People v. Cardman , 2017 COA 87 ( 2017 )

COLORADO COURT OF APPEALS 2017COA87
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 June 29, 2017
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 This case returns to us following a limited remand from the
Colorado Supreme Court. Cardman v. People, (Colo. No. 16SC789,
Apr. 10, 2017) (unpublished order). In People v. Cardman, 2016
COA 135 (Cardman I), we reached three conclusions. First, we held
that a suspect who has invoked his right to counsel can reinitiate
contact with the police through an agent, and the trial court did not
err in finding that such third-party reinitiation had occurred in this
case. Second, we declined to review — as waived — defendant’s
contention that the trial court erred by failing to hold a hearing to
determine whether defendant’s statement to police was voluntary.
Third, we held that the trial court did not plainly err by admitting
statements from the investigating detective commenting on the
credibility of defendant and the victim.
¶2 Defendant, Ryan Matthew Cardman, petitioned for a writ of
certiorari to the Colorado Supreme Court. The supreme court
granted the petition, vacated the judgment in Cardman I, and, in
light of its recent decision in Reyna-Abarca v. People, 2017 CO 15,
remanded to this court for reconsideration of the trial court’s failure
to hold a hearing regarding the alleged promises made by the
1
detective to defendant during the interview. Because the supreme
court denied certiorari on all other issues, Cardman, No. 16SC789,
our opinion in Cardman I remains controlling as to third-party
reinitiation and the detective’s statements. 2016 COA 135.
¶3 We now reconsider review of the alleged promises during the
police interview in light of Reyna-Abarca.
I. Pertinent Background
¶4 A jury convicted defendant of multiple counts of sexual assault
on a child. Defendant was arrested after the victim reported the
abuse to the police. While initially denying any improper sexual
contact with the victim, defendant admitted during an interview
with police to three instances of sexual contact.
¶5 Before trial, defense counsel moved to suppress defendant’s
inculpatory statements. The trial court denied the motion after a
suppression hearing.
¶6 As relevant here, we concluded in Cardman I that defendant
had waived his voluntariness claim by failing to raise it during the
suppression hearing. Accordingly, we declined to apply plain error
review to defendant’s contention that the trial court should have
held a hearing regarding the voluntariness of his statement.
2
¶7 As noted, on remand, the supreme court directed us to
reconsider defendant’s second issue pressed for certiorari — in light
of Reyna-Abarca — decided after we announced Cardman I.
Specifically, we were directed to reconsider
[w]hether the district court violated the
defendant’s constitutional right to due process
and reversibly erred by admitting statements
the defendant made to a detective without first
determining whether the statements were
voluntary and whether the defendant was
entitled to specific performance of direct
and/or implied promises made to him by the
detective during the interrogation.
Cardman, No. 16SC789, 2017 WL 1369883.
¶8 Before we may reach the substance of the granted certiorari
issue, however, we must first answer this question: What happens
when the defendant, as in this case, does not challenge
voluntariness at the suppression hearing?
II. Voluntariness Standards
¶9 “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).
3
¶ 10 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.
¶ 11 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)).
¶ 12 “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.
¶ 13 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
4
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.
¶ 14 “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).
¶ 15 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).
¶ 16 “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).
¶ 17 “[W]hen a confession challenged as involuntary is sought to be
used against a criminal defendant at his trial, he is entitled to a
5
reliable and clear-cut determination that the confession was in fact
voluntarily rendered.” Lego v. Twomey, 404 U.S. 477, 489 (1972).
III. When Voluntariness Goes Unchallenged at a Suppression
Hearing
¶ 18 “[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))).
¶ 19 Here, an audio recording of the second interview was played at
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
6
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 —
[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
7
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.
[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
8
and that’s what I want to eliminate here today.
And, Ryan, I don’t think you’re that guy.1
IV. Whether to Review Unpreserved Voluntariness Challenges for
Plain Error
¶ 20 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. Although we have serious concerns with the police
interrogation tactics used in this case, we cannot reach the merits
of the voluntariness issue because defendant waived it by not
raising it during the suppression hearing.
¶ 21 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. In our original opinion, we
acknowledged the split of authority regarding whether
constitutional issues raised for the first time on appeal should be
reviewed for plain error. We declined to review for plain error,
1 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.
9
however, because we concluded that defendant had waived his right
to a hearing on voluntariness.
¶ 22 After we issued our original opinion, the supreme court
decided Reyna-Abarca. As pertinent here, the supreme court
explained that its statement in People v. Cagle, 751 P.2d 614, 619
(Colo. 1988) — “[i]t is axiomatic that this court will not consider
constitutional issues raised for the first time on appeal” — was
dictum and concluded that unpreserved double jeopardy claims can
be raised for the first time on appeal and should ordinarily be
reviewed for plain error pursuant to Crim. P. 52(b). Reyna-Abarca,
¶¶ 2, 36.
¶ 23 The Reyna-Abarca court then rejected the People’s argument
that by failing to raise a Crim. P. 12(b)(2) challenge to the charging
document in the trial court, a defendant waives his claim that
convictions for both a greater and lesser included offense violate his
double jeopardy rights. Id. at ¶¶ 38-45. The court reasoned that
Crim. P. 12(b)(2) — which deems a defendant’s failure to object to
“defects in the institution of the prosecution or in the indictment or
information or complaint” to constitute a waiver of such objection —
was inapplicable because the double jeopardy claim “does not
10
amount to an objection regarding defects in the charging
document.” Reyna-Abarca, ¶ 2.
¶ 24 After carefully reconsidering this case in light of
Reyna-Abarca, we again conclude that defendant waived his right to
a hearing on voluntariness.
¶ 25 Reyna-Abarca did not foreclose the possibility that a defendant
may waive certain rights; instead it rejected the specific application
of waiver urged in that case. Even “[t]he most basic rights of
criminal defendants are . . . subject to waiver.” Peretz v. United
States, 501 U.S. 923, 936 (1991). And in specific circumstances, a
defendant may waive his rights by failing to object. For example,
our supreme court in Stackhouse v. People, 2015 CO 48, ¶ 1,
reaffirmed that “a defendant affirmatively waives his public trial
right by not objecting to a known closure of the courtroom.”
¶ 26 “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.
