COLORADO COURT OF APPEALS 2017COA87 

Court of Appeals No. 14CA0202 

El Paso County District Court No. 12CR2114 

Honorable Robert L. Lowrey, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Ryan Matthew Cardman, 

Defendant-Appellant. 

JUDGMENT AFFIRMED 

Division V 

Opinion by JUDGE ROMÁN 

Bernard, J., specially concurs 

Berger, J., dissents 

Announced June 29, 2017 

Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Douglas K. Wilson, Colorado State Public Defender, Katherine Brien, Deputy 

State Public Defender, Denver, Colorado, for Defendant-Appellant
1 

¶ 1 This case returns to us following a limited remand from the 

Colorado Supreme Court. Cardman v. People, (Colo. No. 16SC789, 

Apr. 10, 2017) (unpublished order). In People v. Cardman, 2016 

COA 135 (Cardman I), we reached three conclusions. First, we held 

that a suspect who has invoked his right to counsel can reinitiate 

contact with the police through an agent, and the trial court did not 

err in finding that such third-party reinitiation had occurred in this 

case. Second, we declined to review — as waived — defendant’s 

contention that the trial court erred by failing to hold a hearing to 

determine whether defendant’s statement to police was voluntary. 

Third, we held that the trial court did not plainly err by admitting 

statements from the investigating detective commenting on the 

credibility of defendant and the victim. 

¶ 2 Defendant, Ryan Matthew Cardman, petitioned for a writ of 

certiorari to the Colorado Supreme Court. The supreme court 

granted the petition, vacated the judgment in Cardman I, and, in 

light of its recent decision in Reyna-Abarca v. People, 2017 CO 15, 

remanded to this court for reconsideration of the trial court’s failure 

to hold a hearing regarding the alleged promises made by the 
2 

detective to defendant during the interview. Because the supreme 

court denied certiorari on all other issues, Cardman, No. 16SC789, 

our opinion in Cardman I remains controlling as to third-party 

reinitiation and the detective’s statements. 2016 COA 135. 

¶ 3 We now reconsider review of the alleged promises during the 

police interview in light of Reyna-Abarca. 

I. Pertinent Background 

¶ 4 A jury convicted defendant of multiple counts of sexual assault 

on a child. Defendant was arrested after the victim reported the 

abuse to the police. While initially denying any improper sexual 

contact with the victim, defendant admitted during an interview 

with police to three instances of sexual contact. 

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

inculpatory statements. The trial court denied the motion after a 

suppression hearing. 

¶ 6 As relevant here, we concluded in Cardman I that defendant 

had waived his voluntariness claim by failing to raise it during the 

suppression hearing. Accordingly, we declined to apply plain error 

review to defendant’s contention that the trial court should have 

held a hearing regarding the voluntariness of his statement. 
3 

¶ 7 As noted, on remand, the supreme court directed us to 

reconsider defendant’s second issue pressed for certiorari — in light 

of Reyna-Abarca — decided after we announced Cardman I. 

Specifically, we were directed to reconsider 

[w]hether the district court violated the 

defendant’s constitutional right to due process 

and reversibly erred by admitting statements 

the defendant made to a detective without first 

determining whether the statements were 

voluntary and whether the defendant was 

entitled to specific performance of direct 

and/or implied promises made to him by the 

detective during the interrogation. 

Cardman, No. 16SC789, 2017 WL 1369883. 

¶ 8 Before we may reach the substance of the granted certiorari 

issue, however, we must first answer this question: What happens 

when the defendant, as in this case, does not challenge 

voluntariness at the suppression hearing? 

II. Voluntariness Standards 

¶ 9 “Under the due process clauses of the United States and 

Colorado Constitutions, a defendant’s statements must be made 

voluntarily in order to be admissible into evidence.” Effland v. 

People, 240 P.3d 868, 877 (Colo. 2010); see Mincey v. Arizona, 437 

U.S. 385, 398 (1978). 
4 

¶ 10 A trial court’s findings of fact on the voluntariness of a 

statement will be upheld where they are supported by adequate 

evidence in the record. Effland, 240 P.3d at 878. However, the 

ultimate determination of whether a statement is voluntary is a 

legal question we review de novo. Id. 

¶ 11 To be voluntary, a statement must be “the product of an 

essentially free and unconstrained choice by its maker.” People v. 

Raffaelli, 647 P.2d 230, 234 (Colo. 1982) (quoting Culombe v. 

Connecticut, 367 U.S. 568, 602 (1961)). 

¶ 12 “A confession or inculpatory statement is involuntary if 

coercive governmental conduct played a significant role in inducing 

the statement.” People v. Gennings, 808 P.2d 839, 843 (Colo. 1991). 

Coercive governmental conduct may include physical abuse, 

threats, or psychological coercion. Id. at 843-44. 

¶ 13 Whether a statement is voluntary must be evaluated on the 

basis of the totality of the circumstances under which it is given. 

Effland, 240 P.3d at 877. Relevant circumstances include: (1) 

“whether the defendant was in custody or was free to leave”; (2) 

“whether Miranda warnings were given prior to any interrogation 

and whether the defendant understood and waived his Miranda
5 

rights”; and (3) “whether any overt or implied threat or promise was 

directed to the defendant.” Gennings, 808 P.2d at 844. These 

considerations are not exclusive. Id. 

¶ 14 “Threats and promises used by the interrogator factor into the 

analysis of voluntariness but are not conclusive. For such threats 

and promises to render a confession involuntary, they must have 

caused the defendant to confess, for example, where police have 

promised leniency in exchange for a confession . . . .” People v. 

