v. Johnson , 2019 COA 159 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
October 24, 2019
2019COA159
No. 16CA0152, People v. Johnson — Constitutional Law —
Fourth Amendment — Searches and Seizures — Warrantless
Search — Exclusionary Rule — Impeachment Exception
The division considers the limits of the impeachment exception to
the exclusionary rule announced in Walder v. United States, 347
U.S. 62 (1954), and limited in James v. Illinois, 493 U.S. 307(1990). Under this rule, evidence that was suppressed as
unconstitutionally obtained may nevertheless be admissible under
certain limited circumstances. The majority holds that the trial
court erred in ruling that the use of truthful testimony about an
alternate suspect’s positive test for gunshot residue would open the
door to the otherwise suppressed evidence of the defendant’s
positive test. The partial dissent would hold that the trial court
appropriately ruled that the evidence of defendant’s test would be
admissible to prevent the defense from misleading the jury.
COLORADO COURT OF APPEALS 2019COA159
Court of Appeals No. 16CA0152
Arapahoe County District Court No. 14CR2330
Honorable Michelle A. Amico, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Elmo Jesse Johnson,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TOW
Berger, J., concurs
Taubman, J., concurs in part and dissents in part
Announced October 24, 2019
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
¶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
1
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
1 Both Carrethers and Griego’s mother also tested positive for GSR.
2 Johnson also moved to exclude the evidence that his clothing
collected by the police at the hospital contained ammunition and
was stained with Griego’s blood. The trial court denied this motion.
Johnson does not challenge that ruling on appeal.
3 The trial court noted, based on its experience and knowledge, that
GSR evidence is the type of evidence that likely falls within the
exigent circumstances exception. However, the court observed that
it could neither impute its own knowledge into the case nor take
2
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.
judicial notice of the ephemeral nature of GSR evidence. So,
because the prosecution had presented no evidence at the motions
hearings that would establish that GSR can be easily and quickly
destroyed, the trial court concluded it could not apply the exigent
circumstances exception to the warrant requirement. The People
did not challenge that ruling.
3
¶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
4
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
5
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
6
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
7
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
8
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
9
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
10
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.
11
¶ 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.12
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
4 In our view, the Supreme Court in James spoke definitively
regarding the constitutionally permissible extent of the Walder
exception to the exclusionary rule. It is not the place of an
intermediate state appellate court to extend the reach of Walder
beyond the boundaries expressed in James. If such an extension is
to be made, it must be made by a court higher than this one.
13
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.
5 We do not suggest that it would be proper for Johnson to ask the
jury to infer from this evidence that he either was not tested or that
he tested negative. However, Johnson’s counsel acknowledged that
he had no intention of advancing such an argument.
14
¶ 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
15
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 not harmless
6We note that GSR evidence was important enough to the
prosecution that it vigorously defended against Johnson’s efforts to
suppress his GSR test results.
16
beyond a reasonable doubt. Johnson’s murder conviction must be
reversed.
III. The Trial Court Did Not Err by Excluding Evidence That
Carrethers Killed Her Husband
¶ 33 Johnson also contends that the trial court abused its
discretion by excluding evidence that Carrethers murdered her
husband, the only other person in the home the night Griego died.
He argues that this ruling further undermined his ability to present
his defense that Carrethers was an alternate suspect and violated
his right to confront and cross-examine witnesses. Because this
issue is likely to arise on remand, we address Johnson’s contention
but discern no abuse of discretion.
A. Additional Facts
¶ 34 Approximately five weeks after Griego’s murder, Carrethers
fatally stabbed her husband. Although Carrethers was initially
arrested for first degree murder, the Adams County District
Attorney’s Office did not file criminal charges because it concluded
that Carrethers had acted in self-defense. 7 Prior to Johnson’s trial,
7The apartment in which both Griego and Carrethers’s husband
were killed is in Arapahoe County. However, to avoid any
17
the prosecution filed a motion in limine to preclude evidence
regarding the husband’s death, asserting that it did not involve
Johnson, did not result in criminal charges, and was irrelevant.
