2021 CO 35
Colo.2021Background
- Defendant Elmo Johnson was charged with first-degree murder after his girlfriend was found shot in an apartment where Johnson, his sister Toni Carrethers, and others were present. Johnson was unconscious at the scene; later swabs taken from his hands/face at the hospital tested positive for gunshot residue (GSR).
- Police also tested Carrethers and the victim’s mother; both tested positive for GSR. The trial court suppressed the GSR evidence obtained from Johnson as the product of a warrantless hospital swab.
- Defense sought to present Carrethers’s positive GSR result to support an alternate-suspect theory. The trial court warned that if the defense elicited Carrethers’s positive GSR, the prosecution could introduce all GSR results (including Johnson’s suppressed positive result) under CRE 403 to avoid misleading the jury.
- Faced with that condition, Johnson declined to offer the Carrethers GSR evidence at trial; he was convicted of first-degree murder and appealed on the ground that the court forced him to choose between (a) excluding unlawfully obtained evidence and (b) presenting a complete defense.
- The Colorado Court of Appeals (split) reversed, holding a defendant may present truthful but potentially misleading evidence without opening the door to previously suppressed evidence. The Colorado Supreme Court granted certiorari.
Issues
| Issue | People’s Argument | Johnson’s Argument | Held |
|---|---|---|---|
| Whether the impeachment exception to the exclusionary rule extends to truthful but potentially misleading defense-elicited evidence | Impeachment exception should allow prosecution to introduce suppressed evidence to prevent a jury from being misled by defense-elicited truthful omissions | A defendant may offer truthful (even incomplete) evidence without opening the door to suppressed evidence; forcing him to choose chills presentation of a defense | Court refused to expand the impeachment exception to truthful testimony; defendant may offer truthful but incomplete evidence without automatically opening the door to suppressed evidence |
| Whether conditioning defense introduction of Carrethers’s GSR on admission of Johnson’s suppressed GSR was proper under CRE 403 / doctrine of completeness | Permitting prosecution to respond was necessary to avoid misleading the jury and preserve truth-seeking | Conditioning effectively chilled Johnson’s right to present a complete defense and created a Hobson’s choice | Trial court abused discretion by presenting the Hobson’s choice; exclusionary rule protection cannot be used as both sword and shield to prevent presentation of truthful, favorable evidence |
| Whether the trial court’s ruling violated Johnson’s Sixth Amendment right to present a complete defense | Admitting suppressed evidence to correct misleading impression furthers truth and is permissible when fairness demands | Ruling forced forfeiture of constitutional right to exclude unlawfully obtained evidence or to present exculpatory proof | Court held Johnson’s Sixth Amendment right was violated because the CRE 403 ruling chilled truthful favorable evidence and was not harmless beyond a reasonable doubt |
| Whether any error was harmless beyond a reasonable doubt | The People argued the error was harmless given other evidence of guilt | Johnson argued the inability to present Carrethers’s GSR undermined his alternate-suspect theory | Court concluded error was not harmless; remanded for new trial |
Key Cases Cited
- Walder v. United States, 347 U.S. 62 (1954) (adopted impeachment exception permitting use of suppressed evidence to impeach defendant’s untruthful testimony)
- James v. Illinois, 493 U.S. 307 (1990) (held impeachment exception does not extend to impeachment of defense witnesses generally; expansion would chill defense testimony and undermine exclusionary rule deterrence)
- United States v. Havens, 446 U.S. 620 (1980) (recognized importance of truth-seeking and affirmed limited use of illegally obtained evidence to impeach defendant statements when directly suggested)
- Davis v. United States, 564 U.S. 229 (2011) (explained exclusionary rule’s deterrent purpose and social costs of suppressing reliable truth-finding evidence)
- Mapp v. Ohio, 367 U.S. 643 (1961) (adoption of exclusionary rule to enforce Fourth Amendment)
- LeMasters v. People, 678 P.2d 538 (Colo. 1984) (Colorado decision limiting application of impeachment exception to situations where suppressed evidence contradicts defendant’s untruthful testimony)