Wickham, 53 P.3d 691, 695 (Colo. App. 2001). 

¶ 15 The critical voluntariness inquiry is whether the individual’s 

will has been overborne by the coercive behavior of law enforcement 

officials. Rogers v. Richmond, 365 U.S. 534, 544 (1961); People v. 

Humphrey, 132 P.3d 352, 361 (Colo. 2006). 

¶ 16 “Voluntariness is an objective inquiry reviewing the record for 

outwardly coercive police action, not a subjective analysis 

attempting to arbitrarily surmise whether the defendant perceived 

some form of coercive influence.” People v. Ferguson, 227 P.3d 510, 

513-14 (Colo. 2010). 

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

used against a criminal defendant at his trial, he is entitled to a 
6 

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

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

III. When Voluntariness Goes Unchallenged at a Suppression 

Hearing 

¶ 18 “[T]he Constitution does not require a voluntariness hearing 

absent some contemporaneous challenge to the use of the 

confession.” Wainwright v. Sykes, 433 U.S. 72, 86 (1977); People v. 

Sanchez, 180 Colo. 119, 122, 503 P.2d 619, 621 (1972) (“We are not 

prepared to say that the mere act of offering the statement into 

evidence is sufficient to raise an issue of its voluntariness. The 

defendant must make his objection known to the court by objection, 

motion, cross-examination, or some other means during the course 

of the trial which indicates to the judge that there is an issue of 

admissibility of the statement.” (quoting Neighbors v. People, 171 

Colo. 349, 357, 467 P.2d 804, 808 (1970))). 

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

trial. During that interrogation, the detective told defendant that if 

he admitted to some, but less than all, of the allegations, he could 

go home: 

[Detective:] [After a suspect invokes his right to 

counsel,] [o]ur department policy asks that we 
7 

wait twenty-four hours before we re-contact 

the suspect and give him one last shot to say 

— hey, this is the information we’ve uncovered, 

can you explain some things? There is some 

gray area, and I just want to make sure that 

the stuff that happened is as much as she’s 

talking about. . . . 

[Detective:] Because we can — if we can 

provide an explanation to help this go away for 

you — 

[Defendant:] I would love that. 

[Detective:] So let’s fix that. Let’s fix that. 

Because right now, it’s not going away. . . . 

[Detective:] [I]f maybe you could meet [the 

victim] halfway on some of those things, that 

we can put the icing on the cake, put this in a 

drawer, have her go heal, have you turned 

around, get back with your wife, go to church, 

live your life, and put all of this behind you, 

right now today. 

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

idea. 

[Detective:] Then let’s do it. . . . 

[Detective:] We both know where you wanna go 

in life and with your wife and church and 

everything. I’m not here to hang you, I’m not 

here to beat you up today. I’m here to do this 

[sounds of paper shuffling]. At the end of this 

sentence, I put this in a drawer. And I can’t do 

that if you tell me that you had sex with this 

girl fifty, sixty times, I’m concerned. And then 

I have a different investigation. If there was 

some inappropriate sexual stuff that happened 
8 

once or twice, I want an explanation for that so 

I can do this [sounds of paper shuffling], so I 

can go home on my Friday, do you 

understand? I’m trying to paint the picture, 

man. 

[Defendant:] If I can get this all figured out, 

closed out, just done with, I can go home 

tomorrow. 

[Detective:] Let’s do it. 

[Defendant:] That’s what I want to do. 

[Detective:] And if I can help with any of that 

here, I’d — you’re damn skippy. . . . 

[Detective:] Because I honestly think that if 

you can provide some sort of corroboration 

and some answers, maybe [inaudible] an 

apology or quick sorry for whatever it is, and I 

give that to [the victim], I think that would go 

away. . . . 

[Detective:] What we don’t want to hear is that 

Ryan Cardman wakes up over here every day 

and lusts for sexual contact with a kid. And 

there’s fifty, sixty times like what’s she’s 

saying. We don’t want to hear that. But what 

is explainable and what people understand 

is . . . there was an accident, a momentary, 

one-time lapse and a bad decision occurred. 

People understand that, okay? What people 

don’t understand is this guy over here who 

wakes up every day to wait ‘til she’s alone, ‘til 

you’re alone, to do those things. That guy is 

the one we’re worried about. That’s the guy 

that we try to send to prison and to lock up 
9 

and that’s what I want to eliminate here today. 

And, Ryan, I don’t think you’re that guy.1

IV. Whether to Review Unpreserved Voluntariness Challenges for 

Plain Error 

¶ 20 Defendant contends that statements he made in the second 

interview were not voluntary and argues the trial court erred by not 

sua sponte holding a hearing on the issue of the voluntariness of 

the statements. Although we have serious concerns with the police 

interrogation tactics used in this case, we cannot reach the merits 

of the voluntariness issue because defendant waived it by not 

raising it during the suppression hearing. 

¶ 21 Defendant acknowledges that he did not raise this issue at the 

suppression hearing but urges us to review the issue anyway under 

a plain error standard of review. In our original opinion, we 

acknowledged the split of authority regarding whether 

constitutional issues raised for the first time on appeal should be 

reviewed for plain error. We declined to review for plain error, 

 

1 There is no transcript of the interview in the record, and the audio 

recording is very difficult to understand. The excerpts quoted are 

our best approximation of what was said based on the audio 

recording. 
10 

however, because we concluded that defendant had waived his right 

to a hearing on voluntariness. 

