County District Court No. 12CR2114 Honorable Robert L.
Cynthia H. Coffman, Attorney General, Gabriel P. Olivares,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Katherine
Brien, Deputy State Public Defender, Denver, Colorado, for
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No. 16SC789, Apr. 10, 2017) (unpublished order).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
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.
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
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.
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?
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).
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.
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 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.
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 reliable and clear-cut determination that
the confession was in fact voluntarily rendered."
Lego v. Twomey, 404 U.S. 477, 489 (1972).
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 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 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 and that's what I want to eliminate
here today. And, Ryan, I don't think you're that
Whether to Review Unpreserved Voluntariness Challenges for
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
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, however, because we
concluded that defendant had waived his right to a hearing on
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 amount to an objection regarding defects
in the charging document." Reyna-Abarca, ¶
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. 725,
733 (1993)). And, unlike a right that is merely forfeited,
"there is no appeal from a waived right."
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 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). 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
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
35 Notably, in Wainwright, the Supreme Court
explicitly rejected the very argument defendant makes here:
Respondent also urges that a defendant has a right under
Jackson v. Denno to a hearing as to the
voluntariness of a confession, even though the defendant does
not object to its admission. But we do not read
Jackson as creating any such requirement. In that
case the defendant's objection to the use of his
confession was brought to the attention of the trial court,
and nothing in the Court's opinion suggests that a
hearing would have been required even if it had not been. To
the contrary, the Court prefaced its entire discussion of the
merits of the case with a statement of the constitutional
rule that was to prove dispositive that a defendant has a
"right at some stage in the proceedings to object to the
use of the confession and to have a fair hearing and a
reliable determination on the issue of voluntariness . . .
." Language in subsequent decisions of this Court
has reaffirmed the view that the Constitution does 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.
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 ...