11
 725, 733 (1993)). And, unlike a right that is merely forfeited, “there
is no appeal from a waived right.” Id.2
¶ 27 Here, defendant waived his right to a hearing on the
voluntariness of his statement by moving to suppress the
incriminating statements solely on the basis that he did not
reinitiate communication with the police, not because his
statements were involuntary. In contrast, he failed to raise
voluntariness at any time during a two-day suppression hearing.
Failing to raise the issue of voluntariness during a suppression
hearing is not equivalent to a failure to contemporaneously object to
something during the heat of trial. As discussed, defendant timely
moved to suppress the incriminating statements, but only on the
basis that he had not reinitiated contact with the police. Under
these circumstances, defendant cannot now collaterally attack the
voluntariness of those statements by seeking remand for a
voluntariness hearing. To permit such a practice would create an
2 “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).
12
incentive for defendants to forgo raising the issue of voluntariness
and then to seek remand on appeal if found guilty at trial.
¶ 28 Accordingly, defendant was afforded a suppression hearing
but chose not to take advantage of the opportunity to litigate the
voluntariness issue. See Hinojos-Mendoza, 169 P.3d at 668 (statute
allowing a lab report into evidence without in-person testimony
from the analyst, unless the defendant requests such testimony in
advance of trial, does not violate the Confrontation Clause because
the statute provides the defendant the opportunity for
cross-examination, and the confrontation right is waived if the
defendant chooses not to take advantage of the opportunity to
request the analyst’s testimony as provided by the statute).
¶ 29 Defendant does not argue that he was unaware of the
requirements that a statement be voluntary or of the need to
request a voluntariness hearing. Rather, he contends that he
raised the issue of voluntariness during opening and closing
statements at trial.
¶ 30 But remarks made at trial during opening and closing
statements are insufficient to raise the voluntariness issue and
warrant a hearing under Jackson v. Denno, 378 U.S. 368 (1964).
13
Rather, “[w]e must limit our review to the evidence presented at the
suppression hearing.” People v. Gomez-Garcia, 224 P.3d 1019,
1022 (Colo. App. 2009). Further, defendant cites no authority for
the proposition that a trial court has a duty to sua sponte hold a
hearing during trial on the issue of voluntariness where the
interrogation tactics at issue become apparent during trial as well
as the suppression hearing.
¶ 31 In our view, to require the trial court to hold a hearing on the
voluntariness of a defendant’s statements where the issue becomes
apparent during trial would be overly burdensome and inefficient.
Such an obligation could require a trial court in the middle of trial
to sua sponte (1) order a new suppression hearing on the issue of
voluntariness; (2) declare a mistrial; (3) convene a new jury; and (4)
begin a new trial (even where the confession may have been
allowed).3
3 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.”).
14
¶ 32 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, anytime
it should be evident to the trial court that voluntariness is an issue.
¶ 33 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 Jackson
Court even quoted the colloquy between the trial court and
Jackson’s attorney, during which counsel objected to the use of the
confession and explained to the court that “[the defendant] was in
no mental condition to make the statement.” Id. at 374 n.4.
¶ 34 Here, no such colloquy between the court and defendant’s
counsel occurred at trial or at the suppression hearing that
indicated defendant’s objection on voluntariness grounds or the
trial court’s awareness that defendant was questioning the
voluntariness of his statements.
¶ 35 Notably, in Wainwright, the Supreme Court explicitly rejected
the very argument defendant makes here:
15
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
not require a voluntariness hearing absent some
contemporaneous challenge to the use of the
confession.
433 U.S. at 86 (emphasis added) (citations omitted).
¶ 36 Thus, a defendant must request a hearing on the issue of
voluntariness for the court to be required to hold one. Id.; Lego,
404 U.S. at 489; Sanchez, 180 Colo. at 122, 503 P.2d at 621.
Defendant did not request a hearing on the issue of voluntariness
and is thus not entitled to one.
16
¶ 37 Because defendant moved to suppress the statements solely
on reinitiation grounds, he waived the voluntariness claims. We
have no error to review. 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 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.”).
V. Whether to Review Specific Performance Challenge for Plain
Error
¶ 38 Reyna-Abarca did not foreclose the possibility of waiving the
enforcement of alleged promises either. We likewise reject
defendant’s contention that we must remand for a hearing on
17
whether defendant is entitled to specific performance of alleged
promises made by the detective during the interview. This is the
other side of the same coin as the voluntariness question. That is,
what happens when the defendant, as in this case, does not timely
seek to enforce alleged governmental promises?
¶ 39 We conclude that just as defendant waived his voluntariness
claim arising from coercive promises by the police, so too did he
waive his claim for a remedy for the alleged unkept promises. See
also People v. Blessett, 155 P.3d 388, 397 (Colo. App. 2008)
(declining to address the defendant’s claim for enforcement of an
alleged governmental promise during an interview because it was
not raised in trial court and would often require factfinding, which
an appellate court may not undertake).
¶ 40 A defendant who reasonably relied on a governmental promise
in making incriminating statements during a police interrogation
may move for specific performance. Still, the court must fashion a
remedy “that can secure substantial justice to the defendant and at
the same time accommodate the legitimate interests of the
government” — such as suppression of evidence rather than
dismissal of charges. People v. Manning, 672 P.2d 499, 503, 512-13
18
(Colo. 1983); see also People v. Marquez, 644 P.2d 59, 62-63 (Colo.
App. 1981) (affirming trial court’s determination that dismissal of
case, although promised by police in exchange for cooperation in
different case, was not appropriate and noting that “[a]greements to
dismiss pending prosecutions, distinguished from plea bargains by
the absence of any element of admission of guilt, often have been
deemed contrary to public policy and, hence, unenforceable”).
¶ 41 Here, defendant cites no case requiring a trial court to sua
sponte hold a hearing to determine, in this context, whether the
defendant is entitled to specific performance of alleged promises
made to the defendant by the police during an interview where he
did not seek to enforce them prior to trial.
VI. Conclusion
¶ 42 The judgment is affirmed.
JUDGE BERNARD specially concurs.
JUDGE BERGER dissents.
19
JUDGE BERNARD, specially concurring.
¶ 43 I concur in full with the majority opinion. I write separately as
far as Part IV of the majority opinion is concerned to provide
additional reasons why I respectfully disagree with the dissent’s
conclusion that we should review the voluntariness question for
plain error.
