Arapahoe County District Court No. 14CR2330 Honorable
Michelle A. Amico, Judge
Philip
J. Weiser, Attorney General, Megan C. Rasband, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan
A. Ring, Colorado State Public Defender, Stephen C. Arvin,
Deputy State Public Defender, Denver, Colorado, for
Defendant-Appellant
OPINION
TOW
JUDGE
¶
1 Defendant, Elmo Jesse Johnson, successfully sought
exclusion of evidence improperly seized without a warrant.
However, in granting the motion to suppress, the trial court
informed Johnson that if he offered in his defense similar
evidence related to an alternate suspect, the prosecution
would be permitted to present the suppressed evidence to the
jury. In this matter of first impression, we are asked to
explore the limits of the impeachment exception to the
exclusionary rule: specifically, whether Johnson, in offering
truthful testimony that might nevertheless mislead the jury
in the absence of the suppressed evidence, opened the door to
the otherwise inadmissible evidence. We answer that question
"no." As a result, we reverse his conviction for
first degree murder, and remand for a new trial on that
charge. Because the error did not affect Johnson's
conviction for felony menacing, we affirm that conviction.
I.
Background
¶
2 Danielle Griego, Johnson's girlfriend, was shot to
death in the apartment Johnson shared with his sister, Toni
Carrethers, and Carrethers's husband. Hours after
Griego's murder, Griego's mother discovered
Griego's body on the couch. Johnson lay next to her,
unconscious due to alcohol and drugs. Griego's mother
called 911. Before law enforcement officers arrived,
Carrethers picked up two shell casings that were near
Griego's body, rinsed them, and returned them to where
she had found them.
¶
3 Johnson was transported to the hospital. Once there, and
while Johnson remained unconscious, officers collected swabs
from his hands and face. These swabs ultimately tested
positive for gunshot residue (GSR).[1] The officers also collected
ammunition from his pants pocket. In addition, they found
Griego's blood on his clothing. After regaining
consciousness, Johnson denied killing Griego.
¶
4 Before trial, Johnson moved to exclude the GSR evidence
collected from him without a warrant.[2] The trial court granted the
motion.[3] In doing so, however, it noted that it
would not permit Johnson "to use the Fourth Amendment as
both a shield and a sword." The trial court warned
Johnson that, should he offer evidence that Carrethers tested
positive for GSR, he would open the door for the prosecution
to admit Johnson's positive test. The trial court
explained that it was concerned about "misleading the
jury into believing that either and/or both [Johnson] was
never tested or he was not positive."
¶
5 At trial, Carrethers testified that Griego and Johnson
slept that night on Carrethers's couch. She explained
that while she was in bed with her husband in the middle of
the night, she awoke to hear Griego say, "Oh my God,
what are you doing?" Johnson replied, "Shut
up," and Carrethers heard two gunshots. Neither
Carrethers nor her husband left their room to determine what
had happened. Carrethers told police that she did not check
the couch the next morning before leaving the home to run
errands.
¶
6 Two male witnesses, Eli Eva and Anthony Pasquale, who had
been with Griego earlier on the day of the murder, testified
that when Johnson had found Griego with them, he pointed a
gun at them, asked if they were sexually involved with
Griego, and threatened to kill them. They testified that he
also told Griego, "if I can't have you, bitch,
nobody will." After hearing this, the two witnesses
flagged down police officers and Griego called 911. Law
enforcement officers were not able to locate Johnson at that
time.
¶
7 Police officers testified that, during their investigation,
they heard Carrethers tell her daughter, "Elmo killed
Danny." They also described observing bullet holes,
casings, and ammunition near the body, and finding a handgun
hidden in the couch.
¶
8 The jury found Johnson guilty of first degree murder in the
death of Griego. The jury also convicted Johnson of felony
menacing for pointing the gun at Eva. Johnson now challenges
both convictions. Specifically, he asserts the trial court
erred in three ways: (1) by ruling that he could not admit
the evidence that Carrethers tested positive for GSR without
opening the door to the prosecution offering the otherwise
suppressed evidence of Johnson's GSR test; (2) by
excluding evidence that Carrethers later killed her husband;
and (3) by permitting Carrethers to testify to several
statements made by Griego.
