COLORADO COURT OF APPEALS                                       2016COA135


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 September 22, 2016


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    In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the

 United States Supreme Court held that after a suspect invokes his

 right to counsel during custodial interrogation, the police may not

 subject him to further interrogation unless he “himself initiates

 further communication, exchanges, or conversations with the

 police.”

¶2    This case presents the question of whether a suspect who has

 so invoked his Fifth Amendment right to counsel may reinitiate

 communication with the police through an agent, here, the

 suspect’s wife, or whether reinitiation can occur only by direct

 contact between the suspect and the police. No Colorado appellate

 court has addressed this issue.

¶3    Following the lead of every federal and state appellate court

 that has decided this question to date, we hold that reinitiation may

 occur through an agent, but we also conclude that the police must

 have a reasonable belief that the suspect has, in fact, requested the

 agent to reinitiate contact between the suspect and the police.

¶4    Because the record here supports a finding that the police had

 a reasonable belief that defendant, Ryan Matthew Cardman,

 requested his wife to reinitiate contact with the police on his behalf


                                    1
 after he had invoked his right to counsel, we discern no

 constitutional error in admitting his inculpatory statements.

 Because we further conclude that defendant waived his claim of

 voluntariness at the suppression hearing, and discern no error in

 the trial court’s admission of certain statements, we affirm.

                           I.    Background

¶5    Defendant was convicted by a jury of multiple counts of sexual

 assault on a child and sentenced to concurrent indeterminate

 sentences of twelve years to life in prison.

¶6    When the victim was seven, she and her mother moved in with

 defendant, her mother’s then-boyfriend. The victim and her mother

 lived with defendant for about a year, and then the victim’s mother

 became involved with another man, whom she later married.

¶7    Several years later, the victim told her stepfather that

 defendant had sexually assaulted her multiple times when she lived

 with him. After the police were contacted, a forensic interview of

 the victim was conducted. During her video-recorded forensic

 interview, which was admitted at trial, the victim alleged numerous

 instances of sexual contact between her and defendant. The victim




                                    2
  also testified at trial that defendant had sexually assaulted her on

  multiple occasions.

¶8     The police executed a search warrant on defendant’s home.

  They informed him the search was related to their suspicion of

  inappropriate activity on the Internet. During the search, they

  recovered a weapon.

¶9     Defendant was arrested on the charge of possession of a

  weapon by a previous offender. He promptly exercised his rights to

  remain silent and to counsel, and the police ceased questioning.

  But two days later, a police detective conducted another interview of

  defendant. An audio recording of defendant’s second police

  interview was admitted at trial. In the interview, after initially

  denying any improper sexual contact with the victim, defendant

  admitted to three instances of sexual contact.

¶ 10   Before trial, defense counsel moved to suppress defendant’s

  inculpatory statements on the basis that defendant had invoked his

  right to counsel and had never reinitiated discussions with the

  police. The trial court denied the motion after a suppression

  hearing, finding that after the first interview but before the second




                                     3
  interview, defendant had communicated to the police through his

  wife a general willingness to talk about the investigation.

¶ 11   On appeal, defendant contends the trial court erred by

  (1) denying his motion to suppress on the grounds that he

  reinitiated communication with the police; (2) failing to sua sponte

  hold a hearing on the voluntariness of his confession; and

  (3) admitting statements made by the detective.

       II.   Third-Party Reinitiation Under Miranda and Edwards

¶ 12   Defendant contends the district court erred by not

  suppressing statements he made during his second custodial

  interrogation because he had previously invoked his right to

  counsel and did not himself reinitiate communication with the

  police.1 The People respond that defendant reinitiated contact with




  1 Defendant also contends that the police failed to scrupulously
  honor his invocation of his right to remain silent. However, he does
  not further develop this contention, nor does he cite any supporting
  authority for it. We do not address conclusory assertions of error
  presented without argument, analysis, or support. See, e.g., People
  v. Hill, 228 P.3d 171, 176-77 (Colo. App. 2009). Our discussion
  thus is limited to the rules that apply after a suspect has invoked
  his right to counsel, and we do not discuss whether, or to what
  extent, these rules, or different rules, apply after an invocation of
  the right to remain silent.

                                    4
  the police by directing a third party to reinitiate the communication.

  We agree with the People.

                         A.   Standard of Review

¶ 13   Review of a trial court’s decision whether to suppress a

  defendant’s statements presents a mixed question of law and fact.

  People v. Kutlak, 2016 CO 1, ¶ 13. We defer to the court’s findings

  of historical fact if they are supported by sufficient evidence in the

  record, People v. Rivas, 13 P.3d 315, 320 (Colo. 2000), but we

  review de novo the court’s ultimate legal conclusion — its

  application of legal standards to the facts of the case, id.; see also

  People v. Bonilla-Barraza, 209 P.3d 1090, 1094 (Colo. 2009). In this

  respect, whether the facts found by the trial court show a

  reinitiation by defendant of police discussions under Edwards is a

  legal question that we review de novo. See, e.g., Holman v. Kemna,

  212 F.3d 413, 417 (8th Cir. 2000). In conducting this review, we

  may look only at the evidence presented at the suppression hearing.

  People v. Gomez-Garcia, 224 P.3d 1019, 1022 (Colo. App. 2009).

               B.    Reinitiation of Contact with the Police

¶ 14   Pursuant to the Fifth Amendment of the United States

  Constitution and Miranda v. Arizona, 384 U.S. 436, 474 (1966),


                                     5
  once a defendant who is in custody requests counsel, all police-

  initiated interrogation must cease until he has consulted an

  attorney.

¶ 15   But “[a] suspect’s request for the assistance of counsel is not

  irrevocable.” People v. Martinez, 789 P.2d 420, 422 (Colo. 1990). In

  Edwards, the Supreme Court held that a suspect who has invoked

  his right to counsel must not be “subject to further interrogation by

  the authorities until counsel has been made available to him,

  unless the accused himself initiates further communication,

  exchanges, or conversations with the police.” 451 U.S. at 484-85;

  see Martinez, 789 P.2d at 422.2

¶ 16   In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Court

  attempted to explain when a suspect “initiates” contact with the

  2 The Edwards rule embodies two distinct inquiries. “[T]he
  ‘initiation’ question” is only “the first step of a two-step analysis” for
  determining whether a defendant’s post-invocation statements
  made during custodial interrogation are admissible under Miranda
  and Edwards. Oregon v. Bradshaw, 462 U.S. 1039, 1048-49 (1983)
  (Powell, J., concurring in the judgment). The second step is
  determining whether the statements were preceded by a valid
  waiver of the defendant’s previously asserted right to counsel. Id. at
  1044-45; see also Smith v. Illinois, 469 U.S. 91, 95 (1984); People v.
  Martinez, 789 P.2d 420, 422 (Colo. 1990). Defendant does not
  dispute that he validly waived his Miranda rights at the start of his
  second police interview, and thus we do not address this step of the
  analysis.

                                      6
  police within the meaning of Edwards. A plurality of four justices

  held that a defendant reinitiates communication with the police

  where his comments “evince[] a willingness and a desire for a

  generalized discussion about the investigation” and are not “merely

  a necessary inquiry arising out of the incidents of the custodial

  relationship.” Id. at 1045-46; see Martinez, 789 P.2d at 422; People

  v. Pierson, 670 P.2d 770, 775 (Colo. 1983).

¶ 17   According to the plurality, some inquiries,

            such as a request for a drink of water or a
            request to use a telephone . . . are so routine
            that they cannot be fairly said to represent a
            desire on the part of an accused to open up a
            more generalized discussion relating directly or
            indirectly to the investigation. Such inquiries
            or statements, by either an accused or a police
            officer, relating to routine incidents of the
            custodial relationship, will not generally
            “initiate” a conversation in the sense in which
            that word was used in Edwards.

  Bradshaw, 462 U.S. at 1045.

¶ 18   However, the Bradshaw plurality held the suspect had

  reinitiated further conversation by asking an officer, “Well, what is

  going to happen to me now?” because that question, “[a]lthough

  ambiguous, . . . evinced a willingness and a desire for a generalized

  discussion about the investigation; it was not merely a necessary


                                    7
  inquiry arising out of the incidents of the custodial relationship. It

  could reasonably have been interpreted by the officer as relating

  generally to the investigation.” Id. at 1045-46.

