Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA202
Attorneys for Petitioner: Megan A. Ring, Public Defender
Katherine Brien, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
Gabriel P. Olivares, Assistant Attorney General Denver,
¶1 "[O]urs is an accusatorial and not an
inquisitorial system-a system in which the State must
establish guilt by evidence independently and freely secured
and may not by coercion prove its charge against an accused
out of his own mouth." Rogers v. Richmond, 365
U.S. 534, 541 (1961). For this reason, "convictions
following the admission into evidence of confessions which
are involuntary, i.e., the product of coercion, either
physical or psychological, cannot stand." Id.
Yet Detective Paul Patton coerced Matthew Ryan Cardman into
making a confession, and the prosecution then used that
confession as evidence against Cardman to convict him of
multiple sex offenses. Defense counsel filed a pretrial
motion to suppress Cardman's statements but neglected to
challenge the voluntariness of those statements. Had counsel
advanced a voluntariness claim, this case might not be before
us today. But because counsel neglected to do so, the trial
court did not rule on it, and a division of the court of
appeals declined to review its merits, concluding that
Cardman waived it by failing to raise it in the trial court.
We disagree with the division and therefore reverse.
For the reasons articulated in Phillips v. People,
2019 CO 72, ___ P.3d ___, a companion case we announce today,
we hold that the voluntariness claim was forfeited, not
waived, and is thus subject to plain error review. Upon
conducting such review, we conclude that the court erred in
admitting Cardman's statements at trial and that the
error rises to the level of plain error requiring reversal.
Accordingly, we remand to the court of appeals with
instructions to return the case to the trial court for a new
Facts and Procedural History
A.W., a seven-year-old child, lived with her mother, A.B.,
and Cardman, A.B.'s boyfriend. Although A.B. and Cardman
broke up, they continued to live together. Even after the
breakup, A.B. routinely left A.W. in Cardman's care while
she worked night shifts as a nurse. This arrangement
continued until A.B. married another man. During the ensuing
years, A.W. complained about chronic nightmares, inability to
sleep, and stomachaches. A.W. eventually told her stepfather
that Cardman had sexually abused her on several occasions
while her mother was at work. Her stepfather then informed
A.B., who called the police. Cardman was later arrested.
As part of his investigation into A.W.'s allegations,
Detective Patton conducted an audio-recorded interview of
Cardman at the jail. Cardman initially denied the
allegations. However, after the detective made certain
promises, Cardman incriminated himself. Below are excerpts
from the interview reflecting such promises:
DETECTIVE: [After a suspect invokes his right to counsel],
[o]ur department policy asks that we wait twenty-four hours
before we 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
really just want to make sure that this stuff didn't
happen as much as she's talking about. . . .
Let's turn your life around right now today. Because we
can-if we can provide an explanation to help this go away for
CARDMAN: I would love that.
DETECTIVE: Okay, so then let's fix that. Let's fix
that. Because right now, it's not going away. . . .
[M]aybe you could meet [A.W.] 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.
CARDMAN: I would love that, you have no idea.
DETECTIVE: Then let's do it. . . .
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 [sound of paper shuffling] and go home on my
Friday, do you understand?
CARDMAN: Yeah well, believe me.
DETECTIVE: I'm trying to paint the picture, man.
CARDMAN: If I can get this all figured out, closed out, dealt
with, I can go home tomorrow.
DETECTIVE: Let's do it.
CARDMAN: Believe me, that's what I want to do.
DETECTIVE: And if I can help with any of that here,
I'd-you're damn skippy. . . .
Because I honestly think if you can provide some sort of
corroboration and some answers, maybe even an apology or a
quick sorry for whatever it is, and I give that to [A.W.], I
think that would go away. . . .
What we don't want to hear is that Ryan Cardman wakes up
over here every day and lusts for the sexual contact with a
kid. And there's fifty, sixty times like what's
she's saying. We don't want to hear that.
DETECTIVE: But what is explainable and what people understand
is . . . it 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. And 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.
end of the interrogation, Cardman confessed to several
instances of unlawful sexual contact with A.W.