Johnson objected, asserting that the nature and circumstances of
the death might show that Carrethers testified at Johnson’s trial to
avoid charges being filed against her for the killing. In addition,
Johnson argued that, given alleged similarities between how the
husband was killed and how Griego was killed, the evidence was
relevant to his alternate suspect theory.
B. Standard of Review
¶ 35 We review a trial court’s exclusion of evidence for an abuse of
discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002).
Because the exclusion of this evidence did not entirely foreclose
Johnson from presenting his alternate suspect theory, any error
would not be one of constitutional dimension. See Krutsinger v.
People, 219 P.3d 1054, 1062 (Colo. 2009) (rejecting the application
appearance of a conflict of interest arising from the fact that
Carrethers was a witness in the prosecution related to Griego’s
murder, the matter was referred to a neighboring jurisdiction to
independently determine whether Carrethers should be charged in
the death of her husband.
18
of constitutional harmlessness where an erroneous evidentiary
ruling did not “effectively bar the defendant from meaningfully”
presenting his defense). Thus, should we determine that the trial
court abused its discretion, we reverse unless the error was
harmless. Hagos, ¶ 12.
C. Applicable Law
¶ 36 A defendant pursuing an alternate suspect theory may
introduce evidence of that suspect’s other acts to prove identity —
that the same person who committed the other act also committed
the charged crime. People v. Elmarr, 2015 CO 53, ¶ 39. However,
“an inference that the alternate suspect committed the other acts
and the charged crime is permissible only where the prior acts and
the charged crime share sufficient similar characteristics or
details.” Id. “[T]he overarching relevance inquiry remains whether
the evidence, taken collectively, establishes a non-speculative
connection between the alternate suspect and the charged crime.”
Id. at ¶ 40. Finally, “[e]ven relevant alternate suspect evidence may
be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury . . . .” Id. at ¶ 43.
19
D. Application
¶ 37 Johnson’s first argument against the People’s motion in limine
was that the issue of Carrethers’s involvement in her husband’s
death was relevant to impeaching her — that she may have had an
incentive to testify favorably for the prosecution in order to avoid
being prosecuted herself for the later homicide. We disagree.
¶ 38 As the trial court noted, a defendant is generally allowed broad
cross-examination of a prosecution witness with respect to that
witness’s motive to testify where that witness is charged with or
threatened with criminal prosecution for other offenses. See People
v. King, 179 Colo. 94, 98, 498 P.2d 1142, 1144-45 (1972).
However, at the time Carrethers testified, charges against her were
neither pending nor threatened. Further, because the
determination of whether to charge her was not made by the office
prosecuting Johnson, there was no evidence to suggest that her
testimony was bargained for by the prosecution in this case.
Perhaps most importantly, as the trial court noted, Carrethers’s
initial statements to law enforcement occurred five months before
she killed her husband. Finally, Johnson’s contention that,
because first degree murder has no statute of limitations,
20
Carrethers may have been motivated to testify favorably for the
prosecution in the hopes of preventing some future change of heart
by the Adams County District Attorney is pure speculation.
¶ 39 Thus, the trial court did not abuse its discretion in concluding
that Carrethers’s involvement in the death of her husband was not
relevant to her motive or bias in this case.
¶ 40 The trial court also rejected Johnson’s argument that this
evidence was relevant to his alternate suspect defense. Again, we
perceive no abuse of discretion.
¶ 41 The trial court noted certain similarities between the two
incidents, including (1) the deaths occurred on the same couch in
the same residence; (2) Carrethers moved or handled evidence after
both deaths; and (3) both weapons were located under the couch
cushion. However, the trial court noted that the husband’s death
involved a claim of self-defense sufficiently compelling that no
charges were filed. We further note that, even under Johnson’s
theory, the killings were not similar; the motives for the two killings
differed, as did the method of killing (Griego was shot, but
Carrethers’s husband was stabbed). We agree with the trial court
that Johnson failed to establish more than a speculative connection
21
between Carrethers’s killing of her husband in self-defense and
Greigo’s murder, and that the other acts evidence was “not
distinctive or unusual enough” to support a finding that Carrethers
was probably responsible for both crimes. Id. at ¶ 39 (quoting
People v. Salazar, 2012 CO 20, ¶ 26).
