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People v. Cardman

Court of Appeals of Colorado, Fifth Division

September 22, 2016

The People of the State of Colorado, Plaintiff-Appellee,
Ryan Matthew Cardman, Defendant-Appellant.

         El Paso County District Court No. 12CR2114 Honorable Robert L. Lowrey, Judge

          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


          ROMÁN JUDGE

         ¶ 1 In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the United States Supreme Court held that after a suspect invokes his right to counsel during custodial interrogation, the police may not subject him to further interrogation unless he "himself initiates further communication, exchanges, or conversations with the police."

         ¶ 2 This case presents the question of whether a suspect who has so invoked his Fifth Amendment right to counsel may reinitiate communication with the police through an agent, here, the suspect's wife, or whether reinitiation can occur only by direct contact between the suspect and the police. No Colorado appellate court has addressed this issue.

         ¶ 3 Following the lead of every federal and state appellate court that has decided this question to date, we hold that reinitiation may occur through an agent, but we also conclude that the police must have a reasonable belief that the suspect has, in fact, requested the agent to reinitiate contact between the suspect and the police.

         ¶ 4 Because the record here supports a finding that the police had a reasonable belief that defendant, Ryan Matthew Cardman, requested his wife to reinitiate contact with the police on his behalf after he had invoked his right to counsel, we discern no constitutional error in admitting his inculpatory statements. Because we further conclude that defendant waived his claim of voluntariness at the suppression hearing, and discern no error in the trial court's admission of certain statements, we affirm.

         I. Background

         ¶ 5 Defendant was convicted by a jury of multiple counts of sexual assault on a child and sentenced to concurrent indeterminate sentences of twelve years to life in prison.

         ¶ 6 When the victim was seven, she and her mother moved in with defendant, her mother's then-boyfriend. The victim and her mother lived with defendant for about a year, and then the victim's mother became involved with another man, whom she later married.

         ¶ 7 Several years later, the victim told her stepfather that defendant had sexually assaulted her multiple times when she lived with him. After the police were contacted, a forensic interview of the victim was conducted. During her video-recorded forensic interview, which was admitted at trial, the victim alleged numerous instances of sexual contact between her and defendant. The victim also testified at trial that defendant had sexually assaulted her on multiple occasions.

         ¶ 8 The police executed a search warrant on defendant's home. They informed him the search was related to their suspicion of inappropriate activity on the Internet. During the search, they recovered a weapon.

         ¶ 9 Defendant was arrested on the charge of possession of a weapon by a previous offender. He promptly exercised his rights to remain silent and to counsel, and the police ceased questioning. But two days later, a police detective conducted another interview of defendant. An audio recording of defendant's second police interview was admitted at trial. In the interview, after initially denying any improper sexual contact with the victim, defendant admitted to three instances of sexual contact.

         ¶ 10 Before trial, defense counsel moved to suppress defendant's inculpatory statements on the basis that defendant had invoked his right to counsel and had never reinitiated discussions with the police. The trial court denied the motion after a suppression hearing, finding that after the first interview but before the second interview, defendant had communicated to the police through his wife a general willingness to talk about the investigation.

         ¶ 11 On appeal, defendant contends the trial court erred by (1) denying his motion to suppress on the grounds that he reinitiated communication with the police; (2) failing to sua sponte hold a hearing on the voluntariness of his confession; and (3) admitting statements made by the detective.

         II. Third-Party Reinitiation Under Miranda and Edwards

         ¶ 12 Defendant contends the district court erred by not suppressing statements he made during his second custodial interrogation because he had previously invoked his right to counsel and did not himself reinitiate communication with the police.[1] The People respond that defendant reinitiated contact with the police by directing a third party to reinitiate the communication. We agree with the People.

         A. Standard of Review

         ¶ 13 Review of a trial court's decision whether to suppress a defendant's statements presents a mixed question of law and fact. People v. Kutlak, 2016 CO 1, ¶ 13. We defer to the court's findings of historical fact if they are supported by sufficient evidence in the record, People v. Rivas, 13 P.3d 315, 320 (Colo. 2000), but we review de novo the court's ultimate legal conclusion - its application of legal standards to the facts of the case, id.; see also People v. Bonilla-Barraza, 209 P.3d 1090, 1094 (Colo. 2009). In this respect, whether the facts found by the trial court show a reinitiation by defendant of police discussions under Edwards is a legal question that we review de novo. See, e.g., Holman v. Kemna, 212 F.3d 413, 417 (8th Cir. 2000). In conducting this review, we may look only at the evidence presented at the suppression hearing. People v. Gomez-Garcia, 224 P.3d 1019, 1022 (Colo.App. 2009).

