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

Docket NºCourt of Appeals No. 14CA0202
Citation452 P.3d 63
Case DateJune 29, 2017
CourtCourt of Appeals of Colorado

452 P.3d 63

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Ryan Matthew CARDMAN, Defendant-Appellant.

Court of Appeals No. 14CA0202

Colorado Court of Appeals, Division V.

Announced June 29, 2017

Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE ROMÁN

¶ 1 This case returns to us following a limited remand from the Colorado Supreme Court. Cardman v. People , 2017 WL 1369883 (Colo. No. 16SC789, Apr. 10, 2017) (unpublished order). In People v. Cardman , 2016 COA 135, 452 P.3d 11 ( Cardman I ), we reached three conclusions. First, we held that a suspect who has invoked his right to counsel can reinitiate contact with the police through an agent, and the trial court did not err in finding that such third-party reinitiation had occurred in this case. Second, we declined to review—as waived—defendant's contention that the trial court erred by failing to hold a hearing to determine whether defendant's statement to police was voluntary. Third, we held that the trial court did not plainly err by admitting statements from the investigating detective commenting on the credibility of defendant and the victim.

¶ 2 Defendant, Ryan Matthew Cardman, petitioned for a writ of certiorari to the Colorado Supreme Court. The supreme court granted the petition, vacated the judgment in

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Cardman I , and, in light of its recent decision in Reyna-Abarca v. People , 2017 CO 15, 390 P.3d 816, remanded to this court for reconsideration of the trial court's failure to hold a hearing regarding the alleged promises made by the detective to defendant during the interview. Because the supreme court denied certiorari on all other issues, Cardman , No. 16SC789, our opinion in Cardman I remains controlling as to third-party reinitiation and the detective's statements. 2016 COA 135, 452 P.3d 11.

¶ 3 We now reconsider review of the alleged promises during the police interview in light of Reyna-Abarca .

I. Pertinent Background

¶ 4 A jury convicted defendant of multiple counts of sexual assault on a child. Defendant was arrested after the victim reported the abuse to the police. While initially denying any improper sexual contact with the victim, defendant admitted during an interview with police to three instances of sexual contact.

¶ 5 Before trial, defense counsel moved to suppress defendant's inculpatory statements. The trial court denied the motion after a suppression hearing.

¶ 6 As relevant here, we concluded in Cardman I that defendant had waived his voluntariness claim by failing to raise it during the suppression hearing. Accordingly, we declined to apply plain error review to defendant's contention that the trial court should have held a hearing regarding the voluntariness of his statement.

¶ 7 As noted, on remand, the supreme court directed us to reconsider defendant's second issue pressed for certiorari—in light of Reyna-Abarca —decided after we announced Cardman I . Specifically, we were directed to reconsider

[w]hether the district court violated the defendant's constitutional right to due process and reversibly erred by admitting statements the defendant made to a detective without first determining whether the statements were voluntary and whether the defendant was entitled to specific performance of direct and/or implied promises made to him by the detective during the interrogation.

Cardman , No. 16SC789, 2017 WL 1369883.

¶ 8 Before we may reach the substance of the granted certiorari issue, however, we must first answer this question: What happens when the defendant, as in this case, does not challenge voluntariness at the suppression hearing?

II. Voluntariness Standards

¶ 9 "Under the due process clauses of the United States and Colorado Constitutions, a defendant's statements must be made voluntarily in order to be admissible into evidence." Effland v. People , 240 P.3d 868, 877 (Colo. 2010) ; see Mincey v. Arizona , 437 U.S. 385, 398, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

¶ 10 A trial court's findings of fact on the voluntariness of a statement will be upheld where they are supported by adequate evidence in the record. Effland , 240 P.3d at 878. However, the ultimate determination of whether a statement is voluntary is a legal question we review de novo. Id.

