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People v. Johnson

Court of Appeals of Colorado, First Division

October 24, 2019

The People of the State of Colorado, Plaintiff-Appellee,
Elmo Jesse Johnson, Defendant-Appellant.

          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


          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 ...

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