         B. Reinitiation of Contact with the Police

         ¶ 14 Pursuant to the Fifth Amendment of the United States Constitution and Miranda v. Arizona, 384 U.S. 436, 474 (1966), once a defendant who is in custody requests counsel, all police-initiated interrogation must cease until he has consulted an attorney.

         ¶ 15 But "[a] suspect's request for the assistance of counsel is not irrevocable." People v. Martinez, 789 P.2d 420, 422 (Colo. 1990). In Edwards, the Supreme Court held that a suspect who has invoked his right to counsel must not be "subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." 451 U.S. at 484-85; see Martinez, 789 P.2d at 422.[2]

         ¶ 16 In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Court attempted to explain when a suspect "initiates" contact with the police within the meaning of Edwards. A plurality of four justices held that a defendant reinitiates communication with the police where his comments "evince[] a willingness and a desire for a generalized discussion about the investigation" and are not "merely a necessary inquiry arising out of the incidents of the custodial relationship." Id. at 1045-46; see Martinez, 789 P.2d at 422; People v. Pierson, 670 P.2d 770, 775 (Colo. 1983).

         ¶ 17 According to the plurality, some inquiries,

such as a request for a drink of water or a request to use a telephone . . . are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally "initiate" a conversation in the sense in which that word was used in Edwards.

Bradshaw, 462 U.S. at 1045.

         ¶ 18 However, the Bradshaw plurality held the suspect had reinitiated further conversation by asking an officer, "Well, what is going to happen to me now?" because that question, "[a]lthough ambiguous, . . . evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship. It could reasonably have been interpreted by the officer as relating generally to the investigation." Id. at 1045-46.

         ¶ 19 The dissenting justices agreed that "to constitute 'initiation' under Edwards, an accused's inquiry must demonstrate a desire to discuss the subject matter of the criminal investigation." Bradshaw, 462 U.S. at 1055 (Marshall, J., dissenting). The dissent, however, disagreed with the plurality's application because, in its opinion, the suspect's "question [could not] be considered 'initiation' of a conversation about the subject matter of the criminal investigation, " but rather expressed merely a desire "to find out where the police were going to take him." Id. at 1055-56.

         ¶ 20 The Colorado Supreme Court has applied the Bradshaw plurality's test to determine whether a suspect has reinitiated communication with the police, holding that "an accused must first initiate the conversation with the police and by his comments must 'evince[] a willingness and a desire for a generalized discussion about the investigation, ' and not merely question the reasons for custody." Martinez, 789 P.2d at 422 (alteration in original) (quoting Bradshaw, 462 U.S. at 1045-46).

         ¶ 21 The determination of whether a defendant's communication constitutes reinitiation with the police must be "based on the totality of the circumstances of the case, 'including the background, experience and conduct of the accused.'" People v. Redgebol, 184 P.3d 86, 99 (Colo. 2008) (quoting Martinez, 789 P.2d at 422).

         C. Third-Party Reinitiation

         ¶ 22 Neither the United States Supreme Court nor the Colorado Supreme Court has addressed whether a suspect can reinitiate contact with the police under Edwards through a third party. Nonetheless, other courts have addressed the issue and "all support the validity of third-party communications." Van Hook v. Anderson, 488 F.3d 411, 419 (6th Cir. 2007); see Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011); Owens v. Bowersox, 290 F.3d 960 (8th Cir. 2002); United States v. Michaud, 268 F.3d 728 (9th Cir. 2001); Holman, 212 F.3d 413; United States v. Gonzalez, 183 F.3d 1315 (11th Cir. 1999); United States v. Murphy, 133 F.Supp.3d 1306 (D. Kan. 2015); Ex parte Williams, 31 So.3d 670 (Ala. 2007); Killingsworth v. State, 82 So.3d 716 (Ala.Crim.App.2009), rev'd on other grounds sub nom. Ex parte Killingsworth, 82 So.3d 761 (Ala. 2010); State v. Yonkman, 297 P.3d 902 (Ariz. 2013); Dixon v. State, 751 S.E.2d 69 (Ga. 2013); Harvell v. State, 562 S.E.2d 180 (Ga. 2002); In re Tracy B., 704 S.E.2d 71 (S.C. Ct. App. 2010).[3]

         ¶ 23 The leading case on this issue, and the one relied on by the trial court in its suppression order, is Van Hook, 488 F.3d 411, a split en banc decision of the Sixth Circuit. See, e.g., United States v. Santistevan, 701 F.3d 1289, 1296 (10th Cir. 2012) (Tymkovich, J., dissenting) (stating that Van Hook contains "[t]he most elaborate discussion" of third-party reinitiation).

