People v. Cardman

2017 COA 87

• Court: Colorado Court of Appeals
• Decided: June 29, 2017
• Docket: 14CA0202
• Status: Published

Opinion

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Apr. 10, 2017) (unpublished order).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.”

....

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.

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:] 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.

[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

¶ 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.