COLORADO COURT OF APPEALS                                        2017COA87


Court of Appeals No. 14CA0202
El Paso County District Court No. 12CR2114
Honorable Robert L. Lowrey, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ryan Matthew Cardman,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division V
                          Opinion by JUDGE ROMÁN
                         Bernard, J., specially concurs
                              Berger, J., dissents

                          Announced June 29, 2017


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
¶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 Apr. 10, 2017) (unpublished order).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


                                    1
 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.


                                   2
¶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).


                                   3
¶ 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


                                     4
  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


                                     5
  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


                                     6
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


                          7
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




                            8
              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,




  1 There is no transcript of the interview in the record, and the audio
  recording is very difficult to understand. The excerpts quoted are
  our best approximation of what was said based on the audio
  recording.

                                     9
  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


                                    10
  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.




                                    11
  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




  2 “Invited error is akin to waived error. Invited error obviously
  should not be reviewable for plain error.” People v. Greer, 262 P.3d
  920, 937 n.7 (Colo. App. 2011) (J. Jones, J., specially concurring)
  (citations omitted).

                                    12
  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).


                                    13
  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



  3 Moreover, were the trial court to sua sponte declare a mistrial,
  defendant would undoubtedly raise the issue of double jeopardy.
  People v. Espinoza, 666 P.2d 555, 558 (Colo. 1983) (“A mistrial
  declared without the consent and over the objection of the
  defendant invokes double jeopardy protection to bar retrial unless
  ‘manifestly necessary’ to preserve the public interest in a fair trial
  and a just verdict.”).

                                     14
¶ 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:


                                     15
            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.




                                     16
¶ 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 concurring) (“If a

  defendant in a criminal case waives an error in the trial court —

  i.e., intentionally relinquishes or abandons a known right — he

  waives any right to plain error review on appeal.”).

       V. Whether to Review Specific Performance Challenge for Plain
                                  Error

¶ 38     Reyna-Abarca did not foreclose the possibility of waiving the

  enforcement of alleged promises either. We likewise reject

  defendant’s contention that we must remand for a hearing on



                                     17
  whether defendant is entitled to specific performance of alleged

  promises made by the detective during the interview. This is the

  other side of the same coin as the voluntariness question. That is,

  what happens when the defendant, as in this case, does not timely

  seek to enforce alleged governmental promises?

¶ 39   We conclude that just as defendant waived his voluntariness

  claim arising from coercive promises by the police, so too did he

  waive his claim for a remedy for the alleged unkept promises. See

  also People v. Blessett, 155 P.3d 388, 397 (Colo. App. 2008)

  (declining to address the defendant’s claim for enforcement of an

  alleged governmental promise during an interview because it was

  not raised in trial court and would often require factfinding, which

  an appellate court may not undertake).

¶ 40   A defendant who reasonably relied on a governmental promise

  in making incriminating statements during a police interrogation

  may move for specific performance. Still, the court must fashion a

  remedy “that can secure substantial justice to the defendant and at

  the same time accommodate the legitimate interests of the

  government” — such as suppression of evidence rather than

  dismissal of charges. People v. Manning, 672 P.2d 499, 503, 512-13


                                   18
  (Colo. 1983); see also People v. Marquez, 644 P.2d 59, 62-63 (Colo.

  App. 1981) (affirming trial court’s determination that dismissal of

  case, although promised by police in exchange for cooperation in

  different case, was not appropriate and noting that “[a]greements to

  dismiss pending prosecutions, distinguished from plea bargains by

  the absence of any element of admission of guilt, often have been

  deemed contrary to public policy and, hence, unenforceable”).

¶ 41   Here, defendant cites no case requiring a trial court to sua

  sponte hold a hearing to determine, in this context, whether the

  defendant is entitled to specific performance of alleged promises

  made to the defendant by the police during an interview where he

  did not seek to enforce them prior to trial.

                             VI. Conclusion

¶ 42   The judgment is affirmed.

       JUDGE BERNARD specially concurs.

       JUDGE BERGER dissents.




                                    19
       JUDGE BERNARD, specially concurring.

¶ 43   I concur in full with the majority opinion. I write separately as

  far as Part IV of the majority opinion is concerned to provide

  additional reasons why I respectfully disagree with the dissent’s

  conclusion that we should review the voluntariness question for

  plain error.

                             I. Introduction

¶ 44   “[T]here are many valid reasons underlying the practice of

  requiring pretrial motions, which doubtless explains why so many

  jurisdictions now subscribe to that approach.” 6 Wayne R. LaFave,

  Search and Seizure: A Treatise on the Fourth Amendment § 11.1(a)

  (5th ed. 2014). These valid reasons include:

        avoiding “interruptions of a trial in progress with auxiliary

          inquiries,” United States v. Mauro, 507 F.2d 802, 806 (2d

          Cir. 1974);

        avoiding “the serious personal inconvenience to jurors and

          witnesses which would result from interruptions and delay

          once the jury had been selected and the trial had

          commenced,” id.;




                                   20
 avoiding “the necessity of declaring a mistrial because the

  jury has been exposed to unconstitutional evidence,” State

  v. Lawrence, 255 So. 2d 729, 732 (La. 1971);

 avoiding “the waste of prosecutorial and judicial resources

  occasioned by preparation for a trial” because “a trial could

  be avoided if a timely and successful motion were made in

  advance,” Mauro, 507 F.2d at 806;

 giving the defendant the opportunity to avoid a trial by

  pleading guilty and seeking concessions from the

  prosecution if the trial court denies the motion, see LaFave

  at § 11.1(a);

 giving the prosecution the opportunity to “change the theory

  of its case [in order] to develop or place greater reliance

  upon untainted evidence or otherwise to modify its trial

  strategy” if the trial court grants the motion, United States

  v. Sisca, 503 F.2d 1337, 1348 (2d Cir. 1974); and

 giving the prosecution the opportunity to pursue an

  interlocutory appeal before jeopardy has attached if the trial

  court grants the motion, see C.A.R. 4.1(a); People v.

  Traubert, 199 Colo. 322, 330, 608 P.2d 342, 348 (1980).