¶ 19   The dissenting justices agreed that “to constitute ‘initiation’

  under Edwards, an accused’s inquiry must demonstrate a desire to

  discuss the subject matter of the criminal investigation.”

  Bradshaw, 462 U.S. at 1055 (Marshall, J., dissenting). The dissent,

  however, disagreed with the plurality’s application because, in its

  opinion, the suspect’s “question [could not] be considered ‘initiation’

  of a conversation about the subject matter of the criminal

  investigation,” but rather expressed merely a desire “to find out

  where the police were going to take him.” Id. at 1055-56.

¶ 20   The Colorado Supreme Court has applied the Bradshaw

  plurality’s test to determine whether a suspect has reinitiated

  communication with the police, holding that “an accused must first

  initiate the conversation with the police and by his comments must

  ‘evince[] a willingness and a desire for a generalized discussion

  about the investigation,’ and not merely question the reasons for

  custody.” Martinez, 789 P.2d at 422 (alteration in original) (quoting

  Bradshaw, 462 U.S. at 1045-46).


                                     8
¶ 21   The determination of whether a defendant’s communication

  constitutes reinitiation with the police must be “based on the

  totality of the circumstances of the case, ‘including the background,

  experience and conduct of the accused.’” People v. Redgebol, 184

  P.3d 86, 99 (Colo. 2008) (quoting Martinez, 789 P.2d at 422).

                      C.   Third-Party Reinitiation

¶ 22   Neither the United States Supreme Court nor the Colorado

  Supreme Court has addressed whether a suspect can reinitiate

  contact with the police under Edwards through a third party.

  Nonetheless, other courts have addressed the issue and “all support

  the validity of third-party communications.” Van Hook v. Anderson,

  488 F.3d 411, 419 (6th Cir. 2007); see Henness v. Bagley, 644 F.3d

  308 (6th Cir. 2011); Owens v. Bowersox, 290 F.3d 960 (8th Cir.

  2002); United States v. Michaud, 268 F.3d 728 (9th Cir. 2001);

  Holman, 212 F.3d 413; United States v. Gonzalez, 183 F.3d 1315

  (11th Cir. 1999); United States v. Murphy, 133 F. Supp. 3d 1306 (D.

  Kan. 2015); Ex parte Williams, 31 So. 3d 670 (Ala. 2007);

  Killingsworth v. State, 82 So. 3d 716 (Ala. Crim. App. 2009), rev’d

  on other grounds sub nom. Ex parte Killingsworth, 82 So. 3d 761

  (Ala. 2010); State v. Yonkman, 297 P.3d 902 (Ariz. 2013); Dixon v.


                                    9
  State, 751 S.E.2d 69 (Ga. 2013); Harvell v. State, 562 S.E.2d 180

  (Ga. 2002); In re Tracy B., 704 S.E.2d 71 (S.C. Ct. App. 2010).3

¶ 23   The leading case on this issue, and the one relied on by the

  trial court in its suppression order, is Van Hook, 488 F.3d 411, a

  split en banc decision of the Sixth Circuit. See, e.g., United States

  v. Santistevan, 701 F.3d 1289, 1296 (10th Cir. 2012) (Tymkovich,

  J., dissenting) (stating that Van Hook contains “[t]he most elaborate

  discussion” of third-party reinitiation).

¶ 24   In Van Hook, 488 F.3d at 418, eight of the fifteen judges

  constituting the en banc court held that under Edwards and

  Bradshaw, whether the suspect’s communication to the police “is

  direct or indirect is immaterial — what is important is [that] the


  3 Although some of these cases address the reinitiation of police
  discussions in the context of police interrogation after a defendant’s
  Sixth Amendment right to counsel has attached, the “Edwards
  reasoning (including the exception for defendant-initiated conduct)
  also applies to Sixth Amendment cases.” People v. Ross, 821 P.2d
  816, 820 (Colo. 1992); see also Owens v. Bowersox, 290 F.3d 960,
  962 (8th Cir. 2002) (citing Michigan v. Jackson, 475 U.S. 625, 629
  (1986)). Sixth Amendment cases addressing whether a defendant
  may reinitiate discussions with the police through a third party may
  therefore provide guidance in the context of the Fifth Amendment
  right to counsel. See, e.g., In re Tracy B., 704 S.E.2d 71, 76 (S.C.
  Ct. App. 2010) (a Sixth Amendment right to counsel case was
  relevant in deciding whether third-party reinitiation is permitted
  under the Fifth Amendment).

                                     10
  impetus for discussion comes from the suspect himself.” There, the

  court ruled that the defendant had reinitiated contact with the

  police via his mother because (1) the detective spoke to the

  defendant’s mother, who told the detective she had spoken with her

  son; (2) “based on that discussion, [the detective] thought that [the

  defendant] might want to talk to him”; (3) the detective contacted

  the defendant and told him he had talked with the defendant’s

  mother; and (4) the defendant confirmed to the detective that he

  had talked with his mother and wanted to make a statement. Id. at

  426.

¶ 25     The Van Hook majority explained that “permitting a suspect to

  communicate a willingness and a desire to talk through a third

  party is consistent with the interest protected by Edwards,” which

  is preventing the police from “badgering defendants into waiving

  their asserted right to counsel through repeated questioning.” Id. at

  420 (citation omitted). Prohibiting a suspect from initiating

  discussions with the police through a third party would create “an

  artificial rule” not required by the Fifth Amendment, which is “not

  concerned with moral and psychological pressures to confess

  emanating from sources other than official coercion,” such as


                                    11
  pressure from “friends or family members who convince [suspects]

  to talk with the police.” Id. at 420-21 (citation omitted).

¶ 26   Noting the “importance of admissions of guilt in our criminal-

  justice system,” the majority emphasized that “[c]ourts must not

  create ‘wholly irrational obstacles to legitimate police investigative

  activity.’” Id. at 421 (quoting Davis v. United States, 512 U.S. 452,

  460 (1994)).

¶ 27   Like Van Hook, decisions from other jurisdictions have held

  that allowing reinitiation through a third party does not violate

  Edwards because “the police are still prohibited from reinitiating

  questioning, and the impetus for reinitiation must still come from

  [the suspect].” Williams, 31 So. 3d at 683; see also Michaud, 268

  F.3d at 737 (“Edwards and its progeny establish a clear line

  preventing police initiation. By the same token, however, these

  cases recognize that the [suspect] may change [his] mind and

  initiate communication. It is a factual question whether that is

  what occurred.”).

¶ 28   The seven dissenting judges in Van Hook would have held that

  only the suspect’s (or his attorney’s) direct communication with the

  police may reinitiate discussions after he has invoked his right to


                                     12
  counsel. 488 F.3d at 428 (Cole, J., dissenting). The dissent argued

  that “[i]n addition to eviscerating Edwards, the majority’s holding

  deviates from the clear import of the . . . Court’s jurisprudence on

  custodial interrogations” by “endors[ing] the counter-intuitive

  proposition that we may treat a suspect as willing to talk to the

  police despite his silence to the police.” Id. at 429-30.

¶ 29   The dissent also noted that because a suspect cannot invoke

  his right to counsel through a third party and “a proper

  initiation . . . is indispensable to finding a valid waiver” of the right

  to counsel, the majority’s holding created a “paradox”: “[a] third

  party who could not invoke the [suspect’s] right to counsel may

  nonetheless play a crucial role in bringing about the waiver of that

  right.” Id. at 435.

¶ 30   The Van Hook dissent further emphasized that the majority’s

  holding eroded the “‘bright-line’ quality of the Edwards rule” that

  the Court has cited as one of its chief benefits: “[t]he merits of the

  Edwards decision . . . lies in the clarity of its command and the

  certainty of its application.” Id. at 430-32 (alteration in original)

  (quoting Minnick v. Mississippi, 498 U.S. 146, 151 (1990)).

