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                                                         ADVANCE SHEET HEADNOTE
                                                                        July 1, 2019

                                        2019 CO 73

No. 17SC541, Cardman v. People—Waiver Versus Forfeiture—Unpreserved Arguments
to Suppress Statements—Plain Error Review.

       A detective coerced the defendant into making a confession, and the prosecution

then used that confession as evidence against the defendant to convict him of multiple

offenses. Before trial, the defendant sought to suppress his statements but neglected to

challenge their voluntariness. As a result, the trial court did not rule on that issue and a

division of the court of appeals declined to review its merits, finding that it was waived.

       The supreme court agrees with the division that the voluntariness claim was not

preserved. But it determines that no waiver occurred. Instead, relying on the companion

case of Phillips v. People, 2019 CO 72, __ P.3d __, which the court also announces today,

and on People v. Rediger, 2018 CO 32, 416 P.3d 893, it holds that the voluntariness claim

was forfeited, not waived, and is thus subject to plain error review. Upon conducting

such review, the court concludes that the trial court erred in admitting the defendant’s

statements and that the error amounts to plain error and requires reversal.
                     The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203

                                       2019 CO 73

                          Supreme Court Case No. 17SC541
                        Certiorari to the Colorado Court of Appeals
                         Court of Appeals Case No. 14CA202

                                       Petitioner:

                               Ryan Matthew Cardman,

                                            v.

                                      Respondent:

                         The People of the State of Colorado.

                                  Judgment Reversed
                                        en banc
                                      July 1, 2019


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




JUSTICE SAMOUR delivered the Opinion of the Court.
JUSTICE HOOD dissents, and CHIEF JUSTICE COATS and JUSTICE MÁRQUEZ
join in the dissent.
¶1     “[O]urs is an accusatorial and not an inquisitorial system—a system in which the

State must establish guilt by evidence independently and freely secured and may not by

coercion prove its charge against an accused out of his own mouth.” Rogers v. Richmond,

365 U.S. 534, 541 (1961). For this reason, “convictions following the admission into

evidence of confessions which are involuntary, i.e., the product of coercion, either

physical or psychological, cannot stand.” Id. 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, __ P.3d __, a companion

case we announce today, we hold that the voluntariness claim was forfeited, not waived,

and is thus subject to plain error review. Upon conducting such review, we conclude that

the court erred in admitting Cardman’s statements at trial and that the error rises to the

level of plain error requiring reversal. Accordingly, we remand to the court of appeals

with instructions to return the case to the trial court for a new trial.



                                               2
                          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

                                            3
you turned around, get back with your wife, go to church, live your life,
and put all of this behind you, right now today.

CARDMAN: I would love that, you have no idea.

DETECTIVE: Then let’s do it. . . .

We both know where you wanna go in life and with your wife and church
and everything. I’m not here to hang you, I’m not here to beat you up
today. I’m here to do this [sounds of paper shuffling]. At the end of this
sentence, I put this in a drawer. And I can’t do that if you tell me that you
had sex with this girl fifty, sixty times, I’m concerned. And then I have a
different investigation. If there was some inappropriate sexual stuff that
happened once or twice, I want an explanation for that so I can do this
[sound of paper shuffling] and go home on my Friday, do you understand?

CARDMAN: Yeah well, believe me.

DETECTIVE: I’m trying to paint the picture, man.

CARDMAN: If I can get this all figured out, closed out, dealt with, I can go
home tomorrow.

DETECTIVE: Let’s do it.

CARDMAN: Believe me, that’s what I want to do.

DETECTIVE: And if I can help with any of that here, I’d—you’re damn
skippy. . . .

Because I honestly think if you can provide some sort of corroboration and
some answers, maybe even an apology or a quick sorry for whatever it is,
and I give that to [A.W.], I think that would go away. . . .

What we don’t want to hear is that Ryan Cardman wakes up over here
every day and lusts for the sexual contact with a kid. And there’s fifty, sixty
times like what’s she’s saying. We don’t want to hear that.

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

                                      4
       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.




1The audio recording is difficult to understand at times, and there is no transcript of it.
We have done our best to accurately document the quoted excerpts.

                                            5
¶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.         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




2 In Reyna-Abarca, we held that unpreserved double jeopardy claims can be raised for the
first time on appeal and are subject to plain error review. ¶ 2, 390 P.3d at 817–18.

                                             6
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




3   We granted certiorari to review the following issue:
         Whether the district court violated the petitioner’s constitutional right to
         due process and reversibly erred by admitting statements the petitioner
         made to a detective, without first determining whether the statements were
         voluntary and whether the petitioner was entitled to specific performance
         of direct and/or implied promises made to him by the detective during the
         interrogation.
4 We did not announce Rediger until after the division issued its opinion following our
remand.
5We resolve the second part of Cardman’s voluntariness claim with little difficulty. To
qualify for the remedy of specific performance of promises made by an officer to a
defendant, there must be “no other remedy 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). Because we conclude that a new trial without Cardman’s statements is
                                               7
                  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 confession excluded from the trial, what benefit could he

have obtained from his failure to present an additional ground to contest its admissibility?