                            21
                             II. A General Rule

¶ 45   The general rule in Colorado is that “[a] defendant aggrieved by

  an alleged involuntary confession or admission made by him” shall

  file a motion to suppress it “before trial . . . .” Crim. P. 41(g). In

  concert with my observations in the introduction, the general rule

  promotes important policies. It “reduces trial inefficiencies by

  requiring the parties to criminal proceedings to pursue discovery

  vigorously prior to trial.” People v. Tyler, 874 P.2d 1037, 1039

  (Colo. 1994). And it “permits both the prosecution and the defense

  to prepare for trial with the benefit of enhanced knowledge of what

  evidence will and will not be introduced at trial.” Id. The supreme

  court thinks that these polices are so important that “parties to

  [criminal] proceedings must adhere to [the] requirements” of Crim.

  P. 41. Id. at 1040 (emphasis added).

¶ 46   Motions to suppress “should state with reasonable specificity

  the legal grounds upon which” they are based. People v. Jansen,

  713 P.2d 907, 912 n.8 (Colo. 1986). Such a specific statement “is

  necessary both to put the prosecution on notice of the contentions

  it must be prepared to meet at a suppression hearing and to inform

  the court of the issues to be decided.” Id.


                                      22
¶ 47    To make “meaningful appellate review” possible, a “trial court

  must make sufficiently clear and detailed findings of fact and

  conclusions of law on the record” before it “may rule that a

  confession is voluntary and admissible, or that it is involuntary and

  must be suppressed.” People v. McIntyre, 789 P.2d 1108, 1110

  (Colo. 1990). “By failing to present [his] claims” to the trial court,

  defendant in this case “effectively prevented the court from making

  factual findings that would be germane to the disposition” of those

  claims. United States v. Hamilton, 587 F.3d 1199, 1216 n.9 (10th

  Cir. 2009). And we obviously cannot make such factual findings on

  appeal. See People v. A.W., 982 P.2d 842, 852 (Colo.

  1999)(“Appellate courts are not empowered to make factual

  findings[.]”).

¶ 48    When a defendant does not file a motion to suppress, the

  prosecution “may justifiably conclude that it need not introduce the

  quality or quantity of evidence needed otherwise to prevail.” United

  States v. Chavez-Valencia, 116 F.3d 127, 132 (5th Cir. 1997);

  accord United States v. Burke, 633 F.3d 984, 990 (10th Cir. 2011);

  United States v. Rose, 538 F.3d 175, 182-83 (3d Cir. 2008). So, if

  we were to review defendant’s contention for plain error, the


                                     23
  prosecution would be “forced on appeal to rely on an

  underdeveloped record in defending itself from the suppression

  argument.” Rose, 538 F.3d at 182; accord Burke, 633 F.3d at 990;

  Chavez-Valencia, 116 F.3d at 132. This strikes me as manifestly

  unfair to the prosecution.

                   III. A Corollary to the General Rule

¶ 49   An oft-repeated corollary to the general rule breathes life into

  the policies that support it: An appellate court will not consider a

  suppression issue on appeal that was not raised in the trial court.

  See People v. Martinez, 200 P.3d 1053, 1055 n.1 (Colo. 2009);

  People v. Staton, 924 P.2d 127, 133 (Colo. 1996); Jansen, 713 P.2d

  at 912; People v. Cobb, 690 P.2d 848, 853 (Colo. 1984); People v.

  Gouker, 665 P.2d 113, 117-18 (Colo. 1983); People v. L.A., 199 Colo.

  390, 393, 609 P.2d 116, 118 (1980); People v. Greer, 262 P.3d 920,

  937 (Colo. App. 2011)(J. Jones, J., specially concurring); People v.

  Samuels, 228 P.3d 229, 238 (Colo. App. 2009); People v. Russom,

  107 P.3d 986, 991 (Colo. App. 2004); People v. Lee, 93 P.3d 544,

  547 (Colo. App. 2003); People v. White, 64 P.3d 864, 871 (Colo. App.

  2002); People v. Young, 987 P.2d 889, 893 (Colo. App. 1999); People

  v. Lucero, 985 P.2d 87, 91 (Colo. App. 1999).


                                    24
¶ 50   I think that Neighbors v. People, 171 Colo. 349, 356-58, 467

  P.2d 804, 808 (1970), describes why the corollary should apply to

  voluntariness issues. In that case, the supreme court first

  recognized the holding in Jackson v. Denno, 378 U.S. 368, 376-77

  (1964): “[W]henever voluntariness [of a defendant’s statement i]s an

  issue in the trial, there must be a hearing before the trial judge and

  a determination made on that issue.” Neighbors, 171 Colo. at

  356-57, 467 P.2d at 808.

¶ 51   But the court was “not prepared to say that the mere act of

  offering the statement into evidence is sufficient to raise an issue of

  its voluntariness.” Id. at 357, 467 P.2d at 808. Instead, “[t]he

  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.” Id. (emphasis added).

¶ 52   As a result, the court did “not agree with a philosophy which

  allows a defendant to get his theory of the case before the jury and

  then, if he is convicted, permits him to obtain a new trial on the

  grounds that evidence should not have been admitted.” Id. So,

  “[b]ecause voluntariness was never in any way or by any stretch of


                                    25
  the imagination made an issue in the case, there is no basis upon

  which the lower court could determine that issue” in a

  postconviction motion. Id. at 358, 467 P.2d at 808; accord People v.

  Sanchez, 180 Colo. 119, 122, 503 P.2d 619, 621 (1972).

¶ 53   Divisions of this court have subsequently applied the corollary

  directly to voluntariness issues. People v. Zadra, 2013 COA 140,

  ¶ 26, aff’d, 2017 CO 18; People v. Villarreal, 131 P.3d 1119, 1123

  (Colo. App. 2005), aff’d on other grounds, 2012 CO 64; People v.