¶ 42 Finally, applying a CRE 403 analysis, the trial court concluded
that evidence that Carrethers killed her husband carried a
substantial danger of unfair prejudice, confusion of the issues, and
misleading the jury. Here, too, we perceive no abuse of discretion
in the trial court’s analysis and conclusion.
¶ 43 Because the evidence related to the death of Carrethers’s
husband was not probative for impeachment or for building an
alternate suspect defense, and because any minimal relevance there
may have been was far outweighed by the danger of unfair
prejudice, the trial court did not abuse its discretion in preventing
Johnson from presenting this evidence to the jury.
IV. The Trial Court Did Not Err by Admitting Alleged Hearsay
¶ 44 Johnson claims that the trial court erred by admitting
evidence of statements Carrethers claimed she heard Griego make.
Despite our conclusion that Johnson’s first degree murder
22
conviction must be reversed, we nevertheless review this contention
because it is at least in part aimed at Johnson’s conviction for
menacing as well. We discern no basis for reversal.
A. Additional Facts
¶ 45 In a written motion, the prosecution sought to admit under
CRE 807 certain statements Carrethers said she heard Griego utter.
Specifically, the motion identified the following statements.
• “If you hit me again, I’m going to call the police, you said
you weren’t going to hit me”;
• “I don’t know them,” (said about Eva and Pasquale on the
evening of the murder, after Johnson had pointed the
gun at Eva); and
• “Oh my god, what are you doing?”, after which
Carrethers heard Johnson respond, “shut up” and then
heard two gunshots.
¶ 46 Johnson opposed the motion, arguing that admission of the
evidence would violate his rights under Colorado’s Confrontation
Clause. After a hearing, the trial court overruled Johnson’s
objection and granted the prosecution’s motion.
23
¶ 47 At trial, the statements came into evidence through the video
recording of Carrethers’s interview with police and testimony from a
police officer about that video. In the video recording, Carrethers
also said that Griego had previously told her that Johnson had
threatened to kill her.
B. Standard of Review
¶ 48 We review evidentiary rulings for an abuse of discretion.
Nicholls v. People, 2017 CO 71, ¶ 17. Because Johnson preserved
these issues, we will determine if any error requires reversal by
applying the harmless error test. Id. Under this test, “[i]f a
reviewing court can say with fair assurance that, in light of the
entire record of the trial, the error did not substantially influence
the verdict or impair the fairness of the trial, the error may properly
be deemed harmless.” People v. Gaffney, 769 P.2d 1081, 1088
(Colo. 1989).
¶ 49 We review de novo a defendant’s claim that the trial court
violated his Confrontation Clause rights, applying the constitutional
harmless error standard to any error. Nicholls, ¶ 17 (citing Bernal
v. People, 44 P.3d 184, 198 (Colo. 2002)).
24
C. Applicable Law
¶ 50 Colorado’s constitutional protection of the right to confront
witnesses applies only to testimonial statements. Id. at ¶ 33. A
testimonial statement is one made “under circumstances that
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Id. at ¶ 22
(citing Crawford v. Washington, 541 U.S. 36, 51-53 (2004)).
¶ 51 “‘Hearsay’ is a statement other than one made by the
declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” CRE 801(c).
D. Application
¶ 52 As a threshold matter, we note that none of the statements
Johnson challenges is testimonial. None of them was made to law
enforcement, and none appears to have been made by Griego with
an eye toward future use in court. 8 Thus, Colorado’s Confrontation
Clause is not implicated by any of these statements.