¶ 22 After we issued our original opinion, the supreme court 

decided Reyna-Abarca. As pertinent here, the supreme court 

explained that its statement in People v. Cagle, 751 P.2d 614, 619 

(Colo. 1988) — “[i]t is axiomatic that this court will not consider 

constitutional issues raised for the first time on appeal” — was 

dictum and concluded that unpreserved double jeopardy claims can 

be raised for the first time on appeal and should ordinarily be 

reviewed for plain error pursuant to Crim. P. 52(b). Reyna-Abarca, 

¶¶ 2, 36. 

¶ 23 The Reyna-Abarca court then rejected the People’s argument 

that by failing to raise a Crim. P. 12(b)(2) challenge to the charging 

document in the trial court, a defendant waives his claim that 

convictions for both a greater and lesser included offense violate his 

double jeopardy rights. Id. at ¶¶ 38-45. The court reasoned that 

Crim. P. 12(b)(2) — which deems a defendant’s failure to object to 

“defects in the institution of the prosecution or in the indictment or 

information or complaint” to constitute a waiver of such objection — 

was inapplicable because the double jeopardy claim “does not 
11 

amount to an objection regarding defects in the charging 

document.” Reyna-Abarca, ¶ 2. 

¶ 24 After carefully reconsidering this case in light of 

Reyna-Abarca, we again conclude that defendant waived his right to 

a hearing on voluntariness. 

¶ 25 Reyna-Abarca did not foreclose the possibility that a defendant 

may waive certain rights; instead it rejected the specific application 

of waiver urged in that case. Even “[t]he most basic rights of 

criminal defendants are . . . subject to waiver.” Peretz v. United 

States, 501 U.S. 923, 936 (1991). And in specific circumstances, a 

defendant may waive his rights by failing to object. For example, 

our supreme court in Stackhouse v. People, 2015 CO 48, ¶ 1, 

reaffirmed that “a defendant affirmatively waives his public trial 

right by not objecting to a known closure of the courtroom.” 

¶ 26 “Waiver is defined as the ‘intentional relinquishment or 

abandonment of a known right.’” Hinojos-Mendoza v. People, 169 

P.3d 662, 668 (Colo. 2007) (quoting United States v. Olano, 507 U.S. 
12 

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

is no appeal from a waived right.” Id.2

¶ 27 Here, defendant waived his right to a hearing on the 

voluntariness of his statement by moving to suppress the 

incriminating statements solely on the basis that he did not 

reinitiate communication with the police, not because his 

statements were involuntary. In contrast, he failed to raise 

voluntariness at any time during a two-day suppression hearing. 

Failing to raise the issue of voluntariness during a suppression 

hearing is not equivalent to a failure to contemporaneously object to 

something during the heat of trial. As discussed, defendant timely 

moved to suppress the incriminating statements, but only on the 

basis that he had not reinitiated contact with the police. Under 

these circumstances, defendant cannot now collaterally attack the 

voluntariness of those statements by seeking remand for a 

voluntariness hearing. To permit such a practice would create an 

 

2 “Invited error is akin to waived error. Invited error obviously 

should not be reviewable for plain error.” People v. Greer, 262 P.3d 

920, 937 n.7 (Colo. App. 2011) (J. Jones, J., specially concurring) 

(citations omitted). 
13 

incentive for defendants to forgo raising the issue of voluntariness 

and then to seek remand on appeal if found guilty at trial. 

¶ 28 Accordingly, defendant was afforded a suppression hearing 

but chose not to take advantage of the opportunity to litigate the 

voluntariness issue. See Hinojos-Mendoza, 169 P.3d at 668 (statute 

allowing a lab report into evidence without in-person testimony 

from the analyst, unless the defendant requests such testimony in 

advance of trial, does not violate the Confrontation Clause because 

the statute provides the defendant the opportunity for 

cross-examination, and the confrontation right is waived if the 

defendant chooses not to take advantage of the opportunity to 

request the analyst’s testimony as provided by the statute). 

¶ 29 Defendant does not argue that he was unaware of the 

requirements that a statement be voluntary or of the need to 

request a voluntariness hearing. Rather, he contends that he 

raised the issue of voluntariness during opening and closing 

statements at trial. 

¶ 30 But remarks made at trial during opening and closing 

statements are insufficient to raise the voluntariness issue and 

warrant a hearing under Jackson v. Denno, 378 U.S. 368 (1964). 
14 

Rather, “[w]e must limit our review to the evidence presented at the 

suppression hearing.” People v. Gomez-Garcia, 224 P.3d 1019, 

1022 (Colo. App. 2009). Further, defendant cites no authority for 

the proposition that a trial court has a duty to sua sponte hold a 

hearing during trial on the issue of voluntariness where the 

interrogation tactics at issue become apparent during trial as well 

as the suppression hearing. 

¶ 31 In our view, to require the trial court to hold a hearing on the 

voluntariness of a defendant’s statements where the issue becomes 

apparent during trial would be overly burdensome and inefficient. 

Such an obligation could require a trial court in the middle of trial 

to sua sponte (1) order a new suppression hearing on the issue of 

voluntariness; (2) declare a mistrial; (3) convene a new jury; and (4) 

begin a new trial (even where the confession may have been 

allowed).3

 

3 Moreover, were the trial court to sua sponte declare a mistrial, 

defendant would undoubtedly raise the issue of double jeopardy. 

