People v. Cardman , 2016 COA 135 ( 2016 )

COLORADO COURT OF APPEALS 2016COA135
Court of Appeals No. 14CA0202
El Paso County District Court No. 12CR2114
Honorable Robert L. Lowrey, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ryan Matthew Cardman,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE ROMÁN
Bernard, J., specially concurs
Berger, J., dissents
Announced September 22, 2016
Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Katherine Brien, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the
United States Supreme Court held that after a suspect invokes his
right to counsel during custodial interrogation, the police may not
subject him to further interrogation unless he “himself initiates
further communication, exchanges, or conversations with the
police.”
¶2 This case presents the question of whether a suspect who has
so invoked his Fifth Amendment right to counsel may reinitiate
communication with the police through an agent, here, the
suspect’s wife, or whether reinitiation can occur only by direct
contact between the suspect and the police. No Colorado appellate
court has addressed this issue.
¶3 Following the lead of every federal and state appellate court
that has decided this question to date, we hold that reinitiation may
occur through an agent, but we also conclude that the police must
have a reasonable belief that the suspect has, in fact, requested the
agent to reinitiate contact between the suspect and the police.
¶4 Because the record here supports a finding that the police had
a reasonable belief that defendant, Ryan Matthew Cardman,
requested his wife to reinitiate contact with the police on his behalf
1
after he had invoked his right to counsel, we discern no
constitutional error in admitting his inculpatory statements.
Because we further conclude that defendant waived his claim of
voluntariness at the suppression hearing, and discern no error in
the trial court’s admission of certain statements, we affirm.
I. Background
¶5 Defendant was convicted by a jury of multiple counts of sexual
assault on a child and sentenced to concurrent indeterminate
sentences of twelve years to life in prison.
¶6 When the victim was seven, she and her mother moved in with
defendant, her mother’s then-boyfriend. The victim and her mother
lived with defendant for about a year, and then the victim’s mother
became involved with another man, whom she later married.
¶7 Several years later, the victim told her stepfather that
defendant had sexually assaulted her multiple times when she lived
with him. After the police were contacted, a forensic interview of
the victim was conducted. During her video-recorded forensic
interview, which was admitted at trial, the victim alleged numerous
instances of sexual contact between her and defendant. The victim
2
also testified at trial that defendant had sexually assaulted her on
multiple occasions.
¶8 The police executed a search warrant on defendant’s home.
They informed him the search was related to their suspicion of
inappropriate activity on the Internet. During the search, they
recovered a weapon.
¶9 Defendant was arrested on the charge of possession of a
weapon by a previous offender. He promptly exercised his rights to
remain silent and to counsel, and the police ceased questioning.
But two days later, a police detective conducted another interview of
defendant. An audio recording of defendant’s second police
interview was admitted at trial. In the interview, after initially
denying any improper sexual contact with the victim, defendant
admitted to three instances of sexual contact.
¶ 10 Before trial, defense counsel moved to suppress defendant’s
inculpatory statements on the basis that defendant had invoked his
right to counsel and had never reinitiated discussions with the
police. The trial court denied the motion after a suppression
hearing, finding that after the first interview but before the second
3
interview, defendant had communicated to the police through his
wife a general willingness to talk about the investigation.
¶ 11 On appeal, defendant contends the trial court erred by
(1) denying his motion to suppress on the grounds that he
reinitiated communication with the police; (2) failing to sua sponte
hold a hearing on the voluntariness of his confession; and
(3) admitting statements made by the detective.
II. Third-Party Reinitiation Under Miranda and Edwards
¶ 12 Defendant contends the district court erred by not
suppressing statements he made during his second custodial
interrogation because he had previously invoked his right to
counsel and did not himself reinitiate communication with the
police.1 The People respond that defendant reinitiated contact with
1 Defendant also contends that the police failed to scrupulously
honor his invocation of his right to remain silent. However, he does
not further develop this contention, nor does he cite any supporting
authority for it. We do not address conclusory assertions of error
presented without argument, analysis, or support. See, e.g., People
v. Hill, 228 P.3d 171, 176-77 (Colo. App. 2009). Our discussion
thus is limited to the rules that apply after a suspect has invoked
his right to counsel, and we do not discuss whether, or to what
extent, these rules, or different rules, apply after an invocation of
the right to remain silent.
4
the police by directing a third party to reinitiate the communication.
We agree with the People.
A. Standard of Review
¶ 13 Review of a trial court’s decision whether to suppress a
defendant’s statements presents a mixed question of law and fact.
People v. Kutlak, 2016 CO 1, ¶ 13. We defer to the court’s findings
of historical fact if they are supported by sufficient evidence in the
record, People v. Rivas, 13 P.3d 315, 320 (Colo. 2000), but we
review de novo the court’s ultimate legal conclusion — its
application of legal standards to the facts of the case, id.; see also
People v. Bonilla-Barraza, 209 P.3d 1090, 1094 (Colo. 2009). In this
respect, whether the facts found by the trial court show a
reinitiation by defendant of police discussions under Edwards is a
legal question that we review de novo. See, e.g., Holman v. Kemna,
212 F.3d 413, 417 (8th Cir. 2000). In conducting this review, we
may look only at the evidence presented at the suppression hearing.
People v. Gomez-Garcia, 224 P.3d 1019, 1022 (Colo. App. 2009).
B. Reinitiation of Contact with the Police
¶ 14 Pursuant to the Fifth Amendment of the United States
Constitution and Miranda v. Arizona, 384 U.S. 436, 474 (1966),
5
once a defendant who is in custody requests counsel, all police-
initiated interrogation must cease until he has consulted an
attorney.
¶ 15 But “[a] suspect’s request for the assistance of counsel is not
irrevocable.” People v. Martinez, 789 P.2d 420, 422 (Colo. 1990). In
Edwards, the Supreme Court held that a suspect who has invoked
his right to counsel must not be “subject to further interrogation by
the authorities until counsel has been made available to him,
unless the accused himself initiates further communication,
exchanges, or conversations with the police.” 451 U.S. at 484-85;
see Martinez, 789 P.2d at 422.2
¶ 16 In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Court
attempted to explain when a suspect “initiates” contact with the
2 The Edwards rule embodies two distinct inquiries. “[T]he
‘initiation’ question” is only “the first step of a two-step analysis” for
determining whether a defendant’s post-invocation statements
made during custodial interrogation are admissible under Miranda
and Edwards. Oregon v. Bradshaw, 462 U.S. 1039, 1048-49 (1983)
(Powell, J., concurring in the judgment). The second step is
determining whether the statements were preceded by a valid
waiver of the defendant’s previously asserted right to counsel. Id. at
1044-45; see also Smith v. Illinois, 469 U.S. 91, 95 (1984); People v.
Martinez, 789 P.2d 420, 422 (Colo. 1990). Defendant does not
dispute that he validly waived his Miranda rights at the start of his
second police interview, and thus we do not address this step of the
analysis.
6
police within the meaning of Edwards. A plurality of four justices
held that a defendant reinitiates communication with the police
where his comments “evince[] a willingness and a desire for a
generalized discussion about the investigation” and are not “merely
a necessary inquiry arising out of the incidents of the custodial
relationship.” Id. at 1045-46; see Martinez, 789 P.2d at 422; People
v. Pierson, 670 P.2d 770, 775 (Colo. 1983).
¶ 17 According to the plurality, some inquiries,
such as a request for a drink of water or a
request to use a telephone . . . are so routine
that they cannot be fairly said to represent a
desire on the part of an accused to open up a
more generalized discussion relating directly or
indirectly to the investigation. Such inquiries
or statements, by either an accused or a police
officer, relating to routine incidents of the
custodial relationship, will not generally
“initiate” a conversation in the sense in which
that word was used in Edwards.
Bradshaw, 462 U.S. at 1045.
¶ 18 However, the Bradshaw plurality held the suspect had
reinitiated further conversation by asking an officer, “Well, what is
going to happen to me now?” because that question, “[a]lthough
ambiguous, . . . evinced a willingness and a desire for a generalized
discussion about the investigation; it was not merely a necessary
7
inquiry arising out of the incidents of the custodial relationship. It
could reasonably have been interpreted by the officer as relating
generally to the investigation.” Id. at 1045-46.
¶ 19 The dissenting justices agreed that “to constitute ‘initiation’
under Edwards, an accused’s inquiry must demonstrate a desire to
discuss the subject matter of the criminal investigation.”
Bradshaw, 462 U.S. at 1055 (Marshall, J., dissenting). The dissent,
however, disagreed with the plurality’s application because, in its
opinion, the suspect’s “question [could not] be considered ‘initiation’
of a conversation about the subject matter of the criminal
investigation,” but rather expressed merely a desire “to find out
where the police were going to take him.” Id. at 1055-56.
¶ 20 The Colorado Supreme Court has applied the Bradshaw
plurality’s test to determine whether a suspect has reinitiated
communication with the police, holding that “an accused must first
initiate the conversation with the police and by his comments must
‘evince[] a willingness and a desire for a generalized discussion
about the investigation,’ and not merely question the reasons for
custody.” Martinez, 789 P.2d at 422 (alteration in original) (quoting
Bradshaw, 462 U.S. at 1045-46).
8
¶ 21 The determination of whether a defendant’s communication
constitutes reinitiation with the police must be “based on the
totality of the circumstances of the case, ‘including the background,
experience and conduct of the accused.’” People v. Redgebol, 184
P.3d 86, 99 (Colo. 2008) (quoting Martinez, 789 P.2d at 422).
C. Third-Party Reinitiation
¶ 22 Neither the United States Supreme Court nor the Colorado
Supreme Court has addressed whether a suspect can reinitiate
contact with the police under Edwards through a third party.