8 It is important to note that the testimonial inquiry is focused on
the circumstances under which the declarant (i.e., Griego) made the
statement. Nicholls v. People, 2017 CO 71, ¶ 33. Whether or not
Carrethers made her statements to police understanding they
would be used in court is irrelevant to this inquiry; because
25
¶ 53 Nor is the hearsay rule implicated by at least some of the
statements. For example, Griego’s statement that she did not know
Eva and Pasquale was clearly not offered for the truth of the matter
asserted; the prosecution’s case assumed that she knew them. And
her exclamation “Oh my god, what are you doing?” is not a
declarative statement because there is no assertion being made.
Because these statements were not hearsay, their admission was
not evidentiary error. 9
¶ 54 Another of the statements, although not containing a direct
assertion, may nevertheless meet the definition of hearsay. When
Griego told Johnson, “If you hit me again, I’m going to call the
police, you said you weren’t going to hit me,” she was at least
implying that Johnson had hit her in the past. An implied
assertion may qualify as a hearsay statement if the statement “was
intended [by the out-of-court witness] to imply to the testifying
witness a separate fact in question at trial.” People v. Griffin, 985
Carrethers was present in the courtroom and subject to cross-
examination about her statements to the police, her testimony
presents no confrontation issue.
9 We may affirm an evidentiary ruling on any ground supported by
the record. People v. Brown, 2014 COA 155M-2, ¶ 15.
26
P.2d 15, 17-18 (Colo. App. 1998). Because we cannot tell from the
record whether Griego intended Carrethers to overhear the
statement and infer that Johnson was hitting her, we will assume
this statement was an implied assertion.
¶ 55 The final challenged statement — i.e., that Griego told
Carrethers that Johnson threatened to kill Griego — was clearly
hearsay.
¶ 56 Nevertheless, we need not resolve whether these two
statements were erroneously admitted under CRE 807. Neither the
threat to Griego nor the implied assertion that Johnson had hit
Griego in the past had any bearing on the allegation that Johnson
pointed a gun at Eva. Thus, because these statements would have
had no impact on the jury’s guilty verdict on the menacing charge,
any error that may have occurred by admitting the statements was
harmless. 10
10The statements are relevant to the murder conviction. However,
because hearsay analysis is inherently a fact-specific and context-
driven one, and because we cannot predict the context in which this
evidence may, if at all, arise on retrial of that charge, we do not
address Johnson’s contention as it relates to the murder charge.
27
¶ 57 Thus, we conclude that there is no basis to reverse the
menacing conviction.
V. Conclusion
¶ 58 Johnson’s conviction for menacing is affirmed. His conviction
for first degree murder is reversed, and the case is remanded for a
new trial on that charge.
JUDGE BERGER concurs.
JUDGE TAUBMAN concurs in part and dissents in part.
28
JUDGE TAUBMAN, concurring in part and dissenting in part.
¶ 59 This case presents the question of whether a defendant in a
criminal case may retain the benefits of an evidentiary ruling in his
favor concerning gunshot residue (GSR) when he proposes to
introduce GSR evidence found on the woman in whose home the
victim was killed.
¶ 60 Resolving this issue requires us to analyze two United States
Supreme Court cases addressing whether a defendant in a criminal
case may use the Fourth Amendment as both a sword and a shield
— that is, to exclude evidence obtained in violation of the Fourth
Amendment and then use the exclusion of that evidence to permit
the introduction of other evidence the defendant considers
necessary to present a complete defense. Resolution of this issue
also requires us to analyze the applicability of the “opening the
door” doctrine, which permits a court to allow the introduction of
otherwise inadmissible evidence to prevent a party from gaining an
unfair advantage or misleading the jury.
¶ 61 Because I conclude that the trial court properly ruled that
defendant, Elmo Jesse Johnson, could not use the Fourth
Amendment as both a sword and a shield, I would affirm his
29
judgment of conviction entered on a jury verdict finding him guilty
of both first degree murder and felony menacing. However, I agree
with the majority’s rejection of his contentions that the trial court
erred in excluding alternate suspect evidence and allowing certain
statements that Johnson contends were inadmissible hearsay.