People v. Espinoza, 666 P.2d 555, 558 (Colo. 1983) (“A mistrial 

declared without the consent and over the objection of the 

defendant invokes double jeopardy protection to bar retrial unless 

‘manifestly necessary’ to preserve the public interest in a fair trial 

and a just verdict.”). 
15 

¶ 32 Defendant relies on Jackson for the proposition that a trial 

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

voluntariness, absent an express objection by a defendant, anytime 

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

¶ 33 However, the defendant in Jackson raised the issue with the 

trial court. Although he “did not specifically object to the admission 

of the confession initially, the trial court indicated its awareness 

that Jackson’s counsel was questioning the circumstances under 

which Jackson was interrogated.” 378 U.S. at 374. The Jackson

Court even quoted the colloquy between the trial court and 

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

confession and explained to the court that “[the defendant] was in 

no mental condition to make the statement.” Id. at 374 n.4. 

¶ 34 Here, no such colloquy between the court and defendant’s 

counsel occurred at trial or at the suppression hearing that 

indicated defendant’s objection on voluntariness grounds or the 

trial court’s awareness that defendant was questioning the 

voluntariness of his statements. 

¶ 35 Notably, in Wainwright, the Supreme Court explicitly rejected 

the very argument defendant makes here: 
16 

Respondent also urges that a defendant has a 

right under Jackson v. Denno to a hearing as 

to the voluntariness of a confession, even 

though the defendant does not object to its 

admission. But we do not read Jackson as 

creating any such requirement. In that case 

the defendant’s objection to the use of his 

confession was brought to the attention of the 

trial court, and nothing in the Court’s opinion 

suggests that a hearing would have been 

required even if it had not been. To the 

contrary, the Court prefaced its entire 

discussion of the merits of the case with a 

statement of the constitutional rule that was to 

prove dispositive that a defendant has a “right 

at some stage in the proceedings to object to 

the use of the confession and to have a fair 

hearing and a reliable determination on the 

issue of voluntariness . . . .” Language in 

subsequent decisions of this Court has 

reaffirmed the view that the Constitution does 

not require a voluntariness hearing absent some 

contemporaneous challenge to the use of the 

confession.

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

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

voluntariness for the court to be required to hold one. Id.; Lego, 

404 U.S. at 489; Sanchez, 180 Colo. at 122, 503 P.2d at 621. 

Defendant did not request a hearing on the issue of voluntariness 

and is thus not entitled to one. 
17 

¶ 37 Because defendant moved to suppress the statements solely 

on reinitiation grounds, he waived the voluntariness claims. We 

have no error to review. See People v. Staton, 924 P.2d 127, 133 

(Colo. 1996) (To preserve a suppression issue for appeal, where 

other grounds for suppression are stated in the motion to suppress, 

defendant “must have stated [the issue] initially as a ground for his 

motion to suppress.”); People v. Salyer, 80 P.3d 831, 835 (Colo. App. 

2003) (argument on appeal that the district court erred in denying 

motion to suppress on voluntariness grounds was waived where the 

defendant did not raise that argument in the district court but 

raised other suppression arguments); People v. Greer, 262 P.3d 920, 

937 (Colo. App. 2011) (J. Jones, J., specially concurring) (“If a 

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

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

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

V. Whether to Review Specific Performance Challenge for Plain 

Error 

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

enforcement of alleged promises either. We likewise reject 

defendant’s contention that we must remand for a hearing on 
18 

whether defendant is entitled to specific performance of alleged 

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

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

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

seek to enforce alleged governmental promises? 

¶ 39 We conclude that just as defendant waived his voluntariness 

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

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

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

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

alleged governmental promise during an interview because it was 

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

an appellate court may not undertake). 

¶ 40 A defendant who reasonably relied on a governmental promise 

in making incriminating statements during a police interrogation 

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

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

the same time accommodate the legitimate interests of the 

government” — such as suppression of evidence rather than 

dismissal of charges. People v. Manning, 672 P.2d 499, 503, 512-13 
19 

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

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

case, although promised by police in exchange for cooperation in 

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

dismiss pending prosecutions, distinguished from plea bargains by 

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

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

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

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

defendant is entitled to specific performance of alleged promises 

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

did not seek to enforce them prior to trial. 

VI. Conclusion 

¶ 42 The judgment is affirmed. 

JUDGE BERNARD specially concurs. 

JUDGE BERGER dissents. 
20 

JUDGE BERNARD, specially concurring. 

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

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

additional reasons why I respectfully disagree with the dissent’s 

conclusion that we should review the voluntariness question for 

plain error. 

I. Introduction 

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

requiring pretrial motions, which doubtless explains why so many 

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

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

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

 avoiding “interruptions of a trial in progress with auxiliary 

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

Cir. 1974); 

 avoiding “the serious personal inconvenience to jurors and 

witnesses which would result from interruptions and delay 

once the jury had been selected and the trial had 

commenced,” id.; 
21 

 avoiding “the necessity of declaring a mistrial because the 

jury has been exposed to unconstitutional evidence,” State 

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

 avoiding “the waste of prosecutorial and judicial resources 

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

be avoided if a timely and successful motion were made in 

advance,” Mauro, 507 F.2d at 806; 

 giving the defendant the opportunity to avoid a trial by 

pleading guilty and seeking concessions from the 

prosecution if the trial court denies the motion, see LaFave

at § 11.1(a); 

 giving the prosecution the opportunity to “change the theory 

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

upon untainted evidence or otherwise to modify its trial 

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

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

 giving the prosecution the opportunity to pursue an 

interlocutory appeal before jeopardy has attached if the trial 

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

Traubert, 199 Colo. 322, 330, 608 P.2d 342, 348 (1980). 
22 

II. A General Rule 

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

an alleged involuntary confession or admission made by him” shall 

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

concert with my observations in the introduction, the general rule 

promotes important policies. It “reduces trial inefficiencies by 

requiring the parties to criminal proceedings to pursue discovery 

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

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

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

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

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

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

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

¶ 46 Motions to suppress “should state with reasonable specificity 

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

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

necessary both to put the prosecution on notice of the contentions 

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

the court of the issues to be decided.” Id. 
23 

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

must make sufficiently clear and detailed findings of fact and 

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

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

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

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

defendant in this case “effectively prevented the court from making 

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

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

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

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

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

findings[.]”). 