  According to the dissent, because of the potential uncertainty and


                                      13
  complexity in determining whether a third party’s communication to

  the police constitutes a reinitiation by the suspect, the “hallmark

  ‘clarity’ and ‘certainty of [] application’ of the Edwards rule [would]

  be lost” under the majority’s rule. Id. at 432, 434-35 (alteration in

  original) (quoting Minnick, 498 U.S. at 151).

¶ 31   We believe the majority’s analysis in Van Hook (and the other

  federal and state cases) holding that, at least under some

  circumstances, reinitiation may occur through a third party is

  compelling, and we apply that rule here.

¶ 32   In so doing, we reject defendant’s argument that the Court’s

  language that reinitiation occurs only if “the [suspect] himself

  initiates further communication, exchanges, or conversations with

  the police,” Edwards, 451 U.S. at 485 (emphasis added), means

  literally that only the suspect may communicate to the police that

  he wants to talk.

¶ 33   The Court in Edwards attempted to ensure that any statement

  made by a suspect during custodial interrogation was “not the

  result of coercive pressures” by “prevent[ing] police from badgering

  [the suspect] into waiving his previously asserted Miranda rights.”

  Minnick, 498 U.S. at 150-51 (citation omitted); see also Van Hook,


                                     14
  488 F.3d at 420. Edwards is based on the presumption that after a

  suspect’s invocation of the right to counsel, “any subsequent waiver

  that has come at the authorities’ behest, and not at the suspect’s

  own instigation, is itself the product of the ‘inherently compelling

  pressures’ [of custody and interrogation] and not the purely

  voluntary choice of the suspect.” Maryland v. Shatzer, 559 U.S. 98,

  104-05 (2010) (citation omitted).

¶ 34   But if a suspect reinitiates discussions with the police by

  asking a third party to inform the police that he wants to talk, there

  is no reason to assume that his subsequent waiver of the right to

  counsel was the result of coercive pressures or the badgering of the

  police. Under these circumstances, the suspect “evince[s] a

  willingness and a desire for a generalized discussion about the

  investigation,” Martinez, 789 P.2d at 422 (citation omitted), and

  subsequent police interrogation does not violate Edwards.

¶ 35   Nonetheless, not all third-party communications to the police

  regarding whether the suspect will talk to them constitute

  “reinitiation” under Edwards. The Van Hook majority, 488 F.3d at

  424-25, held that reinitiation of police discussions through a third

  party occurs “[w]hen the police receive information that a suspect


                                      15
  wants to talk; when there is a sufficient basis for believing its

  validity; and when the police confirm with the suspect the validity of

  that information.”

¶ 36   We believe we can maintain Edwards’ “‘clear and unequivocal’

  guidelines to the law enforcement profession,” Minnick, 498 U.S. at

  151 (citation omitted), by applying a reasonableness standard to the

  Van Hook majority’s test for third-party reinitiation. Because “[t]he

  reasonableness standard provides law enforcement with a well-

  defined, common sense rule,” the Court frequently applies the

  concept of a “reasonable police officer” in its Fifth Amendment

  jurisprudence. People v. Arroya, 988 P.2d 1124, 1131 (Colo. 1999)

  (citing Davis, 512 U.S. at 461).

¶ 37   For instance, the Court held in Davis that to invoke the right

  to counsel during custodial interrogation, a suspect must

  “articulate his desire to have counsel present sufficiently clearly

  that a reasonable police officer in the circumstances would

  understand the statement to be a request for an attorney.” 512

  U.S. at 459 (emphasis added). The Court explained that “[t]o avoid

  difficulties of proof and to provide guidance to officers conducting

  interrogations, this is an objective inquiry.” Id. at 458-59.


                                     16
¶ 38   Using this familiar “objective standard of a reasonable police

  officer under the circumstances” concept, Arroya, 988 P.2d at 1131,

  in conjunction with the Sixth Circuit’s concept of “a sufficient basis

  for believing [the] validity” of the third party’s communication to the

  police, Van Hook, 488 F.3d at 425, provides the protection

  necessary to avoid any evisceration of Edwards.

¶ 39   We thus hold that to establish that a suspect has reinitiated

  discussions with the police after previously invoking his right to

  counsel, the prosecution must show that (1) the police reasonably

  believed that the suspect directed a third party to inform them that

  he wanted to have “a generalized discussion about the

  investigation,” Martinez, 789 P.2d at 422 (citation omitted); and

  (2) the police confirmed with the suspect that he had so indicated.

¶ 40   Both prongs of this test must be proven to establish

  reinitiation. If the prosecution does not sufficiently establish the

  first prong, the fact that the suspect may have agreed to talk to a

  police officer after the officer “confirmed” the suspect’s willingness

  to talk does not cure this failure. Once the police contact the

  suspect, some of the protection of Edwards is already lost. Without

  sufficient reinitiation by the suspect, we cannot assume that the


                                     17
  suspect’s ultimate agreement to talk to the police is voluntary and

  not the result of the police “tak[ing] advantage of the mounting

  coercive pressures of ‘prolonged police custody’ by repeatedly

  attempting to question a suspect who previously requested counsel

  until the suspect is ‘badgered into submission.’” Shatzer, 559 U.S.

  at 105 (citations omitted).

¶ 41   Regarding the third party’s representations of the content of

  the suspect’s communication with the third party, the prosecution

  must establish that the suspect’s “comments . . . ‘evince[d] a

  willingness and a desire for a generalized discussion [with the

  police] about the investigation.’” Martinez, 789 P.2d at 422 (quoting

  Bradshaw, 462 U.S. at 1045-46).

                                D.     Application

                          1.         Additional Facts

¶ 42   The evidence at the suppression hearing consisted of

  testimony by the detective who conducted both interviews with

  defendant. The detective testified that after the victim’s forensic

  interview, the police obtained a search warrant for defendant’s

  house and informed defendant during the search that the warrant

  was based on some suspicions that he had engaged in


                                         18
  inappropriate activity or conduct on the Internet. During the

  execution of the warrant, the police found a handgun. Because

  defendant had a prior felony conviction, the detective asked

  defendant and his wife to come to the police station to discuss the

  gun.

¶ 43     The detective testified that the nature of the interview with

  defendant at the police station was, “[i]nitially, to discuss the

  finding of the weapon and him being a previous offender.” He

  advised defendant of his Miranda rights, and defendant said that he

  understood them. He then asked defendant if he wished to talk to

  him, and defendant replied that he did not. Defendant then

  requested counsel and the interview ended, at which point

  defendant was arrested and taken into custody on the weapon

  offense.

¶ 44     Regarding the events that led up to the interview two days

  later at the jail, the detective testified that a Department of Human

  Services (DHS) caseworker had been in contact with defendant’s

  wife regarding interviewing the couple’s children. The detective

  testified that he had learned from the caseworker that “[defendant]

  and [defendant’s wife] had questions.” According to the detective’s


                                      19
  testimony, he called defendant’s wife, and “[i]n conjunction with

  that phone call, he learned that both [defendant] and [defendant’s

  wife] had questions about the investigation.”

¶ 45   At the suppression hearing, the following colloquy between the

  prosecutor and the detective occurred:

            Q. [Prosecutor:] Okay. So I want to talk to
            you, then, about the conversation that you had
            with [defendant’s wife] where she’s indicating
            that [defendant and his wife] had some
            questions. What did she say to you to indicate
            that there were some additional questions
            about the investigation?

            A. [Detective:] It was centered around the basis
            for the police department and DHS still being
            involved with them and the children and the
            reasons behind forensic interviews and
            justifications for that.

            Q. And how did [defendant’s wife] indicate to
            you that [defendant] wanted to speak to you as
            well about these issues?

            A. I don’t recall her exact words, but I had the
            understanding that she had been in conver --
            she had been in contact with [defendant]. And
            [the DHS caseworker] advised me that they –
            [both defendant and his wife] had questions
            about the investigation and the reasons why
            we were still involved specifically with the
            children.

            ...



                                   20
            Q. So the information that you had received
            was that [defendant’s wife] had been in contact
            with [defendant] and that they had some
            questions about -- both of them separately had
            some questions about what was going on with
            the investigation with regard to the children; is
            that correct?