Nonetheless, other courts have addressed the issue and “all support
the validity of third-party communications.” Van Hook v. Anderson,
488 F.3d 411, 419 (6th Cir. 2007); see Henness v. Bagley, 644 F.3d
308 (6th Cir. 2011); Owens v. Bowersox, 290 F.3d 960 (8th Cir.
2002); United States v. Michaud, 268 F.3d 728 (9th Cir. 2001);
Holman, 212 F.3d 413; United States v. Gonzalez, 183 F.3d 1315(11th Cir. 1999); United States v. Murphy, 133 F. Supp. 3d 1306 (D.
Kan. 2015); Ex parte Williams, 31 So. 3d 670 (Ala. 2007);
Killingsworth v. State, 82 So. 3d 716 (Ala. Crim. App. 2009), rev’d
on other grounds sub nom. Ex parte Killingsworth, 82 So. 3d 761(Ala. 2010); State v. Yonkman, 297 P.3d 902 (Ariz. 2013); Dixon v.
9
State, 751 S.E.2d 69 (Ga. 2013); Harvell v. State, 562 S.E.2d 180(Ga. 2002); In re Tracy B., 704 S.E.2d 71 (S.C. Ct. App. 2010).3
¶ 23 The leading case on this issue, and the one relied on by the
trial court in its suppression order, is Van Hook, 488 F.3d 411, a
split en banc decision of the Sixth Circuit. See, e.g., United States
v. Santistevan, 701 F.3d 1289, 1296 (10th Cir. 2012) (Tymkovich,
J., dissenting) (stating that Van Hook contains “[t]he most elaborate
discussion” of third-party reinitiation).
¶ 24 In Van Hook, 488 F.3d at 418, eight of the fifteen judges
constituting the en banc court held that under Edwards and
Bradshaw, whether the suspect’s communication to the police “is
direct or indirect is immaterial — what is important is [that] the
3 Although some of these cases address the reinitiation of police
discussions in the context of police interrogation after a defendant’s
Sixth Amendment right to counsel has attached, the “Edwards
reasoning (including the exception for defendant-initiated conduct)
also applies to Sixth Amendment cases.” People v. Ross, 821 P.2d
816, 820 (Colo. 1992); see also Owens v. Bowersox, 290 F.3d 960,
962 (8th Cir. 2002) (citing Michigan v. Jackson, 475 U.S. 625, 629
(1986)). Sixth Amendment cases addressing whether a defendant
may reinitiate discussions with the police through a third party may
therefore provide guidance in the context of the Fifth Amendment
right to counsel. See, e.g., In re Tracy B., 704 S.E.2d 71, 76 (S.C.
Ct. App. 2010) (a Sixth Amendment right to counsel case was
relevant in deciding whether third-party reinitiation is permitted
under the Fifth Amendment).
10
impetus for discussion comes from the suspect himself.” There, the
court ruled that the defendant had reinitiated contact with the
police via his mother because (1) the detective spoke to the
defendant’s mother, who told the detective she had spoken with her
son; (2) “based on that discussion, [the detective] thought that [the
defendant] might want to talk to him”; (3) the detective contacted
the defendant and told him he had talked with the defendant’s
mother; and (4) the defendant confirmed to the detective that he
had talked with his mother and wanted to make a statement. Id. at
426.
¶ 25 The Van Hook majority explained that “permitting a suspect to
communicate a willingness and a desire to talk through a third
party is consistent with the interest protected by Edwards,” which
is preventing the police from “badgering defendants into waiving
their asserted right to counsel through repeated questioning.” Id. at
420 (citation omitted). Prohibiting a suspect from initiating
discussions with the police through a third party would create “an
artificial rule” not required by the Fifth Amendment, which is “not
concerned with moral and psychological pressures to confess
emanating from sources other than official coercion,” such as
11
pressure from “friends or family members who convince [suspects]
to talk with the police.” Id. at 420-21 (citation omitted).
¶ 26 Noting the “importance of admissions of guilt in our criminal-
justice system,” the majority emphasized that “[c]ourts must not
create ‘wholly irrational obstacles to legitimate police investigative
activity.’” Id. at 421 (quoting Davis v. United States, 512 U.S. 452,
460 (1994)).
¶ 27 Like Van Hook, decisions from other jurisdictions have held
that allowing reinitiation through a third party does not violate
Edwards because “the police are still prohibited from reinitiating
questioning, and the impetus for reinitiation must still come from
[the suspect].” Williams, 31 So. 3d at 683; see also Michaud, 268
F.3d at 737 (“Edwards and its progeny establish a clear line
preventing police initiation. By the same token, however, these
cases recognize that the [suspect] may change [his] mind and
initiate communication. It is a factual question whether that is
what occurred.”).
¶ 28 The seven dissenting judges in Van Hook would have held that
only the suspect’s (or his attorney’s) direct communication with the
police may reinitiate discussions after he has invoked his right to
12
counsel. 488 F.3d at 428 (Cole, J., dissenting). The dissent argued
that “[i]n addition to eviscerating Edwards, the majority’s holding
deviates from the clear import of the . . . Court’s jurisprudence on
custodial interrogations” by “endors[ing] the counter-intuitive
proposition that we may treat a suspect as willing to talk to the
police despite his silence to the police.” Id. at 429-30.
¶ 29 The dissent also noted that because a suspect cannot invoke
his right to counsel through a third party and “a proper
initiation . . . is indispensable to finding a valid waiver” of the right
to counsel, the majority’s holding created a “paradox”: “[a] third
party who could not invoke the [suspect’s] right to counsel may
nonetheless play a crucial role in bringing about the waiver of that
right.” Id. at 435.
¶ 30 The Van Hook dissent further emphasized that the majority’s
holding eroded the “‘bright-line’ quality of the Edwards rule” that
the Court has cited as one of its chief benefits: “[t]he merits of the
Edwards decision . . . lies in the clarity of its command and the
certainty of its application.” Id. at 430-32 (alteration in original)
(quoting Minnick v. Mississippi, 498 U.S. 146, 151 (1990)).
According to the dissent, because of the potential uncertainty and
13
complexity in determining whether a third party’s communication to
the police constitutes a reinitiation by the suspect, the “hallmark
‘clarity’ and ‘certainty of [] application’ of the Edwards rule [would]
be lost” under the majority’s rule. Id. at 432, 434-35 (alteration in
original) (quoting Minnick, 498 U.S. at 151).
¶ 31 We believe the majority’s analysis in Van Hook (and the other
federal and state cases) holding that, at least under some
circumstances, reinitiation may occur through a third party is
compelling, and we apply that rule here.
¶ 32 In so doing, we reject defendant’s argument that the Court’s
language that reinitiation occurs only if “the [suspect] himself
initiates further communication, exchanges, or conversations with
the police,” Edwards, 451 U.S. at 485 (emphasis added), means
literally that only the suspect may communicate to the police that
he wants to talk.
¶ 33 The Court in Edwards attempted to ensure that any statement
made by a suspect during custodial interrogation was “not the
result of coercive pressures” by “prevent[ing] police from badgering
[the suspect] into waiving his previously asserted Miranda rights.”
Minnick, 498 U.S. at 150-51 (citation omitted); see also Van Hook,
14
488 F.3d at 420. Edwards is based on the presumption that after a
suspect’s invocation of the right to counsel, “any subsequent waiver
that has come at the authorities’ behest, and not at the suspect’s
own instigation, is itself the product of the ‘inherently compelling
pressures’ [of custody and interrogation] and not the purely
voluntary choice of the suspect.” Maryland v. Shatzer, 559 U.S. 98,
104-05 (2010) (citation omitted).
¶ 34 But if a suspect reinitiates discussions with the police by
asking a third party to inform the police that he wants to talk, there
is no reason to assume that his subsequent waiver of the right to
counsel was the result of coercive pressures or the badgering of the
police. Under these circumstances, the suspect “evince[s] a
willingness and a desire for a generalized discussion about the
investigation,” Martinez, 789 P.2d at 422 (citation omitted), and
subsequent police interrogation does not violate Edwards.
¶ 35 Nonetheless, not all third-party communications to the police
regarding whether the suspect will talk to them constitute
“reinitiation” under Edwards. The Van Hook majority, 488 F.3d at
424-25, held that reinitiation of police discussions through a third
party occurs “[w]hen the police receive information that a suspect
15
wants to talk; when there is a sufficient basis for believing its
validity; and when the police confirm with the suspect the validity of
that information.”
¶ 36 We believe we can maintain Edwards’ “‘clear and unequivocal’
guidelines to the law enforcement profession,” Minnick, 498 U.S. at
151 (citation omitted), by applying a reasonableness standard to the
Van Hook majority’s test for third-party reinitiation. Because “[t]he
reasonableness standard provides law enforcement with a well-
defined, common sense rule,” the Court frequently applies the
concept of a “reasonable police officer” in its Fifth Amendment
jurisprudence. People v. Arroya, 988 P.2d 1124, 1131 (Colo. 1999)
(citing Davis, 512 U.S. at 461).
¶ 37 For instance, the Court held in Davis that to invoke the right
to counsel during custodial interrogation, a suspect must
“articulate his desire to have counsel present sufficiently clearly
that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney.” 512
U.S. at 459 (emphasis added). The Court explained that “[t]o avoid
difficulties of proof and to provide guidance to officers conducting
interrogations, this is an objective inquiry.” Id. at 458-59.
16
¶ 38 Using this familiar “objective standard of a reasonable police
officer under the circumstances” concept, Arroya, 988 P.2d at 1131,
in conjunction with the Sixth Circuit’s concept of “a sufficient basis
for believing [the] validity” of the third party’s communication to the
police, Van Hook, 488 F.3d at 425, provides the protection
necessary to avoid any evisceration of Edwards.