None comes to mind. We are equally hard pressed to think of any strategic advantage

he could have gained by refraining to raise an argument that should have convinced the

trial court to suppress what was “probably the most probative and damaging evidence”

that could be admitted against Cardman. See Arizona v. Fulminante, 499 U.S. 279, 296




an appropriate remedy that would ensure substantial justice, he is not entitled to specific
performance of the detective’s promises.

                                              8
(1991) (quoting Bruton v. United States, 391 U.S. 123, 139 (1986) (White, J., dissenting)).

Inasmuch as defense counsel asked the trial court to suppress Cardman’s statements,

there is no basis to believe that he decided against raising the voluntariness issue for

strategic or other reasons.

¶12    But the People nevertheless argue that Crim. P. 41(g) compels a finding of a waiver

here. As we explain in Phillips, we are unpersuaded. See Phillips, ¶¶ 23–37. Rule 41(g)

generally requires that a motion to suppress statements “be made and heard before trial,”

though it permits “the court, in its discretion,” to entertain the motion at trial. Thus,

unlike its federal counterpart, Fed. R. Crim. P. 12(c)(3), which permits a court to consider

any time after trial commences, including on appeal, untimely suppression issues, the scope

of Rule 41(g) is limited to a court’s ability to consider such issues at trial. “We do not infer

from our [rule’s] silence regarding post-trial proceedings that [its] drafters intended to

treat as ‘waived’ any untimely suppression issues raised for the first time on appeal.” Id.

at ¶ 23.

¶13    The People insist, though, that when a statute or rule includes procedural

requirements, defense counsel’s failure to comply with them must be deemed a waiver

because attorneys are presumed to know procedural rules. We are unpersuaded. The

People’s position is not supported by Rediger and would lead to absurd results.

¶14    The waiver/forfeiture distinction we drew in Rediger did not turn on whether

defense counsel was required to raise the unpreserved appellate claim by a procedural

rule or by substantive law. Nowhere in Rediger did we discuss the difference between

procedural and substantive legal requirements.

                                               9
¶15    Moreover, distinguishing between procedural rules and substantive law to

determine whether a claim is waived or forfeited makes little sense. For example, as

relevant here, Rule 41(g) sets forth the procedures for raising suppression issues related

to a statement. But no one would dispute that, since a criminal defense attorney has an

ethical obligation to zealously represent his client, he is required to raise such issues

before trial when doing so is warranted by Fifth Amendment jurisprudence. In other

words, if Rule 41(g) didn’t exist, defense counsel would still have a duty to advance

appropriate Fifth Amendment arguments to attempt to exclude certain statements from

trial. Yet, the People would have us hold that a defense attorney’s failure to comply with

a procedural rule always amounts to a waiver, but a defense attorney’s failure to comply

with substantive law can be a forfeiture when such failure is not an intentional

relinquishment of a known right. The People forget that attorneys are also presumed to

know substantive law. As in Phillips, we see no basis to create a Rule 41(g) exception to

Rediger.

¶16    This is not to say that there aren’t compelling reasons for the procedures outlined

in Rule 41(g). Nor should we be understood as minimizing the importance of compliance

with that rule. But the question we confront today is neither whether the rule should be

in place nor whether requiring that suppression contentions be timely raised before trial

is truly necessary. The issue we address is whether an appellate court should be allowed

to review for plain error when defense counsel negligently fails to raise a suppression

assertion at the trial court. Consistent with Rediger, we answer yes.



                                            10
¶17    We acknowledge that our waiver determination in Hinojos-Mendoza v. People, 169

P.3d 662 (Colo. 2007), does not align with this conclusion. However, as we observe in

Phillips, Hinojos-Mendoza has been supplanted by Rediger. See Phillips, ¶¶ 30, 32–33.

¶18    Adhering to Rediger, we conclude that the failure by Cardman’s counsel to raise

the voluntariness claim in the trial court, without more, is not sufficient to allow us to

infer that he intended to waive it. The mere failure to raise an issue neither amounts to

“the type of unequivocal act indicative of a waiver” nor constitutes “the type of conduct

that clearly manifest[s] any intent . . . to relinquish [the] claim.” Dep’t of Health v. Donahue,

690 P.2d 243, 247 (Colo. 1984).         In Rediger, we declined to infer an intentional

relinquishment of a known right from defense counsel’s acquiescence to an erroneous

jury instruction tendered by the prosecution. Rediger, ¶ 41, 416 P.3d at 902. Instead, we

indulged “every reasonable presumption against waiver.” Id. at ¶ 46, 416 P.3d at 903

(quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)). We do the same here and hold

that Cardman forfeited his voluntariness claim.6 As such, it is subject to plain error

review, which we undertake next.




6 We should not be misunderstood as holding that an attorney’s failure to file a
suppression motion or to include an argument in a suppression motion will always be
deemed a forfeiture. If there is evidence in the record that defense counsel made a
conscious decision to forego raising a claim for strategic or other reasons, we will not
hesitate to find an implied waiver. After all, we recognize that in some situations defense
counsel will refrain from seeking the suppression of an article of evidence for strategic or
other reasons.