I. Introduction
¶ 44 “[T]here are many valid reasons underlying the practice of
requiring pretrial motions, which doubtless explains why so many
jurisdictions now subscribe to that approach.” 6 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 11.1(a)
(5th ed. 2014). These valid reasons include:
 avoiding “interruptions of a trial in progress with auxiliary
inquiries,” United States v. Mauro, 507 F.2d 802, 806 (2d
Cir. 1974);
 avoiding “the serious personal inconvenience to jurors and
witnesses which would result from interruptions and delay
once the jury had been selected and the trial had
commenced,” id.;
20
 avoiding “the necessity of declaring a mistrial because the
jury has been exposed to unconstitutional evidence,” State
v. Lawrence, 255 So. 2d 729, 732 (La. 1971);
 avoiding “the waste of prosecutorial and judicial resources
occasioned by preparation for a trial” because “a trial could
be avoided if a timely and successful motion were made in
advance,” Mauro, 507 F.2d at 806;
 giving the defendant the opportunity to avoid a trial by
pleading guilty and seeking concessions from the
prosecution if the trial court denies the motion, see LaFave
at § 11.1(a);
 giving the prosecution the opportunity to “change the theory
of its case [in order] to develop or place greater reliance
upon untainted evidence or otherwise to modify its trial
strategy” if the trial court grants the motion, United States
v. Sisca, 503 F.2d 1337, 1348 (2d Cir. 1974); and
 giving the prosecution the opportunity to pursue an
interlocutory appeal before jeopardy has attached if the trial
court grants the motion, see C.A.R. 4.1(a); People v.
Traubert, 199 Colo. 322, 330, 608 P.2d 342, 348 (1980).
21
II. A General Rule
¶ 45 The general rule in Colorado is that “[a] defendant aggrieved by
an alleged involuntary confession or admission made by him” shall
file a motion to suppress it “before trial . . . .” Crim. P. 41(g). In
concert with my observations in the introduction, the general rule
promotes important policies. It “reduces trial inefficiencies by
requiring the parties to criminal proceedings to pursue discovery
vigorously prior to trial.” People v. Tyler, 874 P.2d 1037, 1039
(Colo. 1994). And it “permits both the prosecution and the defense
to prepare for trial with the benefit of enhanced knowledge of what
evidence will and will not be introduced at trial.” Id. The supreme
court thinks that these polices are so important that “parties to
[criminal] proceedings must adhere to [the] requirements” of Crim.
P. 41. Id. at 1040 (emphasis added).
¶ 46 Motions to suppress “should state with reasonable specificity
the legal grounds upon which” they are based. People v. Jansen,
713 P.2d 907, 912 n.8 (Colo. 1986). Such a specific statement “is
necessary both to put the prosecution on notice of the contentions
it must be prepared to meet at a suppression hearing and to inform
the court of the issues to be decided.” Id.
22
¶ 47 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 in this case “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[.]”).
¶ 48 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, 182-83 (3d Cir. 2008). So, if
we were to review defendant’s contention for plain error, the
23
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. This strikes me as manifestly
unfair to the prosecution.
III. A Corollary to the General Rule
¶ 49 An oft-repeated corollary to the general rule breathes life into
the policies that support it: An appellate court will not consider a
suppression issue on appeal that was not raised in the trial court.
See People v. Martinez, 200 P.3d 1053, 1055 n.1 (Colo. 2009);
People v. Staton, 924 P.2d 127, 133 (Colo. 1996); Jansen, 713 P.2d
at 912; People v. Cobb, 690 P.2d 848, 853 (Colo. 1984); People v.
Gouker, 665 P.2d 113, 117-18 (Colo. 1983); People v. L.A., 199 Colo.
390, 393, 609 P.2d 116, 118 (1980); People v. Greer, 262 P.3d 920,
937 (Colo. App. 2011)(J. Jones, J., specially concurring); People v.
Samuels, 228 P.3d 229, 238 (Colo. App. 2009); People v. Russom,
107 P.3d 986, 991 (Colo. App. 2004); People v. Lee, 93 P.3d 544,
547 (Colo. App. 2003); People v. White, 64 P.3d 864, 871 (Colo. App.
2002); People v. Young, 987 P.2d 889, 893 (Colo. App. 1999); People
v. Lucero, 985 P.2d 87, 91 (Colo. App. 1999).
24
¶ 50 I think that Neighbors v. People, 171 Colo. 349, 356-58, 467
P.2d 804, 808 (1970), describes why the corollary should apply to
voluntariness issues. In that case, the supreme court first
recognized the holding in Jackson v. Denno, 378 U.S. 368, 376-77
(1964): “[W]henever voluntariness [of a defendant’s statement i]s an
issue in the trial, there must be a hearing before the trial judge and
a determination made on that issue.” Neighbors, 171 Colo. at
356-57, 467 P.2d at 808.
¶ 51 But the court was “not prepared to say that the mere act of
offering the statement into evidence is sufficient to raise an issue of
its voluntariness.” Id. at 357, 467 P.2d at 808. Instead, “[t]he
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.” Id. (emphasis added).
¶ 52 As a result, the court did “not agree with a philosophy which
allows a defendant to get his theory of the case before the jury and
then, if he is convicted, permits him to obtain a new trial on the
grounds that evidence should not have been admitted.” Id. So,
“[b]ecause voluntariness was never in any way or by any stretch of
25
the imagination made an issue in the case, there is no basis upon
which the lower court could determine that issue” in a
postconviction motion. Id. at 358, 467 P.2d at 808; accord People v.
Sanchez, 180 Colo. 119, 122, 503 P.2d 619, 621 (1972).
¶ 53 Divisions of this court have subsequently applied the corollary
directly to voluntariness issues. People v. Zadra, 2013 COA 140,
¶ 26, aff’d, 2017 CO 18; People v. Villarreal, 131 P.3d 1119, 1123
(Colo. App. 2005), aff’d on other grounds, 2012 CO 64; People v.