I. Background and Procedural Posture
¶ 62 As a preliminary matter, I agree with and, thus, adopt the
majority’s recitation of the factual background. I also agree that the
matter is properly before us. Supra ¶ 14. However, I provide a
more detailed background where necessary to support my analysis.
II. Opening the Door
¶ 63 Johnson contends that the trial court erred in warning him
that, if he presented GSR evidence found on his sister, Toni
Carrethers, he would open the door to allow the prosecution to
introduce the GSR evidence suppressed by the trial court under the
exclusionary rule. He asserts that this ruling forced him to choose
between exercising two constitutional rights — the right to present
a complete defense and his right to exclude evidence seized in
violation of the Fourth Amendment. I disagree.
30
A. Additional Facts
¶ 64 Crime scene investigators swabbed Johnson’s hands and face
without a warrant while he lay unconscious in the hospital. The
swabs collected tested positive for GSR, as did swabs collected from
Carrethers and the mother of Danielle Griego, Johnson’s girlfriend.
The trial court granted Johnson’s motion to suppress the evidence
collected from him because investigators violated his Fourth
Amendment rights by obtaining it without a warrant. However, the
court ruled that it “will not permit [Johnson] to use the Fourth
Amendment as both a shield and a sword.” Thus, it repeatedly
warned Johnson that, if he intended to present evidence that
Carrethers had tested positive for GSR, such evidence would open
the door and permit the prosecutor to introduce the otherwise
suppressed GSR evidence found on Johnson. The trial court later
elaborated by stating that its concern was the defense misleading
the jury into believing either that Johnson was never tested or that,
if he was tested, no GSR was found on his body.
¶ 65 However, the trial court invited the defense to propose
alternative ways to preserve both the suppression of the GSR found
on Johnson and Johnson’s right to present a complete defense. It
31
announced that, if the defense still intended to introduce evidence
of the GSR found on Carrethers, it could propose a strategy to do so
in a motion in limine. In response, the defense, at a hearing on
Johnson’s motion in limine, proposed the following:
Judge, we would recall [the crime scene
investigator, Maria] Pettolina [a witness for the
prosecution,] and we would ask CSI Pettolina if
she conducted a — or collected a sample for
[GSR] testing. We would then call [the
analyst]. We would elicit from [the analyst] the
fact that Toni Carrethers was positive for GSR
or for gunshot residue.
The People responded that, if the defense elicited this testimony
from Pettolina and the analyst, “the People will inquire as to
whether samples were also collected from Griego’s mother and
[three] others, which we don’t want to do that, because that even
begs the question even more if the jury hears about every single
collection of GSR but for the defendant.” The trial court agreed that
allowing the jury to hear testimony that Carrethers and three others
were tested would likely lead the jury to ask whether Johnson was
also tested. Thus, ruling on the motion in limine, the court
concluded that the defense’s proposed witness testimony would
open the door to the admission of the previously excluded evidence
32
of GSR on Johnson. Consequently, it held that not allowing the
People to rebut the defense’s proposed GSR testimony would
mislead the jury.
B. Standard of Review and Preservation
¶ 66 We review a trial court’s determination of whether a party
opened the door to responsive actions by the opposing party for an
abuse of discretion. People v. Lesney, 855 P.2d 1364, 1366–67
(Colo. 1993). However, the broader question of whether a defendant
can open the door to evidence otherwise barred by the exclusionary
rule raises a question of law that we review de novo. See People v.
Melillo, 25 P.3d 769, 777 (Colo. 2001).
C. Applicable Law
¶ 67 A defendant may not employ the Fourth Amendment’s
exclusionary rule as both a sword and a shield. See Walder v.
United States, 347 U.S. 62, 65 (1954). As the Walder Court stated:
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. Such an
33
extension . . . would be a perversion of the
Fourth Amendment.
Id.¶ 68 The issue before us is whether Walder, James v. Illinois, 493
U.S. 307 (1990), or some combination of the two applies to
Johnson’s desire to introduce evidence of GSR found on Carrethers,
and whether the introduction of such evidence would open the door
to allow the prosecution to introduce evidence otherwise excluded
by the exclusionary rule.