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

prosecution “may justifiably conclude that it need not introduce the 

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

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

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

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

we were to review defendant’s contention for plain error, the 
24 

prosecution would be “forced on appeal to rely on an 

underdeveloped record in defending itself from the suppression 

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

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

unfair to the prosecution. 

III. A Corollary to the General Rule 

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

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

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

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

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

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

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

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

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

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

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

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

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

v. Lucero, 985 P.2d 87, 91 (Colo. App. 1999). 
25 

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

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

voluntariness issues. In that case, the supreme court first 

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

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

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

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

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

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

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

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

defendant must make his objection known to the court by objection, 

motion, cross-examination, or some other means during the course 

of the trial which indicates to the judge that there is an issue of 

admissibility of the statement.” Id. (emphasis added). 

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

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

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

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

“[b]ecause voluntariness was never in any way or by any stretch of 
26 

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

which the lower court could determine that issue” in a 

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

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

¶ 53 Divisions of this court have subsequently applied the corollary 

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

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

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

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

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

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

IV. The Law in Other Jurisdictions 

A. Other States 

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

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

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

the prosecution to show that the statements were made voluntarily 

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

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

P.3d 1287, 1289 (Idaho Ct. App. 2015)(noting that the issue 
27 

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

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

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

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

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

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

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

hearing on the voluntariness of his statement because he did not 

file a pretrial motion). 

B. Federal Law 

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

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

amendment, the Rule read that a defendant waived any 

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

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

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

Rule. 

¶ 56 Some courts think that the change means that appellate 

courts can review suppression issues that were not raised until 
28 

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

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

¶ 57 Other appellate courts will only review an unpreserved 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

resolve whether Burke remains good law because [the defendant] 
29 

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

of Rule 12 applies in this case.”). 

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

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

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

voluntariness of his statements in his motion to suppress. Almost 

by definition, he has not shown good cause. 

V. Problems Created by a Remand 

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

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

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

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

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

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

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

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

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

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

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

“substantial social costs” of reversing a conviction); People v. 
30 

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

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

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

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

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

submit that this is one of those cases. 

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

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

statement was involuntary in this direct appeal employing plain 

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

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

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

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

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

voluntariness of the statement may be irrelevant if defense counsel 

deliberately chose not to file a suppression motion for a sound 

strategic reason. 

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

motion to suppress is a foundational question that we must answer 

before we can move on to resolving the voluntariness question, but 
31 

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

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

the foundational question and proceed to employ plain error review 

to resolve the voluntariness question without a complete factual 

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

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

to hear defendant’s statement. 

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

motion to suppress, thereby intentionally denying a trial court the 

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

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

attorney was ineffective. We cannot decide that issue on direct 

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

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

attempting to litigate their counsels’ effectiveness on direct 

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

35(c) proceeding. See id.

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

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

we cannot, on direct appeal, evaluate the merit or demerit of such 
32 

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

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

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

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

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

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

sound strategic motive or took the action because his alternatives 

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

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

record.” Id.

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

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

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

touched her vaginal area on one of those occasions? Defense 

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

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

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

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

he had put damning words into defendant’s mouth.” 
33 

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

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

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

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

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

next level.” 

¶ 67 Defense counsel then pounced. He focused on inconsistencies 

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

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

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

Defense counsel played several excerpts from the tape, and he 

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

[The detective] told you at the very end [of his 

testimony] that, “I never told him he could go 

home.” But you heard the audio. You know 

that’s not true. You know that’s what he 

implied – strongly implied, and . . . any 

reasonable person would infer it that way. 

He testified he never implied that [defendant] 

would go home if he said he did something 

small, . . . if something happened maybe less 

than five or six times. That’s not true. These 

are [the detective’s] words: 

(Excerpt of audio recording played.) 
34 

He understands. What he understands is: “You 

get to go home on Friday, so do I.” 

. . . . 

(Excerpt of audio recording played.) 

. . . . 

And you all remember during the . . . 

cross-examination of [the detective], when I was 

playing that recording, what [defendant] said, “I 

can deal with this today and tomorrow I can go 

home?” [The detective] says, “Let’s do it.” 

Here’s the thing, ladies and gentlemen: This 

recording will be yours. Listen to it. Don’t take 

my word. Don’t take the district attorney’s 

word. Don’t take [the detective’s] word about 

what he says is in there. Listen to the 

recording.

. . . . 

The district attorney has told you that . . . 

what [defendant] confessed to came out of his 

own head. It was just happenstance that it 

matched [the victim’s] statement, that nobody 

said that to him at all. I disagree. If you listen 

to the recording, what [defendant] confesses to 

was something that was fed to him by that man 

[the detective]. 

When . . . it didn’t fit with [the detective’s] 

theory, he said, “I don’t believe you.” When it 

did, he said, “Good job. Good job. You’re 

doing heroic. We’re 97 percent of the way 

there. Just a – little bit more.” 
35 

. . . . 

What [the detective] does is akin to a feeding 

frenzy. “I’m going to give you everything you 

need to confess. All you have to do is 

remember what I said and go with it.” 

. . . . 

Listen to what [the detective] tells this man 

before he gives his supposed confession. 

(Excerpt of audio recording played.) 

. . . . 

Everything that [the detective] wanted to hear 

he fed to [defendant], everything. 