¶ 39 We thus hold that to establish that a suspect has reinitiated
discussions with the police after previously invoking his right to
counsel, the prosecution must show that (1) the police reasonably
believed that the suspect directed a third party to inform them that
he wanted to have “a generalized discussion about the
investigation,” Martinez, 789 P.2d at 422 (citation omitted); and
(2) the police confirmed with the suspect that he had so indicated.
¶ 40 Both prongs of this test must be proven to establish
reinitiation. If the prosecution does not sufficiently establish the
first prong, the fact that the suspect may have agreed to talk to a
police officer after the officer “confirmed” the suspect’s willingness
to talk does not cure this failure. Once the police contact the
suspect, some of the protection of Edwards is already lost. Without
sufficient reinitiation by the suspect, we cannot assume that the
17
suspect’s ultimate agreement to talk to the police is voluntary and
not the result of the police “tak[ing] advantage of the mounting
coercive pressures of ‘prolonged police custody’ by repeatedly
attempting to question a suspect who previously requested counsel
until the suspect is ‘badgered into submission.’” Shatzer, 559 U.S.
at 105 (citations omitted).
¶ 41 Regarding the third party’s representations of the content of
the suspect’s communication with the third party, the prosecution
must establish that the suspect’s “comments . . . ‘evince[d] a
willingness and a desire for a generalized discussion [with the
police] about the investigation.’” Martinez, 789 P.2d at 422 (quoting
Bradshaw, 462 U.S. at 1045-46).
D. Application
1. Additional Facts
¶ 42 The evidence at the suppression hearing consisted of
testimony by the detective who conducted both interviews with
defendant. The detective testified that after the victim’s forensic
interview, the police obtained a search warrant for defendant’s
house and informed defendant during the search that the warrant
was based on some suspicions that he had engaged in
18
inappropriate activity or conduct on the Internet. During the
execution of the warrant, the police found a handgun. Because
defendant had a prior felony conviction, the detective asked
defendant and his wife to come to the police station to discuss the
gun.
¶ 43 The detective testified that the nature of the interview with
defendant at the police station was, “[i]nitially, to discuss the
finding of the weapon and him being a previous offender.” He
advised defendant of his Miranda rights, and defendant said that he
understood them. He then asked defendant if he wished to talk to
him, and defendant replied that he did not. Defendant then
requested counsel and the interview ended, at which point
defendant was arrested and taken into custody on the weapon
offense.
¶ 44 Regarding the events that led up to the interview two days
later at the jail, the detective testified that a Department of Human
Services (DHS) caseworker had been in contact with defendant’s
wife regarding interviewing the couple’s children. The detective
testified that he had learned from the caseworker that “[defendant]
and [defendant’s wife] had questions.” According to the detective’s
19
testimony, he called defendant’s wife, and “[i]n conjunction with
that phone call, he learned that both [defendant] and [defendant’s
wife] had questions about the investigation.”
¶ 45 At the suppression hearing, the following colloquy between the
prosecutor and the detective occurred:
Q. [Prosecutor:] Okay. So I want to talk to
you, then, about the conversation that you had
with [defendant’s wife] where she’s indicating
that [defendant and his wife] had some
questions. What did she say to you to indicate
that there were some additional questions
about the investigation?
A. [Detective:] It was centered around the basis
for the police department and DHS still being
involved with them and the children and the
reasons behind forensic interviews and
justifications for that.
Q. And how did [defendant’s wife] indicate to
you that [defendant] wanted to speak to you as
well about these issues?
A. I don’t recall her exact words, but I had the
understanding that she had been in conver --
she had been in contact with [defendant]. And
[the DHS caseworker] advised me that they –
[both defendant and his wife] had questions
about the investigation and the reasons why
we were still involved specifically with the
children.
...
20
Q. So the information that you had received
was that [defendant’s wife] had been in contact
with [defendant] and that they had some
questions about -- both of them separately had
some questions about what was going on with
the investigation with regard to the children; is
that correct?
A. Correct.
¶ 46 On cross-examination, the detective confirmed he had received
the information from not only the caseworker but also defendant’s
wife: “Q[:] [At] [s]ome point you receive information, between June
6th and June 8th, from -- directly from [defendant’s wife] or
through a third party that [defendant] wanted to -- was willing to
speak to you about some questions he had? A[:] Both.”
¶ 47 The detective testified consistently on this point, stating
during redirect examination that he made defendant aware, during
the first interview, “that there was some interest in an Internet
investigation or something related to the Internet.” The following
then took place:
Q. And it was after that time and after he had
that awareness or you had made those
statements that you received information that
he wanted to speak with you?
A. Correct.
21
Q. And that information, again, came from
[defendant’s wife]?
A. Correct.
2. Analysis
¶ 48 In our view, the detective had a reasonable basis for believing
that defendant had directed his wife (and also the caseworker) to
inform the detective that defendant wanted to have a generalized
discussion about the investigation. He knew that defendant and
defendant’s wife were married, had previously been in contact with
both of them, and understood that they had been in contact with
one another after the first interview. The detective’s testimony was
clear that defendant’s wife informed him that defendant had
questions about the investigation. Further, the detective knew the
DHS caseworker had also been in contact with defendant after the
first interview, and she also informed him that both defendant and
his wife had questions about the investigation.
¶ 49 Turning to the second step — whether the police confirmed the
information with the suspect — the detective testified that after
learning that defendant had questions about the investigation, he
22
called defendant at the jail and confirmed that defendant indeed
desired to speak with him:
Q. And when you made a phone call to talk to
him, your testimony previously was you said
you received information that he wanted to
speak with you?
A. Correct.
Q. And he confirmed that that was, in fact, the
case?
A. Correct.
...
Q. But you initiated that contact because
[defendant’s wife] said, “He wants to talk to
you”?
A. Correct.
¶ 50 We conclude that defendant “adequately evinced a willingness
and a desire to” reinitiate communication with the police through a
third party because the detective received information that
defendant had questions about the investigation, there was a
reasonable basis for believing the validity of that information, and
the detective confirmed with defendant the validity of that
information. See Van Hook, 488 F.3d at 424-26.
23
¶ 51 Similar to the facts in Van Hook, here (1) the detective spoke to
defendant’s wife, who told the detective she had spoken with
defendant; (2) based on that discussion, the detective believed
defendant had questions about the investigation; and (3) the
detective then contacted the defendant and confirmed defendant
wanted to talk. Id. at 426.
¶ 52 Defendant contends the evidence shows he only had a
willingness to talk, but not that he directed his wife to inform the
detective that he wanted to talk to the police. He further contends
that the fact that he had “questions” does not establish that he had
a desire to speak with the police about them. But the record, and
specifically the detective’s testimony, belies this argument. On
redirect examination, the detective was asked: “But you initiated
that contact [with defendant] because [defendant’s wife] said, ‘He
wants to talk to you’?” The detective answered unequivocally:
“Correct.”
¶ 53 No evidence in the record contradicts this point. Defendant’s
wife presumably could have testified that defendant did not “direct”
her to inform the detective that defendant wanted to talk. The
caseworker could have testified this way as well. Even defendant
24
himself could have testified at the suppression hearing that he did
not direct his wife to inform the detective that he wanted to speak
with him about the investigation without implicating his Fifth
Amendment privilege at trial. See Simmons v. United States, 390
U.S. 377, 394 (1968) (testimony by a defendant at a suppression
hearing is not admissible against him at trial on the question of
guilt). Thus, in our view, the evidence supports the district court’s
finding that defendant directed his wife to inform the detective that
defendant wanted to talk with him.
¶ 54 Next, defendant contends that, even assuming his wife’s
statements established that he had a willingness and a desire to
speak with the detective, the People failed to establish that such
statements evinced, on the part of defendant, a “willingness and a
desire for a generalized discussion about the investigation.”
Martinez, 789 P.2d at 422 (emphasis added) (citation omitted).
Specifically, he argues that the evidence presented at the
suppression hearing did not establish that he knew about the
sexual assault investigation before the second interview, and
therefore he could not have formed a willingness and a desire for a
generalized discussion about it.
25
¶ 55 We believe this view takes the holding in Bradshaw too far. In
our view, defendant’s comments “‘evince[d] a willingness and a
desire for a generalized discussion about the investigation,’ and
[were] not merely question[s] [regarding] the reasons for custody.”
Martinez, 789 P.2d at 422 (quoting Bradshaw, 462 U.S. at 1045-
46). The detective made defendant aware, during the initial search
of the house and during the first interview, “that there was some
interest in an Internet investigation or something related to the
Internet.” And defendant’s questions “could reasonably have been
interpreted by the [detective] as relating generally to the
investigation.” Bradshaw, 462 U.S. at 1045-46.
¶ 56 It is not necessary that defendant knew the specific subject
matter of the investigation. It is enough that he was aware of an
investigation, and that his subsequent decision to talk to police was
unqualified. See Colorado v. Spring, 479 U.S. 564, 577 (1987).
This Court’s holding in Miranda specifically
required that the police inform a criminal
suspect that he has the right to remain silent
and that anything he says may be used against
him. There is no qualification of this broad
and explicit warning. The warning, as
formulated in Miranda, conveys to a suspect
the nature of his constitutional privilege and
the consequences of abandoning it.
26
Accordingly, we hold that a suspect’s
awareness of all the possible subjects of
questioning in advance of interrogation is not
relevant to determining whether the suspect
voluntarily, knowingly, and intelligently waived
his Fifth Amendment privilege.
Id.¶ 57 After the Spring decision, the Court held in Arizona v.