            A. Correct.

¶ 46   On cross-examination, the detective confirmed he had received

  the information from not only the caseworker but also defendant’s

  wife: “Q[:] [At] [s]ome point you receive information, between June

  6th and June 8th, from -- directly from [defendant’s wife] or

  through a third party that [defendant] wanted to -- was willing to

  speak to you about some questions he had? A[:] Both.”

¶ 47   The detective testified consistently on this point, stating

  during redirect examination that he made defendant aware, during

  the first interview, “that there was some interest in an Internet

  investigation or something related to the Internet.” The following

  then took place:

            Q. And it was after that time and after he had
            that awareness or you had made those
            statements that you received information that
            he wanted to speak with you?

            A. Correct.



                                    21
            Q. And that information, again, came from
            [defendant’s wife]?

            A. Correct.

                              2.   Analysis

¶ 48   In our view, the detective had a reasonable basis for believing

  that defendant had directed his wife (and also the caseworker) to

  inform the detective that defendant wanted to have a generalized

  discussion about the investigation. He knew that defendant and

  defendant’s wife were married, had previously been in contact with

  both of them, and understood that they had been in contact with

  one another after the first interview. The detective’s testimony was

  clear that defendant’s wife informed him that defendant had

  questions about the investigation. Further, the detective knew the

  DHS caseworker had also been in contact with defendant after the

  first interview, and she also informed him that both defendant and

  his wife had questions about the investigation.

¶ 49   Turning to the second step — whether the police confirmed the

  information with the suspect — the detective testified that after

  learning that defendant had questions about the investigation, he




                                   22
  called defendant at the jail and confirmed that defendant indeed

  desired to speak with him:

            Q. And when you made a phone call to talk to
            him, your testimony previously was you said
            you received information that he wanted to
            speak with you?

            A. Correct.

            Q. And he confirmed that that was, in fact, the
            case?

            A. Correct.

            ...

            Q. But you initiated that contact because
            [defendant’s wife] said, “He wants to talk to
            you”?

            A. Correct.

¶ 50   We conclude that defendant “adequately evinced a willingness

  and a desire to” reinitiate communication with the police through a

  third party because the detective received information that

  defendant had questions about the investigation, there was a

  reasonable basis for believing the validity of that information, and

  the detective confirmed with defendant the validity of that

  information. See Van Hook, 488 F.3d at 424-26.




                                    23
¶ 51   Similar to the facts in Van Hook, here (1) the detective spoke to

  defendant’s wife, who told the detective she had spoken with

  defendant; (2) based on that discussion, the detective believed

  defendant had questions about the investigation; and (3) the

  detective then contacted the defendant and confirmed defendant

  wanted to talk. Id. at 426.

¶ 52   Defendant contends the evidence shows he only had a

  willingness to talk, but not that he directed his wife to inform the

  detective that he wanted to talk to the police. He further contends

  that the fact that he had “questions” does not establish that he had

  a desire to speak with the police about them. But the record, and

  specifically the detective’s testimony, belies this argument. On

  redirect examination, the detective was asked: “But you initiated

  that contact [with defendant] because [defendant’s wife] said, ‘He

  wants to talk to you’?” The detective answered unequivocally:

  “Correct.”

¶ 53   No evidence in the record contradicts this point. Defendant’s

  wife presumably could have testified that defendant did not “direct”

  her to inform the detective that defendant wanted to talk. The

  caseworker could have testified this way as well. Even defendant


                                    24
  himself could have testified at the suppression hearing that he did

  not direct his wife to inform the detective that he wanted to speak

  with him about the investigation without implicating his Fifth

  Amendment privilege at trial. See Simmons v. United States, 390

  U.S. 377, 394 (1968) (testimony by a defendant at a suppression

  hearing is not admissible against him at trial on the question of

  guilt). Thus, in our view, the evidence supports the district court’s

  finding that defendant directed his wife to inform the detective that

  defendant wanted to talk with him.

¶ 54   Next, defendant contends that, even assuming his wife’s

  statements established that he had a willingness and a desire to

  speak with the detective, the People failed to establish that such

  statements evinced, on the part of defendant, a “willingness and a

  desire for a generalized discussion about the investigation.”

  Martinez, 789 P.2d at 422 (emphasis added) (citation omitted).

  Specifically, he argues that the evidence presented at the

  suppression hearing did not establish that he knew about the

  sexual assault investigation before the second interview, and

  therefore he could not have formed a willingness and a desire for a

  generalized discussion about it.


                                     25
¶ 55   We believe this view takes the holding in Bradshaw too far. In

  our view, defendant’s comments “‘evince[d] a willingness and a

  desire for a generalized discussion about the investigation,’ and

  [were] not merely question[s] [regarding] the reasons for custody.”

  Martinez, 789 P.2d at 422 (quoting Bradshaw, 462 U.S. at 1045-

  46). The detective made defendant aware, during the initial search

  of the house and during the first interview, “that there was some

  interest in an Internet investigation or something related to the

  Internet.” And defendant’s questions “could reasonably have been

  interpreted by the [detective] as relating generally to the

  investigation.” Bradshaw, 462 U.S. at 1045-46.

¶ 56   It is not necessary that defendant knew the specific subject

  matter of the investigation. It is enough that he was aware of an

  investigation, and that his subsequent decision to talk to police was

  unqualified. See Colorado v. Spring, 479 U.S. 564, 577 (1987).

             This Court’s holding in Miranda specifically
             required that the police inform a criminal
             suspect that he has the right to remain silent
             and that anything he says may be used against
             him. There is no qualification of this broad
             and explicit warning. The warning, as
             formulated in Miranda, conveys to a suspect
             the nature of his constitutional privilege and
             the consequences of abandoning it.


                                    26
             Accordingly, we hold that a suspect’s
             awareness of all the possible subjects of
             questioning in advance of interrogation is not
             relevant to determining whether the suspect
             voluntarily, knowingly, and intelligently waived
             his Fifth Amendment privilege.

  Id.

¶ 57    After the Spring decision, the Court held in Arizona v.

  Roberson, 486 U.S. 675 (1988), that a suspect’s invocation of the

  right to counsel prevented police officers from trying to speak with

  the suspect about a different investigation. The Court explained the

  relationship of its new holding in Roberson with its holding in

  Spring as follows:

             Spring’s decision to talk was properly
             considered to be . . . unqualified. Conversely,
             Roberson’s unwillingness to answer any
             questions without the advice of counsel,
             without limiting his request for counsel,
             indicated that he did not feel sufficiently
             comfortable with the pressures of custodial
             interrogation to answer questions without an
             attorney. This discomfort is precisely the state
             of mind that Edwards presumes to persist
             unless the suspect himself initiates further
             conversation about the investigation; unless he
             otherwise states, there is no reason to assume
             that a suspect’s state of mind is in any way
             investigation-specific.

  Roberson, 486 U.S. at 684 (citations omitted).



                                    27
¶ 58   Here, defendant knew the police wanted to talk to him about,

  at a minimum, the possession of a weapon by a previous offender

  charge and something “related to the Internet.” With that

  knowledge, defendant informed the detective, via his wife, that he

  had questions about the investigation — specifically the reasons

  and justifications regarding the children being interviewed by DHS.

¶ 59   These inquiries were not merely related to the routine

  incidents of custody. Bradshaw, 462 U.S. at 1045-46. Rather, the

  questions concerned not only what DHS was doing but also why

  the children were being interviewed, and thus about the

  investigation itself.

                          III.   Voluntariness

¶ 60   A finding that defendant reinitiated communication with the

  police under Miranda does not necessarily end the inquiry. “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).




                                    28
¶ 61   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.

¶ 62   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)).

¶ 63   “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.

¶ 64   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


                                    29
  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.

¶ 65   “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).

¶ 66   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).

¶ 67   “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).

¶ 68   “[W]hen a confession challenged as involuntary is sought to be

  used against a criminal defendant at his trial, he is entitled to a


                                    30
  reliable and clear-cut determination that the confession was in fact

  voluntarily rendered.” Lego v. Twomey, 404 U.S. 477, 489 (1972).

¶ 69   “[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))).