. . . . 

[The detective] used not so veiled threats, fed 

[defendant] the lines and subtly, not 

aggressively, subtly coerced a confession out of 

him by promising him -- maybe not using the 

word “promise,” letting him know that: “If you 

tell me it’s a couple of things, you get to go 

home to your wife.” [Defendant] confirmed 

that. He said, “Let’s do it. Give her closure. 

You’ll move on with life.” All the while saying 

that, he knew it wasn’t true.

. . . . 

[The detective] fed a confession to [defendant] 

under the pretense [defendant] would be able 

to get to go home to his old life. . . . [A]t the 

end of the day it’s [the detective’s] tactics. 

Those are the reason[s] that innocent people get 
36 

convicted. As he told you, he had a target in 

this investigation. You don’t have a target. 

You have an obligation. Your obligation is to 

listen to that recording, weigh[] the evidence, 

and find [defendant] not guilty. 

(Emphasis added.) 

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

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

Testimony produced at that hearing might provide an answer to the 

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

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

voluntariness of defendant’s statement could take center stage. 

VII. Conclusion 

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

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

court has expressly held that the plain error standard should be 

used to review an unpreserved contention that a defendant’s 

statement was involuntary. (Recall from the majority opinion that 

Wainwright rejected the idea that “a defendant has a right under 

Jackson v. Denno . . . to a hearing as to the voluntariness of a 

confession, even though the defendant does not object to its 
37 

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

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

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

common knowledge. They are not mysterious; they provide clear 

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

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

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

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

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

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

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

important that convictions be based on reliable evidence, and 

involuntary statements are not reliable. But I respectfully submit 

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

whether defendant’s statement was involuntary because he did not 

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

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

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

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

know why defense counsel did not file a motion to suppress. And 
38 

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

decision. 

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

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

prosecution had evidence of what defendant and the police officers 

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

such evidence would make a difference in the evaluation of the 

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

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

would cast light on this issue are iffy. 

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

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

are intimately familiar with the general rule and its corollary 

because defense counsel file motions to suppress statements in 

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

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

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

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

voluntary? Are we asking courts to assume that defense counsel 

did not have a good reason, perhaps rooted in sound trial strategy, 
39 

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

speculate that there is no other evidence, besides the evidence 

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

statement is voluntary? 

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

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

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

requiring defendant to take that route preserves the general rule 

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

preserving them will likewise preserve the “valid reasons underlying 

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

see also Tyler, 874 P.2d at 1039. 
40 

JUDGE BERGER, dissenting.1

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

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

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

stark: a person is being questioned by the police regarding 

extremely serious crimes, the penalties for which are effective life 

sentences and almost unimaginable societal opprobrium. The 

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

he admits to what the officer characterizes as relatively minor 

crimes (without telling the suspect that these relatively minor 

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

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

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

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

law when his inculpatory statements were admitted against him. 

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

 

1 Because the supreme court did not grant certiorari on the 

reinitiation of contact issue, I, like the majority, do not address that 

issue. I adhere to my previously expressed views on that issue. See 

People v. Cardman, 2016 COA 135, ¶¶ 97-145 (Berger, J., 

dissenting), vacated, (Colo. No. 16SC789, Apr. 10, 2017) 

(unpublished order). 
41 

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

from the majority’s refusal to address the voluntariness of 

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

presents a substantial question regarding the voluntariness of those 

statements and thus raises very serious questions regarding the 

reliability of Cardman’s convictions. 

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

case provide more support for my position that the admission of 

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

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

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

unpreserved constitutional questions are waived. The original 

special concurrence relied on Cagle in support of its position that 

Cardman waived any claim that his statements to the police were 

involuntary. Any further reliance on Cagle for this purpose is 

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

v. People, 2017 CO 15. 

¶ 78 Second, the supreme court summarily vacated our judgment 

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

issued our original opinions in this case, authorizes plain error 
42 

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

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

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

as a sign that the supreme court was concerned about the 

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

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

may be a multitude of reasons why the supreme court denies 

certiorari).3

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

and the special concurrence agrees that Cardman waived the most 

consequential issue in this case. 

I. The Basic Premise of Plain Error Review 

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

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

recognizes that mistakes will be made in criminal cases, sometimes 

 

2 The supreme court also directed us to consider whether the 

promises made by the police to Cardman must be enforced. I 

address the merits of that issue below. 

3 Obviously, when the supreme court summarily vacated our prior 

judgment, it knew that Reyna-Abarca v. People, 2017 CO 15, was a 

double jeopardy case, not a case involving an unpreserved 

suppression question. Given that, the fact that it was a double 

jeopardy case and not a suppression case should carry little weight. 
43 

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

and compliance with those rules with the essential underlying goal 

of the criminal justice system: fair and reliable adjudication of 

allegations of criminal conduct. Over decades, the Colorado 

Supreme Court has consistently recognized the need for and 

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

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

necessary for the orderly administration of criminal justice. They 

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

those rules are violated. There must be. 

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

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

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

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

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

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

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

consequences that flow from that failure. 

 

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

from its reach. 
44 

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

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

reviewed under the otherwise applicable constitutional standard of 

review — harmlessness beyond a reasonable doubt. Hagos v. 

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

the egregious police conduct in this case, review under that 

standard almost certainly would have required suppression of 

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

admitted the statements, a new trial. 

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

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

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

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

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

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

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

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

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

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

consequences to that violation, are wholly insufficient by 
45 

themselves to then support the further conclusion that Cardman 

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

presume acquiescence in the loss of fundamental constitutional 

rights, and therefore indulge every reasonable presumption against 

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

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

1999). 