Roberson, 486 U.S. 675 (1988), that a suspect’s invocation of the
right to counsel prevented police officers from trying to speak with
the suspect about a different investigation. The Court explained the
relationship of its new holding in Roberson with its holding in
Spring as follows:
Spring’s decision to talk was properly
considered to be . . . unqualified. Conversely,
Roberson’s unwillingness to answer any
questions without the advice of counsel,
without limiting his request for counsel,
indicated that he did not feel sufficiently
comfortable with the pressures of custodial
interrogation to answer questions without an
attorney. This discomfort is precisely the state
of mind that Edwards presumes to persist
unless the suspect himself initiates further
conversation about the investigation; unless he
otherwise states, there is no reason to assume
that a suspect’s state of mind is in any way
investigation-specific.
Roberson, 486 U.S. at 684 (citations omitted).
27
¶ 58 Here, defendant knew the police wanted to talk to him about,
at a minimum, the possession of a weapon by a previous offender
charge and something “related to the Internet.” With that
knowledge, defendant informed the detective, via his wife, that he
had questions about the investigation — specifically the reasons
and justifications regarding the children being interviewed by DHS.
¶ 59 These inquiries were not merely related to the routine
incidents of custody. Bradshaw, 462 U.S. at 1045-46. Rather, the
questions concerned not only what DHS was doing but also why
the children were being interviewed, and thus about the
investigation itself.
III. Voluntariness
¶ 60 A finding that defendant reinitiated communication with the
police under Miranda does not necessarily end the inquiry. “Under
the due process clauses of the United States and Colorado
Constitutions, a defendant’s statements must be made voluntarily
in order to be admissible into evidence.” Effland v. People, 240 P.3d
868, 877 (Colo. 2010); see Mincey v. Arizona, 437 U.S. 385, 398
(1978).
28
¶ 61 A trial court’s findings of fact on the voluntariness of a
statement will be upheld where they are supported by adequate
evidence in the record. Effland, 240 P.3d at 878. However, the
ultimate determination of whether a statement is voluntary is a
legal question we review de novo. Id.
¶ 62 To be voluntary, a statement must be “the product of an
essentially free and unconstrained choice by its maker.” People v.
Raffaelli, 647 P.2d 230, 234 (Colo. 1982) (quoting Culombe v.
Connecticut, 367 U.S. 568, 602 (1961)).
¶ 63 “A confession or inculpatory statement is involuntary if
coercive governmental conduct played a significant role in inducing
the statement.” People v. Gennings, 808 P.2d 839, 843 (Colo. 1991).
Coercive governmental conduct may include physical abuse,
threats, or psychological coercion. Id. at 843-44.
¶ 64 Whether a statement is voluntary must be evaluated on the
basis of the totality of the circumstances under which it is given.
Effland, 240 P.3d at 877. Relevant circumstances include: (1)
“whether the defendant was in custody or was free to leave”; (2)
“whether Miranda warnings were given prior to any interrogation
and whether the defendant understood and waived his Miranda
29
rights”; and (3) “whether any overt or implied threat or promise was
directed to the defendant.” Gennings, 808 P.2d at 844. These
considerations are not exclusive. Id.
¶ 65 “Threats and promises used by the interrogator factor into the
analysis of voluntariness but are not conclusive. For such threats
and promises to render a confession involuntary, they must have
caused the defendant to confess, for example, where police have
promised leniency in exchange for a confession . . . .” People v.
Wickham, 53 P.3d 691, 695 (Colo. App. 2001).
¶ 66 The critical voluntariness inquiry is whether the individual’s
will has been overborne by the coercive behavior of law enforcement
officials. Rogers v. Richmond, 365 U.S. 534, 544 (1961); People v.
Humphrey, 132 P.3d 352, 361 (Colo. 2006).
¶ 67 “Voluntariness is an objective inquiry reviewing the record for
outwardly coercive police action, not a subjective analysis
attempting to arbitrarily surmise whether the defendant perceived
some form of coercive influence.” People v. Ferguson, 227 P.3d 510,
513-14 (Colo. 2010).
¶ 68 “[W]hen a confession challenged as involuntary is sought to be
used against a criminal defendant at his trial, he is entitled to a
30
reliable and clear-cut determination that the confession was in fact
voluntarily rendered.” Lego v. Twomey, 404 U.S. 477, 489 (1972).
¶ 69 “[T]he Constitution does not require a voluntariness hearing
absent some contemporaneous challenge to the use of the
confession.” Wainwright v. Sykes, 433 U.S. 72, 86 (1977); People v.
Sanchez, 180 Colo. 119, 122, 503 P.2d 619, 621 (1972) (“We are not
prepared to say that the mere act of offering the statement into
evidence is sufficient to raise an issue of its voluntariness. The
defendant must make his objection known to the court by objection,
motion, cross-examination, or some other means during the course
of the trial which indicates to the judge that there is an issue of
admissibility of the statement.” (quoting Neighbors v. People, 171
Colo. 349, 357, 467 P.2d 804, 808 (1970))).
¶ 70 Here, an audio recording of the second interview was played
during trial. During that interrogation, the detective told defendant
that if he admitted to some, but less than all, of the allegations, he
could go home:
[Detective:] [After a suspect invokes his right to
counsel,] [o]ur department policy asks that we
wait twenty-four hours before we re-contact
the suspect and give him one last shot to say
— hey, this is the information we’ve uncovered,
31
can you explain some things? There is some
gray area, and I just want to make sure that
the stuff that happened is as much as she’s
talking about. . . .
[Detective:] Because we can — if we can
provide an explanation to help this go away for
you —
[Defendant:] I would love that.
[Detective:] So let’s fix that. Let’s fix that.
Because right now, it’s not going away. . . .
[Detective:] [I]f maybe you could meet [the
victim] halfway on some of those things, that
we can put the icing on the cake, put this in a
drawer, have her go heal, have you turned
around, get back with your wife, go to church,
live your life, and put all of this behind you,
right now today.
[Defendant:] I would love that, you have no
idea.
[Detective:] Then let’s do it. . . .
[Detective:] We both know where you wanna go
in life and with your wife and church and
everything. I’m not here to hang you, I’m not
here to beat you up today. I’m here to do this
[sounds of paper shuffling]. At the end of this
sentence, I put this in a drawer. And I can’t do
that if you tell me that you had sex with this
girl fifty, sixty times, I’m concerned. And then
I have a different investigation. If there was
some inappropriate sexual stuff that happened
once or twice, I want an explanation for that so
I can do this [sounds of paper shuffling], so I
can go home on my Friday, do you
32
understand? I’m trying to paint the picture,
man.
[Defendant:] If I can get this all figured out,
closed out, just done with, I can go home
tomorrow.
[Detective:] Let’s do it.
[Defendant:] That’s what I want to do.
[Detective:] And if I can help with any of that
here, I’d — you’re damn skippy. . . .
[Detective:] Because I honestly think that if
you can provide some sort of corroboration
and some answers, maybe [inaudible] an
apology or quick sorry for whatever it is, and I
give that to [the victim], I think that would go
away. . . .
[Detective:] What we don’t want to hear is that
Ryan Cardman wakes up over here every day
and lusts for sexual contact with a kid. And
there’s fifty, sixty times like what’s she’s
saying. We don’t want to hear that. But what
is explainable and what people understand
is . . . there was an accident, a momentary,
one-time lapse and a bad decision occurred.
People understand that, okay? What people
don’t understand is this guy over here who
wakes up every day to wait ‘til she’s alone, ‘til
you’re alone, to do those things. That guy is
the one we’re worried about. That’s the guy
that we try to send to prison and to lock up
33
and that’s what I want to eliminate here today.
And, Ryan, I don’t think you’re that guy.4
¶ 71 Defendant contends that statements he made in the second
interview were not voluntary and argues the trial court erred by not
sua sponte holding a hearing on the issue of the voluntariness of
the statements. We are troubled by the police interrogation tactics
used in this case; however, we do not reach the merits of the
voluntariness issue because defendant waived it by not raising it
during the suppression hearing.
¶ 72 Defendant acknowledges that he did not raise this issue at the
suppression hearing but urges us to review the issue anyway under
a plain error standard of review. We acknowledge that the supreme
court as well as divisions of this court have reached different
conclusions regarding whether a failure to contemporaneously
object on constitutional grounds results in the issue being reviewed
for plain error. Compare, e.g., People v. McMurtry, 122 P.3d 237,
241 (Colo. 2005) (a defendant may not raise claim of denial of
constitutional right to speedy trial for the first time on appeal),
4 There is no transcript of the interview in the record, and the audio
recording is very difficult to understand. The excerpts quoted are
our best approximation of what was said based on the audio
recording.
34
People v. Cooper, 205 P.3d 475, 478 (Colo. App. 2008) (declining to
consider unpreserved double jeopardy claims), and People v.
Kitsmiller, 74 P.3d 376, 378 (Colo. App. 2002) (declining to review
unpreserved due process claim that the defendant was entitled to
an evidentiary hearing), with, e.g., People v. Miller, 113 P.3d 743,
749-50 (Colo. 2005) (reviewing for plain error the defendant’s due
process claim regarding instructional error), People v. Kruse, 839
P.2d 1, 3 (Colo. 1992) (applying plain error standard to Fifth
Amendment argument and stating it is an exception to rule that
claim must first be brought in trial court), and People v. Tillery, 231
P.3d 36, 47 (Colo. App. 2009) (applying plain error review to
unpreserved claim of double jeopardy sentencing errors), aff’d sub
nom. People v. Simon, 266 P.3d 1099 (Colo. 2011).
¶ 73 Because we conclude defendant waived his right to a hearing
on voluntariness, we need not wade into this dispute.
¶ 74 “Waiver is defined as the ‘intentional relinquishment or
abandonment of a known right.’” Hinojos-Mendoza v. People, 169
P.3d 662, 668 (Colo. 2007) (quoting United States v. Olano, 507 U.S.