  Vigil, 104 P.3d 258, 267 (Colo. App. 2004), aff’d in part and rev’d in

  part on other grounds, 127 P.3d 916 (Colo. 2006); People v. Salyer,

  80 P.3d 831, 835 (Colo. App. 2003).

                   IV. The Law in Other Jurisdictions

                             A. Other States

¶ 54   Some of our sister states have applied the corollary to the

  general rule to voluntariness issues, too. See, e.g., State v. Wilson,

  793 P.2d 559, 560 (Ariz. Ct. App. 1990)(“[T]here was no burden on

  the prosecution to show that the statements were made voluntarily

  since the issue was not before the court absent a filing of a

  procedurally proper suppression motion.”); State v. Burgess, 355

  P.3d 1287, 1289 (Idaho Ct. App. 2015)(noting that the issue


                                    26
  whether a statement was coerced should be raised by a motion to

  suppress before trial or it is waived); People v. Hills, 389 N.E.2d

  873, 876 (Ill. App. Ct. 1979)(“[A]ny question as to the voluntariness

  of a confession is waived if defendant does not raise the issue by

  motion to suppress or by objection at trial.”), aff’d and remanded,

  401 N.E.2d 523 (Ill. 1980); State v. Floyd, 347 S.W.3d 115, 123 (Mo.

  Ct. App. 2011)(the defendant waived his right to a Jackson-Denno

  hearing on the voluntariness of his statement because he did not

  file a pretrial motion).

                               B. Federal Law

¶ 55      Federal circuit courts of appeal are trying to figure out what a

  2014 amendment to Fed. R. Crim. P. 12(e) means. Before the

  amendment, the Rule read that a defendant waived any

  suppression issues that she did not include in a pretrial motion to

  suppress. See United States v. Soto, 794 F.3d 635, 648 (6th Cir.

  2015). The amendment removed the reference to waiver from the

  Rule.

¶ 56      Some courts think that the change means that appellate

  courts can review suppression issues that were not raised until




                                      27
  appeal for plain error. Id. at 655; United States v. Sperrazza, 804

  F.3d 1113, 1118-19 (11th Cir. 2015).

¶ 57   Other appellate courts will only review an unpreserved

  suppression issue if the defendant can show “good cause” why she

  did not file a pretrial motion to suppress. See United States v.

  Schropp, 829 F.3d 998, 1003-04 (8th Cir. 2016); United States v.

  Daniels, 803 F.3d 335, 351-52 (7th Cir. 2015).

¶ 58   The Tenth Circuit falls into the “good cause” category. In

  2011, a panel of that court held that the former waiver language in

  Fed. R. Crim. P. 12(e) “preclude[d] plain error review on appeal.”

  Burke, 633 F.3d at 991 n.2. The 2014 amendment has apparently

  not changed at least some of the judges’ minds. See United States

  v. Shrader, 665 F. App’x 642, 649 n.6 (10th Cir. 2016)(unpublished

  opinion); United States v. Franco, 632 F. App’x 961, 963 n.1 (10th

  Cir. 2015)(unpublished opinion). But see United States v.

  Garcia-Escalera, 632 F. App’x 942, 944 n.1 (10th Cir.

  2015)(unpublished opinion)(“We acknowledge the 2014 amendment

  might call into question Burke’s waiver analysis. But we need not

  resolve whether Burke remains good law because [the defendant]




                                    28
  doesn’t challenge the government’s assertion that the 2002 version

  of Rule 12 applies in this case.”).

¶ 59   I consider the “good cause” cases to be more persuasive. So, if

  I were to apply that standard in this case, defendant has not

  provided any explanation for why he did not include the issue of the

  voluntariness of his statements in his motion to suppress. Almost

  by definition, he has not shown good cause.

                   V. Problems Created by a Remand

¶ 60   I do not think that remanding the case to the trial court to

  hold a hearing, to make factual findings, and to reach legal

  conclusions is a viable remedy, either. The trial in this case ended

  with a guilty verdict in early November 2013, so we would be asking

  the trial court and the parties to return to an issue that is now

  three-and-one-half years old. I question whether, after this length

  of time, a remand would be evidentially profitable: memories dim

  with the passage of time; evidence deteriorates or gets lost;

  witnesses die or move away; and victims may be forced to once

  again confront events that they wish to put behind them. See

  United States v. Mechanik, 475 U.S. 66, 72 (1986)(discussing the

  “substantial social costs” of reversing a conviction); People v.


                                        29
  Sepulveda, 65 P.3d 1002, 1008 (Colo. 2003)(same). Our supreme

  court cautioned us to avoid “sua sponte review and remand when,

  given the passage of time, there is no reasonable possibility that the

  trial court could develop a better record upon which to proceed.”

  Moody v. People, 159 P.3d 611, 617 (Colo. 2007). I respectfully

  submit that this is one of those cases.

        VI. The Proper Approach to the Problem: Crim. P. 35(c)

¶ 61   If we were to evaluate the question of whether defendant’s

  statement was involuntary in this direct appeal employing plain

  error review, we could not answer the related question of why

  defense counsel did not file a motion to suppress. The related

  question is an important one to answer because it is wrapped up in

  the issue of whether the voluntariness of defendant’s statement is

  properly before us. It is wrapped up in that issue because the

  voluntariness of the statement may be irrelevant if defense counsel

  deliberately chose not to file a suppression motion for a sound

  strategic reason.

¶ 62   I think that figuring out why defense counsel did not file a

  motion to suppress is a foundational question that we must answer

  before we can move on to resolving the voluntariness question, but


                                    30
  we do not now have a complete picture of the facts that are

  necessary to answer the foundational question. And, if we ignore

  the foundational question and proceed to employ plain error review

  to resolve the voluntariness question without a complete factual

  picture, we risk reversing a conviction even though defense counsel,

  perhaps after consulting with his client, may have wanted the jury

  to hear defendant’s statement.

¶ 63   In other words, if an attorney deliberately chooses not to file a

  motion to suppress, thereby intentionally denying a trial court the

  opportunity to rule on the voluntariness of a defendant’s statement,

  then the true issue that we should be resolving is whether the

  attorney was ineffective. We cannot decide that issue on direct

  appeal. See Ardolino v. People, 69 P.3d 73, 77 (Colo.

  2003)(“[D]efendants have regularly been discouraged from

  attempting to litigate their counsels’ effectiveness on direct

  appeal.”). Rather, it should be resolved in the context of a Crim. P.

