Cardman v. People

          Petition for Rehearing Denied August 19, 2019

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          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, Colorado

         OPINION

         SAMOUR, JUSTICE.

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         [¶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, 81 S.Ct. 735, 5 L.Ed.2d 760 (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. at 540.

         [¶2] 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.

         [¶3] For the reasons articulated in Phillips v. People, 2019 CO 72, 443 P.3d 1016, 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 trial.

          I. Facts and Procedural History

         [¶4] 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.

         [¶5] 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 you—

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,

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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.

CARDMAN: No.

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.^[1]

          At the end of the interrogation, Cardman confessed to several instances of unlawful sexual contact with A.W.

         [¶6] 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 Cardman’s life.

         [¶7] 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.

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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.^[2] 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).

         [¶8] Cardman again petitioned for certiorari review, and we granted his petition.^[3]

          II. Analysis

         [¶9] 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.^[4] 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 trial.^[5]

          A. Cardman Forfeited His Voluntariness Claim

         [¶10] 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 Cir. 2007)).

         [¶11] 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 ...