II. The
Trial Court Erred by Ruling That Admission of Evidence of
Carrethers's GSR Test Would Open the Door to
Johnson's Suppressed GSR Evidence
¶
9 Johnson contends that the trial court improperly required
him to choose between exercising two constitutional rights -
the right to present a complete defense and the right to
exclude evidence seized in violation of the Fourth Amendment.
Under the circumstances of this case, we agree.
A.
Standard of Review
¶
10 We review a trial court's determination that a
party's actions have opened the door to otherwise
inadmissible evidence for an abuse of discretion. People
v. Lesney, 855 P.2d 1364, 1366-67 (Colo. 1993). A trial
court abuses its discretion if it misconstrues or misapplies
the law or otherwise reaches a manifestly arbitrary,
unreasonable, or unfair result. People v. Melillo,
25 P.3d 769, 773 (Colo. 2001).
¶
11 A trial court's application of the legal standard in a
suppression ruling is a question of law that we review de
novo. See People v. Smith, 40 P.3d 1287,
1290 (Colo. 2002). Similarly, "a trial court's
interpretation of a statute or rule governing the
admissibility of evidence is reviewed de novo."
People v. Salas, 2017 COA 63, ¶ 30 (citing
People v. Hill, 228 P.3d 171, 173 (Colo.App. 2009)).
¶
12 The People assert that Johnson either waived or invited
this error, and thus we should not review it. Specifically,
the People assert that because Johnson never offered the
evidence of Carrethers's positive GSR test, no
inadmissible evidence was admitted nor was Carrethers's
admissible GSR test excluded. Thus, the People argue, no
evidentiary error occurred. Essentially, the People argue
that the trial court never actually ruled on the issue, but
rather merely gave Johnson an advisory warning as to what
might happen if he sought to admit certain evidence. We
disagree.
¶
13 When the trial court initially ruled, Johnson objected,
arguing that the trial court was forcing him to choose
between enforcing his right to be free from unreasonable
searches and his right to present a complete defense. At
trial, the court revisited the issue, indicating that it was
not precluding inquiry into the GSR issue and reiterating
that the door would only be opened "if the nature of
their inquiry was misleading, i.e., [Johnson] wasn't
positive or the investigation was subpar, he wasn't
tested." Johnson's counsel made an offer of proof as
to what testimony he would seek to offer and what he would
(and would not) argue to the jury. The next morning, the
trial court announced that it was treating Johnson's
request as a motion in limine and ruled that, should the
defense proceed in that manner, it would open the door to the
previously submitted evidence. The trial court concluded,
"So defense now is on notice of what the Court's
ruling is and can make a decision about whether or not to
introduce that."
¶
14 Johnson's counsel reiterated his prior objections,
that the trial court was impermissibly forcing Johnson to
make a Hobson's choice between excluding constitutionally
inadmissible evidence or foregoing constitutionally
permissible and potentially exculpatory evidence. Based on
the trial court's ruling, Johnson elected not to offer
the evidence of Carrethers's GSR test. In these
circumstances, we cannot conclude that the trial court's
ruling was merely advisory. Nor, in our view, did Johnson
waive or abandon his objections to the trial court's
ruling merely by abiding by it. Thus, we conclude that the
issue is properly before us.
¶
15 Because Johnson preserved this issue, and it is of
constitutional dimension, any error will require reversal
unless it was harmless beyond a reasonable doubt.
Krutsinger v. People, 219 P.3d 1054, 1058 (Colo.
2009). To avoid reversal, the prosecution must establish that
there is no reasonable possibility that the error might have
contributed to the conviction. Hagos v. People, 2012
CO 63, ¶ 11.
B.
Applicable Law
¶
16 "Ordinarily, when police obtain evidence in violation
of the Fourth Amendment, that evidence may not be introduced
against the aggrieved individual in either a state or federal
criminal prosecution." People v. Gutierrez, 222
P.3d 925, 941 (Colo. 2009) (citing Mapp v. Ohio, 367
U.S. 643 (1961)). However, this rule, known as the
exclusionary rule, is not without exceptions. One such
exception is known as the impeachment exception, recognized
in Walder v. United States, 347 U.S. 62 (1954).