Vigil, 104 P.3d 258, 267 (Colo. App. 2004), aff’d in part and rev’d in
part on other grounds, 127 P.3d 916 (Colo. 2006); People v. Salyer,
80 P.3d 831, 835 (Colo. App. 2003).
IV. The Law in Other Jurisdictions
A. Other States
¶ 54 Some of our sister states have applied the corollary to the
general rule to voluntariness issues, too. See, e.g., State v. Wilson,
793 P.2d 559, 560 (Ariz. Ct. App. 1990)(“[T]here was no burden on
the prosecution to show that the statements were made voluntarily
since the issue was not before the court absent a filing of a
procedurally proper suppression motion.”); State v. Burgess, 355
P.3d 1287, 1289 (Idaho Ct. App. 2015)(noting that the issue
26
whether a statement was coerced should be raised by a motion to
suppress before trial or it is waived); People v. Hills, 389 N.E.2d
873, 876 (Ill. App. Ct. 1979)(“[A]ny question as to the voluntariness
of a confession is waived if defendant does not raise the issue by
motion to suppress or by objection at trial.”), aff’d and remanded,
401 N.E.2d 523 (Ill. 1980); State v. Floyd, 347 S.W.3d 115, 123 (Mo.
Ct. App. 2011)(the defendant waived his right to a Jackson-Denno
hearing on the voluntariness of his statement because he did not
file a pretrial motion).
B. Federal Law
¶ 55 Federal circuit courts of appeal are trying to figure out what a
2014 amendment to Fed. R. Crim. P. 12(e) means. Before the
amendment, the Rule read that a defendant waived any
suppression issues that she did not include in a pretrial motion to
suppress. See United States v. Soto, 794 F.3d 635, 648 (6th Cir.
2015). The amendment removed the reference to waiver from the
Rule.
¶ 56 Some courts think that the change means that appellate
courts can review suppression issues that were not raised until
27
appeal for plain error. Id. at 655; United States v. Sperrazza, 804
F.3d 1113, 1118-19 (11th Cir. 2015).
¶ 57 Other appellate courts will only review an unpreserved
suppression issue if the defendant can show “good cause” why she
did not file a pretrial motion to suppress. See United States v.
Schropp, 829 F.3d 998, 1003-04 (8th Cir. 2016); United States v.
Daniels, 803 F.3d 335, 351-52 (7th Cir. 2015).
¶ 58 The Tenth Circuit falls into the “good cause” category. In
2011, a panel of that court held that the former waiver language in
Fed. R. Crim. P. 12(e) “preclude[d] plain error review on appeal.”
Burke, 633 F.3d at 991 n.2. The 2014 amendment has apparently
not changed at least some of the judges’ minds. See United States
v. Shrader, 665 F. App’x 642, 649 n.6 (10th Cir. 2016)(unpublished
opinion); United States v. Franco, 632 F. App’x 961, 963 n.1 (10th
Cir. 2015)(unpublished opinion). But see United States v.
Garcia-Escalera, 632 F. App’x 942, 944 n.1 (10th Cir.
2015)(unpublished opinion)(“We acknowledge the 2014 amendment
might call into question Burke’s waiver analysis. But we need not
resolve whether Burke remains good law because [the defendant]
28
doesn’t challenge the government’s assertion that the 2002 version
of Rule 12 applies in this case.”).
¶ 59 I consider the “good cause” cases to be more persuasive. So, if
I were to apply that standard in this case, defendant has not
provided any explanation for why he did not include the issue of the
voluntariness of his statements in his motion to suppress. Almost
by definition, he has not shown good cause.
V. Problems Created by a Remand
¶ 60 I do not think that remanding the case to the trial court to
hold a hearing, to make factual findings, and to reach legal
conclusions is a viable remedy, either. The trial in this case ended
with a guilty verdict in early November 2013, so we would be asking
the trial court and the parties to return to an issue that is now
three-and-one-half years old. I question whether, after this length
of time, a remand would be evidentially profitable: memories dim
with the passage of time; evidence deteriorates or gets lost;
witnesses die or move away; and victims may be forced to once
again confront events that they wish to put behind them. See
United States v. Mechanik, 475 U.S. 66, 72 (1986)(discussing the
“substantial social costs” of reversing a conviction); People v.
29
Sepulveda, 65 P.3d 1002, 1008 (Colo. 2003)(same). Our supreme
court cautioned us to avoid “sua sponte review and remand when,
given the passage of time, there is no reasonable possibility that the
trial court could develop a better record upon which to proceed.”
Moody v. People, 159 P.3d 611, 617 (Colo. 2007). I respectfully
submit that this is one of those cases.
VI. The Proper Approach to the Problem: Crim. P. 35(c)
¶ 61 If we were to evaluate the question of whether defendant’s
statement was involuntary in this direct appeal employing plain
error review, we could not answer the related question of why
defense counsel did not file a motion to suppress. The related
question is an important one to answer because it is wrapped up in
the issue of whether the voluntariness of defendant’s statement is
properly before us. It is wrapped up in that issue because the
voluntariness of the statement may be irrelevant if defense counsel
deliberately chose not to file a suppression motion for a sound
strategic reason.
¶ 62 I think that figuring out why defense counsel did not file a
motion to suppress is a foundational question that we must answer
before we can move on to resolving the voluntariness question, but
30
we do not now have a complete picture of the facts that are
necessary to answer the foundational question. And, if we ignore
the foundational question and proceed to employ plain error review
to resolve the voluntariness question without a complete factual
picture, we risk reversing a conviction even though defense counsel,
perhaps after consulting with his client, may have wanted the jury
to hear defendant’s statement.
¶ 63 In other words, if an attorney deliberately chooses not to file a
motion to suppress, thereby intentionally denying a trial court the
opportunity to rule on the voluntariness of a defendant’s statement,
then the true issue that we should be resolving is whether the
attorney was ineffective. We cannot decide that issue on direct
appeal. See Ardolino v. People, 69 P.3d 73, 77 (Colo.
2003)(“[D]efendants have regularly been discouraged from
attempting to litigate their counsels’ effectiveness on direct
appeal.”). Rather, it should be resolved in the context of a Crim. P.
35(c) proceeding. See id.
¶ 64 Attorneys may have good reasons, bad reasons, or no reason
at all for why they do not file motions to suppress statements. But
we cannot, on direct appeal, evaluate the merit or demerit of such
31
reasons because this is one of those “situations in which facts
outside the record [are] critical” to the analysis. See Moore v.
People, 2014 CO 8, ¶ 13. Even if we might, on first blush, think
that an attorney’s decision not to file a motion to suppress a
defendant’s statement was “seemingly unusual or misguided,” the
trial record probably will “not reflect whether [an attorney] had a
sound strategic motive or took the action because his alternatives
were even worse.” Ardolino, 69 P.3d at 77. Indeed, an attorney’s
“reasons for omissions are even less likely to be reflected in the trial
record.” Id.
