Petition for Rehearing Denied August 19, 2019
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Certiorari to the Colorado Court of Appeals, Court of Appeals
Case No. 14CA202
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,
"[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.
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 Cardmans 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, 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 Cardmans 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
I. 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 Cardmans 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 weve uncovered, can
you explain some things? There is some gray area, ... and I
really just want to make sure that this stuff didnt happen
as much as shes talking about. ...
Lets 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 lets fix that. Lets fix that.
Because right now, its 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 lets do it. ...
We both know where you wanna go in life and with your wife
and church and everything. Im not here to hang you, Im not
here to beat you up today. Im here to do this [sounds of
paper shuffling]. At the end of this sentence, I put this in
a drawer. And I cant do that if you tell me that you had sex
with this girl fifty, sixty times, Im 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: Im 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: Lets do it.
CARDMAN: Believe me, thats what I want to do.
DETECTIVE: And if I can help with any of that here,
Id— youre 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 dont want to hear is that Ryan Cardman wakes up over
here every day and lusts for the sexual contact with a kid.
And theres fifty, sixty times like whats shes saying. We
dont 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 dont understand is this guy over here who wakes up
every day to wait til shes alone, til youre alone, to do
those things. That guy is the one were worried about. And
thats the guy that we try to send to prison and to lock up
and thats what I want to eliminate here today. And, Ryan, I
dont think youre 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 Cardmans 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 Cardmans
On appeal, Cardman challenged the trial courts 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 detectives 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 Cardmans
petition for certiorari, vacated the divisions 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 Cardmans 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 divisions judgment. For the
reasons set forth in Phillips, which relies on
People v. Rediger, 2018 CO 32, 416 P.3d 893, we hold
that Cardmans voluntariness claim was forfeited, not waived,
and is subject to plain error review. Undertaking such
review, we conclude that Cardmans statements were
involuntary and that the trial court plainly erred in
admitting them into evidence. Therefore, we reverse the
divisions judgment and remand with instructions to return
the case to the trial court for a new trial.
A. 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 Cir. 2007)).
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 Cardmans 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 Cardmans counsel
clearly (and understandably) wanted the ...