                                               11
                     B. The Trial Court Committed Plain Error

¶19    Under Crim. P. 52(b), plain error occurs when there is (1) an error, (2) that is

obvious, and (3) that so undermines the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction. See Hagos v. People, 2012

CO 63, ¶ 14, 288 P.3d 116, 120. We consider each of these three requirements in turn.

                                 1. There Was an Error

¶20    Cardman frames the error question as follows: Whether the trial court erred in

admitting his statements into evidence without first determining whether they were

voluntary. He thus maintains that if we conclude that the trial court erred, we must

remand with instructions to have the case returned to the trial court for findings on the

voluntariness issue. We do not believe that remanding for further development of the

record and further findings is appropriate in this situation. Doing so would improperly

place Cardman in the same position as if he had timely raised the unpreserved claim,

would strip the preservation requirement of any meaning, and would dilute the rigorous

plain error standard of review governing forfeited issues. Hence, the question we must

answer instead is this: Whether the trial court erred in admitting Cardman’s statements

into evidence because they were involuntarily made.

¶21    A defendant’s statements may be admitted into evidence only if they are

voluntary. People v. Freeman, 668 P.2d 1371, 1378 (Colo. 1983). A statement is voluntary

when “it is the product of an individual’s ‘free and rational choice.’” People v. Taylor, 41

P.3d 681, 694 (Colo. 2002) (quoting People v. Mendoza-Rodriguez, 790 P.2d 810, 816 (Colo.

1990)). Courts recognize that “[p]sychological as well as physical pressures may be

                                            12
brought to bear on a suspect to induce his confession.” Freeman, 668 P.2d at 1379.

Consequently, either psychological or physical coercion may render a defendant’s

statements involuntary under some circumstances. Taylor, 41 P.3d at 694. That includes

a statement “extracted by any sort of threats or violence,” “obtained by any direct or

implied promises, however slight,” or elicited “by the exertion of any improper influence.”

Mendoza-Rodriguez, 790 P.2d at 816 (emphasis added) (quoting Brady v. United States, 397

U.S. 742, 753 (1970)).

¶22    In determining whether a defendant’s statements are voluntary, “we consider the

totality of the circumstances surrounding the statements.” People In Interest of Z.T.T., 2017

CO 48, ¶ 12, 394 P.3d 700, 703. We pay particular attention to “‘the significant details

surrounding and inhering’ in the questioning.” Id. (quoting People v. McIntyre, 2014 CO

39, ¶ 16, 325 P.3d 583, 587). A defendant’s statements are involuntary if the interrogating

officer’s behavior “was ‘coercive so as to overbear the defendant’s will in making the

statements.’” Id. (quoting McIntyre, ¶ 16, 325 P.3d at 587); see also Mendoza-Rodriguez, 790

P.2d at 816 (“The question is whether the individual’s will has been overborne.”). It

follows that, while coercive police conduct is necessary to find involuntariness, see Taylor,

41 P.3d at 694, coercion does not automatically nullify the voluntariness of a defendant’s

statements and render them inadmissible, see Z.T.T., ¶ 12, 394 P.3d at 703. Rather,

suppression is justified when “the coercive police conduct . . . played a significant role in

inducing the statements.” People v. Zadran, 2013 COA 69M, ¶ 12, 314 P.3d 830, 834; accord

McIntyre, ¶ 16, 325 P.3d at 587.



                                             13
¶23    To evaluate voluntariness, we consider “both the defendant’s ability to resist

coercive pressures and the nature of the police conduct.” Z.T.T., ¶ 13, 394 P.3d at 703

(quoting People v. Ramadon, 2013 CO 68, ¶ 20, 314 P.3d 836, 842). We have formulated a

non-exhaustive list of factors to aid us in our analysis:

       1.  whether the defendant was in custody;
       2.  whether the defendant was free to leave;
       3.  whether the defendant was aware of the situation;
       4.  whether the police read Miranda rights to the defendant;
       5.  whether the defendant understood and waived Miranda rights;
       6.  whether the defendant had an opportunity to confer with counsel or
           anyone else prior to or during the interrogation;
       7. whether the statement was made during the interrogation or
           volunteered later;
       8. whether the police threatened [the] defendant or promised anything
           directly or impliedly;
       9. the method [or style] of the interrogation;
       10. the defendant’s mental and physical condition just prior to the
           interrogation;
       11. the length of the interrogation;
       12. the location of the interrogation; and
       13. the physical conditions of the location where the interrogation occurred.

Id. (alterations in original) (quoting McIntyre, ¶ 17, 325 P.3d at 587).

¶24    Here, eight factors appear to support a finding of involuntariness: Cardman was

in custody at the time of the interrogation (factor 1); he was not free to leave because he

was in custody (factor 2); he did not have an opportunity to confer with counsel

beforehand (factor 6); he made incriminating statements during the interrogation (factor

7); the detective made promises to him to induce his incriminating statements (factor 8);

the method of the interrogation was coercive given the detective’s repeated promises

(factor 9); and the interrogation took place at the jail (factors 12 and 13).