The prosecution later charged Cardman with eight offenses
related to three incidents of sexual assault. Before trial,
Cardman moved to suppress his confession based on his rights
to counsel and to remain silent. Cardman argued that: (1) two
days before the interview, he invoked his right to counsel
and informed the detective that he did not wish to answer
questions; (2) the detective nonetheless interviewed him at
the jail after a third party allegedly indicated that Cardman
had changed his mind and wanted to speak with law
enforcement; and (3) he never contacted law enforcement
directly or asked anyone to contact law enforcement on his
behalf. Following a suppression hearing, the trial court
denied Cardman's motion. However, it did so without
reviewing the audio-recorded interview because neither party
requested its admission into evidence at the hearing. The
case proceeded to trial, and a jury returned guilty verdicts
on all the charges brought against Cardman. The trial court
then imposed an indeterminate prison sentence with a minimum
term of twelve years and a maximum term of the rest of
On appeal, Cardman challenged the trial court's ruling
that Detective Patton had not violated his rights to counsel
and to remain silent. But he also raised a two-part
voluntariness claim that he had not advanced at the trial
court-he asserted that the trial court reversibly erred when
it admitted his statements without first determining (1)
whether they were voluntarily made and (2) whether he was
entitled to specific performance of the detective's
promises. People v. Cardman, 2016 COA 135, ¶
71, ___ P.3d ___, judgment vacated by Cardman v.
People, 2017 WL 1369883 (Colo. Apr. 10, 2017). In a
split decision, a division of the court of appeals declined
to address the merits of the unpreserved voluntariness claim,
concluding that Cardman had waived it by failing to raise it
in the trial court. Id. at ¶¶ 60-84. In
his dissent, Judge Berger reasoned that Cardman merely
forfeited the claim, which rendered it reviewable for plain
error. Id. at ¶¶ 123-44 (Berger, J.,
dissenting). We granted Cardman's petition for
certiorari, vacated the division's opinion, and ordered a
limited remand so the division could reconsider its waiver
ruling in light of our recent decision in Reyna-Abarca v.
People, 2017 CO 15, 390 P.3d 816. On remand, the
same division issued another split decision. People v.
Cardman, 2017 COA 87, ___ P.3d ___. The majority stood
by its previous waiver determination, id. at
¶¶ 20-24, while Judge Berger again asserted that
Cardman's unpreserved claim was forfeited, not waived,
and therefore subject to plain error review, id. at
¶¶ 80-100 (Berger, J., dissenting).
Cardman again petitioned for certiorari review, and we
granted his petition.
Cardman maintains that the division erred in concluding that
he waived his unpreserved claim. The prosecution disagrees
and urges us to affirm the division's judgment. For the
reasons set forth in Phillips, which relies on
People v. Rediger, 2018 CO 32, 416 P.3d 893, we hold
that Cardman's voluntariness claim was forfeited, not
waived, and is subject to plain error review. Undertaking such
review, we conclude that Cardman's statements were
involuntary and that the trial court plainly erred in
admitting them into evidence. Therefore, we reverse the
division's judgment and remand with instructions to
return the case to the trial court for a new
Cardman Forfeited His Voluntariness Claim
A waiver requires evidence of an "intentional
relinquishment of a known right or privilege."
Phillips, ¶ 16 (quoting Rediger,
¶ 39, 416 P.3d at 902). "When an intentional
relinquishment of a known right is not present, then 'the
failure to make the timely assertion of a right' is a
forfeiture, not a waiver." Id. at ¶ 17
(quoting Rediger, ¶ 40, 416 P.3d at 902). Thus,
while waiver requires "intent," forfeiture occurs
"through neglect." Id. (quoting United
States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th
Applying our holding in Phillips, see id.
at ¶¶ 16-38, we conclude that Cardman did not waive
his voluntariness claim. There is no evidence that defense
counsel intended to relinquish Cardman's right to
challenge the admissibility of the confession, including on
voluntariness grounds. The record is barren of any indication
that defense counsel considered raising the unpreserved claim
before the trial court but then, for strategic or any other
reason, discarded the idea. Given that Cardman's counsel
clearly (and understandably) wanted the confession excluded
from the trial, what benefit could he have obtained from his
failure to present an additional ground to contest
its admissibility? None comes to mind. We are equally hard
pressed to think of any strategic advantage he could have
gained by refraining to raise an argument that should have
convinced the trial court to suppress what was "probably
the most probative and damaging evidence" that could be
admitted against Cardman. See Arizona v. Fulminante,
499 U.S. 279, 296 (1991) (quoting Bruton v. United
States, 391 U.S. 123, 139 (1986) (White, J.,
dissenting)). Inasmuch as defense counsel asked the trial
court to suppress Cardman's statements, there is no basis
to believe that he decided against raising the voluntariness
issue for strategic or other reasons.
