it apply to investigations for administrative or security

purposes.

3, Jurisdiction Areas. This Agreement of Understanding addresses responsibilities for the

investigation and prosecution of offenses committed on MCAS, to include the 16"

Street/Avenue “B” Military Housing Area and the BMGR and offenses committed

outside MCAS as described in 4.b. below.

fAenuoras ode SEP 1 4 190

4, Investipations, The following shall apply to determine whether MCAS, YCSO, the YPD

or other appropriate Federal or State Law Enforcement Agencies will conduct a particular

investigation:

a. Offenses Committed on MCAS (to include 16” Street/Avenue “B” Military Housing

Area and the BMGR),

(1) Traffic Enforcement.

(a) MCAS. shall be primarily responsible for traffic control, enforcement of —

station traffic regulations and investigations of motor vehicle accidents.

(b) Problems. or difficulties encountered in traffic. enforcement involving

civilians may be referred to the appropriate civilian agency by MCAS.

(2) Other Misdemeanor Offenses.

(a) As used herein, a misdemeanor offense is an offense punishable under the

Jaws of Arizona by confinement of 6 (six) months or less. A.R.S. 13-707,

(b) Investigations of misdemeanor offenses shall be first conducted by the

military. If a suspect is not subject to the UCMJ, investigative jurisdiction shall

be referred to the ‘YPD and the City Prosecutor or YCSO and the County Attormey

after thé military purpose in conducting the investigation has been satisfied,

environmental laws and other applicable Federal laws and regulations on the

BMGR.

(3) Felonies.

(a) As used herein a felony is an offense punishable by the laws of the State of

Arizona by confinement of one year or more, A.R.S. 13-701.

(b) The NCIS is responsible for the investigation of felonies, unless it is -

ascertained that:

(i) The suspect is not subject to the UCMIJ; or

Gi) The'cireumstances surrounding. the incident or complaint fully justify

presumption that the unknown suspect is not subject to the UCMI; or

(ili), Incases covered by either (i) or (ii) of the above, investigation by the

NCIS shall be limited to preliminary and/or exigent matters, pending

notice to YPD.or YCSO and the County Attorney’ s Office of the incident.

Aznateonere Reeds SEP 1 4°20)

notify YPD or Y.CSO and the County Attorney's Office of the offense. Other

than as regards notice to YPD and the County Attorney's Office, the status of the

victim is irrelevant herein.

(d) The NCIS shall provide reports to the YPD or YCSO, if requested in writing

by YPD or YCSO, Provision of copies of al] reports ‘of investigations is a matter

of cooperation and mutnal interest. It is further understood that any inquiries by

the news media concerning incidents occurring on: MCAS, the BMGR, and the

16" Street/Avenue “B" Military Housing Area shall be referred to the MCAS

Public Affairs Office.

b. Offenses Committed Outside MCAS,

(1) The. YPD.or YCSO, as appropriate, is responsible for the initial investigation of

offenses committed outside MCAS, However, whenit appears that a military member

suspéect.may be. subject t to. prosepution ui under the UCMI, the YPD or YESO ‘shall notify

| oe the opportunity to.en enter: into ‘the investigation, Thereafter the: investigation shall be

| conducted as provided | in Section 4.a. (3)-above.

(2) Investigations initiated by the military on thé basis. of related on-base criminal

conduct.may be’ putsued by the military off MCAS to the extent that the military

interest dictates,

| ; (3) It is understood that na state has the power of right to interfere with the Federal

| ‘Government in the proper performance of its. authorized functions. Federal supremacy

| dictates that, among. other things, the YPD. or the. YCSO. may tiot arrést. and detain for

trial any. member-of the.Armeéd Forces. for alleged. violations of Arizona.law done in-a

lawful performance of his.official duties or done pursuant to- lawful’ orders.

t: Offenses Against the: United States,

(1): Notwithstanding other provisions of Section 4a and 4b above, when it appears: that

an-offense involves fraud against the United States or damage to or ‘misappropriation or

larceny of United Statesproperty or any. violations of the criminal.Jaws of the United.

States, the investigation shall be conducted by the proper Federal authorities.