                                              14
¶25    On the other side of the ledger, only four factors appear to weigh in favor of

voluntariness: although Cardman may have had little more than an inkling about the

detective’s investigation before the meeting at the jail, shortly after sitting down for his

interview, he became aware that A.W. had made sexual allegations against him (factor

3); the detective read him his Miranda rights (factor 4); he said he understood those rights

and then waived them (factor 5); and his mental and physical condition just before the

interrogation seemed normal (factor 10).

¶26    And one factor appears to be neutral: The interview lasted approximately one hour

(factor 11).

¶27    But the analysis is not quantitative—we do not simply count the number of factors

on each side of the equation and see which side has more. The reason is twofold: We do

not accord the same weight to each of the thirteen factors, and how much weight we

accord each factor in a particular case depends on the circumstances involved. This case

illustrates the point. As we set forth in more detail next, given the detective’s repeated

promises during the interrogation, factors 8 and 9 are dispositive. Hence, even if all the

other factors favored a finding of voluntariness, we would still conclude that Cardman’s

statements were involuntarily made.7




7We understand that it is the prosecution’s burden to prove by a preponderance of the
evidence that Cardman’s statements were voluntarily made, see Mendoza-Rodriguez, 790
P.2d at 816, and that the prosecution did not have an opportunity to attempt to meet its
burden because Cardman did not raise the voluntariness issue in the trial court. But here,
our conclusion is predicated on the repeated promises made by the detective to lure
                                            15
¶28    The interview was coercive and disturbing. Cardman initially denied doing

anything of a sexual nature with A.W. The detective told Cardman that he did not believe

him. But Cardman remained steadfast in his denial. As the interrogation progressed,

though, the detective conveyed to Cardman that the case would go away and would not

proceed if Cardman met A.W. halfway and apologized to her. When the detective said,

“if we can provide an explanation to help this go away for you,” Cardman interrupted

him: “I would love that.” And the detective responded with encouragement: “Okay, so

then let’s fix that. Let’s fix that. Because right now, it’s not going away.” The detective

later added that he could put the case “in a drawer,” have A.W. “go heal,” have Cardman

“turned around, get back with [his] life, go to church, live [his] life . . . and put all of this

behind [him], right now today.” Cardman replied: “I would love that, you have no idea.”

And the detective again encouraged him: “Then let’s do it.” Even then Cardman did not

admit any of A.W.’s allegations, though he acknowledged an incident in which she sat

on his lap, an incident which she might have misconstrued as inappropriate touching, a

few instances in which she walked in on him masturbating, and a few instances in which

she walked in on him and her mother having sex.

¶29    The detective kept pushing Cardman, however, reminding him that he knew

where Cardman wanted to go in life with his wife and his church. He then told Cardman




Cardman into making incriminating statements, and we have access to the audio
recording of the interview.

                                               16
that he could put the case “in a drawer” if Cardman admitted to some “inappropriate

sexual stuff.” According to the detective, if there was inappropriate sexual conduct with

A.W. that happened just once or twice, as opposed to having had sex with her fifty or

sixty times, he wanted an explanation so he could set the case aside and “go home on

[his] Friday.” After the detective asked Cardman if he understood what he was telling

him, he added that he was “trying to paint the picture” for him. Cardman then appeared

to seek confirmation that his understanding of the detective’s promises was accurate: “If

I can get this all figured out, closed out, dealt with, I can go home tomorrow.” And the

detective responded: “Let’s do it.”

¶30    Only then did Cardman confess to inappropriate sexual conduct with A.W.

Specifically, Cardman admitted that: (1) he had gotten an erection three times while A.W.

sat on his lap and had ejaculated two of those times; (2) he had touched A.W. around the

crotch area, become aroused, and ejaculated; and (3) when A.W. had sat on his lap on a

computer chair with her legs straddling, the rubbing motion had caused him to get an

erection.

¶31    At the end of the interview, the detective spoke as follows: “I think I can put a

period on this and put this away. I hope you can too. . . . We move forward from right

now today. And I think you do that with your best spirit in mind, your wife’s best spirit

in mind, your kids’ best spirit in mind.” He then asked Cardman to write a brief note

apologizing to A.W. so that she could get some closure and put this behind her. Cardman

did so and apologized to A.W. in writing, saying “I apologize for the instances of sexual



                                           17
content [sic] between you and I. I never meant for them to happen and wish I could take

it all back.”

¶32    This is precisely the type of interview that flies in the face of one of the bedrock

principles of our criminal jurisprudence: The State may not prove a charge by obtaining

a confession from the accused through coercion. Rogers, 365 U.S. at 540–41. Detective

Patton elicited incriminating statements from Cardman by repeatedly promising that, if

he met A.W. halfway, apologized to her, and admitted to some inappropriate sexual

conduct with her that was not as egregious as sexually assaulting her fifty to sixty times,

he would not be prosecuted for it. Cardman then admitted to inappropriate sexual

conduct with A.W. on a few occasions, and the State later used those admissions to obtain

a conviction against him. Because Cardman’s will was overborne by police coercion, we

conclude that his statements were involuntarily made. Therefore, it was error for the

court to admit them into evidence at trial.

                              2. The Error Was Obvious

¶33    Having found there was an error, we next consider the second prong of our plain

error analysis. We rule that the error was obvious.

