People v. Cardman, Court of Appeals No. 14CA0202

• Citation: 452 P.3d 11
• Decision Date: 22 September 2016
• Docket Number: Court of Appeals No. 14CA0202
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Ryan Matthew CARDMAN, Defendant–Appellant.
• Court: Court of Appeals of Colorado

452 P.3d 11

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Ryan Matthew CARDMAN, Defendant–Appellant.

Court of Appeals No. 14CA0202

Colorado Court of Appeals, Division V.

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

Opinion by JUDGE ROMÁN

¶ 1 In Edwards v. Arizona , 451 U.S. 477, 484–85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (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 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 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 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 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, 364 P.3d 199. 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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), 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, 101 S.Ct. 1880 ; see Martinez , 789 P.2d at 422.²

¶ 16 In Oregon v. Bradshaw , 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), the Court attempted to explain when a suspect "initiates" contact with the 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, 103 S.Ct. 2830 ; 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, 103 S.Ct. 2830.

¶ 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 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, 103 S.Ct. 2830.

¶ 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, 103 S.Ct. 2830 (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, 103 S.Ct. 2830.

¶ 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, 103 S.Ct. 2830 ).

¶ 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...