¶
17 In Walder, the defendant was prosecuted for
multiple counts of distribution of narcotics. Id. at
63. A couple of years earlier, the defendant had faced a
narcotics possession charge, but that case was dismissed
after a court ruled that the drugs had been illegally seized
by the police. Id. at 62-63. While testifying at his
trial on the later distribution charges, the defendant denied
ever possessing any narcotics in the past. Id. at
63. On cross-examination, over the defendant's objection,
the prosecution inquired about the defendant's prior
possession charge. Id. at 64. The defendant denied
that any narcotics had been found on him in that case.
Id.
¶
18 In rebuttal, the prosecution was permitted to present the
testimony of one of the officers who had been involved in the
prior unconstitutional seizure of the narcotics and of the
chemist who had analyzed the improperly seized contraband.
Id. The defendant was convicted and appealed,
arguing that admission of the previously excluded evidence
violated his constitutional right to be free from
unreasonable searches and seizures. Id.
¶
19 The United States Supreme Court rejected the
defendant's challenge. The Court observed:
It is one thing to say that the Government cannot make an
affirmative use of evidence unlawfully obtained. It is quite
another to say that the defendant can turn the illegal method
by which evidence in the Government's possession was
obtained to his own advantage, and provide himself with a
shield against contradiction of his untruths.
Id. at 65. The Court ruled that the prior
constitutional violation would not provide justification
"for letting the defendant affirmatively resort to
perjurious testimony in reliance on the Government's
disability to challenge his credibility." Id.
¶
20 The Supreme Court later revisited this exception,
providing clarity and boundaries to its application. In
James v. Illinois, 493 U.S. 307 (1990), the
defendant, a suspect in a murder, was arrested while sitting
under a hair dryer in his mother's beauty parlor.
Id. at 309. When he was arrested, his hair was black
and curly. Id. However, he told the officers that
the previous day (the day of the murder) his hair had been
reddish brown, long, and straight (which matched the
description witnesses had provided of the murderer).
Id. at 309-10. He also told them that he had gone to
the beauty parlor to change his appearance. Id. at
309.
¶
21 Before trial, the trial court ruled that the officers had
lacked probable cause to arrest the defendant and suppressed
the defendant's statements as fruits of that unlawful
conduct. Id. at 309-10. At trial, the defendant did
not testify. However, he presented testimony of a family
friend, who testified that on the day of the shooting the
defendant's hair had been black. Id. at 310.
Over the defendant's objection, the trial court permitted
the prosecution to offer the defendant's suppressed
statements to impeach the friend's credibility.
Id.
¶
22 On appeal, the Illinois Appellate Court reversed the
conviction, holding that the statements were improperly
admitted. Id. But the Illinois Supreme Court
reversed the intermediate appellate court, ruling that the
impeachment exception ought to be expanded to permit
impeachment of defense witnesses other than the defendant
himself, and thus "deter the defendant from engaging in
perjury 'by proxy.'" Id. at 311.
¶
23 The United States Supreme Court disagreed. The Court
recognized that the impeachment exception "further[s]
the goal of truth-seeking by preventing defendants from
perverting the exclusionary rule 'into a license to use
perjury by way of a defense.'" Id. at 652
(quoting United States v. Havens, 446 U.S. 620, 626
(1980)). However, the Court clarified that "the
exception leaves defendants free to testify truthfully on
their own behalf; they can offer probative and exculpatory
evidence to the jury without opening the door to impeachment
by carefully avoiding any statements that directly contradict
the suppressed evidence." Id. at 652-53.
¶
24 Ultimately, the Court declined to extend the impeachment
exception to encompass the testimony of all defense witnesses
for two reasons. First, the Court observed that "the
mere threat of a subsequent criminal prosecution for perjury
is far more likely to deter a witness from intentionally
lying on a defendant's behalf than to deter a defendant,
already facing conviction for the underlying offense, from
lying on his own behalf." Id. at 653. Second,
expanding the exception to all defense witnesses "likely
would chill some defendants from presenting their best
defense and sometimes any defense at all - through the
testimony of others." Id. The Court was
concerned that defendants would fear that a defense witness,
"in a position to offer truthful and favorable
testimony, would also make some statement in sufficient
tension with the tainted evidence to allow the prosecutor to
introduce that evidence for impeachment." Id.