§. Prosecution.

a. Except as provided in. Section 5.b. below,. whenever an investigation of an. offense

involving a military suspect and civilian victim is conducted by the YPD or YCSO

pursiiant to Section 4.b, 1, above, any resulting prosecution will normally be conducted

by the County. Attornéy’s Office or City Prosecutor’s Office. In any case under this

category, the. military may conduct a preliminary i inquiry to provide ‘a status report-on the

pending adjudication to the Director of the MCAS Joint Law Center, In thé event the

asewtnceren Be! Ravi |

pul ¥

County Attorney or City Prosecutor decline to prosecute in any case under this category,

notice of that fact and the reasons therefore, shall be made in a timely manner to the

NCIS or the Director of the MCAS Joint Law Center. Absent exigent circumstances or

unnecessary delays by the County Attorney or City Prosecutor, MCAS shall not institute

court-martial action in those cases until such notice is given.

b. Whenever the investigation of offenses is conducted by MCAS or involves a military

suspect and military victim, any resulting prosecution of a military suspect will normally

be conducted by MCAS. MCAS shall notify the County Attorney’s Office or the City

Prosecutor’s Office in all instances, except traffic offenses, wherein it does not take

disciplinary action against a military member who is also subject to criminal prosecution -

by the County Attorney’s Office or the City Prosecutor’s Office.

c. If, prior to adjudication by the Arizona court in which the County Attorney's Office

or the City Prosecutor’s Office is conducting the prosecution of a military suspect who is

also subject to prosecution for the same act under the UCMJ, MCAS determines that it is

in the best interest of the military community to prosecute that person for the sameact or

<y acts before a military tribunal, MCAS may request that the County Attorney’s Office or

the City Prosecutor's Office waive jurisdiction in favor of a court-martial prosecution.

d. In all felony cases, as set forth in Subsection 5.a. above, which are undergoing review

with a view towards prosecution in the Arizona state courts, the County Attorney’s Office

shall coordinate an exchange of information with the Director of the Joint MCAS Law

Center. The City Prosecutor’s Office shall coordinate such an exchange of information in

misdemeanor cases. that are potentially controversial or are of apparently paramount

military interest. Cases of paramount military interest include theft or damage of military

property, assaults on military superiors and disorderly conduct involving disrespect to

military superiors.

e. In all felony cases, as set forth in Subsection 5.b. above, which are being prosecuted

by the military, the Director of the MCAS Joint Law Center shall coordinate an exchange

of information in such cases that are potentially controversial or are of apparently

paramount interest to the County Attorney and City Prosecutor. Cases of local

paramount interest include, but are not limited to, crimes of violence committed off

MCAS by a military suspect against a military victim.

Reporting Offenses and Injuries.

a. Felonies discovered by MCAS.

In felony cases, which are discovered by MCAS, MCAS will promptly notify NCIS.

Such notification shall be effected prior to the commencement of any investigative

measures, such as subsequent crime scene examination or interrogation of suspects by

MCAS.

b, Offenses discovered by the YCSO or the YPD.

When it appears that an offense involving 4 military suspect has occurred and it falls

within thé investigative jurisdiction of the military, as set forth in this agreement, the

YCSO or the YPD shall notify the MCAS PMO in a timely fashion so that an appropriate

military investigation may be initiated.

c. Reporting Serious Injuries.

(1) MCAS or the Branch Medical Clinic.at MCAS shall: immediately report to the City

YPD by telephone and within 36 hours in writing, the identities of persons involved

and circumstances of each occurrence of the following categories of injuries that are

treated or otherwise discovered by the personnel of MCAS or the Branch Medical

Clinic at MCAS:

(a) Injuries to any person inflicted by means of a knife, gun, pistol or other

deadly means in apparent violation of any law of the State of Arizona, including

attempted suicide: by any meéans;.and

(b) All suspected cases of-child abuse, of sexual molestation or matters within the

cognizance of the State of Arizona.

(2) The YPD. or YCSO shal] likewise report to MCAS the identities of the persons

involved and circumstances of each occurrence of the following categories of injuries

that ate discoyered by or become known to the YPD or YCSO.