¶ 69 Courts sometimes allow admission of otherwise inadmissible
evidence when one party “opens the door” to such evidence by
introducing evidence that would allow the party to gain an unfair
advantage or mislead the jury. People v. Murphy, 919 P.2d 191,
195 (Colo. 1996). In Walder, 347 U.S. 62, the Supreme Court
carved out an exception to the exclusionary rule to prevent a
defendant from using a favorable Fourth Amendment ruling to allow
him to present misleading or untrue evidence to the jury. Although
the Supreme Court did not use the phrase “opening the door,” its
decision was based on that principle. Under the Walder exception,
a prosecutor may introduce suppressed evidence to impeach a
34
defendant who attempts to distort the purpose of the exclusionary
rule by deploying it as a “license to use perjury by way of a
defense.” United States v. Havens, 446 U.S. 620, 626 (1980)
(quoting Harris v. United States, 401 U.S. 222, 226 (1971)).
However, it carefully limited its holding to ensure it did not extend
to instances in which the prosecution attempts “to smuggle [tainted
evidence] in on cross-examination” by baiting a defendant into
impeaching himself or herself. 1 Id. (quoting Walder, 347 U.S. at
66).
¶ 70 In James, 493 U.S. 307, the Supreme Court further limited its
holding in Walder. Unlike in Walder, it concluded that a prosecutor
1As the Walder court noted:
The situation here involved is to be sharply
contrasted with that presented by Agnello v.
United States, 269 U.S. 20 [(1925)]. There, the
Government, after having failed in its efforts to
introduce the tainted evidence in its case in
chief, tried to smuggle it in on cross-
examinaton by asking the accused the broad
question “Did you ever see narcotics before?”
After eliciting the expected denial, it sought to
introduce evidence of narcotics located in the
defendant’s home by means of an unlawful
search and seizure, in order to discredit the
defendant.
Walder v. United States, 347 U.S. 62, 66 (1954) (footnote omitted).
35
could not introduce evidence suppressed under the exclusionary
rule to impeach a defense witness rather than the defendant. In so
doing, the James Court allowed a defendant to introduce “probative
and exculpatory evidence” from a defense witness, while
discouraging perjury. Id. at 314.
¶ 71 Both Walder and James promote the balancing of the
judiciary’s truth-seeking function against the exclusionary rule’s
protections for the defendant and deterrence of unconstitutional
police conduct. See People v. Trujillo, 49 P.3d 316, 323 (Colo.
2002).
¶ 72 In LeMasters v. People, the supreme court recognized the
applicability of Walder but declined to apply its reasoning to the use
of suppressed evidence for impeachment purposes when the
evidence suppressed was not directly connected to the testimony
the prosecutor sought to impeach. 678 P.2d 538, 543 (Colo. 1984).
Thus, the issue the majority and I address today has not been
decided by Colorado’s appellate courts.
D. Analysis
¶ 73 The circumstances here fall somewhere between those in
Walder and those in James. The suppressed evidence here would
36
have been introduced through neither the defendant nor a defense
witness — yet, I would hold that the underlying premise of both
cases applies. The exclusionary rule demands that illegally
obtained evidence remain suppressed unless a defendant uses its
unavailability to frustrate or obfuscate the court’s truth-seeking
function.
¶ 74 I conclude that the Walder exception to the exclusionary rule
applies to the narrow circumstances of this case. Here, the defense
proposed to recall a witness for the prosecution, not a defense
witness (as in James), to introduce GSR evidence found on
Carrethers.
¶ 75 The defense’s argument at the hearing on its motion in limine
demonstrates the distinctions between this case and James. Had
the defense questioned prosecution witness Pettolina and the
analyst about the GSR found on Carrethers, the prosecutor would
have asked whether GSR samples were collected from others. Such
evidence, without an admission that GSR evidence was also
collected from Johnson, carried the potential to lead the jury to
believe that Johnson was not tested or had tested negative for GSR.