¶ 65 Why, one might ask, would defense counsel in this case want
the jury to hear that defendant admitted that he had twice placed
the victim on his lap; that he had twice ejaculated; and that he had
touched her vaginal area on one of those occasions? Defense
counsel’s reason for not filing a motion to suppress could have
been: “I wanted to use what the detective said during the statement
to defendant’s advantage. I wanted to put the detective’s
investigation on trial in the hope that I could convince the jury that
he had put damning words into defendant’s mouth.”
32
¶ 66 This is not a far-fetched possibility because defense counsel
did just that. During closing argument, he referred to the
detective’s “inappropriate technique” and to his use of “deception”
to “try to get [defendant] to open up.” But defendant kept denying
responsibility for the crime, so the detective “had to take it to the
next level.”
¶ 67 Defense counsel then pounced. He focused on inconsistencies
between the detective’s trial testimony about the promises that the
detective had made to defendant and the detective’s comments in
the tape recording of defendant’s statement about those promises.
Defense counsel played several excerpts from the tape, and he
repeatedly told the jury that it should listen to the tape.
[The detective] told you at the very end [of his
testimony] that, “I never told him he could go
home.” But you heard the audio. You know
that’s not true. You know that’s what he
implied – strongly implied, and . . . any
reasonable person would infer it that way.
He testified he never implied that [defendant]
would go home if he said he did something
small, . . . if something happened maybe less
than five or six times. That’s not true. These
are [the detective’s] words:
(Excerpt of audio recording played.)
33
He understands. What he understands is: “You
get to go home on Friday, so do I.”
....
(Excerpt of audio recording played.)
....
And you all remember during the . . .
cross-examination of [the detective], when I was
playing that recording, what [defendant] said, “I
can deal with this today and tomorrow I can go
home?” [The detective] says, “Let’s do it.”
Here’s the thing, ladies and gentlemen: This
recording will be yours. Listen to it. Don’t take
my word. Don’t take the district attorney’s
word. Don’t take [the detective’s] word about
what he says is in there. Listen to the
recording.
....
The district attorney has told you that . . .
what [defendant] confessed to came out of his
own head. It was just happenstance that it
matched [the victim’s] statement, that nobody
said that to him at all. I disagree. If you listen
to the recording, what [defendant] confesses to
was something that was fed to him by that man
[the detective].
When . . . it didn’t fit with [the detective’s]
theory, he said, “I don’t believe you.” When it
did, he said, “Good job. Good job. You’re
doing heroic. We’re 97 percent of the way
there. Just a – little bit more.”
34
....
What [the detective] does is akin to a feeding
frenzy. “I’m going to give you everything you
need to confess. All you have to do is
remember what I said and go with it.”
....
Listen to what [the detective] tells this man
before he gives his supposed confession.
(Excerpt of audio recording played.)
....
Everything that [the detective] wanted to hear
he fed to [defendant], everything.
....
[The detective] used not so veiled threats, fed
[defendant] the lines and subtly, not
aggressively, subtly coerced a confession out of
him by promising him -- maybe not using the
word “promise,” letting him know that: “If you
tell me it’s a couple of things, you get to go
home to your wife.” [Defendant] confirmed
that. He said, “Let’s do it. Give her closure.
You’ll move on with life.” All the while saying
that, he knew it wasn’t true.
....
[The detective] fed a confession to [defendant]
under the pretense [defendant] would be able
to get to go home to his old life. . . . [A]t the
end of the day it’s [the detective’s] tactics.
Those are the reason[s] that innocent people get
35
convicted. As he told you, he had a target in
this investigation. You don’t have a target.
You have an obligation. Your obligation is to
listen to that recording, weigh[] the evidence,
and find [defendant] not guilty.
(Emphasis added.)
¶ 68 Defendant can still have his day in court on this issue, but it
should not be today. Instead, he could file a Crim. P. 35(c) motion.
Testimony produced at that hearing might provide an answer to the
question of why defendant’s counsel did not file a motion to
suppress. And, depending on the nature of the answer, the
voluntariness of defendant’s statement could take center stage.
VII. Conclusion
¶ 69 I cannot find a single published case decided after Wainwright
v. Sykes, 433 U.S. 72, 86 (1977), in which a Colorado appellate
court has expressly held that the plain error standard should be
used to review an unpreserved contention that a defendant’s
statement was involuntary. (Recall from the majority opinion that
Wainwright rejected the idea 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
36
admission.” Wainwright, 433 U.S. at 86.) I submit that the general
rule and its corollary are the reasons for this lack of precedent.
¶ 70 The general rule and its corollary are not arcane; they are
common knowledge. They are not mysterious; they provide clear
notice. They are not complicated; they are easy to understand.
They are not arbitrary; they spring from important policies. They
are not of recent origin; they have been around for a long time. So
the problems that we would cause if we ignore them and review the
statement in this case for plain error will not be minor; those
problems will be profound. We would upset a pretty big applecart.
¶ 71 And what would we gain? It is, of course, fundamentally
important that convictions be based on reliable evidence, and
involuntary statements are not reliable. But I respectfully submit
that we cannot tell, when applying the lens of plain error review,
whether defendant’s statement was involuntary because he did not
ask the trial court to resolve this issue. The prosecution therefore
did not submit evidence to show that the statement was voluntary.
The trial court therefore did not make the crucial findings of fact
that would allow us to answer this question. We therefore do not
know why defense counsel did not file a motion to suppress. And
37
we therefore do not have the record that we need to make a
decision.
¶ 72 I recognize that we have a recording of defendant’s statement
in the record. But we do not know, for example, whether the
prosecution had evidence of what defendant and the police officers
discussed before or after the statement. We do not know whether
such evidence would make a difference in the evaluation of the
statement. We do not know a great many things. And, as I
observed above, I think that the chances that a hearing on remand
would cast light on this issue are iffy.