(a) Serious injuries to military personne] occurring off base; and

(b) Serious injuries to dependents of military members who residé on MCAS that

occur off MCAS.

(3) With regards to these categories of injuries, it is understood that the YPD cannot

order or instruct the Yuma Regional Medical Center, or any physician, to forward,

injury reports to MCAS, However, the YPD shall, upon written request, provide to

* MCAS, copies of any such injury reports that may be acquired by the YPD. YPD shall

not be reqilired. to comply with such request if to do so would be unauthorized by law

or detrimental to the best interest of the City.

Arrests on MCAS by the YCSO or the YPD.

a, When YCSO or the YPD, pursuant to a proper warrant requests the delivery of a

member of the U.S. Armed Forces or a civilian aboard MCAS, delivery will be

mithorized except as.listed below. The Provost Marshal will be the designated authority

for delivery of personnel and. will consult with the Director of the Joint Law Center prior

to delivery of personnel. Requests for delivery of personnel shall be during normal

weekday, working hours, unless immediale arrest is necessary. Delivery of personnel

“1 2 OR

eq ure ttre oe Lo 20

iit es

will normally be done at the PMO to ensure a minimum of interference to good order and

discipline.

b. In accordance with Navy regulations, delivery of members of the U.S. Armed Forces

may be refused in only limited circumstances:

(1). To be retained for ongoing military prosecution.

(2) When: the. Commanding Officer determines that extraordinary circumstances

exist which would indicate that delivery should be refused.

c, If there is.a possibility a member of the U.S. Armed Forces will be transported by YPD

or YCSO outside Yuma County, pursuant to Navy regulations; an agreement must be

signed by an official that transportation costs back to MCAS will be paid ‘by the

transporting agency.

d. The following actions apply to the execution of routine warrants of arrest on MCAS:

(1) It is understood that warrant abstracts, teletype warrant abstracts and certified

copies of warrants of arrest, are the legal equivalents of original warrants of

arrest.

(2) As appropriate, the YCSO or the YPD shall telephone MCAS PMO to advise

of the warrant of arrest of a military member, dependent of a military member or

civilian employee located at MCAS. The information will contain. the name of

person to be arrested, his or her on-base location, if known, and the court charges,

amount of bail and ‘the date the warrant was issued.

(3) MCAS PMO shall ensure, when a military member is to be arrested, that the

member will be ready for delivery to the arresting officer when requested. Prior.

to the'time of the actual delivery of the military member to the YCSO or the YPD,

at the direction of MCAS PMO, the YCSO or the YPD shall tender the warrant of

arrest to MCAS PMO for review to establish the apparent validity thereof.

e. Before executing a routine warrant of arrest on MCAS, the YCSO or the YPD shall

take the following additional actions:

(1) Cheok in with MCAS PMO,

(2) Once the apparent validity of the warrant is established, the arresting. officer

will serve it upon the arrestee once delivery has been made by MCAS PMO.

(3) Misdemeanor warrants will be executed | during the normal work week during

normal working hours.

8. Release from Civil Jurisdiction and Notice of Booking. Recognizing that the military

possesses universal jurisdiction, and has the ability to prosecute offenses occurring within

the County or City when a military member is involved, a military member taken into

custody by either YCSO or the YPD shall be released from the detention facility holding

the military member to the custody of MCAS PMO, with a copy of the arrest record, as is

permissible under State law when all conditions for release of the military member, as

specified by court order, have ve been satisfied. Further, YCSO shal] promptly notify

MCAS PMO whenever a military member is booked into the custody of the detention

facility. Such notification will be made solely for the purpose of providing notice to

MCAS of the location of its personnel, and shall not be made with malice or with the

intent to affect an individual’s military employment status.