35725, 733 (1993)). And, unlike a right that is merely forfeited, “there
is no appeal from a waived right.” Id.5
¶ 75 Although defendant moved to suppress the incriminating
statements, he chose to do so solely on the basis that he did not
reinitiate communication with the police, not because his
statements were involuntary. The court held a two-day suppression
hearing. Defendant failed to raise voluntariness at any time during
the suppression hearing.6
¶ 76 On appeal, defendant does not argue that he was unaware of
the requirements that a statement must be voluntary to be
5 “Invited error is akin to waived error. Invited error obviously
should not be reviewable for plain error.” People v. Greer, 262 P.3d
920, 937 n.7 (Colo. App. 2011) (J. Jones, J., specially concurring)
(citations omitted).
6 This is not equivalent to a failure to contemporaneously object to
something during the heat of a trial. Defendant moved to suppress
the incriminating statements, but only on the basis that he had not
reinitiated contact with the police. Defendant cannot now
collaterally attack the voluntariness of those statements by seeking
remand for a voluntariness hearing. Remanding the case for the
trial court to hold a hearing on whether the statements were
voluntary would create an incentive for defendants to forgo raising
the issue of voluntariness and then to seek remand on appeal if
found guilty at trial. To hold otherwise would allow defendants to
roll the dice at the first trial (particularly where, as here, the
defendant is a felon who would likely not testify at trial and thus
where the only chance for the jury to see his denial of the charges is
in the videotaped interrogation) and only after being found guilty
seek suppression on different grounds than those raised initially.
36
admissible or that he request a voluntariness hearing. Rather, he
contends he raised the issue of voluntariness during opening and
closing statements at trial.
¶ 77 We disagree with defendant that the remarks made during
opening and closing statements were sufficient to raise the issue
and warrant a hearing under Jackson v. Denno, 378 U.S. 368(1964).7 This is because “[w]e must limit our review to the evidence
presented at the suppression hearing.” Gomez-Garcia, 224 P.3d at
1022. Defendant cites no authority for the proposition that a trial
court has a duty to sua sponte hold a hearing on the issue of
voluntariness where the arguably coercive police tactics become
apparent during trial as opposed to during the suppression hearing.
¶ 78 To require the trial court to hold a hearing on the
voluntariness of a defendant’s statements where the issue first
becomes apparent during the trial would be overly burdensome and
inefficient. In the context of this case, such an obligation could
7 In Jackson v. Denno, 378 U.S. 368, 374 & n.4 (1964), defense
counsel raised the issue with the trial court by directly informing
the court that the defendant “was in no mental condition to make
the statement” at issue and received acknowledgment from the
court that it understood counsel to be “questioning the
circumstances under which [the defendant] was interrogated.”
37
have required the trial court, after the audio recording of the
confession had been played for the jury, to sua sponte (1) declare a
mistrial; (2) order a new suppression hearing on the issue of
voluntariness; (3) convene a new jury; and (4) begin a new trial
(where the confession may even have been allowed).8
¶ 79 Defendant relies on Jackson for the proposition that a trial
court has a duty to sua sponte hold a hearing on the issue of
voluntariness absent an express objection by a defendant where it
should be evident to the trial court that voluntariness is an issue.
¶ 80 However, the defendant in Jackson raised the issue with the
trial court; although he “did not specifically object to the admission
of the confession initially, the trial court indicated its awareness
that Jackson’s counsel was questioning the circumstances under
which Jackson was interrogated.” 378 U.S. at 374. The Court in
Jackson even quoted the colloquy between the trial court and
Jackson’s attorney, during which counsel objected to the use of the
8 Moreover, were the trial court to sua sponte declare a mistrial,
defendant would undoubtedly raise the issue of double jeopardy.
People v. Espinoza, 666 P.2d 555, 558 (Colo. 1983) (“A mistrial
declared without the consent and over the objection of the
defendant invokes double jeopardy protection to bar retrial unless
‘manifestly necessary’ to preserve the public interest in a fair trial
and a just verdict.”).
38
confession and explained to the court “[the defendant] was in no
mental condition to make the statement.” Id. at 374 n.4.
¶ 81 Here, no such colloquy occurred at trial (and certainly not at
the suppression hearing) between the court and defendant’s
counsel that would have indicated defendant’s objection on
voluntariness grounds or the trial court’s awareness that defendant
was questioning the voluntariness of his statements.
¶ 82 Moreover, in Wainwright the Supreme Court explicitly rejected
the very argument defendant makes here:
Respondent also urges that a defendant has a
right under Jackson v. Denno to a hearing as
to the voluntariness of a confession, even
though the defendant does not object to its
admission. But we do not read Jackson as
creating any such requirement. In that case
the defendant’s objection to the use of his
confession was brought to the attention of the
trial court, and nothing in the Court’s opinion
suggests that a hearing would have been
required even if it had not been. To the
contrary, the Court prefaced its entire
discussion of the merits of the case with a
statement of the constitutional rule that was to
prove dispositive that a defendant has a “right
at some stage in the proceedings to object to
the use of the confession and to have a fair
hearing and a reliable determination on the
issue of voluntariness . . . .” Language in
subsequent decisions of this Court has
reaffirmed the view that the Constitution does
39
not require a voluntariness hearing absent some
contemporaneous challenge to the use of the
confession.
433 U.S. at 86 (emphasis added) (citations omitted).
¶ 83 Thus, a defendant must request a hearing on the issue of
voluntariness in order for the court to hold one. Id.; Lego, 404 U.S.
at 489; Sanchez, 180 Colo. at 122, 503 P.2d at 621. Defendant did
not request such a hearing.
¶ 84 Accordingly, we conclude that because defendant moved to
suppress the statements, but did so solely on reinitiation grounds,
he waived the voluntariness claims. We therefore discern no error.
See People v. Staton, 924 P.2d 127, 133 (Colo. 1996) (To preserve a
suppression issue for appeal, where other grounds for suppression
are stated in the motion to suppress, defendant “must have stated
[the issue] initially as a ground for his motion to suppress.”); People
v. Salyer, 80 P.3d 831, 835 (Colo. App. 2003) (argument on appeal
that the district court erred in denying motion to suppress on
voluntariness grounds was waived where the defendant did not
raise that argument in the district court but raised other
suppression arguments); People v. Greer, 262 P.3d 920, 937 (Colo.
App. 2011) (J. Jones, J., specially concurring) (“If a defendant in a
40
criminal case waives an error in the trial court — i.e., intentionally
relinquishes or abandons a known right — he waives any right to
plain error review on appeal.”).
IV. Detective’s Statements on Credibility
¶ 85 Defendant next argues that reversal is required because the
recording of the interview admitted at trial included the detective’s
assertions that he believed the victim and did not believe
defendant’s denials of the victim’s allegations, and because the
detective testified that he did not believe defendant.
¶ 86 Defendant did not object to the admission of this evidence. We
therefore review the issue for plain error. People v. Lopez, 129 P.3d
1061, 1064 (Colo. App. 2005).
¶ 87 Plain error addresses error that is both “obvious and
substantial.” Miller, 113 P.3d at 750. Under the plain error
standard, “the defendant bears the burden to establish that an
error occurred, and that at the time the error arose, it was so clear
cut and so obvious that a trial judge should have been able to avoid
it without benefit of objection.” People v. Conyac, 2014 COA 8M,
¶ 54; People v. Ujaama, 2012 COA 36, ¶ 42. “The defendant must
also establish that the error was so grave that it undermined the
41
fundamental fairness of the trial itself . . . as to cast serious doubt
on the reliability of the conviction.” Conyac, ¶ 54.
¶ 88 In Davis v. People, 2013 CO 57, ¶¶ 1, 17, the Colorado
Supreme Court held that a law enforcement officer may testify
about his perception of a witness’s credibility during an
investigative interview if the testimony is offered to provide context
for the officer’s interrogation tactics and investigative decisions
rather than as a comment on the witness’s credibility. It
necessarily follows that similar statements by police officers made
during the interrogation itself are admissible for the same purpose.
¶ 89 Here, the statements made by the detective during the
interview fall within the purview of Davis. The detective told
defendant numerous times during the interview that he did not
believe him after defendant had denied certain sexual contact with
the victim, and the detective also said that he believed at least some
of the victim’s allegations. And the detective testified at trial that he
used these statements as an interrogation technique.
¶ 90 Moreover, except for two statements by the detective during
his testimony that may have crossed the line into impermissible
42
commentary on defendant’s credibility,9 all of the detective’s
testimony was permissible under Davis. These two questionable
statements, if error, were neither so obvious that the trial judge
“should have been able to avoid [them] without benefit of objection,”
nor so grave as to undermine “the fundamental fairness of the trial
itself . . . as to cast serious doubt on the reliability of the
conviction.” Conyac, ¶ 54.
¶ 91 Accordingly, we discern no plain error.
V. Conclusion
¶ 92 The judgment is affirmed.
JUDGE BERNARD specially concurs.
JUDGE BERGER dissents.
9 These statements were: (1) the detective’s testimony that he
“essentially told [defendant] that [he] didn’t believe him” when
defendant denied any sexual contact with the victim because of the
detective’s “own gut feeling in the way that [defendant] was
answering questions of known facts versus questions of [the
victim]’s allegations”; and (2) the detective’s testimony that after
defendant began to admit some sexual contact with the victim, the
detective “felt most of the information [defendant] was giving . . . to
[him] was genuine.”
43
JUDGE BERNARD, specially concurring.
¶ 93 I concur in full with the majority opinion. I write separately as
far as Part III is concerned to provide additional reasons for why I
respectfully disagree with the dissent’s conclusion that we should
review “the voluntariness question for plain error.”