¶34    In general, to be plain, an error must “be so obvious” at the time it is made “that a

trial judge should be able to avoid it without the benefit of an objection.” Scott v. People,

2017 CO 16, ¶ 16, 390 P.3d 832, 835. “For an error to be this obvious, the action challenged

on appeal ordinarily ‘must contravene (1) a clear statutory command; (2) a well-settled

legal principle; or (3) Colorado case law.’” Id. (quoting People v. Pollard, 2013 COA 31M,

¶ 40, 307 P.3d 1124, 1133). An error may be obvious when the issue on appeal has been

                                              18
decided by our court or a division of the court of appeals. People v. Ujaama, 2012 COA 36,

¶ 42, 302 P.3d 296, 304–05.

¶35    The admission of Cardman’s statements at trial contravened both well-settled

legal principles and Colorado case law. Therefore, the error was obvious and the trial

court should have been able to avoid it without the benefit of an objection.

¶36    In fairness to the court, we recognize that the first opportunity it had to avoid the

error was during trial because neither party sought to introduce the audio-recorded

interrogation at the pretrial hearing held on Cardman’s suppression motion. As a result,

avoiding the error may well have required the declaration of a mistrial. But we consider

Cardman’s case an anomaly in which a confluence of factors created the proverbial

perfect storm. For five reasons, we anticipate that today’s opinion will not lead to more

mistrials.   First, the vast majority of defense attorneys would have spotted the

voluntariness issue in this case and would have raised it in a timely fashion. Second, we

perceive little risk of sandbagging. See Phillips, ¶ 29. Third, the prosecution is always

free to make a record about any glaring suppression issue to document that defense

counsel is aware of it and is choosing not to raise it. Fourth, a mistrial would be required

only when necessary to avoid obvious error. And finally, recordings of interrogations

containing incriminating statements are typically provided to the trial court before or

during pretrial suppression hearings.

¶37    We do not anticipate that this opinion will burden our colleagues on the court of

appeals either.    Defense attorneys have every incentive to raise all meritorious

suppression issues before trial. Id. Failure to do so risks, among other things, an

                                            19
inadequate appellate record that cannot establish plain error. Of course, it hardly bears

stating that in the suppression context, a well-developed factual record is usually pivotal.

¶38    But, regardless of the consequences, our task at this juncture of the analysis is to

determine whether the error in admitting Cardman’s statements at trial was obvious.

Because we conclude that it was and that the trial court should have been able to avoid it

without an objection, we proceed to consider the last requirement of plain error analysis.

         3. The Error Undermined the Fundamental Fairness of the Trial

¶39    The question still remains whether the trial court’s obvious error “so undermined

the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of

the judgment of conviction.” Hagos, ¶ 14, 288 P.3d at 120 (quoting People v. Miller, 113

P.3d 743, 750 (Colo. 2005)). In other words, we must “determine whether a reasonable

possibility exists that [any error] . . . contributed to [the] conviction.”         People v.

Lozano-Ruiz, 2018 CO 86, ¶ 5, 429 P.3d 557, 578.

¶40    The trial court’s obvious error permitted the jury to consider Cardman’s

incriminating statements. Because this was largely a he-said-she-said case, Cardman’s

confession was by far the strongest evidence against him. Under all the circumstances

present, we have little difficulty concluding that the admission of the statements seriously

undermined the fundamental fairness and integrity of the trial. In our view, there is a

reasonable possibility that the trial court’s error in admitting Cardman’s confession

contributed to his conviction. Were we to find no plain error and to leave the judgment

of conviction intact, it would lead any objective observer to conclude that an injustice was

perpetrated on Cardman. This we are unwilling to allow. “[A]bove all, it is the appellate

                                             20
court’s responsibility to avoid a miscarriage of justice for a defendant even when defense

counsel fails to object to serious errors at trial.” People v. Nardine, 2016 COA 85, ¶ 64, 409

P.3d 441, 453–54. And “[e]nsuring fundamental fairness in trial is the beacon of plain

error review.” Id.

¶41    In sum, we determine that the trial court erred in admitting Cardman’s statements

and that the error rises to the level of plain error. Therefore, we cannot allow Cardman’s

judgment of conviction to stand.

                                      III. Conclusion

¶42    In today’s decision, and in Phillips, we do no more than apply our holding in

Rediger. We recognize that some would have us invoke the drastic measure of waiver,

which would then force Cardman to take his chances with a Crim. P. 35(c)

ineffective-assistance-of-counsel claim. In our view, the more just path, and the one most

faithful to the law, is the one we take.

¶43    We conclude that Cardman did not waive his voluntariness claim by failing to

raise it in the trial court. Instead, we hold that the claim was forfeited and is subject to

plain error review. Because we determine that the trial court plainly erred in admitting

Cardman’s statements, we reverse the division’s judgment and remand with instructions

to return the case to the trial court for a new trial.

JUSTICE HOOD dissents, and CHIEF JUSTICE COATS and JUSTICE MÁRQUEZ join
in the dissent.




                                               21
JUSTICE HOOD, dissenting.

¶44    The adage about bad facts sometimes making bad law seems to hold true today.