9, Patrol.

a. MCAS PMO will periodically patrol, by marked vehicle, the 16” Street/A venue “B”

Military Housing Area a minimum of two (2) times each 24 hour period.

b. The YPD will, at their convenience, endeavor to patro! the 16" Street/Avenue “B”

Military Housing Area at least one (1) time each 24 hour period.

c. The primary objective of such patrolling is to demonstrate the presence of law

enforcement officials and will be conducted by MCAS PMO consistent with applicable

Federal laws and regulations. Effective cooperation between military and civilian

authorities is the hallmark of this agreement and nothing herein shall prevent

simultaneous patrolling or prior coordinating of patrolling between the military and

civilian authorities.

d. In order to ensure officer safety YCSO or YPD will, prior to entry on to the BMGR,

coordinate its entry with MCAS PMO,

10. Service of Process. Requests for service of process on members of U.S. Armed Forces .

and civilians aboard MCAS will be honored and arranged expeditiously as possible. The

MCAS Joint Law Center is the designated authority to coordinate requests for service of

process. Requests for service of process shall be during normal weekday, working hours.

YCSO or the YPD shall telephone the MCAS PMO to advise of service of civil process

upon a military member, dependent of a military member or civilian employee located on

MCAS. MCAS PMO will be provided with the ndme of the person to be served and

his/her on-base location, if known. MCAS PMO shall ensure that all steps are taken to

effectuate service. Service will normally take place at the MCAS Joint Law Center at the

Legal Assistance Office. YCSO or YPD may request immediate service of process

outside of normal weekday, working hours for Orders of Protection or Injunctions

Against Harassment or matters of a similar nature. In these limited Circumstances the

MCAS PMO will act as the designated authority for such requests.

11. Term, The undersigned agree to cooperate fully in carrying out the policies and

| procedures set forth in the foregoing agreement which shall remain in force unless

otherwise amended or revoked. This agreement may be modified by mutual consent or

terminated unilaterally by 30 days written notice by a subscribing official or their

| successor to other subscribing officials or their successors. In case of mobilization or

| other emergency, this agreement will remain in force only within the parties’ capabilities.

| Commander, Marine Corps Air Station Yuma, Arizona, may cancel this agreement at any

time if operational needs so require.

12. City Authority. The Yuma City Council enters into this agreement pursuant to its power

to adopt intergovernmental agreements as granted in Article III, Section 13 of the City of

Yuma, Arizona Charter and Arizona Revised Statutes § 11-952.

13. County Authority. The Yuma County Board of Supervisors enters into this agreement

| pursuant to its power to adopt intergovernmental agreements as granted in Arizona

Revised Statutes § 11-952.

14. Service of Subpoena, Whenever it is necessary to secure testimony, in a court of

competent jurisdiction in Yuma County, of a military member witmess to an offense,

without regard to whether the offense is covered by this Agreement, the County Attorney

or City Prosecutor shall issue and cause to be served on the military member witness, in

the manner described in Section 10, above a subpoena which will include the date, time

and location of the trial and a description of the offense that is the subject of the trial.

The County Attorney and the City Prosecutor are cognizant of national security issues

that may arise when testimony of a military member is necessary and will use best efforts

to limit questioning to only those issues relevant to the case for which the subpoena is

issued,

MCAS will cooperate with the County Attorney and the City Prosecutor and will make

every effort to enable expeditious and efficient service of the subpoena and to ensure the

military member witness’ appearance at the designated date, place and time. In the event

the subpoena is not honored by the military member witness, or the County Attorney or

the City Prosecutor is unable to effect service of the subpoena upon the military member

witness by the date and time stated in the subpoena due to military procedures or policies,

the County Attorney or the City Prosecutor may decline to prosecute offenses covered by

this Agreement and will provide notice to the Director of the MCAS Joint Law Center as

provided in section 5.a. above. To the extent that the subpoena is not honored by MCAS,

MCAS shall notify the County Attorney or the City Prosecutor in writing of the reasons

therefore.

fieatrcuras bets SEP 1 4°20

Loo’

IN WITNESS WHEREOF, the parties hereto have executed this agreement at Yuma, Arizona on

this Sot day of _Decemly/,2005.

MARINE CORPS a eae -YUMA

"SEN I D. as tks

~ Colonel, U.S, Marine Corps

Commanding Officer.

