v. Johnson, 2019 COA 159

Background

Danielle Griego was shot to death in an apartment shared by defendant Elmo Jesse Johnson and his sister, Toni Carrethers; Johnson was found unconscious at the scene and taken to a hospital.
While unconscious and without a warrant, officers swabbed Johnson; those swabs later tested positive for gunshot residue (GSR). Swabs from Carrethers and Griego’s mother also tested positive.
The trial court suppressed Johnson’s GSR as the product of an unconstitutional, warrantless collection, but warned that if the defense introduced evidence that Carrethers tested positive for GSR the prosecution could rebut with the suppressed Johnson GSR to avoid misleading the jury.
Defense declined to offer Carrethers’s GSR evidence; a jury convicted Johnson of first-degree murder and felony menacing; Johnson appealed, arguing the trial court’s “opening the door” ruling forced him to choose between constitutional rights.
The Colorado Court of Appeals held the trial court erred in applying the impeachment exception to admit suppressed physical evidence in response to truthful defense evidence about an alternate suspect, reversed the murder conviction and remanded for retrial, but affirmed the menacing conviction.
Judge Taubman concurred in part and dissented in part, believing the trial court permissibly prevented use of the Fourth Amendment as both a shield and a sword and would have affirmed the murder conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether admitting evidence that Carrethers tested positive for GSR would open the door to admission of the suppressed GSR from Johnson	Court properly protected jury from being misled; allowing Carrethers GSR without revealing Johnson’s test would let defense use the Fourth Amendment as a sword and shield	Excluding Carrethers GSR forced defendant to choose between exclusionary-rule protection and right to present a complete defense	Reversed: trial court misapplied impeachment exception; defendant could have offered truthful GSR evidence about others without opening door to suppressed Johnson GSR
Whether excluding evidence that Carrethers later killed her husband was error	Evidence irrelevant or more prejudicial than probative; no pending charge or bargaining that would show motive to lie	Evidence showed motive/bias and supported alternate-suspect theory	Affirmed: exclusion was not an abuse of discretion; probative value speculative and outweighed by prejudice
Whether admission of Carrethers’s statements recounting things Griego said violated confrontation/hearsay rules	Statements were non‑testimonial, some not hearsay, and any hearsay admissions were harmless as to menacing charge	Confrontation Clause and hearsay rules were violated	Affirmed as to menacing: statements were non‑testimonial or harmless for the menacing count; murder retrial may revisit context
Remedy and harmless‑error analysis	Any error was harmless	Constitutional error required reversal unless harmless beyond reasonable doubt	Error not harmless beyond a reasonable doubt for murder conviction; murder conviction reversed and remanded; menacing conviction affirmed

Key Cases Cited

Walder v. United States, 347 U.S. 62 (1954) (permitting use of suppressed evidence to impeach a defendant’s false testimony to prevent using the exclusionary rule as a shield for perjury)
James v. Illinois, 493 U.S. 307 (1990) (limits Walder: suppressed evidence cannot be used to impeach defense witnesses other than the defendant because that would chill presentation of defense)
Mapp v. Ohio, 367 U.S. 643 (1961) (establishing that evidence obtained in violation of the Fourth Amendment is inadmissible in state courts)
United States v. Havens, 446 U.S. 620 (1980) (discussing impeachment exception and preventing use of exclusionary rule to facilitate perjury)
Davis v. United States, 564 U.S. 229 (2011) (describing the exclusionary rule’s purpose as deterrence and its limited scope)
People v. Gutierrez, 222 P.3d 925 (Colo. 2009) (Colorado discussion of the exclusionary rule and its ordinary application)