¶ 70   Here, an audio recording of the second interview was played

  during 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
             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,


                                    31
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
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


                          32
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




                            33
             and that’s what I want to eliminate here today.
             And, Ryan, I don’t think you’re that guy.4

¶ 71   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. We are troubled by the police interrogation tactics

  used in this case; however, we do not reach the merits of the

  voluntariness issue because defendant waived it by not raising it

  during the suppression hearing.

¶ 72   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. We acknowledge that the supreme

  court as well as divisions of this court have reached different

  conclusions regarding whether a failure to contemporaneously

  object on constitutional grounds results in the issue being reviewed

  for plain error. Compare, e.g., People v. McMurtry, 122 P.3d 237,

  241 (Colo. 2005) (a defendant may not raise claim of denial of

  constitutional right to speedy trial for the first time on appeal),

  4 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.

                                     34
  People v. Cooper, 205 P.3d 475, 478 (Colo. App. 2008) (declining to

  consider unpreserved double jeopardy claims), and People v.

  Kitsmiller, 74 P.3d 376, 378 (Colo. App. 2002) (declining to review

  unpreserved due process claim that the defendant was entitled to

  an evidentiary hearing), with, e.g., People v. Miller, 113 P.3d 743,

  749-50 (Colo. 2005) (reviewing for plain error the defendant’s due

  process claim regarding instructional error), People v. Kruse, 839

  P.2d 1, 3 (Colo. 1992) (applying plain error standard to Fifth

  Amendment argument and stating it is an exception to rule that

  claim must first be brought in trial court), and People v. Tillery, 231

  P.3d 36, 47 (Colo. App. 2009) (applying plain error review to

  unpreserved claim of double jeopardy sentencing errors), aff’d sub

  nom. People v. Simon, 266 P.3d 1099 (Colo. 2011).

¶ 73   Because we conclude defendant waived his right to a hearing

  on voluntariness, we need not wade into this dispute.

¶ 74   “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.




                                    35
  725, 733 (1993)). And, unlike a right that is merely forfeited, “there

  is no appeal from a waived right.” Id.5

¶ 75   Although defendant moved to suppress the incriminating

  statements, he chose to do so solely on the basis that he did not

  reinitiate communication with the police, not because his

  statements were involuntary. The court held a two-day suppression

  hearing. Defendant failed to raise voluntariness at any time during

  the suppression hearing.6

¶ 76   On appeal, defendant does not argue that he was unaware of

  the requirements that a statement must be voluntary to be

  5 “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).
  6 This is not equivalent to a failure to contemporaneously object to

  something during the heat of a trial. Defendant moved to suppress
  the incriminating statements, but only on the basis that he had not
  reinitiated contact with the police. Defendant cannot now
  collaterally attack the voluntariness of those statements by seeking
  remand for a voluntariness hearing. Remanding the case for the
  trial court to hold a hearing on whether the statements were
  voluntary would create an incentive for defendants to forgo raising
  the issue of voluntariness and then to seek remand on appeal if
  found guilty at trial. To hold otherwise would allow defendants to
  roll the dice at the first trial (particularly where, as here, the
  defendant is a felon who would likely not testify at trial and thus
  where the only chance for the jury to see his denial of the charges is
  in the videotaped interrogation) and only after being found guilty
  seek suppression on different grounds than those raised initially.

                                    36
  admissible or that he request a voluntariness hearing. Rather, he

  contends he raised the issue of voluntariness during opening and

  closing statements at trial.

¶ 77   We disagree with defendant that the remarks made during

  opening and closing statements were sufficient to raise the issue

  and warrant a hearing under Jackson v. Denno, 378 U.S. 368

  (1964).7 This is because “[w]e must limit our review to the evidence

  presented at the suppression hearing.” Gomez-Garcia, 224 P.3d at

  1022. Defendant cites no authority for the proposition that a trial

  court has a duty to sua sponte hold a hearing on the issue of

  voluntariness where the arguably coercive police tactics become

  apparent during trial as opposed to during the suppression hearing.

¶ 78   To require the trial court to hold a hearing on the

  voluntariness of a defendant’s statements where the issue first

  becomes apparent during the trial would be overly burdensome and

  inefficient. In the context of this case, such an obligation could


  7 In Jackson v. Denno, 378 U.S. 368, 374 & n.4 (1964), defense
  counsel raised the issue with the trial court by directly informing
  the court that the defendant “was in no mental condition to make
  the statement” at issue and received acknowledgment from the
  court that it understood counsel to be “questioning the
  circumstances under which [the defendant] was interrogated.”

                                    37
  have required the trial court, after the audio recording of the

  confession had been played for the jury, to sua sponte (1) declare a

  mistrial; (2) order a new suppression hearing on the issue of

  voluntariness; (3) convene a new jury; and (4) begin a new trial

  (where the confession may even have been allowed).8

¶ 79   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 where it

  should be evident to the trial court that voluntariness is an issue.

¶ 80   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 Court in

  Jackson even quoted the colloquy between the trial court and

  Jackson’s attorney, during which counsel objected to the use of the

  8 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.”).

                                     38
  confession and explained to the court “[the defendant] was in no

  mental condition to make the statement.” Id. at 374 n.4.

¶ 81   Here, no such colloquy occurred at trial (and certainly not at

  the suppression hearing) between the court and defendant’s

  counsel that would have indicated defendant’s objection on

  voluntariness grounds or the trial court’s awareness that defendant

  was questioning the voluntariness of his statements.

¶ 82   Moreover, in Wainwright the Supreme Court explicitly rejected

  the very argument defendant makes here:

            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


                                   39
             not require a voluntariness hearing absent some
             contemporaneous challenge to the use of the
             confession.

  433 U.S. at 86 (emphasis added) (citations omitted).

¶ 83   Thus, a defendant must request a hearing on the issue of

  voluntariness in order for the court to hold one. Id.; Lego, 404 U.S.

  at 489; Sanchez, 180 Colo. at 122, 503 P.2d at 621. Defendant did

  not request such a hearing.

¶ 84   Accordingly, we conclude that because defendant moved to

  suppress the statements, but did so solely on reinitiation grounds,

  he waived the voluntariness claims. We therefore discern no error.

  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


                                    40
  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.”).

               IV.   Detective’s Statements on Credibility

¶ 85   Defendant next argues that reversal is required because the

  recording of the interview admitted at trial included the detective’s

  assertions that he believed the victim and did not believe

  defendant’s denials of the victim’s allegations, and because the

  detective testified that he did not believe defendant.

¶ 86   Defendant did not object to the admission of this evidence. We

  therefore review the issue for plain error. People v. Lopez, 129 P.3d

  1061, 1064 (Colo. App. 2005).

¶ 87   Plain error addresses error that is both “obvious and

  substantial.” Miller, 113 P.3d at 750. Under the plain error

  standard, “the defendant bears the burden to establish that an

  error occurred, and that at the time the error arose, it was so clear

  cut and so obvious that a trial judge should have been able to avoid

  it without benefit of objection.” People v. Conyac, 2014 COA 8M,

  ¶ 54; People v. Ujaama, 2012 COA 36, ¶ 42. “The defendant must

  also establish that the error was so grave that it undermined the


                                     41
  fundamental fairness of the trial itself . . . as to cast serious doubt

  on the reliability of the conviction.” Conyac, ¶ 54.

¶ 88   In Davis v. People, 2013 CO 57, ¶¶ 1, 17, the Colorado

  Supreme Court held that a law enforcement officer may testify

  about his perception of a witness’s credibility during an

  investigative interview if the testimony is offered to provide context

  for the officer’s interrogation tactics and investigative decisions

  rather than as a comment on the witness’s credibility. It

  necessarily follows that similar statements by police officers made

  during the interrogation itself are admissible for the same purpose.

¶ 89   Here, the statements made by the detective during the

  interview fall within the purview of Davis. The detective told

  defendant numerous times during the interview that he did not

  believe him after defendant had denied certain sexual contact with

  the victim, and the detective also said that he believed at least some

  of the victim’s allegations. And the detective testified at trial that he

  used these statements as an interrogation technique.

