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People v. Cardman

Court of Appeals of Colorado, Fifth Division

June 29, 2017

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 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 No. 16SC789, Apr. 10, 2017) (unpublished order).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.

         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.

          ¶ 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).

          ¶ 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 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 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 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 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, 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 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. 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 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 allowed).[3]

          ¶ 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:

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 ...

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