By extending plain error review to unpreserved suppression claims, the majority

essentially nullifies a long-standing and controlling rule of criminal procedure.

Moreover, in doing so, it undermines the policy objectives of the rule and places an

unreasonable burden on trial courts and the court of appeals. Therefore, I respectfully

dissent.

                                        I. Analysis

           A. Crim. P. 41(g) Requires Motions Like the One Here to Be
                                Filed Before Trial

¶45    Since 1970, criminal defendants in Colorado have been required by rule to

challenge involuntary confessions or admissions before trial:

       A defendant aggrieved by an alleged involuntary confession or admission
       made by him, may make a motion under this Rule to suppress said
       confession or admission. The motion shall be made and heard before trial
       unless opportunity therefor did not exist or defendant was not aware of the
       grounds for the motion . . . .

Crim. P. 41(g) (emphasis added). The trial court “may” address such a motion at trial,

but its decision in that respect is purely discretionary. See id.

¶46    For many years, we rejected efforts by criminal defendants to raise suppression

issues on appeal when the issues were not properly raised before the trial court. See, e.g.,

People v. L.A., 609 P.2d 116, 118–19 (Colo. 1980) (remanding for further proceedings to

determine whether a juvenile-defendant’s statements were voluntary because, though

the issue was raised in the motion to suppress, the trial court did not make findings on



                                              1
this question during the suppression hearing); People v. Cobb, 690 P.2d 848, 853 (Colo.

1984) (refusing to consider the merits of a defendant’s claim that his Fifth Amendment

rights were violated because the argument “was not raised in [the] motion to suppress

the evidence, nor was it argued before the trial court”); People v. Gouker, 665 P.2d 113, 117–

18 (Colo. 1984) (rejecting the defendant’s argument that he was arrested pursuant to an

invalid warrant because he failed to contest its validity at the suppression hearing).

While these cases do not rely explicitly on Crim. P. 41, they demonstrate how entrenched

this form of procedural default is.

                 B. Crim. P. 41 Serves Many Important Policy Objectives

¶47    Presumably, this rule, and caselaw to the same effect, has endured because there

are so many compelling reasons for it. See 6 Wayne R. LaFave, Search and Seizure: A

Treatise on the Fourth Amendment § 11.1(a) (5th ed. 2014). (“[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.”).              Requiring pretrial

litigation of suppression issues helps to:

       •   prevent “the waste of prosecutorial and judicial resources occasioned by
           [trial] preparation,” United States v. Marro, 507 F.2d 802, 806 (2d Cir. 1974);
           accord LaFave, supra;

       •   permit the defendant, when suppression is denied, to “plead guilty and gain
           whatever concessions might be obtained by so pleading without causing the
           commencement of a trial” or change trial strategy, LaFave, supra;

       •   “permit the government to change the theory of its case, to develop or place
           greater reliance upon untainted evidence or otherwise to modify its trial
           strategy [in the event of an adverse ruling],” United States v. Sisca, 503 F.2d
           1337, 1348 (2d Cir. 1974);


                                              2
      •   allow the prosecution to pursue an interlocutory appeal of an adverse pretrial
          suppression ruling before jeopardy attaches, People v. Traubert, 608 P.2d 342,
          348 (Colo. 1980) (“Since the prosecution is precluded from placing a
          defendant in double jeopardy after a verdict has been rendered, its only
          meaningful avenue of appeal must be found in a pre-judgment proceeding.”);

      •   “avoid interruptions of a trial in progress with auxiliary inquiries” and
          ensure the jury remains focused on the issues presented at trial, United States
          v. Mauro, 507 F.2d 802, 806 (2d Cir. 1974);

      •   prevent “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.; and

      •   “avoid the necessity of declaring a mistrial because the jury has been exposed
          to unconstitutional evidence, with resulting repetitive litiga[t]ion,” State v.
          Lawrence, 255 So. 2d 729 (La. 1971).

¶48   Similarly, we insist that motions to suppress “should state with reasonable

specificity the legal grounds upon which the motions are based.” People v. Jansen, 713

P.2d 907, 912 n.8 (Colo. 1986). We require such specificity to ensure “the prosecution [is]

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. After all, when considering a motion to

suppress based on the alleged involuntariness of the confession, the trial court “must

make sufficiently clear and detailed findings of fact and conclusions of law on the record

to permit meaningful appellate review.” People v. McIntyre, 789 P.2d 1108, 1110 (Colo.

1990). Without factual determinations from the trial court, “appellate review may be

impossible, requiring remand for further findings.” Id.

¶49   In sum, Crim. P. 41(g) serves an essential role—it ensures that the parties and trial

courts do not waste time and resources pursuing claims that could be resolved in pretrial

proceedings.
                                            3
            C. There Is No Constitutional Right to a Hearing on the
           Voluntariness of a Confession, in the Absence of Objection

¶50    What, then, is the legal basis for deviating from the rule here? It’s certainly not the

existence of an applicable federal constitutional right. For there is none. See Wainwright

v. Sykes, 433 U.S. 72, 86 (1977) (rejecting the notion 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” (citation omitted)).1 And we have never

recognized such a right under any source of Colorado law.