¶ 90   Moreover, except for two statements by the detective during

  his testimony that may have crossed the line into impermissible




                                     42
  commentary on defendant’s credibility,9 all of the detective’s

  testimony was permissible under Davis. These two questionable

  statements, if error, were neither so obvious that the trial judge

  “should have been able to avoid [them] without benefit of objection,”

  nor so grave as to undermine “the fundamental fairness of the trial

  itself . . . as to cast serious doubt on the reliability of the

  conviction.” Conyac, ¶ 54.

¶ 91   Accordingly, we discern no plain error.

                              V.    Conclusion

¶ 92   The judgment is affirmed.

       JUDGE BERNARD specially concurs.

       JUDGE BERGER dissents.




  9 These statements were: (1) the detective’s testimony that he
  “essentially told [defendant] that [he] didn’t believe him” when
  defendant denied any sexual contact with the victim because of the
  detective’s “own gut feeling in the way that [defendant] was
  answering questions of known facts versus questions of [the
  victim]’s allegations”; and (2) the detective’s testimony that after
  defendant began to admit some sexual contact with the victim, the
  detective “felt most of the information [defendant] was giving . . . to
  [him] was genuine.”

                                      43
       JUDGE BERNARD, specially concurring.

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

  far as Part III is concerned to provide additional reasons for why I

  respectfully disagree with the dissent’s conclusion that we should

  review “the voluntariness question for plain error.”

¶ 94   It is my view that, for the following reasons, plain error review

  in this case would be ineffective and unfair to the prosecution.

¶ 95   First, our supreme court has made clear that, 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 “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[.]”).


                                     44
¶ 96   Second, 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, 183 (3d Cir. 2008). So, if we

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

  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.




                                   45
       JUDGE BERGER, dissenting.

¶ 97   I agree with the majority that a suspect may reinitiate contact

  with the police through a third party after first invoking his Fifth

  Amendment right to counsel. I also agree with the majority that the

  police must have a reasonable belief that the third party has been

  authorized by the suspect to reinitiate contact with the police.

¶ 98   But I respectfully dissent from the majority’s application of

  these principles. Instead, I believe this record demonstrates that

  the officer did not have a reasonable belief that Cardman wanted to

  reinitiate contact with the police and engage in a generalized

  discussion about the investigation. Therefore, the admission of

  numerous inculpatory statements made by Cardman during the

  ensuing unconstitutional interrogation violated Edwards v. Arizona,

  451 U.S. 477 (1981), and thus the Fifth Amendment. And, on this

  record, the improper admission of this evidence was not harmless

  beyond a reasonable doubt, requiring reversal of Cardman’s

  convictions.

¶ 99   I also dissent from the majority’s refusal to address, even

  under a plain error standard, the voluntariness of Cardman’s

  inculpatory statements that were admitted at trial. In my view, this


                                    46
  record demonstrates a substantial question regarding the

  voluntariness of those statements and thus raises substantial

  questions regarding the reliability of Cardman’s convictions.1

         I. Reinitiation of Communications With the Police: This Record
        Does Not Support a Finding and Conclusion that Cardman
                Reinitiated Communications With the Police

¶ 100   For four reasons, I reject the trial court’s (and majority’s)

  determination that Cardman reinitiated communications with the

  police through his wife.

¶ 101   First, the People must prove that Cardman reinitiated

  communications with the police by clear and convincing evidence.

  See People v. Redgebol, 184 P.3d 86, 99 (Colo. 2008). They did not

  meet this burden.

¶ 102   When the detective was given an opportunity at the

  suppression hearing to explain the circumstances that led him to

  contact Cardman after Cardman had invoked his rights to silence

  and counsel, the detective testified as follows:

             Q. Could you describe for the Court what are
             the circumstances that led you to, once again,
             speak with Mr. Cardman?


  1I agree with Part IV of the majority’s opinion, “Detective’s
  Statements on Credibility.”

                                     47
A. As I said before, myself and assigned DHS
Caseworker Patricia Hartman had been in
contact with Mrs. Cardman in reference to
screening interviews of their children or if
there were to be forensic interviews completed
with the children. During those several phone
calls between DHS Caseworker Mrs. Hartman
and Mrs. Cardman, it was obvious there was
[sic] questions in reference to my part in my
investigation, to include some property we
obtained from the search warrant I had been
given back from our computer forensics unit,
and I was able to return that back to the
Cardmans. In conjunction with that phone
call, I learned that both Mr. and Mrs. Cardman
had questions about the investigation.

Q. Okay. And I just -- I kind of want to flush
that out a little bit, then. You referenced that
there was some evidence that had been seized
and that it sounds like the Cardmans or [Mrs.]
Cardman was interested in getting that
evidence back.

A. Correct. They both were.

Q. Okay. And that evidence was what?

A. It was a -- it was an Asus tablet, which is
similar to an iPad. It was a larger mini-laptop-
looking thing.

Q. And also while this was going on, there’s a
separate issue, which is that there’s the
possibility that the Colorado Springs Police
Department or others would like to complete a
forensic interview with the Cardmans’ two
children; correct?

A. Correct.

                       48
Q. And there were questions about that
interview process?

A. Correct.

Q. And this was an interview that was taking
place in conjunction with your investigation?

A. Correct.

Q. And you spoke with [Mrs. Cardman] about
these issues; is that correct?

A. DHS Caseworker Hartman spoke to her
about these issues. And I learned from
Caseworker Hartman that Mr. and Mrs.
Cardman had questions. I would -- I don’t
know what they were. I eventually talked to
Mrs. Cardman, and she explained they had
questions, I’m assuming, about that. And I
called her to tell her I could bring back the
Asus tablet and answer their questions that
they had.

Q. Okay. So I want to talk to you, then, about
the conversation that you had with [Mrs.]
Cardman where she’s indicating that they had
some questions. What did she say to you to
indicate that there were some additional
questions about the investigation?

A. It was centered around the basis for the
police department and DHS still being involved
with them and the children and the reasons
behind forensic interviews and justifications
for that.

Q. And how did she indicate to you that Ryan
Cardman wanted to speak to you as well about
these issues?


                       49
A. I don’t recall her exact words, but I had the
understanding that she had been in conver --
she had been in contact with Mr. Cardman.
And Mrs. Hartman advised me that they -- the
Cardmans had questions about the
investigation and the reasons why we were still
involved specifically with the children.

...

Q. So the information that you had received
was that [Mrs. Cardman] had been in contact
with Ryan and that they had some questions
about -- both of them separately had some
questions about what was going on with the
investigation with regard to the children; is
that correct?

A. Correct.

Q. And did you receive any information that
there was any other reason that Mr. Cardman
wanted to talk to you, whether it be about
evidence or any other part of the investigation?

A. No. From what I recall, the phone call was
very brief. And I had informed Mrs. Cardman
that I had received the Asus tablet back from
the computer forensics unit; and I can bring
that back to her and then cover in more detail
what her concerns were. So we didn’t discuss
specifics over the phone call.

Q. And so once we’ve received the information
from – from [Mrs.] Cardman, which is Ryan’s
wife, did you then initiate some contact with
Mr. Cardman?

A. Yes. Having the information Mr. Cardman
may have questions about the current status -


                       50
             - I was actually on an unrelated investigation
             at that moment in the field. I placed a phone
             call to CJC and was actually routed to Mr.
             Cardman’s ward and asked him if I came down
             there, if he was gonna talk to me, and he said
             he would.

¶ 103   In my view, this testimony does not support a finding, by clear

  and convincing evidence, that Cardman, through his wife, was

  requesting the police to recontact him. Only later in the

  suppression hearing, when the prosecutor asked a series of leading

  questions — the premises of which were inconsistent with the

  detective’s prior narrative testimony — did the detective utter the

  testimony the majority relies on to find that Cardman reinitiated

  contact with the police.

¶ 104   There is a reason that an elevated standard of proof applies to

  this inquiry, and I would not countenance the avoidance of that

  standard of proof by reliance on the types of inconsistent, leading

  questions and answers given after the detective gave narrative

  testimony that disproved reinitiation by Cardman.