¶ 94 It is my view that, for the following reasons, plain error review
in this case would be ineffective and unfair to the prosecution.
¶ 95 First, our supreme court has made clear that, to make
“meaningful appellate review” possible, a trial court must “make
sufficiently clear and detailed findings of fact and conclusions of law
on the record” before it “may rule that a confession is voluntary and
admissible, or that it is involuntary and must be suppressed[.]”
People v. McIntyre, 789 P.2d 1108, 1110 (Colo. 1990). “By failing to
present [his] claims” to the trial court, defendant “effectively
prevented the court from making factual findings that would be
germane to the disposition” of those claims. United States v.
Hamilton, 587 F.3d 1199, 1216 n.9 (10th Cir. 2009). And we
obviously cannot make such factual findings on appeal. See People
v. A.W., 982 P.2d 842, 852 (Colo. 1999)(“Appellate courts are not
empowered to make factual findings[.]”).
44
¶ 96 Second, when a defendant does not file a motion to suppress,
the prosecution “may justifiably conclude that it need not introduce
the quality or quantity of evidence needed otherwise to prevail.”
United States v. Chavez-Valencia, 116 F.3d 127, 132 (5th Cir. 1997);
accord United States v. Burke, 633 F.3d 984, 990 (10th Cir. 2011);
United States v. Rose, 538 F.3d 175, 183 (3d Cir. 2008). So, if we
were to review defendant’s contention for plain error, the
prosecution would be “forced on appeal to rely on an
underdeveloped record in defending itself from the suppression
argument.” Rose, 538 F.3d at 182; accord Burke, 633 F.3d at 990;
Chavez-Valencia, 116 F.3d at 132.
45
JUDGE BERGER, dissenting.
¶ 97 I agree with the majority that a suspect may reinitiate contact
with the police through a third party after first invoking his Fifth
Amendment right to counsel. I also agree with the majority that the
police must have a reasonable belief that the third party has been
authorized by the suspect to reinitiate contact with the police.
¶ 98 But I respectfully dissent from the majority’s application of
these principles. Instead, I believe this record demonstrates that
the officer did not have a reasonable belief that Cardman wanted to
reinitiate contact with the police and engage in a generalized
discussion about the investigation. Therefore, the admission of
numerous inculpatory statements made by Cardman during the
ensuing unconstitutional interrogation violated Edwards v. Arizona,
451 U.S. 477 (1981), and thus the Fifth Amendment. And, on this
record, the improper admission of this evidence was not harmless
beyond a reasonable doubt, requiring reversal of Cardman’s
convictions.
¶ 99 I also dissent from the majority’s refusal to address, even
under a plain error standard, the voluntariness of Cardman’s
inculpatory statements that were admitted at trial. In my view, this
46
record demonstrates a substantial question regarding the
voluntariness of those statements and thus raises substantial
questions regarding the reliability of Cardman’s convictions.1
I. Reinitiation of Communications With the Police: This Record
Does Not Support a Finding and Conclusion that Cardman
Reinitiated Communications With the Police
¶ 100 For four reasons, I reject the trial court’s (and majority’s)
determination that Cardman reinitiated communications with the
police through his wife.
¶ 101 First, the People must prove that Cardman reinitiated
communications with the police by clear and convincing evidence.
See People v. Redgebol, 184 P.3d 86, 99 (Colo. 2008). They did not
meet this burden.
¶ 102 When the detective was given an opportunity at the
suppression hearing to explain the circumstances that led him to
contact Cardman after Cardman had invoked his rights to silence
and counsel, the detective testified as follows:
Q. Could you describe for the Court what are
the circumstances that led you to, once again,
speak with Mr. Cardman?
1I agree with Part IV of the majority’s opinion, “Detective’s
Statements on Credibility.”
47
A. As I said before, myself and assigned DHS
Caseworker Patricia Hartman had been in
contact with Mrs. Cardman in reference to
screening interviews of their children or if
there were to be forensic interviews completed
with the children. During those several phone
calls between DHS Caseworker Mrs. Hartman
and Mrs. Cardman, it was obvious there was
[sic] questions in reference to my part in my
investigation, to include some property we
obtained from the search warrant I had been
given back from our computer forensics unit,
and I was able to return that back to the
Cardmans. In conjunction with that phone
call, I learned that both Mr. and Mrs. Cardman
had questions about the investigation.
Q. Okay. And I just -- I kind of want to flush
that out a little bit, then. You referenced that
there was some evidence that had been seized
and that it sounds like the Cardmans or [Mrs.]
Cardman was interested in getting that
evidence back.
A. Correct. They both were.
Q. Okay. And that evidence was what?
A. It was a -- it was an Asus tablet, which is
similar to an iPad. It was a larger mini-laptop-
looking thing.
Q. And also while this was going on, there’s a
separate issue, which is that there’s the
possibility that the Colorado Springs Police
Department or others would like to complete a
forensic interview with the Cardmans’ two
children; correct?
A. Correct.
48
Q. And there were questions about that
interview process?
A. Correct.
Q. And this was an interview that was taking
place in conjunction with your investigation?
A. Correct.
Q. And you spoke with [Mrs. Cardman] about
these issues; is that correct?
A. DHS Caseworker Hartman spoke to her
about these issues. And I learned from
Caseworker Hartman that Mr. and Mrs.
Cardman had questions. I would -- I don’t
know what they were. I eventually talked to
Mrs. Cardman, and she explained they had
questions, I’m assuming, about that. And I
called her to tell her I could bring back the
Asus tablet and answer their questions that
they had.
Q. Okay. So I want to talk to you, then, about
the conversation that you had with [Mrs.]
Cardman where she’s indicating that they had
some questions. What did she say to you to
indicate that there were some additional
questions about the investigation?
A. It was centered around the basis for the
police department and DHS still being involved
with them and the children and the reasons
behind forensic interviews and justifications
for that.
Q. And how did she indicate to you that Ryan
Cardman wanted to speak to you as well about
these issues?
49
A. I don’t recall her exact words, but I had the
understanding that she had been in conver --
she had been in contact with Mr. Cardman.
And Mrs. Hartman advised me that they -- the
Cardmans had questions about the
investigation and the reasons why we were still
involved specifically with the children.
...
Q. So the information that you had received
was that [Mrs. Cardman] had been in contact
with Ryan and that they had some questions
about -- both of them separately had some
questions about what was going on with the
investigation with regard to the children; is
that correct?
A. Correct.
Q. And did you receive any information that
there was any other reason that Mr. Cardman
wanted to talk to you, whether it be about
evidence or any other part of the investigation?
A. No. From what I recall, the phone call was
very brief. And I had informed Mrs. Cardman
that I had received the Asus tablet back from
the computer forensics unit; and I can bring
that back to her and then cover in more detail
what her concerns were. So we didn’t discuss
specifics over the phone call.
Q. And so once we’ve received the information
from – from [Mrs.] Cardman, which is Ryan’s
wife, did you then initiate some contact with
Mr. Cardman?
A. Yes. Having the information Mr. Cardman
may have questions about the current status -
50
- I was actually on an unrelated investigation
at that moment in the field. I placed a phone
call to CJC and was actually routed to Mr.
Cardman’s ward and asked him if I came down
there, if he was gonna talk to me, and he said
he would.
¶ 103 In my view, this testimony does not support a finding, by clear
and convincing evidence, that Cardman, through his wife, was
requesting the police to recontact him. Only later in the
suppression hearing, when the prosecutor asked a series of leading
questions — the premises of which were inconsistent with the
detective’s prior narrative testimony — did the detective utter the
testimony the majority relies on to find that Cardman reinitiated
contact with the police.
¶ 104 There is a reason that an elevated standard of proof applies to
this inquiry, and I would not countenance the avoidance of that
standard of proof by reliance on the types of inconsistent, leading
questions and answers given after the detective gave narrative
testimony that disproved reinitiation by Cardman.
¶ 105 Second, even if we were to assume that Cardman’s wife’s
statements to the detective established that Cardman had not only
a willingness but also a desire to speak with the detective, nothing
51
in the record shows that such statements evinced, on the part of
Cardman, a “willingness and a desire for a generalized discussion
about the investigation.” People v. Martinez, 789 P.2d 420, 422
(Colo. 1990) (emphasis added) (quoting Oregon v. Bradshaw, 462
U.S. 1039, 1045-46 (1983)). Although the trial court found that
Cardman’s communications with the police established that
Cardman was “willing” to talk to the detective, there is no evidence
(other than the detective’s agreement with the prosecutor’s leading
questions on redirect) that the detective reasonably believed that
Cardman directed his wife to inform the detective that he wanted to
talk to the police. Willing and wanting are not the same thing.
¶ 106 The fact that Cardman may have had “questions” does not
establish that he had any desire to speak to the police about those
questions. Anyone in Cardman’s position would have “questions”
about any number of things: what he was being charged with, the
future course of his life, the effect of his arrest on his family, and
numerous other subjects. But none of these “questions”
necessarily indicates that Cardman wanted to speak with the
detective about any or all of these matters, particularly after
previously clearly invoking his right to silence and to counsel. The
52
presumption raised by Cardman’s request for counsel, “that he
consider[ed] himself unable to deal with the pressures of custodial
interrogation without legal assistance,” Arizona v. Roberson, 486
U.S. 675, 683 (1988), did not disappear simply because the
detective learned that Cardman had “questions.”
¶ 107 Third, the evidence presented at the suppression hearing did
not establish that Cardman knew about the sexual assault
investigation before the second interview. Without any knowledge
regarding the subject of the investigation, Cardman could not
possibly have had a willingness and a desire for a generalized
discussion about it.