         ¶ 24 In Van Hook, 488 F.3d at 418, eight of the fifteen judges constituting the en banc court held that under Edwards and Bradshaw, whether the suspect's communication to the police "is direct or indirect is immaterial - what is important is [that] the impetus for discussion comes from the suspect himself." There, the court ruled that the defendant had reinitiated contact with the police via his mother because (1) the detective spoke to the defendant's mother, who told the detective she had spoken with her son; (2) "based on that discussion, [the detective] thought that [the defendant] might want to talk to him"; (3) the detective contacted the defendant and told him he had talked with the defendant's mother; and (4) the defendant confirmed to the detective that he had talked with his mother and wanted to make a statement. Id. at 426.

         ¶ 25 The Van Hook majority explained that "permitting a suspect to communicate a willingness and a desire to talk through a third party is consistent with the interest protected by Edwards, " which is preventing the police from "badgering defendants into waiving their asserted right to counsel through repeated questioning." Id. at 420 (citation omitted). Prohibiting a suspect from initiating discussions with the police through a third party would create "an artificial rule" not required by the Fifth Amendment, which is "not concerned with moral and psychological pressures to confess emanating from sources other than official coercion, " such as pressure from "friends or family members who convince [suspects] to talk with the police." Id. at 420-21 (citation omitted).

         ¶ 26 Noting the "importance of admissions of guilt in our criminal-justice system, " the majority emphasized that "[c]ourts must not create 'wholly irrational obstacles to legitimate police investigative activity.'" Id. at 421 (quoting Davis v. United States, 512 U.S. 452, 460 (1994)).

         ¶ 27 Like Van Hook, decisions from other jurisdictions have held that allowing reinitiation through a third party does not violate Edwards because "the police are still prohibited from reinitiating questioning, and the impetus for reinitiation must still come from [the suspect]." Williams, 31 So.3d at 683; see also Michaud, 268 F.3d at 737 ("Edwards and its progeny establish a clear line preventing police initiation. By the same token, however, these cases recognize that the [suspect] may change [his] mind and initiate communication. It is a factual question whether that is what occurred.").

         ¶ 28 The seven dissenting judges in Van Hook would have held that only the suspect's (or his attorney's) direct communication with the police may reinitiate discussions after he has invoked his right to counsel. 488 F.3d at 428 (Cole, J., dissenting). The dissent argued that "[i]n addition to eviscerating Edwards, the majority's holding deviates from the clear import of the . . . Court's jurisprudence on custodial interrogations" by "endors[ing] the counter-intuitive proposition that we may treat a suspect as willing to talk to the police despite his silence to the police." Id. at 429-30.

         ¶ 29 The dissent also noted that because a suspect cannot invoke his right to counsel through a third party and "a proper initiation . . . is indispensable to finding a valid waiver" of the right to counsel, the majority's holding created a "paradox": "[a] third party who could not invoke the [suspect's] right to counsel may nonetheless play a crucial role in bringing about the waiver of that right." Id. at 435.

         ¶ 30 The Van Hook dissent further emphasized that the majority's holding eroded the "'bright-line' quality of the Edwards rule" that the Court has cited as one of its chief benefits: "[t]he merits of the Edwards decision . . . lies in the clarity of its command and the certainty of its application." Id. at 430-32 (alteration in original) (quoting Minnick v. Mississippi, 498 U.S. 146, 151 (1990)). According to the dissent, because of the potential uncertainty and complexity in determining whether a third party's communication to the police constitutes a reinitiation by the suspect, the "hallmark 'clarity' and 'certainty of [] application' of the Edwards rule [would] be lost" under the majority's rule. Id. at 432, 434-35 (alteration in original) (quoting Minnick, 498 U.S. at 151).

         ¶ 31 We believe the majority's analysis in Van Hook (and the other federal and state cases) holding that, at least under some circumstances, reinitiation may occur through a third party is compelling, and we apply that rule here.

