People v. Johnson

486 P.3d 1154

The PEOPLE of the State of Colorado, Petitioner

v.Elmo Jesse JOHNSON, Respondent.

Supreme Court Case No. 20SC6

Supreme Court of Colorado.

May 24, 2021

Attorneys for Petitioner: Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Megan A. Ring, Public Defender, Stephen C. Arvin, Deputy State Public Defender, Denver, Colorado

En Banc

JUSTICE BERKENKOTTER delivered the Opinion of the Court.

¶1 We review the court of appeals' split decision in People v. Johnson, 2019 COA 159, ––– P.3d ––––, reversing Elmo Johnson's conviction for first degree murder and remanding the case for a new trial based on the division's determination that the trial court violated Johnson's right to present a complete defense. We consider, as a matter of first impression, whether the impeachment exception to the exclusionary rule extends to a defendant's truthful testimony that could mislead a jury.¹ We hold that a defendant may offer truthful, albeit potentially incomplete, evidence without opening the door to previously suppressed evidence. Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

¶2 Johnson lived in an apartment with his sister, Toni Carrethers, and Carrethers's husband. One night, Johnson's girlfriend, Danielle Griego, stayed at the apartment and was shot and killed.

¶3 The next day, Griego's mother discovered Griego's body on a couch in the apartment. Johnson was laying next to Griego, unconscious due to his consumption of alcohol and drugs. Griego's mother called 911. Before police officers arrived, Carrethers picked up two shell casings that were near Griego's body, rinsed them, returned them to where she had found them, and then washed her hands.

¶4 Johnson was transported to the hospital, where officers collected swabs from his hands and face while he remained unconscious. These swabs tested positive for gunshot residue ("GSR"), as did swabs the police subsequently collected from Carrethers and Griego's mother. After he regained consciousness, Johnson denied killing Griego.

¶5 As pertinent here, the prosecution charged Johnson with first degree murder. Before trial, Johnson moved to suppress the GSR evidence that the officers collected from his hands and face at the hospital without a warrant. The trial court granted Johnson's motion concerning the GSR evidence. In ruling, the trial court noted that it would not allow Johnson "to use the Fourth Amendment as both a shield and a sword." Concerned that Johnson may "mislead[ ] the jury into believing that ... [he] was never tested or he was not positive" for GSR, the court indicated that if Johnson offered evidence regarding Carrethers's positive GSR test, he would open the door for the prosecution to admit his suppressed positive test results.

¶6 At trial, the court asked whether Johnson intended to introduce evidence that Carrethers tested positive for GSR. Johnson's counsel responded that he planned to do so as part of Johnson's alternate suspect defense. He explained that he would lay the proper foundation through two of the prosecution's witnesses: the crime scene investigator, who swabbed Carrethers for GSR, and the GSR analyst, who tested Carrethers's swabs.

¶7 The trial court ruled that if Johnson elected to introduce evidence of Carrethers's positive GSR test results, then the prosecution would be allowed, under CRE 403, to introduce evidence with respect to all the GSR test results, including Johnson's, notwithstanding the court's previous suppression order. The court reasoned that Johnson's introduction of Carrethers's positive GSR test results could mislead the jury into thinking that Johnson did not test positive for GSR or that he wasn't tested at all and the investigation into Griego's death was "subpar." Johnson's counsel objected, asserting that the court's ruling put him "in a position of having to make a Hobson [sic] choice of either deciding to present a defense and render ineffective assistance of counsel or to have this unconstitutionally obtained evidence come in against Mr. Johnson."

¶8 Johnson elected not to inquire into Carrethers's GSR test results. The jury ultimately found Johnson guilty of first degree murder.

¶9 Johnson appealed his judgment of conviction, contending that the trial court erred by forcing him to choose between exercising two constitutional rights: his right to present a complete defense and his right to exclude constitutionally inadmissible evidence at trial. In a published, split decision, a division of the court of appeals agreed, holding as a matter of first impression that a defendant may offer truthful evidence that may nevertheless mislead the jury without opening the door to constitutionally inadmissible evidence. Johnson, ¶ 1.

