Opinion
2 CA-CR 2023-0185-PR
10-16-2023
The State of Arizona, Respondent, v. Jeremy Cardwell, Petitioner.
Jeremy Cardwell, Buckeye In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2013101774001 The Honorable Joseph Kreamer, Judge
Jeremy Cardwell, Buckeye In Propria Persona
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge Brearcliffe concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE
¶1 Jeremy Cardwell seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Cardwell has not met his burden of establishing such abuse here.
¶2 After a jury trial, Cardwell was convicted of first-degree murder and second-degree burglary and sentenced to a natural life prison term for murder with a concurrent fifteen-year prison term for burglary. His convictions stemmed from the February 25, 2012 murder of the former spouse of his friend and roommate Michael Mors. She was strangled in her home, which had been staged to appear as if it had been burglarized. Cardwell was found to be a contributor to a DNA mixture found under her left fingernails, and police officers determined his cell phone had been near the home at approximately the time of her death. Cardwell sent Mors a postcard, stating he had completed his end of their "deal" and wanting "to know where we stand." We affirmed his convictions and sentences on appeal. State v. Cardwell, No. 1 CA-CR 14-0397 (Ariz. App. Apr. 7, 2016) (mem. decision).
¶3 Cardwell sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record and found "no basis in fact and/or law for post-conviction relief." Cardwell then filed a pro se petition asserting his trial counsel had been ineffective in various ways, including by failing to adequately investigate his case, impeach witnesses, or move to preclude evidence. The trial court summarily dismissed the proceeding. This petition for review followed.
¶4 On review, Cardwell asserts the trial court erred in rejecting several of his claims of ineffective assistance of trial counsel without conducting an evidentiary hearing. A defendant is entitled to an evidentiary hearing if the defendant presents a colorable claim for relief. State v. Gutierrez, 229 Ariz. 573, ¶ 25 (2012); see also Ariz. R. Crim. P. 32.13(a) ("The defendant is entitled to a hearing to determine issues of material fact."). To establish "a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id. "[W]e must presume 'counsel's conduct falls within the wide range of reasonable professional assistance' that 'might be considered sound trial strategy.'" State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013) (quoting Strickland, 466 U.S. at 689). Thus, disagreements about trial strategy cannot support a claim of ineffective assistance if counsel's choices were reasonable. Id. And, although we must treat Cardwell's factual assertions as true, see State v. Watton, 164 Ariz. 323, 328 (1990), Cardwell cannot meet his burden by "mere speculation." State v. Rosario, 195 Ariz. 264, ¶ 23 (App. 1999). Cardwell is entitled to an evidentiary hearing only if he has alleged facts that, if true, "would probably have changed the verdict." State v. Amaral, 239 Ariz. 217, ¶ 11 (2016).
¶5 Cardwell first reasserts his argument that trial counsel failed to investigate his case. He asserts there was evidence that would have contradicted testimony by the couple from whom he and Mors had rented a room. Relevant to this argument, there was testimony that Cardwell had borrowed one of the couple's vehicles the day of the murder and did not return the keys until the following day. They testified Cardwell had a scratch on his neck after returning the keys. Cardwell contends that counsel could have obtained evidence he owned his own vehicle and thus would not have borrowed one. He also suggests counsel could have obtained a booking photo taken "just a couple days" after the murder, which showed he did not have a scratch on his face.
¶6 We agree with the state that it is unlikely that evidence, even had trial counsel discovered it, would have altered the verdicts. The jury might have concluded Cardwell borrowed his landlords' car rather than using his own to conceal his presence at the victim's home. And the booking photograph was taken six days after the murder. Cardwell has not established that the scratch reported by his landlords necessarily would have been visible at that time, particularly given that the photograph does not show either side of Cardwell's neck. And, insofar as Cardwell argues his trial counsel should have presented evidence he had been compliant with the terms of his probation stemming from a previous offense, counsel had obvious strategic reasons not to emphasize Cardwell's criminal record at trial.
¶7 Cardwell also argues that his trial counsel should have "looked into" his two cell phones. He asserts, as we understand his claim, that the police had used the wrong phone number to evaluate his whereabouts on the day of the murder because the number used to track him had not yet been transferred to the phone he began carrying a week before the murder. He also asserts that one of his phones was destroyed after it had been impounded and suggests that counsel was ineffective in failing to request a jury instruction under State v. Willits, 96 Ariz. 184 (1964). A Willits instruction informs the jury that it may draw an adverse inference against the state if "the state loses or destroys evidence that would have been useful to the defense." State v. Glissendorf, 235 Ariz. 147, ¶ 7 (2014). But Cardwell has identified no evidence supporting his claim, including evidence suggesting the impounded phone had been destroyed or had any exculpatory value, or evidence Cardwell had informed his counsel that his second phone potentially could establish an alibi.