¶ 105   Second, even if we were to assume that Cardman’s wife’s

  statements to the detective established that Cardman had not only

  a willingness but also a desire to speak with the detective, nothing



                                    51
  in the record shows that such statements evinced, on the part of

  Cardman, a “willingness and a desire for a generalized discussion

  about the investigation.” People v. Martinez, 789 P.2d 420, 422

  (Colo. 1990) (emphasis added) (quoting Oregon v. Bradshaw, 462

  U.S. 1039, 1045-46 (1983)). Although the trial court found that

  Cardman’s communications with the police established that

  Cardman was “willing” to talk to the detective, there is no evidence

  (other than the detective’s agreement with the prosecutor’s leading

  questions on redirect) that the detective reasonably believed that

  Cardman directed his wife to inform the detective that he wanted to

  talk to the police. Willing and wanting are not the same thing.

¶ 106   The fact that Cardman may have had “questions” does not

  establish that he had any desire to speak to the police about those

  questions. Anyone in Cardman’s position would have “questions”

  about any number of things: what he was being charged with, the

  future course of his life, the effect of his arrest on his family, and

  numerous other subjects. But none of these “questions”

  necessarily indicates that Cardman wanted to speak with the

  detective about any or all of these matters, particularly after

  previously clearly invoking his right to silence and to counsel. The


                                     52
  presumption raised by Cardman’s request for counsel, “that he

  consider[ed] himself unable to deal with the pressures of custodial

  interrogation without legal assistance,” Arizona v. Roberson, 486

  U.S. 675, 683 (1988), did not disappear simply because the

  detective learned that Cardman had “questions.”

¶ 107   Third, the evidence presented at the suppression hearing did

  not establish that Cardman knew about the sexual assault

  investigation before the second interview. Without any knowledge

  regarding the subject of the investigation, Cardman could not

  possibly have had a willingness and a desire for a generalized

  discussion about it.

¶ 108   I disagree with the majority that “[i]t is not necessary that

  [Cardman] knew of the specific subject matter of the investigation”

  as long as he was “aware of an investigation.” As the United States

  Supreme Court explained in Edwards, while a defendant, after

  initially being advised of his rights under Miranda v. Arizona, 384

  U.S. 436 (1966), may validly waive his rights and respond to

  interrogation, “the Court has strongly indicated that additional

  safeguards are necessary when [the defendant] asks for counsel.”

  Edwards, 451 U.S. at 484. Consequently, although, as the majority


                                     53
  emphasizes, a defendant need not know “all the possible subjects of

  questioning” to validly waive his Miranda rights initially, Colorado v.

  Spring, 479 U.S. 564, 577 (1987), the analysis changes once the

  defendant invokes his Fifth Amendment right to counsel.

¶ 109   “[C]ourts [must] indulge . . . every reasonable presumption

  against [a] waiver” of constitutional rights, Brewer v. Williams, 430

  U.S. 387, 404 (1977), and reinitiation by the suspect is a

  prerequisite to a valid waiver of the suspect’s previously asserted

  Fifth Amendment right to counsel, see Edwards, 451 U.S. at 484-

  85. Ironically, the majority relies on Arizona v. Roberson, 486 U.S.

  675 (1988), which held that a defendant’s invocation of his Fifth

  Amendment rights extends to all cases for which the defendant is

  under investigation, to support its conclusion that waiving the right

  to counsel also applies to multiple cases. Thus, the majority relies

  on a case that extends Fifth Amendment protections to a suspect as

  support for a waiver of those very rights.

¶ 110   Fourth, the fact that Cardman told the detective on the phone

  that he would talk to him does not establish that the detective

  confirmed with Cardman that Cardman intended, through his wife,

  to reinitiate discussions with the police. Without such


                                    54
  confirmation, and without any other evidence in the record that

  shows that Cardman intended to initiate contact with the detective,

  we cannot be sure that Cardman’s subsequent waiver of the right to

  counsel was “purely [his] voluntary choice” and not the result of

  coercive pressures. Maryland v. Shatzer, 559 U.S. 98, 104-05

  (2010) (quoting Roberson, 486 U.S. at 681). Under these

  circumstances, concluding that Cardman reinitiated contact with

  the police violates Miranda and Edwards.

¶ 111   The majority discusses only the detective’s responses to

  leading questions by the prosecutor on direct examination

  regarding the detective’s phone call with Cardman:

             Q. And when you made a phone call to talk to
             him, your testimony previously was you said
             you received information that he wanted to
             speak with you?

             A. Correct.

             Q. And he confirmed that that was, in fact, the
             case?

             A. Correct.

¶ 112   The majority, however, omits the exchange that immediately

  followed this dialogue:

             Q. And that he wanted to speak with you
             about aspects of the investigation?

                                   55
             A. It was over the phone call. It was just
             whether or not if I came down there, he would
             — he would talk to me.

¶ 113   The majority also omits the following portion of the detective’s

  testimony on direct about his phone call with Cardman:

             A. . . . I placed a phone call to . . . Mr.
             Cardman[] . . . and . . . asked him if I came
             down there, if he was gonna talk to me, and he
             said he would.

             Q. And when you spoke with Mr. Cardman by
             phone, did you make reference to the fact that
             you had received information he wanted to
             speak to you?

             A. Yes.

             Q. And what was his response to that?

             A. He said he would talk to me.

¶ 114   I cannot agree with the majority that this testimony

  establishes, by clear and convincing evidence, that Cardman

  confirmed that he had directed his wife to contact the police and

  inform them that he wanted to speak with them. It may show that

  he was “willing” to talk to the detective, but it does not show that

  the “impetus” for the subsequent interrogation came from Cardman

  himself. See Van Hook v. Anderson, 488 F.3d 411, 418 (6th Cir.

  2007) (en banc).



                                    56
¶ 115   To permit the police to re-interrogate a defendant after the

  defendant has previously invoked his right to counsel, the

  information the police obtain from a third party should be the

  substantial equivalent of direct initiation by the defendant: it

  should convey the same message as if the defendant himself had

  contacted the police and said that he wanted to talk about his case.

  Vague information that Cardman’s wife had spoken with him and

  learned he had “questions” does not convey such a message.

¶ 116   For these reasons, the interrogation of Cardman and the

  admission into evidence of Cardman’s statements to the police

  (made after he had invoked his right to counsel) violated Cardman’s

  rights under the Fifth Amendment to the United States

  Constitution.

¶ 117   It is not a close question whether the improper admission of

  Cardman’s statements requires reversal. Other than Cardman’s

  statements, the only evidence presented at trial that he committed

  the offenses was the victim’s testimony, the statements she made in

  her forensic interview, and the testimony of other witnesses

  regarding statements she had made to them.




                                    57
¶ 118   Although the victim described a few instances of sexual

  contact with Cardman that were similar to those Cardman

  discussed in his statements, much of her testimony contained

  numerous details that were not corroborated by Cardman’s

  statements or by any other evidence. Indeed, much of her

  testimony contradicted what she had said in her initial disclosures.

¶ 119   For instance, Cardman consistently denied any instances of

  genital penetration. The victim initially said in her forensic

  interview that Cardman had forced her into oral sex, but she

  expressly denied any vaginal or anal intercourse. However, at trial

  she testified that Cardman had penetrated her vagina and anus

  with his penis multiple times.

¶ 120   The victim also testified that Cardman had physically abused

  her by, among other things, hitting her in the face with a gun,

  cutting the bottom of her feet and burning her with a heated-up

  pocket knife, and making her submerge her hands in boiling water

  for as long as she could stand it. She also testified that Cardman

  carved the word “slut” into her leg with a knife, which caused her to

  lose consciousness for at least twenty minutes and bleed so much




                                    58
  that her dogs were “covered in blood,” leaving a scar that lasted for

  three years.

¶ 121   However, the victim did not disclose any of these events until

  many months after her initial disclosures. Even more significantly,

  her mother, who was a nurse, testified that she never saw any

  unexplained injuries on the victim while they were living with

  Cardman.

¶ 122   For these reasons, Cardman’s convictions should be reversed

  and the case remanded for a new trial.