  35(c) proceeding. See id.

¶ 64   Attorneys may have good reasons, bad reasons, or no reason

  at all for why they do not file motions to suppress statements. But

  we cannot, on direct appeal, evaluate the merit or demerit of such


                                    31
  reasons because this is one of those “situations in which facts

  outside the record [are] critical” to the analysis. See Moore v.

  People, 2014 CO 8, ¶ 13. Even if we might, on first blush, think

  that an attorney’s decision not to file a motion to suppress a

  defendant’s statement was “seemingly unusual or misguided,” the

  trial record probably will “not reflect whether [an attorney] had a

  sound strategic motive or took the action because his alternatives

  were even worse.” Ardolino, 69 P.3d at 77. Indeed, an attorney’s

  “reasons for omissions are even less likely to be reflected in the trial

  record.” Id.

¶ 65   Why, one might ask, would defense counsel in this case want

  the jury to hear that defendant admitted that he had twice placed

  the victim on his lap; that he had twice ejaculated; and that he had

  touched her vaginal area on one of those occasions? Defense

  counsel’s reason for not filing a motion to suppress could have

  been: “I wanted to use what the detective said during the statement

  to defendant’s advantage. I wanted to put the detective’s

  investigation on trial in the hope that I could convince the jury that

  he had put damning words into defendant’s mouth.”




                                     32
¶ 66   This is not a far-fetched possibility because defense counsel

  did just that. During closing argument, he referred to the

  detective’s “inappropriate technique” and to his use of “deception”

  to “try to get [defendant] to open up.” But defendant kept denying

  responsibility for the crime, so the detective “had to take it to the

  next level.”

¶ 67   Defense counsel then pounced. He focused on inconsistencies

  between the detective’s trial testimony about the promises that the

  detective had made to defendant and the detective’s comments in

  the tape recording of defendant’s statement about those promises.

  Defense counsel played several excerpts from the tape, and he

  repeatedly told the jury that it should listen to the tape.

             [The detective] told you at the very end [of his
             testimony] that, “I never told him he could go
             home.” But you heard the audio. You know
             that’s not true. You know that’s what he
             implied – strongly implied, and . . . any
             reasonable person would infer it that way.

             He testified he never implied that [defendant]
             would go home if he said he did something
             small, . . . if something happened maybe less
             than five or six times. That’s not true. These
             are [the detective’s] words:

             (Excerpt of audio recording played.)



                                     33
He understands. What he understands is: “You
get to go home on Friday, so do I.”

....

(Excerpt of audio recording played.)

....

And you all remember during the . . .
cross-examination of [the detective], when I was
playing that recording, what [defendant] said, “I
can deal with this today and tomorrow I can go
home?” [The detective] says, “Let’s do it.”

Here’s the thing, ladies and gentlemen: This
recording will be yours. Listen to it. Don’t take
my word. Don’t take the district attorney’s
word. Don’t take [the detective’s] word about
what he says is in there. Listen to the
recording.

....

The district attorney has told you that . . .
what [defendant] confessed to came out of his
own head. It was just happenstance that it
matched [the victim’s] statement, that nobody
said that to him at all. I disagree. If you listen
to the recording, what [defendant] confesses to
was something that was fed to him by that man
[the detective].

When . . . it didn’t fit with [the detective’s]
theory, he said, “I don’t believe you.” When it
did, he said, “Good job. Good job. You’re
doing heroic. We’re 97 percent of the way
there. Just a – little bit more.”



                       34
....

What [the detective] does is akin to a feeding
frenzy. “I’m going to give you everything you
need to confess. All you have to do is
remember what I said and go with it.”

....

Listen to what [the detective] tells this man
before he gives his supposed confession.

(Excerpt of audio recording played.)

....

Everything that [the detective] wanted to hear
he fed to [defendant], everything.

....

[The detective] used not so veiled threats, fed
[defendant] the lines and subtly, not
aggressively, subtly coerced a confession out of
him by promising him -- maybe not using the
word “promise,” letting him know that: “If you
tell me it’s a couple of things, you get to go
home to your wife.” [Defendant] confirmed
that. He said, “Let’s do it. Give her closure.
You’ll move on with life.” All the while saying
that, he knew it wasn’t true.

....

[The detective] fed a confession to [defendant]
under the pretense [defendant] would be able
to get to go home to his old life. . . . [A]t the
end of the day it’s [the detective’s] tactics.
Those are the reason[s] that innocent people get


                       35
            convicted. As he told you, he had a target in
            this investigation. You don’t have a target.
            You have an obligation. Your obligation is to
            listen to that recording, weigh[] the evidence,
            and find [defendant] not guilty.

  (Emphasis added.)

¶ 68   Defendant can still have his day in court on this issue, but it

  should not be today. Instead, he could file a Crim. P. 35(c) motion.

  Testimony produced at that hearing might provide an answer to the

  question of why defendant’s counsel did not file a motion to

  suppress. And, depending on the nature of the answer, the

  voluntariness of defendant’s statement could take center stage.

                             VII. Conclusion

¶ 69   I cannot find a single published case decided after Wainwright

  v. Sykes, 433 U.S. 72, 86 (1977), in which a Colorado appellate

  court has expressly held that the plain error standard should be

  used to review an unpreserved contention that a defendant’s

  statement was involuntary. (Recall from the majority opinion that

  Wainwright rejected the idea 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




                                    36
  admission.” Wainwright, 433 U.S. at 86.) I submit that the general

  rule and its corollary are the reasons for this lack of precedent.

¶ 70   The general rule and its corollary are not arcane; they are

  common knowledge. They are not mysterious; they provide clear

  notice. They are not complicated; they are easy to understand.

  They are not arbitrary; they spring from important policies. They

  are not of recent origin; they have been around for a long time. So

  the problems that we would cause if we ignore them and review the

  statement in this case for plain error will not be minor; those

  problems will be profound. We would upset a pretty big applecart.

¶ 71   And what would we gain? It is, of course, fundamentally

  important that convictions be based on reliable evidence, and

  involuntary statements are not reliable. But I respectfully submit

  that we cannot tell, when applying the lens of plain error review,

  whether defendant’s statement was involuntary because he did not

  ask the trial court to resolve this issue. The prosecution therefore

  did not submit evidence to show that the statement was voluntary.