¶10 The division majority primarily based its reasoning on the holdings from two United States Supreme Court cases: Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (recognizing the impeachment exception to the exclusionary rule by holding that evidence unconstitutionally seized under the Fourth Amendment is admissible to impeach a defendant's untruthful testimony), and James v. Illinois, 493 U.S. 307, 320, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990) (holding that illegally obtained evidence may not be used to impeach a defense witness's testimony). Johnson, ¶¶ 17-25. Applying these holdings, the majority determined that the impeachment exception "cannot possibly permit the use of [suppressed] evidence to counter truthful testimony." Id. at ¶ 27. The majority held that the trial court erred in its CRE 403 ruling because "the effect of [that] ruling was to chill Johnson's presentation of truthful and favorable evidence." Id. at ¶ 27. And because Carrethers's GSR test results could support an inference that she fired a gun around the time that Griego was killed, thus furthering Johnson's alternate suspect theory, the majority concluded that the error was not harmless beyond a reasonable doubt. The division majority accordingly reversed Johnson's first degree murder conviction and remanded the case for a new trial. Id. at ¶¶ 31-32.

¶11 Judge Taubman dissented in relevant part, noting that he would have affirmed Johnson's conviction because, in his view, the isolated presentation of Carrethers's GSR evidence would have prompted the jury to believe something that both parties and the trial court knew was not true—that Johnson either was not tested, or tested negative, for GSR. Id. at ¶¶ 79, 84, 89 (Taubman, J., concurring in part and dissenting in part). Thus, according to Judge Taubman, "the court's truth-seeking function tilts the scale toward permitting the prosecution to introduce [Johnson's] GSR evidence that had been previously excluded by the trial court to avoid misleading the jury." Id. at ¶ 79. Judge Taubman concluded that the trial court's CRE 403 ruling did not deprive Johnson of his right to exclude unconstitutionally seized evidence or his right to present a complete defense. Id. at ¶ 84. Rather, the trial court's ruling presented Johnson with a permissible, albeit difficult, tactical decision that defendants often face when determining how to best present a defense. Id. at ¶ 82.

¶12 We granted certiorari and now affirm the judgment of the court of appeals.

II. Analysis

¶13 We begin by outlining the controlling standards of review. We then detail the applicable law concerning the impeachment exception to the exclusionary rule. Finally, we apply those principles to the facts presented here.

¶14 Like the division majority in this case, we draw guidance from Walder , James , and other relevant caselaw, as well as the United States and Colorado Constitutions, and conclude that a defendant may offer truthful, albeit potentially incomplete, evidence without opening the door to previously suppressed evidence. This is because the important truth-seeking rationale that prohibits a defendant from turning the exclusion of illegally obtained evidence into a shield for perjury does not apply with equal force to truthful but potentially misleading testimony. Accordingly, we affirm the judgment of the court of appeals.

A. Standards of Review

¶15 We review a trial court's interpretation of the law governing the admissibility of evidence de novo. People v. Salas, 2017 COA 63, ¶ 30, 405 P.3d 446, 453 ; see People v. Smith, 40 P.3d 1287, 1290 (Colo. 2002) (stating that a trial court's application of legal standards in a suppression ruling is a question of law that we review de novo). This review encompasses the broader legal question of whether a defendant can open the door for the admission of evidence otherwise barred by the exclusionary rule. See People v. Melillo, 25 P.3d 769, 777 (Colo. 2001).

¶16 However, we review a trial court's determination of whether a party 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 when its ruling is manifestly arbitrary, unreasonable, or unfair, Campbell v. People , 2019 CO 66, ¶ 21, 443 P.3d 72, 76, or when it misapplies the law, People v. Jefferson, 2017 CO 35, ¶ 25, 393 P.3d 493, 499.

¶17 If we conclude that the trial court erred in its evidentiary ruling, we must then determine whether such error necessitates reversal of Johnson's conviction. Hagos v. People, 2012 CO 63, ¶ 9, 288 P.3d 116, 118. Because Johnson preserved this issue through a contemporaneous objection, and because the issue implicates Johnson's Sixth Amendment right to present a complete defense, we review for constitutional harmless error. Id. at ¶ 11, 288 P.3d at 119 ; see Krutsinger v. People, 219 P.3d 1054, 1061 (Colo. 2009) (discussing a defendant's right to present a complete defense). Under that standard, "errors require reversal unless the reviewing court is ‘able to declare a belief that [the error] was harmless beyond a...