         ¶ 32 In so doing, we reject defendant's argument that the Court's language that reinitiation occurs only if "the [suspect] himself initiates further communication, exchanges, or conversations with the police, " Edwards, 451 U.S. at 485 (emphasis added), means literally that only the suspect may communicate to the police that he wants to talk.

         ¶ 33 The Court in Edwards attempted to ensure that any statement made by a suspect during custodial interrogation was "not the result of coercive pressures" by "prevent[ing] police from badgering [the suspect] into waiving his previously asserted Miranda rights." Minnick, 498 U.S. at 150-51 (citation omitted); see also Van Hook, 488 F.3d at 420. Edwards is based on the presumption that after a suspect's invocation of the right to counsel, "any subsequent waiver that has come at the authorities' behest, and not at the suspect's own instigation, is itself the product of the 'inherently compelling pressures' [of custody and interrogation] and not the purely voluntary choice of the suspect." Maryland v. Shatzer, 559 U.S. 98, 104-05 (2010) (citation omitted).

         ¶ 34 But if a suspect reinitiates discussions with the police by asking a third party to inform the police that he wants to talk, there is no reason to assume that his subsequent waiver of the right to counsel was the result of coercive pressures or the badgering of the police. Under these circumstances, the suspect "evince[s] a willingness and a desire for a generalized discussion about the investigation, " Martinez, 789 P.2d at 422 (citation omitted), and subsequent police interrogation does not violate Edwards.

         ¶ 35 Nonetheless, not all third-party communications to the police regarding whether the suspect will talk to them constitute "reinitiation" under Edwards. The Van Hook majority, 488 F.3d at 424-25, held that reinitiation of police discussions through a third party occurs "[w]hen the police receive information that a suspect wants to talk; when there is a sufficient basis for believing its validity; and when the police confirm with the suspect the validity of that information."

         ¶ 36 We believe we can maintain Edwards' "'clear and unequivocal' guidelines to the law enforcement profession, " Minnick, 498 U.S. at 151 (citation omitted), by applying a reasonableness standard to the Van Hook majority's test for third-party reinitiation. Because "[t]he reasonableness standard provides law enforcement with a well-defined, common sense rule, " the Court frequently applies the concept of a "reasonable police officer" in its Fifth Amendment jurisprudence. People v. Arroya, 988 P.2d 1124, 1131 (Colo. 1999) (citing Davis, 512 U.S. at 461).

         ¶ 37 For instance, the Court held in Davis that to invoke the right to counsel during custodial interrogation, a suspect must "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." 512 U.S. at 459 (emphasis added). The Court explained that "[t]o avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry." Id. at 458-59.

         ¶ 38 Using this familiar "objective standard of a reasonable police officer under the circumstances" concept, Arroya, 988 P.2d at 1131, in conjunction with the Sixth Circuit's concept of "a sufficient basis for believing [the] validity" of the third party's communication to the police, Van Hook, 488 F.3d at 425, provides the protection necessary to avoid any evisceration of Edwards.

         ¶ 39 We thus hold that to establish that a suspect has reinitiated discussions with the police after previously invoking his right to counsel, the prosecution must show that (1) the police reasonably believed that the suspect directed a third party to inform them that he wanted to have "a generalized discussion about the investigation, " Martinez, 789 P.2d at 422 (citation omitted); and (2) the police confirmed with the suspect that he had so indicated.

         ¶ 40 Both prongs of this test must be proven to establish reinitiation. If the prosecution does not sufficiently establish the first prong, the fact that the suspect may have agreed to talk to a police officer after the officer "confirmed" the suspect's willingness to talk does not cure this failure. Once the police contact the suspect, some of the protection of Edwards is already lost. Without sufficient reinitiation by the suspect, we cannot assume that the suspect's ultimate agreement to talk to the police is voluntary and not the result of the police "tak[ing] advantage of the mounting coercive pressures of 'prolonged police custody' by repeatedly attempting to question a suspect who previously requested counsel until the suspect is 'badgered into submission.'" Shatzer, 559 U.S. at 105 (citations omitted).

         ¶ 41 Regarding the third party's representations of the content of the suspect's communication with the third party, the prosecution must establish that the suspect's "comments . . . 'evince[d] a willingness and a desire for a generalized discussion [with the police] about the investigation.'" Martinez, 789 P.2d at 422 (quoting Bradshaw, 462 U.S. at 1045-46).