¶ 85 The majority’s assertion that Cardman waived his 

voluntariness claim because he did not raise it at the suppression 

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

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

review, whether a defendant fails to raise a specific suppression 

claim despite the district court entertaining a suppression hearing 

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

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

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

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

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

puzzling result. 
46 

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

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

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

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

evidence without in-person testimony from the analyst. The 

supreme concluded that the defendant had waived his 

confrontation rights because he failed to request, as required by 

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

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

class of rights that defense counsel can waive through strategic 

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

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

comply with the procedural requirements that the attorney made a 

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

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

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

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

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

unreasonable to assume that Cardman’s failure to challenge the 

voluntariness of his statements was strategic. Indeed, even the 
47 

concurrence suggests that the failure to raise the voluntariness 

claim may be grounds for a claim of ineffective assistance of 

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

voluntariness of Cardman’s inculpatory statements was strategic, 

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

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

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

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

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

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

provides that a suppression issue that is not made in accordance 

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

decision does not offend the United States Constitution. Id.

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

law, suppression issues should be treated entirely differently than 

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

answer is no. 

¶ 90 The daunting requirements for finding plain error eliminate 

any reasonable concern by the majority or the concurrence that 

such plain error review will devour the rules of criminal procedure 
48 

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

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

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

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

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

unchallenged confessions will founder on the “obviousness” 

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

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

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

cases in which there is an unpreserved claim of involuntariness, 

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

error. 

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

and the appellate record demonstrates convincingly, the factual 

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

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

at the suppression hearing. The other sordid details were displayed 

when the prosecution played the audio recording of Cardman’s 

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

case to those in People v. Quintana, 198 Colo. 461, 463, 601 P.2d 
49 

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

the defendant’s confession rendered that confession involuntary, it 

was obvious that the police conduct here was unconstitutional.5

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

underpinnings of the plain error doctrine. To avoid plain error 

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

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

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

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

applicable procedural rules then he is entitled to review under 

harmless error or constitutional harmless error, depending on the 

matter at issue. Id. at ¶ 9. 

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

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

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

plain error review. The concurring opinion could easily be 

transformed into a scholarly law review article advocating the 

 

5 In contrast, in People In Interest of Z.T.T., 2017 CO 48, ¶ 1, the 

Colorado Supreme Court reversed the trial court’s suppression 

order where the police interview was conversational, friendly, and 

devoid of coercive promises or threats. 
50 

abolition of plain error review. While there is nothing inherently 

wrong with scholarly arguments for the abolition of plain error 

review, that course is not available to Colorado intermediate 

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

Colorado Supreme Court precedents and there can be no dispute 

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

of Colorado.6

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

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

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

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

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

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

argument that the defendants’ motions to suppress were “facially 

 

6 I cannot plausibly contend that plain error review is available 

regardless of the issue presented. Over a strong dissent by Justice 

Márquez, the supreme court recently held that a criminal 

defendant’s failure to object to the closing of the courtroom to the 

public effected a waiver, not just a forfeiture, of the constitutional 

right to a public trial. Stackhouse v. People, 2015 CO 48, ¶ 5. 

While it is hazardous to rank constitutional rights in view of their 

importance to an orderly society, I nevertheless note that the 

admission of a criminal defendant’s involuntary statements violates 

the Due Process Clause, one of the fundamental guarantees of the 

Constitution. 
51 

insufficient” because that argument was not raised before the 

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

court stated that 

we note in passing that such motions should 

state with reasonable specificity the legal 

grounds upon which the motions are based. 

This is necessary both to put the prosecution 

on notice of the contentions it must be 

prepared to meet at a suppression hearing and 

to inform the court of the issues to be decided. 

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

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

time on appeal. 

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

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

unpreserved involuntariness claims. People v. Zadra, 2013 COA 

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

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

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

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

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

none of these opinions disclosed whether the defendant made any 

argument that his or her voluntariness claim should be reviewed for 
52 

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

rather than forfeited, his or her claims.7

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

review of an unpreserved claim of the wrongful admission of 

involuntary statements is further illustrated by the distinction 

between two very different types of suppression issues commonly 

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

the police — either physical evidence or inculpatory statements by a 

defendant — should be suppressed because the Fourth Amendment 

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

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

Fourth Amendment has little to do with the reliability of the 

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

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

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

with the reliability of the evidence, the United States Supreme 

Court has held that the Constitution requires that evidence 

 

7 The concurrence relies on out-of-state authority and federal 

circuit cases to support its argument that unpreserved 

voluntariness claims are waived. We are, of course, not bound by 

those cases. 
53 

obtained in violation of the Fourth Amendment usually must be 

suppressed to provide an enforcement mechanism for the Fourth 

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

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

a procedural rule requiring that such objections be made at a 

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

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

address unpreserved claim that warrant was invalid). 

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

— is the admission of evidence that arguably violates the Due 

Process Clause because the statements made by an accused were 

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

2010). Unlike Fourth Amendment suppression, this type of 

suppression directly implicates the reliability of the conviction 

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

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

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

in the Use of Confession Evidence: An Argument for Pretrial 

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

Rev. 759, 766 (2013) (“[T]he problem of contamination is epidemic, 
54 

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

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

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

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

defendant’s own confession is probably the most probative and 

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

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

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

allowing a procedural default to preclude all review of whether a 

defendant’s inculpatory statements were made voluntarily when the 

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

suppression hearing or at trial. 