¶ 108 I disagree with the majority that “[i]t is not necessary that
[Cardman] knew of the specific subject matter of the investigation”
as long as he was “aware of an investigation.” As the United States
Supreme Court explained in Edwards, while a defendant, after
initially being advised of his rights under Miranda v. Arizona, 384
U.S. 436 (1966), may validly waive his rights and respond to
interrogation, “the Court has strongly indicated that additional
safeguards are necessary when [the defendant] asks for counsel.”
Edwards, 451 U.S. at 484. Consequently, although, as the majority
53
emphasizes, a defendant need not know “all the possible subjects of
questioning” to validly waive his Miranda rights initially, Colorado v.
Spring, 479 U.S. 564, 577 (1987), the analysis changes once the
defendant invokes his Fifth Amendment right to counsel.
¶ 109 “[C]ourts [must] indulge . . . every reasonable presumption
against [a] waiver” of constitutional rights, Brewer v. Williams, 430
U.S. 387, 404 (1977), and reinitiation by the suspect is a
prerequisite to a valid waiver of the suspect’s previously asserted
Fifth Amendment right to counsel, see Edwards, 451 U.S. at 484-
85. Ironically, the majority relies on Arizona v. Roberson, 486 U.S.
675 (1988), which held that a defendant’s invocation of his Fifth
Amendment rights extends to all cases for which the defendant is
under investigation, to support its conclusion that waiving the right
to counsel also applies to multiple cases. Thus, the majority relies
on a case that extends Fifth Amendment protections to a suspect as
support for a waiver of those very rights.
¶ 110 Fourth, the fact that Cardman told the detective on the phone
that he would talk to him does not establish that the detective
confirmed with Cardman that Cardman intended, through his wife,
to reinitiate discussions with the police. Without such
54
confirmation, and without any other evidence in the record that
shows that Cardman intended to initiate contact with the detective,
we cannot be sure that Cardman’s subsequent waiver of the right to
counsel was “purely [his] voluntary choice” and not the result of
coercive pressures. Maryland v. Shatzer, 559 U.S. 98, 104-05
(2010) (quoting Roberson, 486 U.S. at 681). Under these
circumstances, concluding that Cardman reinitiated contact with
the police violates Miranda and Edwards.
¶ 111 The majority discusses only the detective’s responses to
leading questions by the prosecutor on direct examination
regarding the detective’s phone call with Cardman:
Q. And when you made a phone call to talk to
him, your testimony previously was you said
you received information that he wanted to
speak with you?
A. Correct.
Q. And he confirmed that that was, in fact, the
case?
A. Correct.
¶ 112 The majority, however, omits the exchange that immediately
followed this dialogue:
Q. And that he wanted to speak with you
about aspects of the investigation?
55
A. It was over the phone call. It was just
whether or not if I came down there, he would
— he would talk to me.
¶ 113 The majority also omits the following portion of the detective’s
testimony on direct about his phone call with Cardman:
A. . . . I placed a phone call to . . . Mr.
Cardman[] . . . and . . . asked him if I came
down there, if he was gonna talk to me, and he
said he would.
Q. And when you spoke with Mr. Cardman by
phone, did you make reference to the fact that
you had received information he wanted to
speak to you?
A. Yes.
Q. And what was his response to that?
A. He said he would talk to me.
¶ 114 I cannot agree with the majority that this testimony
establishes, by clear and convincing evidence, that Cardman
confirmed that he had directed his wife to contact the police and
inform them that he wanted to speak with them. It may show that
he was “willing” to talk to the detective, but it does not show that
the “impetus” for the subsequent interrogation came from Cardman
himself. See Van Hook v. Anderson, 488 F.3d 411, 418 (6th Cir.
2007) (en banc).
56
¶ 115 To permit the police to re-interrogate a defendant after the
defendant has previously invoked his right to counsel, the
information the police obtain from a third party should be the
substantial equivalent of direct initiation by the defendant: it
should convey the same message as if the defendant himself had
contacted the police and said that he wanted to talk about his case.
Vague information that Cardman’s wife had spoken with him and
learned he had “questions” does not convey such a message.
¶ 116 For these reasons, the interrogation of Cardman and the
admission into evidence of Cardman’s statements to the police
(made after he had invoked his right to counsel) violated Cardman’s
rights under the Fifth Amendment to the United States
Constitution.
¶ 117 It is not a close question whether the improper admission of
Cardman’s statements requires reversal. Other than Cardman’s
statements, the only evidence presented at trial that he committed
the offenses was the victim’s testimony, the statements she made in
her forensic interview, and the testimony of other witnesses
regarding statements she had made to them.
57
¶ 118 Although the victim described a few instances of sexual
contact with Cardman that were similar to those Cardman
discussed in his statements, much of her testimony contained
numerous details that were not corroborated by Cardman’s
statements or by any other evidence. Indeed, much of her
testimony contradicted what she had said in her initial disclosures.
¶ 119 For instance, Cardman consistently denied any instances of
genital penetration. The victim initially said in her forensic
interview that Cardman had forced her into oral sex, but she
expressly denied any vaginal or anal intercourse. However, at trial
she testified that Cardman had penetrated her vagina and anus
with his penis multiple times.
¶ 120 The victim also testified that Cardman had physically abused
her by, among other things, hitting her in the face with a gun,
cutting the bottom of her feet and burning her with a heated-up
pocket knife, and making her submerge her hands in boiling water
for as long as she could stand it. She also testified that Cardman
carved the word “slut” into her leg with a knife, which caused her to
lose consciousness for at least twenty minutes and bleed so much
58
that her dogs were “covered in blood,” leaving a scar that lasted for
three years.
¶ 121 However, the victim did not disclose any of these events until
many months after her initial disclosures. Even more significantly,
her mother, who was a nurse, testified that she never saw any
unexplained injuries on the victim while they were living with
Cardman.
¶ 122 For these reasons, Cardman’s convictions should be reversed
and the case remanded for a new trial.
II. Voluntariness of Cardman’s Inculpatory Statements: This Record
Raises a Substantial Question Whether Cardman’s Inculpatory
Statements Were Voluntary and the Case Should Be Remanded to
Make the Voluntariness Determination
¶ 123 Having incorrectly concluded that Cardman reinitiated contact
with the police, the majority then declines on procedural grounds to
address whether Cardman’s statements made during the prohibited
reinitiated interrogation were voluntary.
¶ 124 I agree with the majority that Cardman did not directly raise
this issue in the trial court, but I disagree with the majority that
Cardman is procedurally barred from any review of the
voluntariness of his statements. Instead, I believe that we should
59
review the voluntariness question for plain error and that our
failure to do so raises serious questions regarding the reliability of
Cardman’s convictions.
¶ 125 Short of physical torture, I cannot imagine police tactics that
are more likely to lead to false confessions, and thus wrongful
convictions, than the conduct engaged in by the police in this case.
The facts are stark: a person is being questioned by the police
regarding extremely serious crimes, the penalty for which is an
effective life sentence and societal opprobrium that we judges can
hardly imagine. The police officer tells the suspect — no, promises
the suspect — that if he admits to what the officer characterizes as
relatively minor crimes (without telling the suspect that these
relatively minor crimes also could well result in an effective life
sentence) he can go home to his wife and child and no charges will
be filed. The majority acknowledges in the abstract that promises
of this type may constitute coercive conduct by the police and
support a conclusion that inculpatory statements made in reliance
upon such promises are involuntary. But nevertheless, for
procedural reasons, the majority refuses to address this police
conduct.
60
¶ 126 The statements of the detective during his interrogation of
Cardman illustrate far better than my characterizations the nature
and risks of the tactics used by the police to coerce Cardman’s
confession2:
[Detective:] [After a suspect invokes his right to
counsel,] [o]ur department policy asks that we
wait twenty-four hours before we re-contact
the suspect and give him one last shot to say
— hey, this is the information we’ve uncovered,
can you explain some things? There is some
gray area, and I just want to make sure that
the stuff that happened is as much as she’s
talking about. . . .
[Detective:] Because we can — if we can
provide an explanation to help this go away for
you —
[Cardman:] I would love that.
[Detective:] So let’s fix that. Let’s fix that.
Because right now, it’s not going away. . . .
[Detective:] [I]f maybe you could meet [the victim]
halfway on some of those things, that we can
put the icing on the cake, put this in a drawer,
have her go heal, have you turned around, get
back with your wife, go to church, live your life,
and put all of this behind you, right now today.
2 This is not a case in which the trial court did not hear evidence
regarding the coercive tactics used by the police. All of it was on
full display during the trial despite the fact that Cardman did not
expressly raise the voluntariness issue in his motion to suppress or
at the suppression hearing.
61
[Cadman:] I would love that, you have no idea.
[Detective:] Then let’s do it. . . .
[Detective:] We both know where you wanna go
in life and with your wife and church and
everything. I’m not here to hang you, I’m not
here to beat you up today. I’m here to do this
[sounds of paper shuffling]. At the end of this
sentence, I put this in a drawer. And I can’t do
that if you tell me that you had sex with this girl
fifty, sixty times, I’m concerned. And then I
have a different investigation. If there was
some inappropriate sexual stuff that happened
once or twice, I want an explanation for that so
I can do this [sounds of paper shuffling], so I
can go home on my Friday, do you understand?
I’m trying to paint the picture, man.
[Cardman:] If I can get this all figured out,
closed out, just done with, I can go home
tomorrow.
[Detective:] Let’s do it.
[Cardman:] That’s what I want to do.
[Detective:] And if I can help with any of that
here, I’d — you’re damn skippy. . . .
[Detective:] Because I honestly think that if
you can provide some sort of corroboration
and some answers, maybe [inaudible] an
apology or quick sorry for whatever it is, and I
give that to [the victim], I think that would go
away. . . .