         D. Application

         1. Additional Facts

         ¶ 42 The evidence at the suppression hearing consisted of testimony by the detective who conducted both interviews with defendant. The detective testified that after the victim's forensic interview, the police obtained a search warrant for defendant's house and informed defendant during the search that the warrant was based on some suspicions that he had engaged in inappropriate activity or conduct on the Internet. During the execution of the warrant, the police found a handgun. Because defendant had a prior felony conviction, the detective asked defendant and his wife to come to the police station to discuss the gun.

         ¶ 43 The detective testified that the nature of the interview with defendant at the police station was, "[i]nitially, to discuss the finding of the weapon and him being a previous offender." He advised defendant of his Miranda rights, and defendant said that he understood them. He then asked defendant if he wished to talk to him, and defendant replied that he did not. Defendant then requested counsel and the interview ended, at which point defendant was arrested and taken into custody on the weapon offense.

         ¶ 44 Regarding the events that led up to the interview two days later at the jail, the detective testified that a Department of Human Services (DHS) caseworker had been in contact with defendant's wife regarding interviewing the couple's children. The detective testified that he had learned from the caseworker that "[defendant] and [defendant's wife] had questions." According to the detective's testimony, he called defendant's wife, and "[i]n conjunction with that phone call, he learned that both [defendant] and [defendant's wife] had questions about the investigation."

         ¶ 45 At the suppression hearing, the following colloquy between the prosecutor and the detective occurred:

Q. [Prosecutor:] Okay. So I want to talk to you, then, about the conversation that you had with [defendant's wife] where she's indicating that [defendant and his wife] had some questions. What did she say to you to indicate that there were some additional questions about the investigation?
A. [Detective:] It was centered around the basis for the police department and DHS still being involved with them and the children and the reasons behind forensic interviews and justifications for that.
Q. And how did [defendant's wife] indicate to you that [defendant] wanted to speak to you as well about these issues?
A. I don't recall her exact words, but I had the understanding that she had been in conver --she had been in contact with [defendant]. And [the DHS caseworker] advised me that they - [both defendant and his wife] had questions about the investigation and the reasons why we were still involved specifically with the children.
. . .
Q. So the information that you had received was that [defendant's wife] had been in contact with [defendant] and that they had some questions about -- both of them separately had some questions about what was going on with the investigation with regard to the children; is that correct?
A. Correct.

         ¶ 46 On cross-examination, the detective confirmed he had received the information from not only the caseworker but also defendant's wife: "Q[:] [At] [s]ome point you receive information, between June 6th and June 8th, from -- directly from [defendant's wife] or through a third party that [defendant] wanted to -- was willing to speak to you about some questions he had? A[:] Both."

         ¶ 47 The detective testified consistently on this point, stating during redirect examination that he made defendant aware, during the first interview, "that there was some interest in an Internet investigation or something related to the Internet." The following then took place:

Q. And it was after that time and after he had that awareness or you had made those statements that you received information that he wanted to speak with you?
A. Correct.
Q. And that information, again, came from [defendant's wife]?
A. Correct.

         2. Analysis

         ¶ 48 In our view, the detective had a reasonable basis for believing that defendant had directed his wife (and also the caseworker) to inform the detective that defendant wanted to have a generalized discussion about the investigation. He knew that defendant and defendant's wife were married, had previously been in contact with both of them, and understood that they had been in contact with one another after the first interview. The detective's testimony was clear that defendant's wife informed him that defendant had questions about the investigation. Further, the detective knew the DHS caseworker had also been in contact with defendant after the first interview, and she also informed him that both defendant and his wife had questions about the investigation.

         ¶ 49 Turning to the second step - whether the police confirmed the information with the suspect - the detective testified that after learning that defendant had questions about the investigation, he called defendant at the jail and confirmed that defendant indeed desired to speak with him:

Q. And when you made a phone call to talk to him, your testimony previously was you said you received information that he wanted to speak with you?
A. Correct.
Q. And he confirmed that that was, in fact, the case?
A. Correct.
. . .
Q. But you initiated that contact because [defendant's wife] said, "He wants to talk to you"?
A. Correct.

         ¶ 50 We conclude that defendant "adequately evinced a willingness and a desire to" reinitiate communication with the police through a third party because the detective received information that defendant had questions about the investigation, there was a reasonable basis for believing the validity of that information, and the detective ...

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