               D. The Majority’s Reliance on Rediger Is Misplaced

¶51    The majority relies on our recent decision in People v. Rediger, 2018 CO 32, 416 P.3d

893, as a broad game changer regarding plain error review. See maj. op. ¶¶ 9, 17; see also

Phillips v. People, 2019 CO 72, ¶¶ 21–22, __ P.3d __. And that it was. But, Rediger did not

address whether waiver is implied when a defendant fails to lodge an objection required

by rule or statute. See Rediger, ¶¶ 39–47, 416 P.3d at 902–903. Therefore, Rediger is plainly

distinguishable.

¶52    In Rediger, the defendant failed to make a contemporaneous objection to an

allegedly erroneous jury instruction. See id. at ¶¶ 9–10, 12, 416 P.3d at 898. Defense




1Wainright analyzed Florida’s rule, which is almost identical to Colorado’s Crim. P. 41(g).
433 U.S. at 76 & n.5. As relevant here, Florida Rule Crim. Proc. 3.190(i)(2) sets forth:
       The motion to suppress [a confession or admission illegally obtained] shall
       be made before trial unless opportunity therefor did not exist or the
       defendant was not aware of the grounds for the motion, but the court in its
       discretion may entertain the motion or an appropriate objection at the trial.

                                              4
counsel additionally stated that the “defense [was] satisfied” with the instructions. Id. at

¶ 10, 416 P.3d at 898.   Yet, we still concluded that, based on the record, there was no

evidence that the defendant “either express[ly] or implied[ly] . . . intended to relinquish

his right to be tried in conformity with the charges set forth in his charging document.”

Id. at ¶ 42, 416 P.3d at 902. There simply wasn’t enough evidence in the record to establish

such an intent, and accordingly, because “we must indulge ‘every reasonable

presumption against waiver,’” we concluded that the defendant had forfeited his claim,

and had not waived it. Id. at ¶¶ 46–47, 416 P.3d at 903 (emphasis added) (quoting People

v. Curtis, 681 P.2d 504, 514 (Colo. 1984)).

¶53    Conspicuously absent in Rediger, however, was a rule like Crim. P. 41(g), which

generally mandates that a defendant file a motion to suppress an involuntary statement

before trial.2

                         E. Hinojos-Mendoza Should Control

¶54    We saw this type of problem only a dozen years ago in Hinojos-Mendoza v. People,

169 P.3d 662, 665, 670 (Colo. 2007), when we found waiver of a defendant’s confrontation

right based on defense counsel’s failure to file a statutorily required motion challenging

the use of certain evidence. In Hinojos-Mendoza, the defendant was charged with intent

to distribute cocaine. Id. at 664. A lab technician tested the recovered substances and

wrote a report identifying the substance as cocaine. Id. At trial, the People introduced




2Moreover, the limited discussion of implied waiver in Rediger is dicta because implied
waiver was not at issue there.

                                              5
the lab report without calling the technician as a witness. Id. The defendant objected on

hearsay grounds. Id. The trial court ruled against the defendant because a statute, section

16-3-309(5), C.R.S. (2006), authorized the admission of the report without the responsible

technician’s testimony and set out pretrial procedures a defendant would have to follow

to question the technician at trial. Hinojos-Mendoza, 169 P.3d at 664–65. In response to

questioning from the court, defense counsel admitted that “he had not requested the lab

technician’s presence because he was unaware of the statute.” Id. at 664. On appeal, the

defendant argued the admission of the lab report without accompanying testimony from

the lab technician violated his Sixth Amendment confrontation rights. Id. at 665.

¶55    We noted that “[w]hether a particular right is waivable; whether the defendant

must participate personally in the waiver; whether certain procedures are required for

waiver; and whether the defendant’s choice must be particularly informed or voluntary,

all depend on the right at stake.” Id. at 669 (quoting United States v. Olano, 507 U.S. 725,

733 (1993)). Rights that are personal to the defendant, such as the right to counsel, the

right to testify, the right to trial by jury, are “sufficiently personal and fundamental as to

require a voluntary, knowing, and intentional waiver by the defendant himself.” Id.

(citing Curtis, 681 P.2d at 511). But, whether to waive other rights, including the right to

confrontation, are strategic decisions that fall to defense counsel to make. See id. Thus,

we concluded that defense counsel could waive the defendant’s right to confront the lab

technician by not complying with the procedural requirements set out in the relevant

statute. Id. at 670. And because “we presume that attorneys know the applicable rules

of procedure,” we reasoned that “we can infer from the failure to comply with the

                                              6
procedural requirements that the attorney made a decision not to exercise the right at

issue.” Id.

