People v. Johnson
| Decision Date | 24 October 2019 |
| Docket Number | Court of Appeals No. 16CA0152 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Elmo Jesse JOHNSON, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
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 by JUDGE TOW
¶ 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.
¶ 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.
¶ 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.
¶ 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, 405 P.3d 446 (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, 288 P.3d 116.
¶ 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, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (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, 74 S.Ct. 354, 98 L.Ed. 503 (1954).
¶ 17 In Walder , the defendant was prosecuted for multiple counts of distribution of narcotics. Id. at 63, 74 S.Ct. 354. 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, 74 S.Ct. 354. While testifying at his trial on the later distribution charges, the defendant denied ever possessing any narcotics in the past. Id. at 63, 74 S.Ct. 354. On cross-examination, over the defendant's objection, the prosecution inquired about the defendant's prior possession charge. Id. at...
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