¶ 11 To be voluntary, a statement must be "the product of an essentially free and unconstrained choice by its maker." People v. Raffaelli , 647 P.2d 230, 234 (Colo. 1982) (quoting Culombe v. Connecticut , 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) ).

¶ 12 "A confession or inculpatory statement is involuntary if coercive governmental conduct played a significant role in inducing the statement." People v. Gennings , 808 P.2d 839, 843 (Colo. 1991). Coercive governmental conduct may include physical abuse, threats, or psychological coercion. Id. at 843-44.

¶ 13 Whether a statement is voluntary must be evaluated on the basis of the totality of the circumstances under which it is given. Effland , 240 P.3d at 877. Relevant circumstances include: (1) "whether the defendant was in custody or was free to leave"; (2) "whether Miranda warnings were given prior to any interrogation and whether the defendant understood and waived his Miranda

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rights"; and (3) "whether any overt or implied threat or promise was directed to the defendant." Gennings , 808 P.2d at 844. These considerations are not exclusive. Id.

¶ 14 "Threats and promises used by the interrogator factor into the analysis of voluntariness but are not conclusive. For such threats and promises to render a confession involuntary, they must have caused the defendant to confess, for example, where police have promised leniency in exchange for a confession...." People v. Wickham , 53 P.3d 691, 695 (Colo. App. 2001).

¶ 15 The critical voluntariness inquiry is whether the individual's will has been overborne by the coercive behavior of law enforcement officials. Rogers v. Richmond , 365 U.S. 534, 544, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) ; People v. Humphrey , 132 P.3d 352, 361 (Colo. 2006).

¶ 16 "Voluntariness is an objective inquiry reviewing the record for outwardly coercive police action, not a subjective analysis attempting to arbitrarily surmise whether the defendant perceived some form of coercive influence." People v. Ferguson , 227 P.3d 510, 513-14 (Colo. 2010).

¶ 17 "[W]hen a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered." Lego v. Twomey , 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

III. When Voluntariness Goes Unchallenged at a Suppression Hearing

¶ 18 "[T]he Constitution does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession." Wainwright v. Sykes , 433 U.S. 72, 86, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ; People v. Sanchez , 180 Colo. 119, 122, 503 P.2d 619, 621 (1972) ("We are not prepared to say that the mere act of offering the statement into evidence is sufficient to raise an issue of its voluntariness. The defendant must make his objection known to the court by objection, motion, cross-examination, or some other means during the course of the trial which indicates to the judge that there is an issue of admissibility of the statement." (quoting Neighbors v. People , 171 Colo. 349, 357, 467 P.2d 804, 808 (1970) )).

¶ 19 Here, an audio recording of the second interview was played at trial. During that interrogation, the detective told defendant that if he admitted to some, but less than all, of the allegations, he could go home:

[Detective:] [After a suspect invokes his right to counsel,] [o]ur department policy asks that we wait twenty-four hours before we re-contact the suspect and give him one last shot to say—hey, this is the information we've uncovered, can you explain some things? There is some gray area, and I just want to make sure that the stuff that happened is as much as she's talking about....

[Detective:] Because we can—if we can provide an explanation to help this go away for you—

[Defendant:] I would love that.

[Detective:] So let's fix that. Let's fix that. Because right now, it's not going away....

[Detective:] [I]f maybe you could meet [the victim] halfway on some of those things, that we can put the icing on the cake, put this in a drawer, have her go heal, have you turned around, get back with your wife, go to church, live your life, and put all of this behind you, right now today.

[Defendant:] I would love that, you have no idea.

[Detective:] Then let's do it....

[Detective:] We both know where you wanna go in life and with your wife and church and everything. I'm not here to hang you, I'm not here to beat you up today. I'm here to do this [sounds of paper shuffling]. At the end of this sentence, I put this in a drawer. And I can't do that if you tell me that you had sex with this girl fifty, sixty times, I'm concerned. And then I have a different investigation. If there was

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