  The trial court therefore did not make the crucial findings of fact

  that would allow us to answer this question. We therefore do not

  know why defense counsel did not file a motion to suppress. And


                                    37
  we therefore do not have the record that we need to make a

  decision.

¶ 72   I recognize that we have a recording of defendant’s statement

  in the record. But we do not know, for example, whether the

  prosecution had evidence of what defendant and the police officers

  discussed before or after the statement. We do not know whether

  such evidence would make a difference in the evaluation of the

  statement. We do not know a great many things. And, as I

  observed above, I think that the chances that a hearing on remand

  would cast light on this issue are iffy.

¶ 73   What would we be telling trial courts if we subject the

  voluntariness issue in this case to plain error review? Trial courts

  are intimately familiar with the general rule and its corollary

  because defense counsel file motions to suppress statements in

  criminal cases all the time. If we were to review the statement in

  this case for plain error, would we be sending the message that we

  expect trial courts, without prompting from anyone, to intervene in

  the middle of a trial to raise the issue of whether a statement is

  voluntary? Are we asking courts to assume that defense counsel

  did not have a good reason, perhaps rooted in sound trial strategy,


                                     38
  to refrain from filing a suppression motion? Are we asking courts to

  speculate that there is no other evidence, besides the evidence

  admitted at trial, that might bear on the issue of whether the

  statement is voluntary?

¶ 74   As I indicated above, I think that the right place to resolve this

  issue is in a Crim. P. 35(c) hearing. Defendant might be successful;

  he might not be. I have no crystal ball. But I do know that

  requiring defendant to take that route preserves the general rule

  and its corollary. And I think that is worth the candle because

  preserving them will likewise preserve the “valid reasons underlying

  the practice of requiring pretrial motions . . . .” LaFave at § 11.1(a);

  see also Tyler, 874 P.2d at 1039.




                                      39
       JUDGE BERGER, dissenting.1

¶ 75   Short of physical torture, I cannot imagine police tactics that

  are more likely to lead to false confessions, and thus wrongful

  convictions, than the police conduct in this case. The facts are

  stark: a person is being questioned by the police regarding

  extremely serious crimes, the penalties for which are effective life

  sentences and almost unimaginable societal opprobrium. The

  police officer tells the suspect — no, promises the suspect — that if

  he admits to what the officer characterizes as relatively minor

  crimes (without telling the suspect that these relatively minor

  crimes also could result in an effective life sentence) then he can go

  home to his wife and child and no charges will be filed.

¶ 76   Notwithstanding these facts, the majority refuses to review the

  merits of Cardman’s claim that he was deprived of due process of

  law when his inculpatory statements were admitted against him.

  As I did in People v. Cardman, 2016 COA 135, vacated, (Colo. No.


  1 Because the supreme court did not grant certiorari on the
  reinitiation of contact issue, I, like the majority, do not address that
  issue. I adhere to my previously expressed views on that issue. See
  People v. Cardman, 2016 COA 135, ¶¶ 97-145 (Berger, J.,
  dissenting), vacated, (Colo. No. 16SC789, Apr. 10, 2017)
  (unpublished order).

                                    40
  16SC789, Apr. 10, 2017) (unpublished order), I respectfully dissent

  from the majority’s refusal to address the voluntariness of

  Cardman’s inculpatory statements. In my view, this record

  presents a substantial question regarding the voluntariness of those

  statements and thus raises very serious questions regarding the

  reliability of Cardman’s convictions.

¶ 77   Events that have occurred since our original opinions in this

  case provide more support for my position that the admission of

  Cardman’s inculpatory statements must be reviewed for plain error.

  First, the supreme court has finally put to rest reliance on People v.

  Cagle, 751 P.2d 614, 619 (Colo. 1988), for the proposition that

  unpreserved constitutional questions are waived. The original

  special concurrence relied on Cagle in support of its position that

  Cardman waived any claim that his statements to the police were

  involuntary. Any further reliance on Cagle for this purpose is

  foreclosed by the supreme court’s recent decision in Reyna-Abarca

  v. People, 2017 CO 15.

¶ 78   Second, the supreme court summarily vacated our judgment

  and directed us to consider whether Reyna-Abarca, decided after we

  issued our original opinions in this case, authorizes plain error


                                    41
  review in this case.2 While I recognize that a denial of certiorari has

  no precedential value, it is not unreasonable to construe the grant

  of certiorari in this case and the summary vacation of our judgment

  as a sign that the supreme court was concerned about the

  majority’s disposition of the involuntariness issue. See People v.

  McAfee, 160 P.3d 277, 280 (Colo. App. 2007) (recognizing that there

  may be a multitude of reasons why the supreme court denies

  certiorari).3

¶ 79    Despite all this, the majority adheres to its original decision

  and the special concurrence agrees that Cardman waived the most

  consequential issue in this case.

                  I. The Basic Premise of Plain Error Review

¶ 80    Plain error review plays a critical, albeit limited, role in our

  criminal justice system. The doctrine, codified in Crim. P. 52(b),

  recognizes that mistakes will be made in criminal cases, sometimes


  2 The supreme court also directed us to consider whether the
  promises made by the police to Cardman must be enforced. I
  address the merits of that issue below.
  3 Obviously, when the supreme court summarily vacated our prior

  judgment, it knew that Reyna-Abarca v. People, 2017 CO 15, was a
  double jeopardy case, not a case involving an unpreserved
  suppression question. Given that, the fact that it was a double
  jeopardy case and not a suppression case should carry little weight.

                                      42
  very serious mistakes.4 It balances the need for procedural rules

  and compliance with those rules with the essential underlying goal

  of the criminal justice system: fair and reliable adjudication of

  allegations of criminal conduct. Over decades, the Colorado

  Supreme Court has consistently recognized the need for and

  availability of plain error review, as it did recently in Reyna-Abarca.

¶ 81   Thus, the question is not whether procedural rules are

  necessary for the orderly administration of criminal justice. They

  are. Nor is the question whether there must be consequences when

  those rules are violated. There must be.