37
¶ 76 Thus, I conclude that James is distinguishable from the
present case. 2 In James, the prosecution impeached an eyewitness
for the defense by introducing police officer testimony about a
statement made by the defendant during the investigation of the
charged crime that had been suppressed. The James Court
reasoned that the truth-seeking rationale relied on to impeach the
defendant in Walder “does not apply to other [defense] witnesses
with equal force,” because the threat of subsequent criminal
prosecution for perjury already deters defense witnesses from lying.
James, 493 U.S. at 317. It added that to broaden the Walder
exception to encompass the impeachment of other defense
witnesses would provide an incentive for law enforcement officers to
illegally obtain evidence without furthering the truth-seeking
function of the court and “dissuade defendants from presenting a
meaningful defense through other witnesses.” Id. at 317–20.
2 I respectfully disagree with the majority’s assertion that James
unequivocally applies and that only a higher court may conclude
otherwise. As discussed above, in my view, neither Walder nor
James is directly on point. When this is the case, we distinguish
relevant cases, including decisions of the United States Supreme
Court, to reach what we believe to be a proper analysis and result.
38
¶ 77 In James, the Court rejected the theory of “perjury by proxy,”
stating that allowing one witness to testify contrary to another
witness’s testimony would not further the truth-seeking function
because defense witnesses have far less incentive to perjure
themselves than defendants, who are already faced with a possible
criminal conviction. The same concerns of perjury would not likely
arise in circumstances — like those presented here — when a
witness for the prosecution, recalled by the defense, testifies. Thus,
I conclude that the James decision rationale does not extend
beyond the impeachment of defense witnesses’ testimony and does
not govern the circumstances presented here.
¶ 78 Rather, the focus in this case is whether the introduction of
some physical evidence would mislead the jury to believe that other
physical evidence was either not searched for or not found. As
Justice Stevens observed in his concurring opinion in James, the
issue “is whether the admission of the illegally obtained evidence in
this case would sufficiently advance the truth-seeking function to
overcome the loss to the deterrent value of the exclusionary rule.”
Id. at 320. Although Justice Stevens answered that question in the
negative in James, I conclude the balance tips the other way here.
39
¶ 79 Here, the defense’s presentation of GSR evidence found on
Carrethers would allow the jurors to believe something that both
parties knew was not true. Therefore, the court’s truth-seeking
function tilts the scale toward permitting the prosecution to
introduce GSR evidence that had been previously excluded by the
trial court to avoid misleading the jury.
¶ 80 I acknowledge Johnson’s argument that he was presented with
a Hobson’s choice between effectuating his constitutional right to
present a complete defense and enforcing an exclusionary rule
decision in his favor. However, the trial court did not preclude the
introduction of GSR evidence found on Carrethers. Rather, it
warned him that, if he chose to introduce it in a manner that would
mislead the jury, the prosecution would be allowed to admit the
suppressed GSR evidence found on Johnson in rebuttal.
¶ 81 I conclude that Johnson knowingly surrendered any right to
present the GSR evidence on Carrethers. See Jeffers v. United
States, 432 U.S. 137, 153 n.21 (1977) (stating that an “alleged
Hobson’s choice between asserting the Sixth Amendment fair trial
right and asserting the Fifth Amendment double jeopardy claim is
illusory”; had the defendant chosen an alternative strategy, the
40
outcome may have been different). As discussed, GSR was collected
from Carrethers, Griego’s mother, and Johnson. Thus, it is not
clear what the GSR found on Carrethers would show other than
that she had touched the gun used to kill Griego, which was a fact
already admitted. This suggests that the GSR found on Carrethers
was not critical to enable Johnson to present a complete defense.
¶ 82 Rather than a Hobson’s choice, this situation presented
counsel with a tactical decision — whether the presentation of the
GSR evidence found on Carrethers outweighed the prejudice of
admitting the otherwise excludable GSR evidence. Counsel
presumably decided, as he had the discretion to do, that such a
risk would not have benefitted Johnson. See Dooly v. People, 2013
CO 34, ¶ 7, 302 P.3d 259, 262 (“While we have often noted that trial
counsel is generally accepted to be the ‘captain of the ship’ with
regard to tactics and matters of trial strategy, we have at the same
time made clear that he must always apply his professional
experience in making these tactical choices to effectively represent
the interests of his client . . . .”). As the supreme court has noted,
“A defendant may constitutionally be required to make difficult
41
strategic choices . . . .” People v. Skufca, 176 P.3d 83, 88 (Colo.