Marine-Corps Air Station

Yuma, Arizona 85369

CITY OF YUMA

”

“ff fo a ra

By 2“ 1oleeet of Ee ‘Z PD, Ko ap ye

MARK WATSON, CITY ADMINISTRATOR

ATTEST:

Line MMe’ pal,

ea M, KUIPER, CLERK 7

APPROVED AS TO FORM:

CITY OF YUMA

STEVEN W. MOORE _

YUMA CITY ATTORNEY

wld tap fv

STEVEN W., ORE

YUMA CITY @TTORNEY

feretownare fece SEP 1 4°20

COUNTY OF YUMA

Coca Brchare—

» CASEY PROCHASKA, CHAIRMAN

ATTEST:

hs ee +p

SUE STALL WORTH, CLERK

APPROVED AS TO FORM:

JON R. SMITH

YUMA COUNTY ATTORNEY

wht Le dhl

ROBERT PICKELS

CHIEF CIVIL DEPUTY

Fin

ams tts SED 15

10 L006

Appendix D: Military Ruling Suppressing Statements,

March 2, 2016.

U.S. NAVY-MARINE CORPS TRIAL JUDICIARY

WESTERN JUDICIAL CIRCUIT

GENERAL COURT-MARTIAL

UNITED STATES COURT RULING

Defense Motion to Suppress

(Statements of the Accused)

Vv.

JARED T. CARDWELL

Lance Corporal

U.S. Marine Corps

02 March 2016

I. Nature of the Ruling. The Defense has moved the Court to

suppress all statements made by the Accused. An Article 39 (a)

session was held 19-20 December 2015 to address pretrial

motions. The parties presented witness testimony, documentary

evidence and argument on the defense motion to suppress (AE-XVI)

and the government response thereto (AH-17). The court took the

matter under advisement at that time and notified counsel of the

court’s ruling on 2 March 2016.+

II. Findings of Fact.

1. The accused is charged in the alternative with three

specifications of murder and one specification of manslaughter

in violation of the Uniform Code of Military Justice (UCMJ),

Articles 118 and 119 respectively.

2, The victim in this case, C.M.M.C., is the accused's

stepdaughter,

3. Beatrize Cardwell is the mother of the victim and the

accused’s wife.

4. Since March 2015, the victim, the accused and Beatrize

Cardwell lived in base housing aboard Marine Corps Air Station

(MCAS) Yuma, Arizona. They were the only people living in the

residence at 1813-D De La Garza Loop, MCAS Yuma, Arizona in May

2015.

5. At 0800 on 19 May 2015, Beatrize Cardwell found the

victim nonresponsive in her bedroom in the family residence and

called 9-1-1.

6. When C.M.M.C. was discovered that morning, she was in

the early stages of rigor mortis.

7. The accused left the residence for work at

approximately 0630 on 19 May 2015, but then went to the Yuma

Regional Medical Center (¥YRMC) at approximately 0900.

8, At approximately 0830 on 19 May 2015, Special Agent

(SA) Jeffrey Ruby of the Naval Criminal Investigative Service

(NCIS) was informed by NCIS SA Jessica Jurj that MCAS Fire

Department personnel transported the victim to YRMC. .

9. SA Ruby went to YRMC to learn more about what was going

on. SA Ruby did not contact the Yuma Police Department (YPD)

prior to leaving the NCIS Field Office for YRMC.

10. While at YRMC, SA Ruby had a conversation with

Investigator (Inv) Robert Virgil of the Yuma County Medical

Examiner’s Office. Inv Virgil informed SA Ruby that the victim

had been pronounced dead at 0838.

11. Inv Virgil informed SA Ruby that the victim arrived at

YRMC in cardiopulmonary arrest and already had rigor mortis

appearing in the body.

12. SA Ruby met the accused and his wife as they walked

out of the emergency room door.

13. SA Ruby identified himself to the accused and his

wife, expressed his condolences to them and requested to speak

with them about how the death may have occurred.

14. In SA Ruby’s experience, interviewing the parents was

a very high priority to law enforcement when investigating the

suspicious death of a child.

15. SA Ruby testified that he had worked “quite a few”

child death cases where the parents never became suspects.