¶ 82   The concurrence is correct that there is a procedural rule,

  Crim. P. 41(g), governing the timing of filing motions to suppress

  and that Cardman did not comply with that rule (although I note

  that Crim. P. 41(g) says nothing about the consequences of

  noncompliance, and has never been applied to bar review of a

  voluntariness claim raised for the first time on appeal). And, under

  both my analysis and the concurrence’s, there are important

  consequences that flow from that failure.


  4 By its terms, Crim. P. 52(b) does not except suppression issues
  from its reach.

                                    43
¶ 83   By failing to timely raise his involuntariness claim, Cardman

  forfeited his claim, meaning that he lost the right to have the claim

  reviewed under the otherwise applicable constitutional standard of

  review — harmlessness beyond a reasonable doubt. Hagos v.

  People, 2012 CO 63, ¶ 11. That forfeiture is no small matter; given

  the egregious police conduct in this case, review under that

  standard almost certainly would have required suppression of

  Cardman’s statements and, if the trial court had nevertheless

  admitted the statements, a new trial.

¶ 84   But, the majority does not hold merely that Cardman forfeited

  his claim, it holds that he waived it, which precludes all review,

  even plain error review. United States v. Olano, 507 U.S. 725,

  732-33 (1993); People v. Lopez, 129 P.3d 1061, 1065 (Colo. App.

  2005). I acknowledge that Cardman is limited to plain error review,

  a type of review that is designed to make relief seldom available and

  which, in practice, meets or exceeds its design parameters. To say,

  as the majority does, that Cardman had an opportunity to object on

  voluntariness grounds and failed to do so, or, as the concurrence

  does, that there was a rule violation and that there must be

  consequences to that violation, are wholly insufficient by


                                    44
  themselves to then support the further conclusion that Cardman

  waived, rather than forfeited, his claim. “The courts do not

  presume acquiescence in the loss of fundamental constitutional

  rights, and therefore indulge every reasonable presumption against

  waiver.” People v. Curtis, 681 P.2d 504, 514 (Colo. 1984), holding

  modified on other grounds by People v. Blehm, 983 P.2d 779 (Colo.

  1999).

¶ 85   The majority’s assertion that Cardman waived his

  voluntariness claim because he did not raise it at the suppression

  hearing rests on a shaky legal foundation. First, I do not see how it

  makes any difference, for purposes of the availability of plain error

  review, whether a defendant fails to raise a specific suppression

  claim despite the district court entertaining a suppression hearing

  or whether he or she fails to raise any suppression issue at all. A

  fair reading of the majority’s opinion is that a defendant who fails to

  raise any suppression claim before the trial court may be entitled to

  plain error review, but a defendant who raises a suppression claim

  on one ground but not another has waived that ground — a

  puzzling result.




                                    45
¶ 86   Second, this case is entirely different from Hinojos-Mendoza v.

  People, 169 P.3d 662, 668 (Colo. 2007), on which the majority

  relies. In that case, the defendant argued that his confrontation

  rights were violated when the trial court admitted a lab report into

  evidence without in-person testimony from the analyst. The

  supreme concluded that the defendant had waived his

  confrontation rights because he failed to request, as required by

  statute, the in-person testimony in advance of trial. The court

  concluded that because “[t]he right to confrontation falls into the

  class of rights that defense counsel can waive through strategic

  decisions,” and because “we presume that attorneys know the

  applicable rules of procedure,” it could “infer from the failure to

  comply with the procedural requirements that the attorney made a

  decision not to exercise the right at issue.” Id. at 669-70.

¶ 87   I recognize that some rights may be waived by the mere failure

  to object. See, e.g., Stackhouse v. People, 2015 CO 48, ¶ 1. But in

  both Hinojos-Mendoza and Stackhouse, the defendant’s failure to

  object could fairly be characterized as a strategic decision. It is

  unreasonable to assume that Cardman’s failure to challenge the

  voluntariness of his statements was strategic. Indeed, even the


                                    46
  concurrence suggests that the failure to raise the voluntariness

  claim may be grounds for a claim of ineffective assistance of

  counsel. I do not understand how the failure to object to the

  voluntariness of Cardman’s inculpatory statements was strategic,

  yet also “fell below an objective standard of reasonableness.”

  Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007) (quoting

  Strickland v. Washington, 466 U.S. 668, 688 (1984)).

¶ 88   Wainwright v. Sykes, 433 U.S. 72, 86 (1977), does not aid

  either the majority or the concurrence. By my reading, Wainwright

  holds nothing more than if a state, by rule or judicial decision,

  provides that a suppression issue that is not made in accordance

  with a rule governing such questions is waived, that rule or judicial

  decision does not offend the United States Constitution. Id.

¶ 89   In contrast, the question here is whether, as a matter of state

  law, suppression issues should be treated entirely differently than

  virtually every other type of unpreserved error. In my view, the

  answer is no.

¶ 90   The daunting requirements for finding plain error eliminate

  any reasonable concern by the majority or the concurrence that

  such plain error review will devour the rules of criminal procedure


                                    47
  and lead criminal litigants to hold back claims of error at trial and

  then, when they lose, simply make the objections on appeal that

  they should have made at trial. As our opinions demonstrate,

  findings of plain error are few and far between, as they should be.

  Hagos, ¶ 23. In almost every case, a claim of plain error regarding

  unchallenged confessions will founder on the “obviousness”

  component of plain error review. Id. at ¶ 18 (“Plain error addresses

  error that is both ‘obvious and substantial.’” (quoting People v.

  Miller, 113 P.3d 743, 750 (Colo. 2005))). In the vast majority of

  cases in which there is an unpreserved claim of involuntariness,

  there is virtually no possibility that an appellate court will find plain

  error.