¶ 73 What would we be telling trial courts if we subject the
voluntariness issue in this case to plain error review? Trial courts
are intimately familiar with the general rule and its corollary
because defense counsel file motions to suppress statements in
criminal cases all the time. If we were to review the statement in
this case for plain error, would we be sending the message that we
expect trial courts, without prompting from anyone, to intervene in
the middle of a trial to raise the issue of whether a statement is
voluntary? Are we asking courts to assume that defense counsel
did not have a good reason, perhaps rooted in sound trial strategy,
38
to refrain from filing a suppression motion? Are we asking courts to
speculate that there is no other evidence, besides the evidence
admitted at trial, that might bear on the issue of whether the
statement is voluntary?
¶ 74 As I indicated above, I think that the right place to resolve this
issue is in a Crim. P. 35(c) hearing. Defendant might be successful;
he might not be. I have no crystal ball. But I do know that
requiring defendant to take that route preserves the general rule
and its corollary. And I think that is worth the candle because
preserving them will likewise preserve the “valid reasons underlying
the practice of requiring pretrial motions . . . .” LaFave at § 11.1(a);
see also Tyler, 874 P.2d at 1039.
39
JUDGE BERGER, dissenting.1
¶ 75 Short of physical torture, I cannot imagine police tactics that
are more likely to lead to false confessions, and thus wrongful
convictions, than the police conduct in this case. The facts are
stark: a person is being questioned by the police regarding
extremely serious crimes, the penalties for which are effective life
sentences and almost unimaginable societal opprobrium. 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 result in an effective life sentence) then he can go
home to his wife and child and no charges will be filed.
¶ 76 Notwithstanding these facts, the majority refuses to review the
merits of Cardman’s claim that he was deprived of due process of
law when his inculpatory statements were admitted against him.
As I did in People v. Cardman, 2016 COA 135, vacated, (Colo. No.
1 Because the supreme court did not grant certiorari on the
reinitiation of contact issue, I, like the majority, do not address that
issue. I adhere to my previously expressed views on that issue. See
People v. Cardman, 2016 COA 135, ¶¶ 97-145 (Berger, J.,
dissenting), vacated, (Colo. No. 16SC789, Apr. 10, 2017)
(unpublished order).
40
16SC789, Apr. 10, 2017) (unpublished order), I respectfully dissent
from the majority’s refusal to address the voluntariness of
Cardman’s inculpatory statements. In my view, this record
presents a substantial question regarding the voluntariness of those
statements and thus raises very serious questions regarding the
reliability of Cardman’s convictions.
¶ 77 Events that have occurred since our original opinions in this
case provide more support for my position that the admission of
Cardman’s inculpatory statements must be reviewed for plain error.
First, the supreme court has finally put to rest reliance on People v.
Cagle, 751 P.2d 614, 619 (Colo. 1988), for the proposition that
unpreserved constitutional questions are waived. The original
special concurrence relied on Cagle in support of its position that
Cardman waived any claim that his statements to the police were
involuntary. Any further reliance on Cagle for this purpose is
foreclosed by the supreme court’s recent decision in Reyna-Abarca
v. People, 2017 CO 15.
¶ 78 Second, the supreme court summarily vacated our judgment
and directed us to consider whether Reyna-Abarca, decided after we
issued our original opinions in this case, authorizes plain error
41
review in this case.2 While I recognize that a denial of certiorari has
no precedential value, it is not unreasonable to construe the grant
of certiorari in this case and the summary vacation of our judgment
as a sign that the supreme court was concerned about the
majority’s disposition of the involuntariness issue. See People v.
McAfee, 160 P.3d 277, 280 (Colo. App. 2007) (recognizing that there
may be a multitude of reasons why the supreme court denies
certiorari).3
¶ 79 Despite all this, the majority adheres to its original decision
and the special concurrence agrees that Cardman waived the most
consequential issue in this case.
I. The Basic Premise of Plain Error Review
¶ 80 Plain error review plays a critical, albeit limited, role in our
criminal justice system. The doctrine, codified in Crim. P. 52(b),
recognizes that mistakes will be made in criminal cases, sometimes
2 The supreme court also directed us to consider whether the
promises made by the police to Cardman must be enforced. I
address the merits of that issue below.
3 Obviously, when the supreme court summarily vacated our prior
judgment, it knew that Reyna-Abarca v. People, 2017 CO 15, was a
double jeopardy case, not a case involving an unpreserved
suppression question. Given that, the fact that it was a double
jeopardy case and not a suppression case should carry little weight.
42
very serious mistakes.4 It balances the need for procedural rules
and compliance with those rules with the essential underlying goal
of the criminal justice system: fair and reliable adjudication of
allegations of criminal conduct. Over decades, the Colorado
Supreme Court has consistently recognized the need for and
availability of plain error review, as it did recently in Reyna-Abarca.
¶ 81 Thus, the question is not whether procedural rules are
necessary for the orderly administration of criminal justice. They
are. Nor is the question whether there must be consequences when
those rules are violated. There must be.
¶ 82 The concurrence is correct that there is a procedural rule,
Crim. P. 41(g), governing the timing of filing motions to suppress
and that Cardman did not comply with that rule (although I note
that Crim. P. 41(g) says nothing about the consequences of
noncompliance, and has never been applied to bar review of a
voluntariness claim raised for the first time on appeal). And, under
both my analysis and the concurrence’s, there are important
consequences that flow from that failure.
4 By its terms, Crim. P. 52(b) does not except suppression issues
from its reach.
43
¶ 83 By failing to timely raise his involuntariness claim, Cardman
forfeited his claim, meaning that he lost the right to have the claim
reviewed under the otherwise applicable constitutional standard of
review — harmlessness beyond a reasonable doubt. Hagos v.
People, 2012 CO 63, ¶ 11. That forfeiture is no small matter; given
the egregious police conduct in this case, review under that
standard almost certainly would have required suppression of
Cardman’s statements and, if the trial court had nevertheless
admitted the statements, a new trial.
¶ 84 But, the majority does not hold merely that Cardman forfeited
his claim, it holds that he waived it, which precludes all review,
even plain error review. United States v. Olano, 507 U.S. 725,
732-33 (1993); People v. Lopez, 129 P.3d 1061, 1065 (Colo. App.
2005). I acknowledge that Cardman is limited to plain error review,
a type of review that is designed to make relief seldom available and
which, in practice, meets or exceeds its design parameters. To say,
as the majority does, that Cardman had an opportunity to object on
voluntariness grounds and failed to do so, or, as the concurrence
does, that there was a rule violation and that there must be
consequences to that violation, are wholly insufficient by
44
themselves to then support the further conclusion that Cardman
waived, rather than forfeited, his claim. “The courts do not
presume acquiescence in the loss of fundamental constitutional
rights, and therefore indulge every reasonable presumption against
waiver.” People v. Curtis, 681 P.2d 504, 514 (Colo. 1984), holding
modified on other grounds by People v. Blehm, 983 P.2d 779 (Colo.
