People v. Cardman

Opinion by JUDGE ROMAN

El Paso County District Court No. 12CR2114
Honorable Robert L. Lowrey, Judge JUDGMENT AFFIRMED Division V
Opinion by JUDGE ROMAN
Bernard, J., specially concurs
Berger, J., dissents 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 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. ¶ 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). 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

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

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

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

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.

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, ¶ 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:

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. ¶ 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.").

"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).

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.").

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 (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. 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.;

• 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).

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. 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). 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 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 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. 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 ¶ 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.)

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."

. . . .
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

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 review in this case. 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). ¶ 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.

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).

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.

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.

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 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 which are far less consequential that what happened in this case) and conclude that Cardman is remediless.

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

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.

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.

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.

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.

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 confession:

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

[Cardman:] I would love that.
[Detective:] So let's fix that. Let's fix that. Because right now, it's not going away. . . .
[Detective:] [I]f maybe you could meet [the victim] halfway on some of those things
, that we can put the icing on the cake, put this in a drawer, have her go heal, have you turned around, get back with your wife, go to church, live your life, and put all of this behind you, right now today.
[Cadman:] I would love that
, you have no idea.
[Detective:] Then let's do it
. . . .
[Detective:] We both know where you wanna go in life and with your wife and church and everything
. I'm not here to hang you, I'm not here to beat you up today. I'm here to do this [sounds of paper shuffling]. At the end of this sentence, I put this in a drawer. And I can't do that if you tell me that you had sex with this girl fifty, sixty times, I'm concerned. And then I have a different investigation. If there was some inappropriate sexual stuff that happened once or twice, I want an explanation for that so I can do this [sounds of paper shuffling], so I can go home on my Friday, do you understand? I'm trying to paint the picture, man.
[Cardman:] If I can get this all figured out
, closed out, just done with, I can go home tomorrow.
[Detective:] Let's do it
.
[Cardman:] That's what I want to do
.

[Detective:] And if I can help with any of that here, I'd — you're damn skippy. . . .
[Detective:] Because I honestly think that if you can provide some sort of corroboration and some answers, maybe [inaudible] an apology or quick sorry for whatever it is, and I give that to [the victim], I think that would go away. . . .
[Detective:] What we don't want to hear is that Ryan Cardman wakes up over here every day and lusts for sexual contact with a kid. And 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.

(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. done in this case and the convictions which the court affirms may be unreliable.

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.

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.

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). --------

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 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.