¶ 91   But this case is different. Here, the trial court knew precisely,

  and the appellate record demonstrates convincingly, the factual

  basis for the claim of involuntariness. Some of the details were

  spread before the trial court in counsel’s colloquy with the detective

  at the suppression hearing. The other sordid details were displayed

  when the prosecution played the audio recording of Cardman’s

  second interrogation for the jury. In comparing the facts of this

  case to those in People v. Quintana, 198 Colo. 461, 463, 601 P.2d


                                     48
  350, 351 (1979), in which the sheriff’s “implied promises” prior to

  the defendant’s confession rendered that confession involuntary, it

  was obvious that the police conduct here was unconstitutional.5

¶ 92   I cannot square the majority’s waiver conclusion with the

  underpinnings of the plain error doctrine. To avoid plain error

  review and to declare a waiver requires more than a finding that a

  defendant did not abide by a particular procedural rule. After all,

  plain error review comes into play only when there has been a

  violation of a procedural rule; if a defendant complies with the

  applicable procedural rules then he is entitled to review under

  harmless error or constitutional harmless error, depending on the

  matter at issue. Id. at ¶ 9.

¶ 93   The majority’s analysis, and in particular the concurrence’s

  analysis, prove too much. Indeed, when carefully scrutinized, these

  opinions are nothing less than a frontal attack on the doctrine of

  plain error review. The concurring opinion could easily be

  transformed into a scholarly law review article advocating the


  5In contrast, in People In Interest of Z.T.T., 2017 CO 48, ¶ 1, the
  Colorado Supreme Court reversed the trial court’s suppression
  order where the police interview was conversational, friendly, and
  devoid of coercive promises or threats.

                                    49
  abolition of plain error review. While there is nothing inherently

  wrong with scholarly arguments for the abolition of plain error

  review, that course is not available to Colorado intermediate

  appellate court judges. This is so because we are bound by

  Colorado Supreme Court precedents and there can be no dispute

  that Reyna-Abarca squarely holds that plain error review is the law

  of Colorado.6

¶ 94   What’s more, the supreme court has never expressly held that

  a defendant’s failure to raise a voluntariness claim before the trial

  court constitutes a waiver of that claim on appeal. I am not

  persuaded by the concurrence’s reliance on People v. Jansen, 713

  P.2d 907, 912 n.8 (Colo. 1986), to support that proposition. In

  Jansen, the supreme court declined to address the People’s

  argument that the defendants’ motions to suppress were “facially

  6 I cannot plausibly contend that plain error review is available
  regardless of the issue presented. Over a strong dissent by Justice
  Márquez, the supreme court recently held that a criminal
  defendant’s failure to object to the closing of the courtroom to the
  public effected a waiver, not just a forfeiture, of the constitutional
  right to a public trial. Stackhouse v. People, 2015 CO 48, ¶ 5.
  While it is hazardous to rank constitutional rights in view of their
  importance to an orderly society, I nevertheless note that the
  admission of a criminal defendant’s involuntary statements violates
  the Due Process Clause, one of the fundamental guarantees of the
  Constitution.

                                    50
  insufficient” because that argument was not raised before the

  district court. Id. at 912. In a footnote, which clearly is dictum, the

  court stated that

             we note in passing that such motions should
             state with reasonable specificity the legal
             grounds upon which the motions are based.
             This is necessary both to put the prosecution
             on notice of the contentions it must be
             prepared to meet at a suppression hearing and
             to inform the court of the issues to be decided.

  Id. at 912 n.8. The court said nothing whatsoever about the

  availability of plain error review of claims that are raised for the first

  time on appeal.

¶ 95   The footnote in Jansen spawned a line of opinions from this

  court, also relied on by the concurrence, refusing to address

  unpreserved involuntariness claims. People v. Zadra, 2013 COA

  140, ¶ 26, aff’d on other grounds, 2017 CO 18; People v. Villarreal,

  131 P.3d 1119, 1123 (Colo. App. 2005), aff’d on other grounds,

  2012 CO 64; People v. Vigil, 104 P.3d 258, 267 (Colo. App. 2004),

  aff’d in part and rev’d in part on other grounds, 127 P.3d 916 (Colo.

  2006); People v. Salyer, 80 P.3d 831, 835 (Colo. App. 2003). But

  none of these opinions disclosed whether the defendant made any

  argument that his or her voluntariness claim should be reviewed for


                                     51
  plain error, much less determined that the defendant had waived,

  rather than forfeited, his or her claims.7

¶ 96   The vice in applying special rules to preclude even plain error

  review of an unpreserved claim of the wrongful admission of

  involuntary statements is further illustrated by the distinction

  between two very different types of suppression issues commonly

  faced by courts. The first is a claim that the evidence obtained by

  the police — either physical evidence or inculpatory statements by a

  defendant — should be suppressed because the Fourth Amendment

  was violated in obtaining the evidence. People v. Jorlantin, 196 P.3d

  258, 261 (Colo. 2008). Suppression of relevant evidence under the

  Fourth Amendment has little to do with the reliability of the

  evidence; in most cases the evidence is highly reliable and probative

  of the defendant’s guilt. See Alderman v. United States, 394 U.S.

  165, 174 (1969). Nevertheless, for reasons having nothing to do

  with the reliability of the evidence, the United States Supreme

  Court has held that the Constitution requires that evidence


  7 The concurrence relies on out-of-state authority and federal
  circuit cases to support its argument that unpreserved
  voluntariness claims are waived. We are, of course, not bound by
  those cases.

                                    52
  obtained in violation of the Fourth Amendment usually must be

  suppressed to provide an enforcement mechanism for the Fourth

  Amendment. Davis v. United States, 564 U.S. 229, 236-37 (2011).

  Because reliability forms no part of this equation, the application of

  a procedural rule requiring that such objections be made at a

  specific time, or else they are waived for all time, is justifiable. See,

  e.g., People v. Gouker, 665 P.2d 113, 118 (Colo. 1983) (refusing to

  address unpreserved claim that warrant was invalid).

¶ 97   The other type of suppression issue — the type presented here

  — is the admission of evidence that arguably violates the Due

  Process Clause because the statements made by an accused were

  made involuntarily. Effland v. People, 240 P.3d 868, 877 (Colo.

  2010). Unlike Fourth Amendment suppression, this type of

  suppression directly implicates the reliability of the conviction

  obtained. Rogers v. Richmond, 365 U.S. 534, 541 (1961).