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

the majority and the concurrence to explain why this situation 

differs materially from all of the other situations in which plain 

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

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

mystified why the majority and the concurrence single out this 

particular type of error from all of the other types of errors (many of 
55 

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

and conclude that Cardman is remediless.8

II. The Merits of Cardman’s Involuntariness Claim 

¶ 101 The statements of the detective during his interrogation of 

Cardman illustrate far better than my characterizations the nature 

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

confession9: 

[Detective:] [After a suspect invokes his right to 

counsel,] [o]ur department policy asks that we 

wait twenty-four hours before we re-contact 

the suspect and give him one last shot to say 

— hey, this is the information we’ve uncovered, 

can you explain some things? There is some 

gray area, and I just want to make sure that 

the stuff that happened is as much as she’s 

talking about. . . . 

[Detective:] Because we can — if we can 

provide an explanation to help this go away for 

you — 

 

8 The concurrence says that Cardman is not remediless because he 

may challenge his lawyer’s failure to move to suppress the 

statements in a postconviction proceeding premised on ineffective 

assistance of counsel. That is true in theory. In practice, however, 

because of the many (appropriate) hurdles to postconviction relief, 

such relief is exceedingly rare. 

9 This is not a case in which the trial court did not hear evidence 

regarding the arguably coercive tactics used by the police. All of it 

was on full display during the trial despite the fact that Cardman 

did not expressly raise the voluntariness issue in his motion to 

suppress or at the suppression hearing. 
56 

[Cardman:] I would love that. 

[Detective:] So let’s fix that. Let’s fix that. 

Because right now, it’s not going away. . . . 

[Detective:] [I]f maybe you could meet [the victim] 

halfway on some of those things, that we can 

put the icing on the cake, put this in a drawer, 

have her go heal, have you turned around, get 

back with your wife, go to church, live your life, 

and put all of this behind you, right now today. 

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

[Detective:] Then let’s do it. . . . 

[Detective:] We both know where you wanna go 

in life and with your wife and church and 

everything. I’m not here to hang you, I’m not 

here to beat you up today. I’m here to do this 

[sounds of paper shuffling]. At the end of this 

sentence, I put this in a drawer. And I can’t do 

that if you tell me that you had sex with this girl 

fifty, sixty times, I’m concerned. And then I 

have a different investigation. If there was 

some inappropriate sexual stuff that happened 

once or twice, I want an explanation for that so 

I can do this [sounds of paper shuffling], so I 

can go home on my Friday, do you understand? 

I’m trying to paint the picture, man. 

[Cardman:] If I can get this all figured out, 

closed out, just done with, I can go home 

tomorrow. 

[Detective:] Let’s do it. 

[Cardman:] That’s what I want to do. 
57 

[Detective:] And if I can help with any of that 

here, I’d — you’re damn skippy. . . . 

[Detective:] Because I honestly think that if 

you can provide some sort of corroboration 

and some answers, maybe [inaudible] an 

apology or quick sorry for whatever it is, and I 

give that to [the victim], I think that would go 

away. . . . 

[Detective:] What we don’t want to hear is that 

Ryan Cardman wakes up over here every day 

and lusts for sexual contact with a kid. And 

there’s fifty, sixty times like what’s she’s 

saying. We don’t want to hear that. But what 

is explainable and what people understand 

is . . . there was an accident, a momentary, 

one-time lapse and a bad decision occurred. 

People understand that, okay? What people 

don’t understand is this guy over here who 

wakes up every day to wait ‘til she’s alone, ‘til 

you’re alone, to do those things. That guy is 

the one we’re worried about. That’s the guy 

that we try to send to prison and to lock up 

and that’s what I want to eliminate here today. 

And, Ryan, I don’t think you’re that guy.10 

(Emphasis added.) 

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

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

that he sexually assaulted her. 

 

10 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. 
58 

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

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

view, the italicized portions of the interrogation that I reproduced 

above violate any reasonable standard of constitutional police 

conduct and compel a conclusion that the police engaged in 

coercive conduct. 

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

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

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

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

involuntary and thus inadmissible for any purpose. People v. 

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

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

 

11 I cannot accept the concurrence’s rationale that because a 

substantial amount of time has passed since Cardman’s trial that 

no purpose would be served by remanding for findings on 

voluntariness. The recording of Cardman’s police interview speaks 

volumes. Moreover, both this court and the supreme court often 

remand to a trial court for findings years after the trial took place. 

See, e.g., O’Hara v. People, 2012 CO 18, ¶ 48 (remanding for 

additional findings some six years after the trial); People v. Lucero, 

747 P.2d 660, 665 (Colo. 1987) (four years); People v. Desantiago, 

2014 COA 66M, ¶ 22 (three years); People v. King, 292 P.3d 959, 

960 (Colo. App. 2011) (three years); People v. Stevenson, 228 P.3d 

161, 164 (Colo. App. 2009) (three years). 
59 

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

be unreliable. 

III. Enforcement of the Police Promises 

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

us to consider whether any promises made by the police to 

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

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

concurrence decline to address this question because they conclude 

that any claim for enforcement of police promises was waived for 

the same reason that plain error review is unavailable on the 

question whether Cardman’s statements were voluntary. 

¶ 106 The standard for specific enforcement of police promises is 

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

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

remedy is available to the court that could approximate substantial 

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

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

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

was unconstitutional, I cannot say that there was no remedy 

available to the court aside from specific performance. I believe the 
60 

appropriate remedy is to suppress Cardman’s inculpatory 

statements and hold a new trial without his statements, which 

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

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

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

claim. 

IV. Conclusion 

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

should be remanded to the trial court for findings and conclusions 

on whether Cardman’s inculpatory statements were voluntarily 

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

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

majority’s contrary determination.