¶
25 Thus, the impeachment exception to the suppression rule
permits the use of constitutionally excluded evidence to
impeach a defendant's own untruthful testimony. In this
way, the exception "generally discourages perjured
testimony without discouraging truthful testimony."
Id.
C.
Application
¶
26 Understandably concerned that admission of
Carrethers's positive GSR test coupled with silence as to
whether Johnson was also positive - or even tested at all -
would potentially mislead the jury, the trial court sought to
protect the truth-seeking function of the trial process by
applying the impeachment exception. However, in doing so, the
trial court expanded the impeachment exception even further
than the Illinois Supreme Court's ill-fated attempt to do
so in James.[4] The trial court erred.
¶
27 The effect of the trial court's ruling was to chill
Johnson's presentation of truthful and favorable
evidence. This is precisely the danger the Supreme Court
protected against when it limited the scope of the
impeachment exception in James. As the Supreme Court
made clear in James, the exception does not permit
the use of otherwise suppressed evidence to contradict
obviously untruthful testimony, so long as such testimony is
not provided by the defendant himself. It necessarily follows
that the exception cannot possibly permit the use of such
evidence to counter truthful testimony.
¶
28 Johnson should have been permitted to offer truthful
evidence related to the GSR testing conducted on individuals
other than Johnson without fear of opening the door to the
unconstitutionally obtained evidence related to his GSR
test.[5] Yet, because of the trial court's
ruling, not only did the officers' unconstitutional
search improperly result in the collection of inculpatory
evidence, it also effectively shielded potentially
exculpatory evidence from use by the defense. Such a result
falls far short of effectuating the "sole purpose"
of the exclusionary rule, which is "to deter future
Fourth Amendment violations." Davis v. United
States, 564 U.S. 229, 236-37 (2011). Indeed, it arguably
encourages future violations, by significantly softening the
adverse impacts of an unconstitutional search by law
enforcement.
¶
29 Because the trial court misapplied the impeachment
exception, we conclude that the court abused its discretion.
¶
30 The People argue that any error was harmless "under
any standard." Again, we disagree. The People argue that
evidence of GSR on Carrethers would likely have had little
impact on the jury for several reasons: GSR is not conclusive
proof of who actually fired a gun; there was a logical
explanation for why Carrethers would have tested positive
without having fired a gun; Carrethers's purported motive
to kill Griego was "not compelling";
Carrethers's credibility was effectively attacked even
without the GSR evidence; and the focus of defense
counsel's closing argument was not on Carrethers as an
alternate suspect, but rather on whether the prosecution had
failed to prove that Johnson killed Griego. The People's
argument, however, misapprehends the standard in this case.
¶
31 Having found error, and because that error implicates
Johnson's
constitutional rights, we must reverse unless the People
demonstrate beyond a reasonable doubt that there is no
reasonable possibility the ruling impacted the verdict.
Hagos, ¶ 11. Though the People correctly note
that the GSR test is not conclusive, it is certainly
sufficient grounds on which to base an inference that
Carrethers fired a gun.[6] Similarly, regardless of whether
Johnson's theory that Carrethers had a motive to kill
Griego was compelling, it was at least one the jury may have
found worthy of consideration. And although Johnson's
counsel had been able to attack Carrethers's credibility,
he was not permitted to fully explore the potential that she
may have been an alternate suspect. Finally, the focus of
defense counsel's closing argument was necessarily a
function of what evidence had been admitted. Had he been able
to present Carrethers's GSR results, his closing argument
would likely have had a different focus.
¶
32 Under these circumstances, we conclude that there is a
reasonable possibility that the trial court's
prophylactic ruling, which effectively precluded
Carrethers's GSR evidence, affected the verdict. At the
very least, the prosecution has not carried its burden of
proving otherwise. Thus, the error was ...