But the People nevertheless argue that Crim. P. 41(g) compels
a finding of a waiver here. As we explain in
Phillips, we are unpersuaded. See Phillips,
¶¶ 23-37. Rule 41(g) generally requires that a
motion to suppress statements "be made and heard before
trial," though it permits "the court, in its
discretion," to entertain the motion at trial. Thus,
unlike its federal counterpart, Fed. R. Crim. P. 12(c)(3),
which permits a court to consider any time after trial
commences, including on appeal, untimely suppression
issues, the scope of Rule 41(g) is limited to a court's
ability to consider such issues at trial. "We
do not infer from our [rule's] silence regarding
post-trial proceedings that [its] drafters intended to treat
as 'waived' any untimely suppression issues raised
for the first time on appeal." Id. at ¶
The People insist, though, that when a statute or rule
includes procedural requirements, defense counsel's
failure to comply with them must be deemed a waiver because
attorneys are presumed to know procedural rules. We are
unpersuaded. The People's position is not supported by
Rediger and would lead to absurd results.
The waiver/forfeiture distinction we drew in Rediger
did not turn on whether defense counsel was required to raise
the unpreserved appellate claim by a procedural rule or by
substantive law. Nowhere in Rediger did we discuss
the difference between procedural and substantive legal
Moreover, distinguishing between procedural rules and
substantive law to determine whether a claim is waived or
forfeited makes little sense. For example, as relevant here,
Rule 41(g) sets forth the procedures for raising suppression
issues related to a statement. But no one would dispute that,
since a criminal defense attorney has an ethical obligation
to zealously represent his client, he is required to raise
such issues before trial when doing so is warranted by Fifth
Amendment jurisprudence. In other words, if Rule 41(g)
didn't exist, defense counsel would still have a duty to
advance appropriate Fifth Amendment arguments to attempt to
exclude certain statements from trial. Yet, the People would
have us hold that a defense attorney's failure to comply
with a procedural rule always amounts to a waiver, but a
defense attorney's failure to comply with substantive law
can be a forfeiture when such failure is not an intentional
relinquishment of a known right. The People forget that
attorneys are also presumed to know substantive law. As in
Phillips, we see no basis to create a Rule 41(g)
exception to Rediger.
This is not to say that there aren't compelling reasons
for the procedures outlined in Rule 41(g). Nor should we be
understood as minimizing the importance of compliance with
that rule. But the question we confront today is neither
whether the rule should be in place nor whether requiring
that suppression contentions be timely raised before trial is
truly necessary. The issue we address is whether an appellate
court should be allowed to review for plain error when
defense counsel negligently fails to raise a suppression
assertion at the trial court. Consistent with
Rediger, we answer yes.
We acknowledge that our waiver determination in
Hinojos-Mendoza v. People, 169 P.3d 662 (Colo.
2007), does not align with this conclusion. However, as we
observe in Phillips, Hinojos-Mendoza has
been supplanted by Rediger. See Phillips,
¶¶ 30, 32-33.
Adhering to Rediger, we conclude that the failure by
Cardman's counsel to raise the voluntariness claim in the
trial court, without more, is not sufficient to allow us to
infer that he intended to waive it. The mere failure to raise
an issue neither amounts to "the type of unequivocal act
indicative of a waiver" nor constitutes "the type
of conduct that clearly manifest[s] any intent . . . to
relinquish [the] claim." Dep't of Health v.
Donahue, 690 P.2d 243, 247 (Colo. 1984). In
Rediger, we declined to infer an intentional
relinquishment of a known right from defense counsel's
acquiescence to an erroneous jury instruction tendered by the
prosecution. Rediger, ¶ 41, 416 P.3d at 902.
Instead, we indulged "every reasonable presumption
against waiver." Id. at ¶ 46, 416
P.3d at 903 (quoting People ...