[Detective:] What we don’t want to hear is that
Ryan Cardman wakes up over here every day
and lusts for sexual contact with a kid. And
62
there’s fifty, sixty times like what’s she’s
saying. We don’t want to hear that. But what
is explainable and what people understand
is . . . there was an accident, a momentary,
one-time lapse and a bad decision occurred.
People understand that, okay? What people
don’t understand is this guy over here who
wakes up every day to wait ‘til she’s alone, ‘til
you’re alone, to do those things. That guy is
the one we’re worried about. That’s the guy
that we try to send to prison and to lock up
and that’s what I want to eliminate here today.
And, Ryan, I don’t think you’re that guy.3
(Emphasis added.)
¶ 127 While I do not have sufficient information before me to
definitively make a determination of voluntariness, this record is
sufficiently disturbing to mandate a remand for findings by the trial
court on this critical question. In my view, the italicized portions of
the interrogation that I reproduced above violate any
constitutionally acceptable standard of police conduct and compel
the conclusion that the police engaged in coercive conduct.
¶ 128 It is not a satisfactory answer that we do not review the
voluntariness of Cardman’s confession because he waived the issue.
3 There is no transcript of the interview in the record and the audio
recording is very difficult to understand. The excerpts I quote are
my best approximation of what was said based on the audio
recording.
63
Waiver is uniformly defined as an “intentional relinquishment or
abandonment of a known right.” United States v. Olano, 507 U.S.
725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)). There is no basis in this record to establish that Cardman
knowingly and intelligently waived a challenge to the voluntariness
of his inculpatory statements.
¶ 129 Criminal cases are not, or at least should not be, a contest to
determine whether defense counsel has made errors that cause
forfeiture of a defendant’s critical constitutional rights. The
pressure on defense counsel in criminal cases, particularly
overworked public defenders, is immense. That is precisely the
reason why the Colorado Supreme Court has adopted the doctrine
of plain error review: to correct obvious fundamental errors that
impair the reliability of a judgment of conviction.4
¶ 130 Put simply, the single most important legal question in this
case is whether Cardman was coerced into confessing guilt. If he
4 I do not quarrel with those cases that hold that strategic decisions
made by defense counsel should not be subject to plain error
review. See, e.g., People v. Bondsteel, 2015 COA 165, ¶ 129. But
the failure to object to the admission of Cardman’s confession on
voluntariness grounds could not conceivably be viewed as a
strategic decision.
64
was, and his inculpatory statements are suppressed under the Due
Process Clause, there is a significant chance that the outcome of
this case would have been different. Every other issue in this case
pales in comparison.
¶ 131 While I do not contend that a trial court has a sua sponte duty
to police every confession admitted into evidence, I also suggest it is
difficult to dispute that the audio recording of Cardman’s
interrogation by the detective would and should at least raise
serious questions in the mind of any judge regarding the tactics
utilized by the detective, even without an objection by counsel.
¶ 132 I also question the majority’s conclusion that Colorado law
does not require a trial court (or this court) to consider the
voluntariness of a confession even in the absence of a motion to
suppress. In Whitman v. People, 170 Colo. 189, 193, 460 P.2d 767,
769 (1969), the Colorado Supreme Court held that
[i]t is not necessary that there be an express
objection by the defendant to the admission of
the confession by a motion to suppress or by
contemporaneous objection. The trial judge is
required to conduct a hearing when it becomes
evident to him that voluntariness is in issue.
An awareness on the part of the trial judge
that the defendant is questioning the
65
circumstances under which the statements
were obtained is sufficient.
¶ 133 Whitman relied on similar language in Jackson v. Denno, 378
U.S. 368, 391-95 (1964). In Wainwright v. Sykes, 433 U.S. 72, 86
(1977), the United States Supreme Court repudiated that
interpretation of Jackson.
¶ 134 In a later Colorado Supreme Court case relied on by the
majority, People v. Sanchez, 180 Colo. 119, 122, 503 P.2d 619, 621
(1972), the court stated that “[w]e are not prepared to say that the
mere act of offering the statement into evidence is sufficient to raise
an issue of its voluntariness.” But Sanchez does not cite Whitman,
and neither Sanchez nor any other Colorado Supreme Court case
precludes plain error review in the circumstances presented by this
case.
¶ 135 Casting further doubt upon the current status of Colorado law
in this respect is People v. Copenhaver, where, twenty-three years
after Whitman, a division of this court stated:
Defendant did not contend in the trial court
that either statement was involuntary or
unreliable, nor did he request a hearing on
these issues. Moreover, the record does not
afford a basis for concluding that the
voluntariness of the statements might be
66
challenged. In these circumstances, the court
was not required to hold a hearing on
voluntariness sua sponte.
21 P.3d 413, 418 (Colo. App. 2000) (emphasis added).
¶ 136 As I have previously observed, questions regarding the
voluntariness of Cardman’s statements were obvious when the
audio recording of Cardman’s second interrogation was played for
the jury.
¶ 137 The majority recognizes that an appellate court reviews claims
of unpreserved error for plain error in a wide variety of contexts.
People v. Vigil, 127 P.3d 916, 929 (Colo. 2006). But in this critical
context, the majority applies special rules supposedly applicable to
suppression issues to preclude even plain error review.
¶ 138 The error in applying these special rules to preclude even plain
error review is further illustrated by the distinction between two
very different types of suppression issues commonly faced by
courts. The first is a claim that the evidence obtained by the
police — either physical evidence or inculpatory statements by a
defendant — should be suppressed because the Fourth Amendment
was violated in obtaining the evidence. People v. Jorlantin, 196 P.3d
258, 261 (Colo. 2008). Suppression of relevant evidence under the
67
Fourth Amendment has little to do with the reliability of the
evidence; in most cases the evidence is highly reliable and probative
of the defendant’s guilt. See Alderman v. United States, 394 U.S.
165, 174 (1969). Nevertheless, for reasons having nothing to do
with the reliability of the evidence, the United States Supreme
Court has held that evidence obtained in violation of the Fourth
Amendment usually must be suppressed in order to provide an
enforcement mechanism for the Fourth Amendment. Davis v.
United States, 564 U.S. 229, 236-37 (2011). Because reliability
forms no part of this equation, the application of procedural rules
requiring that such objections be made at a specific time, or else
they are waived for all time, is justifiable.
¶ 139 The other type of suppression issue — the type presented
here — is the admission of evidence that arguably violates the Due
Process Clause because the statements made by an accused were
not voluntarily made. Effland v. People, 240 P.3d 868, 877 (Colo.
2010). Unlike Fourth Amendment suppression, this type of
suppression directly implicates the reliability of the conviction
obtained. Rogers v. Richmond, 365 U.S. 534, 541 (1961).
68
¶ 140 It can no longer be denied that false confessions are a stain on
our judicial system. See, e.g., Richard A. Leo et al., Promoting
Accuracy in the Use of Confession Evidence: An Argument for Pretrial
Reliability Assessments to Prevent Wrongful Convictions, 85 Temp. L.
Rev. 759, 766 (2013) (“[T]he problem of contamination is epidemic,
not episodic, in cases of false confessions.” (quoting Laura H.
Nirider et al., Combating Contamination in Confession Cases, 79 U.
Chi. L. Rev. 837, 849 (2012))).
¶ 141 For this reason alone, we should be very circumspect before
allowing a procedural default to preclude all review of whether a
defendant’s inculpatory statements were made voluntarily or were
coerced when the issue is raised by the admission of evidence either
at a suppression hearing or at trial.
¶ 142 The daunting requirements for finding plain error eliminate
any concern by the majority that such plain error review will
overcome the rules of criminal procedure and lead criminal litigants
to hold back claims of error at trial and then, when they lose,
simply make the objections on appeal that they should have made
at trial. As our opinions demonstrate, findings of plain error are
few and far between, as they should be. Hagos v. People, 2012 CO
6963, ¶ 23. But plain error review is essential to review convictions
that are potentially unreliable because of a serious error in the trial
court proceedings. Holding that plain error review is unavailable on
something as central to the integrity of the truth-finding process as
the voluntariness of a confession risks affirmation of convictions
based upon false, and thus unreliable, confessions.
¶ 143 In the vast majority of cases in which there is an unsupported
and unpreserved claim of involuntariness, there is virtually no
possibility that an appellate court will find plain error. But this
case is different. Here, the trial court knew precisely and the
appellate record demonstrates the factual basis for the claim of
involuntariness. Some of the details were spread before the trial
court in the colloquy with the detective at the suppression hearing.
The other sordid details were displayed when the prosecution
played the audio recording of Cardman’s second interrogation for
the jury. The only thing missing in this case is the ultimate
determination by the trial court, based upon all of the
circumstances, whether Cardman’s statements were involuntarily
made, a determination that trial courts not infrequently are
required to make on remand.
70
¶ 144 Reviewing the voluntariness issue for plain error, I would hold
that, as a matter of law, the police engaged in coercive conduct.
Therefore, I would remand to the trial court for a determination
whether, under all of the circumstances, Cardman’s confession was
involuntary and thus inadmissible for any purpose. People v.
Freeman, 668 P.2d 1371, 1378 (Colo. 1983). The majority’s failure
to do so leaves me with the firm belief that justice has not been
done in this case and that the convictions which the court affirms
may be unreliable.
III. Conclusion
¶ 145 For these reasons, I respectfully dissent. I would reverse
Cardman’s convictions because he did not reinitiate the police
contact. But even if he did, I would remand to the district court to
determine, under the appropriate legal standard, whether
Cardman’s statements were voluntary or involuntary. If they were
made involuntarily, they cannot be admitted for any purpose and
Cardman would be entitled to a new trial.
71