1999).
¶ 85 The majority’s assertion that Cardman waived his
voluntariness claim because he did not raise it at the suppression
hearing rests on a shaky legal foundation. First, I do not see how it
makes any difference, for purposes of the availability of plain error
review, whether a defendant fails to raise a specific suppression
claim despite the district court entertaining a suppression hearing
or whether he or she fails to raise any suppression issue at all. A
fair reading of the majority’s opinion is that a defendant who fails to
raise any suppression claim before the trial court may be entitled to
plain error review, but a defendant who raises a suppression claim
on one ground but not another has waived that ground — a
puzzling result.
45
¶ 86 Second, this case is entirely different from Hinojos-Mendoza v.
People, 169 P.3d 662, 668 (Colo. 2007), on which the majority
relies. In that case, the defendant argued that his confrontation
rights were violated when the trial court admitted a lab report into
evidence without in-person testimony from the analyst. The
supreme concluded that the defendant had waived his
confrontation rights because he failed to request, as required by
statute, the in-person testimony in advance of trial. The court
concluded that because “[t]he right to confrontation falls into the
class of rights that defense counsel can waive through strategic
decisions,” and because “we presume that attorneys know the
applicable rules of procedure,” it could “infer from the failure to
comply with the procedural requirements that the attorney made a
decision not to exercise the right at issue.” Id. at 669-70.
¶ 87 I recognize that some rights may be waived by the mere failure
to object. See, e.g., Stackhouse v. People, 2015 CO 48, ¶ 1. But in
both Hinojos-Mendoza and Stackhouse, the defendant’s failure to
object could fairly be characterized as a strategic decision. It is
unreasonable to assume that Cardman’s failure to challenge the
voluntariness of his statements was strategic. Indeed, even the
46
concurrence suggests that the failure to raise the voluntariness
claim may be grounds for a claim of ineffective assistance of
counsel. I do not understand how the failure to object to the
voluntariness of Cardman’s inculpatory statements was strategic,
yet also “fell below an objective standard of reasonableness.”
Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007) (quoting
Strickland v. Washington, 466 U.S. 668, 688 (1984)).
¶ 88 Wainwright v. Sykes, 433 U.S. 72, 86 (1977), does not aid
either the majority or the concurrence. By my reading, Wainwright
holds nothing more than if a state, by rule or judicial decision,
provides that a suppression issue that is not made in accordance
with a rule governing such questions is waived, that rule or judicial
decision does not offend the United States Constitution. Id.
¶ 89 In contrast, the question here is whether, as a matter of state
law, suppression issues should be treated entirely differently than
virtually every other type of unpreserved error. In my view, the
answer is no.
¶ 90 The daunting requirements for finding plain error eliminate
any reasonable concern by the majority or the concurrence that
such plain error review will devour the rules of criminal procedure
47
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, ¶ 23. In almost every case, a claim of plain error regarding
unchallenged confessions will founder on the “obviousness”
component of plain error review. Id. at ¶ 18 (“Plain error addresses
error that is both ‘obvious and substantial.’” (quoting People v.
Miller, 113 P.3d 743, 750 (Colo. 2005))). In the vast majority of
cases in which there is an unpreserved claim of involuntariness,
there is virtually no possibility that an appellate court will find plain
error.
¶ 91 But this case is different. Here, the trial court knew precisely,
and the appellate record demonstrates convincingly, the factual
basis for the claim of involuntariness. Some of the details were
spread before the trial court in counsel’s 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. In comparing the facts of this
case to those in People v. Quintana, 198 Colo. 461, 463, 601 P.2d
48
 350, 351 (1979), in which the sheriff’s “implied promises” prior to
the defendant’s confession rendered that confession involuntary, it
was obvious that the police conduct here was unconstitutional.5
¶ 92 I cannot square the majority’s waiver conclusion with the
underpinnings of the plain error doctrine. To avoid plain error
review and to declare a waiver requires more than a finding that a
defendant did not abide by a particular procedural rule. After all,
plain error review comes into play only when there has been a
violation of a procedural rule; if a defendant complies with the
applicable procedural rules then he is entitled to review under
harmless error or constitutional harmless error, depending on the
matter at issue. Id. at ¶ 9.
¶ 93 The majority’s analysis, and in particular the concurrence’s
analysis, prove too much. Indeed, when carefully scrutinized, these
opinions are nothing less than a frontal attack on the doctrine of
plain error review. The concurring opinion could easily be
transformed into a scholarly law review article advocating the
5In contrast, in People In Interest of Z.T.T., 2017 CO 48, ¶ 1, the
Colorado Supreme Court reversed the trial court’s suppression
order where the police interview was conversational, friendly, and
devoid of coercive promises or threats.
49
abolition of plain error review. While there is nothing inherently
wrong with scholarly arguments for the abolition of plain error
review, that course is not available to Colorado intermediate
appellate court judges. This is so because we are bound by
Colorado Supreme Court precedents and there can be no dispute
that Reyna-Abarca squarely holds that plain error review is the law
of Colorado.6
¶ 94 What’s more, the supreme court has never expressly held that
a defendant’s failure to raise a voluntariness claim before the trial
court constitutes a waiver of that claim on appeal. I am not
persuaded by the concurrence’s reliance on People v. Jansen, 713
P.2d 907, 912 n.8 (Colo. 1986), to support that proposition. In
Jansen, the supreme court declined to address the People’s
argument that the defendants’ motions to suppress were “facially
6 I cannot plausibly contend that plain error review is available
regardless of the issue presented. Over a strong dissent by Justice
Márquez, the supreme court recently held that a criminal
defendant’s failure to object to the closing of the courtroom to the
public effected a waiver, not just a forfeiture, of the constitutional
right to a public trial. Stackhouse v. People, 2015 CO 48, ¶ 5.
While it is hazardous to rank constitutional rights in view of their
importance to an orderly society, I nevertheless note that the
admission of a criminal defendant’s involuntary statements violates
the Due Process Clause, one of the fundamental guarantees of the
Constitution.