¶ 98   Everyone would agree that false confessions are a stain on our

  judicial system. See, e.g., Richard A. Leo et al., Promoting Accuracy

  in the Use of Confession Evidence: An Argument for Pretrial

  Reliability Assessments to Prevent Wrongful Convictions, 85 Temp. L.

  Rev. 759, 766 (2013) (“[T]he problem of contamination is epidemic,


                                     53
  not episodic, in cases of false confessions.” (quoting Laura H.

  Nirider et al., Combating Contamination in Confession Cases, 79 U.

  Chi. L. Rev. 837, 849 (2012))). False confessions are especially

  dangerous because “[a] confession is like no other evidence . . . the

  defendant’s own confession is probably the most probative and

  damaging evidence that can be admitted against him.” Arizona v.

  Fulminante, 499 U.S. 279, 296 (1991) (citation omitted).

¶ 99    For this reason alone, we should be very circumspect before

  allowing a procedural default to preclude all review of whether a

  defendant’s inculpatory statements were made voluntarily when the

  issue is obvious from the admission of evidence, either at a

  suppression hearing or at trial.

¶ 100   Given the purpose of plain error review, it was incumbent on

  the majority and the concurrence to explain why this situation

  differs materially from all of the other situations in which plain

  error review indisputably is available. In my view, neither the

  majority nor the concurrence met that burden. At bottom, I am

  mystified why the majority and the concurrence single out this

  particular type of error from all of the other types of errors (many of




                                     54
  which are far less consequential that what happened in this case)

  and conclude that Cardman is remediless.8

           II. The Merits of Cardman’s Involuntariness Claim

¶ 101   The statements of the detective during his interrogation of

  Cardman illustrate far better than my characterizations the nature

  and risks of the tactics used by the police to coerce Cardman’s

  confession9:

             [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 —

  8 The concurrence says that Cardman is not remediless because he
  may challenge his lawyer’s failure to move to suppress the
  statements in a postconviction proceeding premised on ineffective
  assistance of counsel. That is true in theory. In practice, however,
  because of the many (appropriate) hurdles to postconviction relief,
  such relief is exceedingly rare.
  9 This is not a case in which the trial court did not hear evidence

  regarding the arguably coercive tactics used by the police. All of it
  was on full display during the trial despite the fact that Cardman
  did not expressly raise the voluntariness issue in his motion to
  suppress or at the suppression hearing.

                                    55
[Cardman:] 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.

[Cadman:] 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.

[Cardman:] If I can get this all figured out,
closed out, just done with, I can go home
tomorrow.

[Detective:] Let’s do it.

[Cardman:] That’s what I want to do.




                            56
             [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.10

  (Emphasis added.)

¶ 102   At the conclusion of the interrogation, Cardman confessed to

  instances of sexual contact with the victim. He continued to deny

  that he sexually assaulted her.


  10There is no transcript of the interview in the record and the audio
  recording is very difficult to understand. The excerpts I quote are
  my best approximation of what was said based on the audio
  recording.

                                    57
¶ 103   Applying any standard, this record is sufficiently disturbing to

  require findings by the trial court on this critical question.11 In my

  view, the italicized portions of the interrogation that I reproduced

  above violate any reasonable standard of constitutional police

  conduct and compel a conclusion that the police engaged in

  coercive conduct.

¶ 104   Reviewing the voluntariness issue for plain error, I would hold

  that, as a matter of law, the police engaged in coercive conduct.

  Therefore, I would remand to the trial court for a determination

  whether, under all of the circumstances, Cardman’s confession was

  involuntary and thus inadmissible for any purpose. People v.

  Freeman, 668 P.2d 1371, 1378 (Colo. 1983). The majority’s failure

  to do so leaves me with the firm belief that justice has not been


  11I cannot accept the concurrence’s rationale that because a
  substantial amount of time has passed since Cardman’s trial that
  no purpose would be served by remanding for findings on
  voluntariness. The recording of Cardman’s police interview speaks
  volumes. Moreover, both this court and the supreme court often
  remand to a trial court for findings years after the trial took place.
  See, e.g., O’Hara v. People, 2012 CO 18, ¶ 48 (remanding for
  additional findings some six years after the trial); People v. Lucero,
  747 P.2d 660, 665 (Colo. 1987) (four years); People v. Desantiago,
  2014 COA 66M, ¶ 22 (three years); People v. King, 292 P.3d 959,
  960 (Colo. App. 2011) (three years); People v. Stevenson, 228 P.3d
  161, 164 (Colo. App. 2009) (three years).

                                    58
  done in this case and the convictions which the court affirms may

  be unreliable.

                   III. Enforcement of the Police Promises

¶ 105   In its order granting certiorari, the supreme court also directed

  us to consider whether any promises made by the police to

  Cardman must be enforced. Cardman v. People, (Colo. No.

  16SC789, Apr. 10, 2017) (unpublished order). The majority and the

  concurrence decline to address this question because they conclude

  that any claim for enforcement of police promises was waived for

  the same reason that plain error review is unavailable on the

  question whether Cardman’s statements were voluntary.

¶ 106   The standard for specific enforcement of police promises is

  daunting. See, e.g., People v. Marquez, 644 P.2d 59, 62 (Colo. App.

  1981). Specific performance is required only when “no other

  remedy is available to the court that could approximate substantial

  justice under the circumstances of the case.” People v. Manning,

  672 P.2d 499, 512 (Colo. 1983).

¶ 107   In my view, while the police conduct in this case undoubtedly

  was unconstitutional, I cannot say that there was no remedy

  available to the court aside from specific performance. I believe the


                                     59
  appropriate remedy is to suppress Cardman’s inculpatory

  statements and hold a new trial without his statements, which

  would provide “substantial justice under the circumstances.” Id.

  Therefore, reaching the merits of Cardman’s claim that he is

  entitled to specific performance of the promises, I would reject that

  claim.

                             IV. Conclusion

¶ 108   The judgment of conviction should be reversed and the case

  should be remanded to the trial court for findings and conclusions

  on whether Cardman’s inculpatory statements were voluntarily

  made. If they were involuntary, they may not be used for any

  purpose and a new trial is required. I respectfully dissent from the

  majority’s contrary determination.




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