2008).
¶ 83 Moreover, contrary to Johnson’s contention, the trial court’s
ruling regarding the admissibility of the otherwise suppressed GSR
evidence found on Johnson did not prevent him from presenting an
alternate suspect defense. The trial court’s ruling meant only that
he could not present the GSR evidence without also allowing the
suppressed evidence to be admitted.
¶ 84 Accordingly, in my view, Johnson was deprived of neither his
Fourth Amendment right nor his right to present a complete
defense.
III. Admission of Hearsay Statements
¶ 85 I agree with the majority’s conclusion that the two statements
“Oh my god, what are you doing?” and “I don’t know them” were not
hearsay. However, I write separately because I would also affirm
the trial court’s admission of “If you hit me again, I’m going to call
the police, you said you weren’t going to hit me” and the final
42
challenged statement — that Griego told Carrethers that Johnson
threatened to kill Griego. 3
A. Standard of Review
¶ 86 We review the trial court’s ruling admitting evidence under an
exception to the rule against hearsay for an abuse of discretion.
People v. McFee, 2016 COA 97, ¶ 17, 412 P.3d 848, 855. “A court
abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or is based on an erroneous understanding
or application of the law.” Id. (citation omitted).
B. Applicable Law and Analysis
¶ 87 The rules of evidence permit the court, in its discretion, to
admit certain statements, not subject to the hearsay exceptions
under CRE 803 and 804, that would otherwise constitute
inadmissible hearsay if the statements offer sufficient guarantees of
trustworthiness. CRE 807. To determine the admissibility of a
statement under CRE 807, the supreme court has established five
prerequisites:
3Because the majority reverses the murder conviction, it does not
address the admissibility of those statements with respect to that
charge.
43
[1] [T]he statement is supported by
circumstantial guarantees of trustworthiness;
[2] the statement is offered as evidence of
material facts; [3] the statement is more
probative on the points for which it is offered
than any other evidence which could be
reasonably procured; [4] the general purposes
of the rules of evidence and the interests of
justice are best served by the admission of the
statement; and [5] the adverse party had
adequate notice in advance of trial of the
intention of the proponent of the statement to
offer it into evidence.
Vasquez v. People, 173 P.3d 1099, 1106 (Colo. 2007) (quoting
People v. Fuller, 788 P.2d 741, 744 (Colo. 1990)). “The proponent
must establish circumstantial guarantees of trustworthiness by a
preponderance of the evidence.” People v. Preciado-Flores, 66 P.3d
155, 164 (Colo. App. 2002). “In considering the trustworthiness of
a statement, courts should examine the nature and character of the
statement, the relationship of the parties, the probable motivation
of the declarant in making the statement, and the circumstances
under which the statement was made.” People v. Jensen, 55 P.3d
135, 139 (Colo. App. 2001).
¶ 88 I agree with the trial court’s analysis that the statements at
issue were made to Carrethers during the course of her close
relationship with Griego; thus, she had no reason to fabricate them.
44
I disagree with Johnson’s argument that Carrethers fabricated the
statements to avoid charges against her for killing her husband. No
evidence suggested that Carrethers would be charged with her
husband’s death because the Adams County District Attorney’s
Office had concluded that Carrethers had acted in self-defense.
Further, she was a hostile witness for the prosecution, claiming
that she did not recall the statements she had previously told
detectives. Because the statements satisfy the five prerequisites
established in Fuller, I would hold that the trial court properly
admitted them.
IV. Conclusion
¶ 89 Accordingly, I concur in the decision affirming Johnson’s
conviction for menacing, but I dissent in part because I would also
affirm his conviction for first degree murder.
45