50
insufficient” because that argument was not raised before the
district court. Id. at 912. In a footnote, which clearly is dictum, the
court stated that
we note in passing that such motions should
state with reasonable specificity the legal
grounds upon which the motions are based.
This is necessary both to put the prosecution
on notice of the contentions it must be
prepared to meet at a suppression hearing and
to inform the court of the issues to be decided.
Id. at 912 n.8. The court said nothing whatsoever about the
availability of plain error review of claims that are raised for the first
time on appeal.
¶ 95 The footnote in Jansen spawned a line of opinions from this
court, also relied on by the concurrence, refusing to address
unpreserved involuntariness claims. People v. Zadra, 2013 COA
140, ¶ 26, aff’d on other grounds, 2017 CO 18; People v. Villarreal,
131 P.3d 1119, 1123 (Colo. App. 2005), aff’d on other grounds,
2012 CO 64; People v. Vigil, 104 P.3d 258, 267 (Colo. App. 2004),
aff’d in part and rev’d in part on other grounds, 127 P.3d 916 (Colo.
2006); People v. Salyer, 80 P.3d 831, 835 (Colo. App. 2003). But
none of these opinions disclosed whether the defendant made any
argument that his or her voluntariness claim should be reviewed for
51
plain error, much less determined that the defendant had waived,
rather than forfeited, his or her claims.7
¶ 96 The vice in applying special rules to preclude even plain error
review of an unpreserved claim of the wrongful admission of
involuntary statements 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
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 the Constitution requires that evidence
7 The concurrence relies on out-of-state authority and federal
circuit cases to support its argument that unpreserved
voluntariness claims are waived. We are, of course, not bound by
those cases.
52
obtained in violation of the Fourth Amendment usually must be
suppressed 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
a procedural rule requiring that such objections be made at a
specific time, or else they are waived for all time, is justifiable. See,
e.g., People v. Gouker, 665 P.2d 113, 118 (Colo. 1983) (refusing to
address unpreserved claim that warrant was invalid).
¶ 97 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
made involuntarily. 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).
¶ 98 Everyone would agree 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,
53
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))). False confessions are especially
dangerous because “[a] confession is like no other evidence . . . the
defendant’s own confession is probably the most probative and
damaging evidence that can be admitted against him.” Arizona v.
Fulminante, 499 U.S. 279, 296 (1991) (citation omitted).
¶ 99 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 when the
issue is obvious from the admission of evidence, either at a
suppression hearing or at trial.
¶ 100 Given the purpose of plain error review, it was incumbent on
the majority and the concurrence to explain why this situation
differs materially from all of the other situations in which plain
error review indisputably is available. In my view, neither the
majority nor the concurrence met that burden. At bottom, I am
mystified why the majority and the concurrence single out this
particular type of error from all of the other types of errors (many of
54
which are far less consequential that what happened in this case)
and conclude that Cardman is remediless.8
II. The Merits of Cardman’s Involuntariness Claim
¶ 101 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
confession9:
[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 —
8 The concurrence says that Cardman is not remediless because he
may challenge his lawyer’s failure to move to suppress the
statements in a postconviction proceeding premised on ineffective
assistance of counsel. That is true in theory. In practice, however,
because of the many (appropriate) hurdles to postconviction relief,
such relief is exceedingly rare.
9 This is not a case in which the trial court did not hear evidence
regarding the arguably 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.
55
[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.
[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.
56
[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
and that’s what I want to eliminate here today.
And, Ryan, I don’t think you’re that guy.10
(Emphasis added.)
¶ 102 At the conclusion of the interrogation, Cardman confessed to
instances of sexual contact with the victim. He continued to deny
that he sexually assaulted her.
10There 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.
57
¶ 103 Applying any standard, this record is sufficiently disturbing to
require findings by the trial court on this critical question.11 In my
view, the italicized portions of the interrogation that I reproduced
above violate any reasonable standard of constitutional police
conduct and compel a conclusion that the police engaged in
coercive conduct.
¶ 104 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
11I cannot accept the concurrence’s rationale that because a
substantial amount of time has passed since Cardman’s trial that
no purpose would be served by remanding for findings on
voluntariness. The recording of Cardman’s police interview speaks
volumes. Moreover, both this court and the supreme court often
remand to a trial court for findings years after the trial took place.
See, e.g., O’Hara v. People, 2012 CO 18, ¶ 48 (remanding for
additional findings some six years after the trial); People v. Lucero,
747 P.2d 660, 665 (Colo. 1987) (four years); People v. Desantiago,
2014 COA 66M, ¶ 22 (three years); People v. King, 292 P.3d 959,
960 (Colo. App. 2011) (three years); People v. Stevenson, 228 P.3d
161, 164 (Colo. App. 2009) (three years).
58
done in this case and the convictions which the court affirms may
be unreliable.
III. Enforcement of the Police Promises
¶ 105 In its order granting certiorari, the supreme court also directed
us to consider whether any promises made by the police to
Cardman must be enforced. Cardman v. People, (Colo. No.
16SC789, Apr. 10, 2017) (unpublished order). The majority and the
concurrence decline to address this question because they conclude
that any claim for enforcement of police promises was waived for
the same reason that plain error review is unavailable on the
question whether Cardman’s statements were voluntary.
¶ 106 The standard for specific enforcement of police promises is
daunting. See, e.g., People v. Marquez, 644 P.2d 59, 62 (Colo. App.
1981). Specific performance is required only when “no other
remedy is available to the court that could approximate substantial
justice under the circumstances of the case.” People v. Manning,
672 P.2d 499, 512 (Colo. 1983).
¶ 107 In my view, while the police conduct in this case undoubtedly
was unconstitutional, I cannot say that there was no remedy
available to the court aside from specific performance. I believe the
59
appropriate remedy is to suppress Cardman’s inculpatory
statements and hold a new trial without his statements, which
would provide “substantial justice under the circumstances.” Id.
Therefore, reaching the merits of Cardman’s claim that he is
entitled to specific performance of the promises, I would reject that
claim.
IV. Conclusion
¶ 108 The judgment of conviction should be reversed and the case
should be remanded to the trial court for findings and conclusions
on whether Cardman’s inculpatory statements were voluntarily
made. If they were involuntary, they may not be used for any
purpose and a new trial is required. I respectfully dissent from the
majority’s contrary determination.
60