¶56    So, where a statute or rule sets forth procedural requirements to challenge

evidence with which counsel fails to comply, such failure constitutes an implied waiver

of the opportunity to challenge that evidence. See id. Counsel is presumed to know the

applicable rules of procedure, and a failure to adhere to those rules creates a basis to infer

“that the attorney made a decision not to exercise that right at issue.” Id. Contrary to the

majority’s conclusion, Rediger didn’t “supplant[]” this analysis. See maj. op. ¶ 17; see also

Phillips, ¶ 30. It didn’t even address the situation before us now.3

         F. The Majority’s Decision Places an Unreasonable Burden on
                                    Judges

¶57    As the majority below observed, our holding today imposes an unreasonable

burden on the trial courts:

       [T]o 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



3 And were we to abide by our existing precedent—and hold that failure to comply with
the requirements of Crim. P. 41(g) constitutes a waiver, rather than a forfeiture—we
would not be alone. See, e.g., Hernandez v. State, 757 S.E.2d 109, 110–11 (Ga. 2014) (holding
that a defendant’s failure to file a pretrial motion to suppress, as required by statute,
resulted in a failure to preserve a claim for appellate review); State v. Miller, 814 S.E.2d
81, 83–86 (N.C. 2014) (holding that plain error review was improper when the defendant
failed to timely file a motion to suppress as required by statute, and, thus, the defendant
“completely waived appellate review” of his Fourth Amendment claims); Rodriguez v.
State, 435 P.3d 399, 408–09 (Wy. 2019) (concluding that failure to file pretrial motions to
suppress, as required by Wyoming’s procedural rules, without good cause for the failure
can constitute waiver).

                                              7
       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).

People v. Cardman, 2017 COA 87, ¶ 31, __ P.3d __; see also Miller, 814 S.E.2d at 84–85

(outlining potential burdens for the prosecution if plain error review is used in reviewing

suppression claims raised for the first time on appeal).

¶58    The systemic implications don’t end with the trial courts. Divisions of the court of

appeals must now scour the record in far more cases for plain error, even when defense

counsel fails to comply with Crim. P. 41(g). All this, when we already have another

long-standing rule that can address Cardman’s primary concern without so much

disruption to our criminal justice system.

                           G. Cardman’s Remedy Is Crim. P. 35(c)

¶59    Rule 35(c) is the proper mechanism for addressing what lies at the heart of

Cardman’s claim—whether he received ineffective assistance from his trial counsel. See

Cardman, ¶¶ 61–63 (Bernard, J., concurring) (“[F]iguring out why defense counsel did not

file a motion to suppress is a foundational question . . . .”). Postconviction proceedings

are best suited to handle “situations in which facts outside the record [are] critical” to

resolving a defendant’s claims. See Moore v. People, 2014 CO 8, ¶ 14, 318 P.3d 511, 517; cf.

People v. Kirk, 221 P.3d 63, 65 (Colo. App. 2009) (“We are not authorized to make this

factual finding in the first instance, and this is not a case in which the record supports but

one inference.” (citation omitted)). What’s missing from the record here is an explanation

of why Cardman’s defense counsel failed to challenge the voluntariness of his statements

in his motion to suppress—was it a strategic choice or an oversight?

                                              8
¶60    Furthermore, analyzing claims such as Cardman’s through an ineffective

assistance of counsel lens rather than plain error could prove more advantageous to

defendants. “[T]he error in a claim of ineffective assistance of counsel must impair the

reliability of the judgment of conviction to a lesser degree than a plain error in order to

warrant reversal of the conviction.” Hagos v. People, 2012 CO 63, ¶ 19, 288 P.3d 116, 120–

21. “Plain error review allows the opportunity to reverse convictions . . . presenting

particularly egregious errors, but reversals must be rare to maintain adequate motivation

among trial participants to seek a fair and accurate trial the first time.” Id. at ¶ 23, 288

P.3d at 121–22. And if the harm suffered by Cardman was so great as to satisfy plain

error, then it would certainly satisfy the prejudice prong of the Strickland standard for

ineffective assistance of counsel. See id. at ¶ 19, 288 P.3d at 121–22 (“Plain error casts

serious doubt on the judgment of conviction. Deficient performance of counsel, on the

other hand, undermines confidence in the judgment of conviction.”).4




4Crim. P. 35(c) allows defendants to begin the postconviction review process without
going through the direct appeal process:
       Notwithstanding the fact that no review of a conviction of crime was sought
       by appeal within the time prescribed therefor, or that a judgment of
       conviction was affirmed upon appeal, every person convicted of a crime is
       entitled as a matter of right to make application for postconviction review
       upon the grounds hereinafter set forth. . . .
Therefore, if a speedy remedy is the concern, one at least as speedy as direct appeal
remains available. And though there is no Sixth Amendment right to court-appointed
counsel for indigent defendants seeking postconviction relief, see Duran v. Price, 868 P.2d
375, 379 (Colo. 1994), district courts have discretion to appoint counsel in Rule 35(c)
motions, see Murphy v. People, 863 P.2d 301, 304 n.9.

                                             9
                                      II. Conclusion

¶61    Cardman waived the challenge he seeks to make here. The majority’s contrary

conclusion is at odds with Crim. P. 41(g) and our decision in Hinojos-Mendoza. The

defendant’s potential remedy for counsel’s failure to comply with the requirements of

Crim. P. 41(g) is found in Crim. P. 35(c). By making factual findings regarding the

detective’s behavior and decisions by defense counsel, the majority usurps the role of the

trial courts.

¶62    For all these reasons, I respectfully dissent.

       I am authorized to state that CHIEF JUSTICE COATS and JUSTICE MÁRQUEZ

join this dissent.




                                             10