Cardwell attached to his petition below an undated, unmarked photograph of two phones and documents showing the Mesa Police Department's possession of a phone. Those documents do not show the phone had been destroyed. He attached to his petition for review a receipt from a cellular service company showing two phone numbers. Even if we could consider evidence not presented to the trial court, see State v. Schackart, 190 Ariz. 238, 247 (1997), that receipt is dated months after the murder and lacks any meaningful probative value.
¶8 Cardwell told a detective that he had been at a "study group" at a house in Phoenix at the time of the murder but was unable to identify any witness who could corroborate his claimed alibi. He asserted below and does so again on review that trial counsel should have done additional investigation, but he has never explained what steps counsel could have taken that would have supported his defense. Although he suggests counsel could have obtained "attendance records," from the school, nothing indicates such records would have shown his attendance at a study group at a private home.
¶9 Relatedly, Cardwell asserts his trial counsel "admit[ted Cardwell's] guilt" by failing to raise his unsupported claim that he was at a study group at the time of the murder and instead acknowledging, consistent with the evidence, that Cardwell had been "in the area" of the victim's home. Thus, Cardwell asserts, he is entitled to relief pursuant to McCoy v. Louisiana, 584 U.S., 138 S.Ct. 1500 (2018). In McCoy, the defendant "adamantly objected to any admission of guilt," but trial counsel, during the guilt phase of the trial, admitted to the jury that the defendant had committed the murders, based on counsel's view that "confessing guilt offer[ed] the defendant the best chance to avoid the death penalty." 138 S.Ct. at 1505. The Supreme Court ordered a new trial, explaining that while "[t]rial management is the lawyer's province," some decisions "are reserved for the client," including the "[a]utonomy to decide that the objective of the defense is to assert innocence." Id. at 1508, 1512. The Court noted that this was not a case of ineffective assistance of counsel "[b]ecause a client's autonomy, not counsel's competence," was at issue. Id. at 1510-11. The facts of McCoy do not resemble the facts of this case. Counsel's decision to reject Cardwell's unsupported defense and instead present a defense consistent with available evidence is not an admission of Cardwell's guilt.
¶10 Cardwell reasserts his claim that trial counsel should have had the DNA evidence "independently tested" and obtained testing of "hair/fibers found on the victim." But he has provided no evidence showing any likelihood that further testing would have yielded exculpatory evidence. Thus, he has not shown both deficient performance and resulting prejudice. See Bennett, 213 Ariz. 562, ¶ 21.
Before filing his petition for post-conviction relief, Cardwell sought a "retest of the DNA found under the [victim's] fingernails." The trial court denied that request, and Cardwell apparently has not sought review of that ruling.
¶11 Cardwell next complains that trial counsel inadequately impeached witnesses at trial. But cross-examination of witnesses is a matter of trial strategy. State v. McDaniel, 136 Ariz. 188, 198 (1983). The bulk of this argument focuses on testimony by his landlords and is grounded in minor inconsistencies in their statements and testimony and a series of unsupported factual assertions. As the state points out, attacking the witnesses' credibility could have undermined his defense that Mors was responsible for the murder, not him. In short, Cardwell has not established that competent counsel necessarily would have pursued the strategy he now proposes.
¶12 Cardwell also repeats his argument that trial counsel failed to seek the exclusion of evidence, specifically the results of DNA testing. He asserts counsel should have filed a motion to suppress based on the "affidavit for the warrant" being "obtained by a false statement with no investigations." We cannot conclude that additional investigation by police officers would have altered the issuing magistrate's finding of probable cause. In short, Cardwell has not identified any reasonable basis on which counsel might have challenged the warrant.
¶13 Cardwell next argues trial counsel should have sought to exclude from evidence the inculpatory postcard he had sent to Mors. But Cardwell has not established any basis for counsel to have done so. Although he complains about the "chain of custody," he cites no supporting evidence. And, although he suggests it was error to redact the postcard because it "completely changed what was said on the postcard," he has not explained how the redaction altered the postcard's meaning. The postcard was redacted to remove any indication that Cardwell had sent the postcard while incarcerated. We cannot find counsel ineffective for making the strategic choice to avoid reference to Cardwell's criminal history.
Cardwell also asserts the postcard was the only "connection linking Cardwell to Mors in this case." But he acknowledges they were roommates.
¶14 We grant review but deny relief.