  II. Voluntariness of Cardman’s Inculpatory Statements: This Record
      Raises a Substantial Question Whether Cardman’s Inculpatory
   Statements Were Voluntary and the Case Should Be Remanded to
                 Make the Voluntariness Determination

¶ 123   Having incorrectly concluded that Cardman reinitiated contact

  with the police, the majority then declines on procedural grounds to

  address whether Cardman’s statements made during the prohibited

  reinitiated interrogation were voluntary.

¶ 124   I agree with the majority that Cardman did not directly raise

  this issue in the trial court, but I disagree with the majority that

  Cardman is procedurally barred from any review of the

  voluntariness of his statements. Instead, I believe that we should



                                     59
  review the voluntariness question for plain error and that our

  failure to do so raises serious questions regarding the reliability of

  Cardman’s convictions.

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

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

  convictions, than the conduct engaged in by the police in this case.

  The facts are stark: a person is being questioned by the police

  regarding extremely serious crimes, the penalty for which is an

  effective life sentence and societal opprobrium that we judges can

  hardly imagine. 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 well result in an effective life

  sentence) he can go home to his wife and child and no charges will

  be filed. The majority acknowledges in the abstract that promises

  of this type may constitute coercive conduct by the police and

  support a conclusion that inculpatory statements made in reliance

  upon such promises are involuntary. But nevertheless, for

  procedural reasons, the majority refuses to address this police

  conduct.


                                     60
¶ 126   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

  confession2:

             [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 —

             [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.


  2 This is not a case in which the trial court did not hear evidence
  regarding the 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.

                                     61
[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.

[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


                            62
             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.3

  (Emphasis added.)

¶ 127   While I do not have sufficient information before me to

  definitively make a determination of voluntariness, this record is

  sufficiently disturbing to mandate a remand for findings by the trial

  court on this critical question. In my view, the italicized portions of

  the interrogation that I reproduced above violate any

  constitutionally acceptable standard of police conduct and compel

  the conclusion that the police engaged in coercive conduct.

¶ 128   It is not a satisfactory answer that we do not review the

  voluntariness of Cardman’s confession because he waived the issue.



  3 There 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.

                                    63
  Waiver is uniformly defined as an “intentional relinquishment or

  abandonment of a known right.” United States v. Olano, 507 U.S.

  725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464

  (1938)). There is no basis in this record to establish that Cardman

  knowingly and intelligently waived a challenge to the voluntariness

  of his inculpatory statements.

¶ 129   Criminal cases are not, or at least should not be, a contest to

  determine whether defense counsel has made errors that cause

  forfeiture of a defendant’s critical constitutional rights. The

  pressure on defense counsel in criminal cases, particularly

  overworked public defenders, is immense. That is precisely the

  reason why the Colorado Supreme Court has adopted the doctrine

  of plain error review: to correct obvious fundamental errors that

  impair the reliability of a judgment of conviction.4

¶ 130   Put simply, the single most important legal question in this

  case is whether Cardman was coerced into confessing guilt. If he


  4 I do not quarrel with those cases that hold that strategic decisions
  made by defense counsel should not be subject to plain error
  review. See, e.g., People v. Bondsteel, 2015 COA 165, ¶ 129. But
  the failure to object to the admission of Cardman’s confession on
  voluntariness grounds could not conceivably be viewed as a
  strategic decision.

                                    64
  was, and his inculpatory statements are suppressed under the Due

  Process Clause, there is a significant chance that the outcome of

  this case would have been different. Every other issue in this case

  pales in comparison.

¶ 131   While I do not contend that a trial court has a sua sponte duty

  to police every confession admitted into evidence, I also suggest it is

  difficult to dispute that the audio recording of Cardman’s

  interrogation by the detective would and should at least raise

  serious questions in the mind of any judge regarding the tactics

  utilized by the detective, even without an objection by counsel.

¶ 132   I also question the majority’s conclusion that Colorado law

  does not require a trial court (or this court) to consider the

  voluntariness of a confession even in the absence of a motion to

  suppress. In Whitman v. People, 170 Colo. 189, 193, 460 P.2d 767,

  769 (1969), the Colorado Supreme Court held that

             [i]t is not necessary that there be an express
             objection by the defendant to the admission of
             the confession by a motion to suppress or by
             contemporaneous objection. The trial judge is
             required to conduct a hearing when it becomes
             evident to him that voluntariness is in issue.
             An awareness on the part of the trial judge
             that the defendant is questioning the



                                     65
               circumstances under which the statements
               were obtained is sufficient.

¶ 133     Whitman relied on similar language in Jackson v. Denno, 378

  U.S. 368, 391-95 (1964). In Wainwright v. Sykes, 433 U.S. 72, 86

  (1977), the United States Supreme Court repudiated that

  interpretation of Jackson.

¶ 134     In a later Colorado Supreme Court case relied on by the

  majority, People v. Sanchez, 180 Colo. 119, 122, 503 P.2d 619, 621

  (1972), the court stated that “[w]e are not prepared to say that the

  mere act of offering the statement into evidence is sufficient to raise

  an issue of its voluntariness.” But Sanchez does not cite Whitman,

  and neither Sanchez nor any other Colorado Supreme Court case

  precludes plain error review in the circumstances presented by this

  case.

¶ 135     Casting further doubt upon the current status of Colorado law

  in this respect is People v. Copenhaver, where, twenty-three years

  after Whitman, a division of this court stated:

               Defendant did not contend in the trial court
               that either statement was involuntary or
               unreliable, nor did he request a hearing on
               these issues. Moreover, the record does not
               afford a basis for concluding that the
               voluntariness of the statements might be


                                     66
              challenged. In these circumstances, the court
              was not required to hold a hearing on
              voluntariness sua sponte.

  21 P.3d 413, 418 (Colo. App. 2000) (emphasis added).

¶ 136   As I have previously observed, questions regarding the

  voluntariness of Cardman’s statements were obvious when the

  audio recording of Cardman’s second interrogation was played for

  the jury.

¶ 137   The majority recognizes that an appellate court reviews claims

  of unpreserved error for plain error in a wide variety of contexts.

  People v. Vigil, 127 P.3d 916, 929 (Colo. 2006). But in this critical

  context, the majority applies special rules supposedly applicable to

  suppression issues to preclude even plain error review.

¶ 138   The error in applying these special rules to preclude even plain

  error review 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


                                    67
  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 evidence obtained in violation of the Fourth

  Amendment usually must be suppressed in order 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 procedural rules

  requiring that such objections be made at a specific time, or else

  they are waived for all time, is justifiable.

¶ 139   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

  not voluntarily made. 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).




                                      68
¶ 140   It can no longer be denied 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,

  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))).

¶ 141   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 or were

  coerced when the issue is raised by the admission of evidence either

  at a suppression hearing or at trial.

¶ 142   The daunting requirements for finding plain error eliminate

  any concern by the majority that such plain error review will

  overcome the rules of criminal procedure 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 v. People, 2012 CO


                                    69
  63, ¶ 23. But plain error review is essential to review convictions

  that are potentially unreliable because of a serious error in the trial

  court proceedings. Holding that plain error review is unavailable on

  something as central to the integrity of the truth-finding process as

  the voluntariness of a confession risks affirmation of convictions

  based upon false, and thus unreliable, confessions.

¶ 143   In the vast majority of cases in which there is an unsupported

  and unpreserved claim of involuntariness, there is virtually no

  possibility that an appellate court will find plain error. But this

  case is different. Here, the trial court knew precisely and the

  appellate record demonstrates the factual basis for the claim of

  involuntariness. Some of the details were spread before the trial

  court in the 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. The only thing missing in this case is the ultimate

  determination by the trial court, based upon all of the

  circumstances, whether Cardman’s statements were involuntarily

  made, a determination that trial courts not infrequently are

  required to make on remand.


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¶ 144   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

  done in this case and that the convictions which the court affirms

  may be unreliable.

                              III. Conclusion

¶ 145   For these reasons, I respectfully dissent. I would reverse

  Cardman’s convictions because he did not reinitiate the police

  contact. But even if he did, I would remand to the district court to

  determine, under the appropriate legal standard, whether

  Cardman’s statements were voluntary or involuntary. If they were

  made involuntarily, they cannot be admitted for any purpose and

  Cardman would be entitled to a new trial.




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