16, The YRMC emergency room doctor, Dr. Phillip Richmont,

discussed the victim’s death with the accused and his wife in

the presence of SA Ruby.

17. Beatrize Cardwell told SA Ruby she wanted to go and

inform her mother, Nancy Carreno, in person of the victim’s

death. Nancy Carreno is the victim’s maternal grandmother and

resides in the city of Yuma, Arizona. SA Ruby accompanied the

accused and his wife to Nancy Carreno’s residence in a separate

vehicle. Prior to leaving YRMC, a YPD police officer arrived.

18. Shortly after SA Ruby and the Cardwells arrived at

Nancy Carreno’s house, Sergeant Freedman, Detective Scanlan,

Detective Tejeda and Detective Norred from the YPD arrived as

well.

19. At approximately 1030 on 19 May 2015, SA Ruby, Sgt

Freedman and the other detectives from YPD had a discussion in

the alley outside Nancy Carreno’s house about what investigative

steps should be taken next.

20. Sgt Freedman assigned Det. Scanlan to interview

Beatrize Cardwell’s brother who was present at the location.

Det. Scanlan was later sent to MCAS Yuma to assist SA Jurj who

was processing the residence as a crime scene.

21. Sgt Freedman sent Det. Norred to accompany SA Ruby who

was escorting Beatrize Cardwell to notify the victim’s natural

father. Det. Tejeda was assigned to interview the accused,

22. Det. Scanlan of the YPD responded to the YRMC on the

morning of 19 May 2015.

23. Upon arrival at YRMC, Det. Scanlan was briefed by

investigators from MCAS Yuma that the accused left the victim

alone at approximately 2230 the evening prior while he went to

pickup Beatrize Cardwell from work.

24. Det. Scanlan reviewed photographs of the victim’s body

provided by YRMC medical staff.

25. Det. Scanlan observed reddish discoloration to the

left cheek of the victim’s face in those photographs.

26. Det. Scanlan was informed by YRMC medical staff that

the victim arrived with a core body temperature of eighty

degrees.

27. Det. Scanlan eventually proceeded to the Cardwell’s

residence to assist SA Jurj with processing the crime scene.

28, Det. Scanlan initially spent a short amount of time at

the crime scene but was called back to YPD.

29. Det. Scanlan returned to the Cardwelli’s residence

again later on 19 May 2015 to assist SA Jur} with interviews of

the Cardwell’s neighbors.

30. SA Jurj asked Det. Scanlan end Det. Tejeda to

interview Mrs. Dawn Kiser. :

31. SA Jur} briefed Det. Scanlan on her interview of Mrs.

Abigail Preston, ;

32. Det. Scanlan returned to the Cardwell’s residence a

third time on 19 May 2015. This time, Det. Scanlan brought a

latent bloodstain reagent back at SA Jurj’s request.

33, The decision was made that Det. Tejeda would conduct a

non-custodial interview of the accused at the YPD because it was

approximately a quarter of a mile away from their location at

Nancy Carreno’s residence.

34, The decision to conduct the 19 May 2015 interview of

the accused was a joint decision of the YPD and NCIS.

35. SA Ruby overheard the YPD detectives talking to the

accused about going to YPD for an interview. SA Ruby went over

and told the accused that “this would be common procedure of law

enforcement talking to somebody” as a way of persuading the

accused to agree to the interview with Det. Tejeda.

36. While not in custody, the accused felt as if he had no

choice but to accompany Det. Tejeda.

37. The accused was not placed under arrest and drove

himself to the YPD for the interview with Det. Tejeda on 19 May

2015,

38. The accused drove himself to YPD for his interview on

19 May 2015.

39, Prior to leaving, SA Ruby spoke with Det. Tejeda

briefly. SA Ruby did not give Det. Tejeda any advice, guidance

or direction about how to conduct the interview. Nonetheless,

SA Ruby did tell Det. Tejeda that he had viewed the victim’s

body briefly earlier that morning at YRMC and had spoken with an

ER nurse. In that same conversation, Det. Tejeda told SA Ruby

that he too had viewed the victim’s body earlier that morning.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.