The Colorado Supreme Court will take up a case that questions whether evidence that is blocked at trial for being unlawfully obtained must remain so, even if the defense references it in a way that may mislead a jury.
The mother of Danielle Griego found her daughter dead in an Aurora apartment in 2014. Elmo Jesse Johnson, Griego’s boyfriend, was passed out next to her from drugs and alcohol. The mother called 9-1-1 and before first responders arrived, Johnson's sister who also lived in the apartment, Toni Carrethers, picked up two shell casings near Griego's body. Carrethers rinsed them and returned them to their spot.
Emergency personnel took Johnson to the hospital, where he — unconscious — received swabs to his hands and face from police. They found Griego’s blood on Johnson’s clothing, ammunition in his pockets and gunshot residue from the swabs.
The trial court allowed Johnson to suppress the residue evidence because police gathered it without a warrant. But the judge warned that the defense should not mention that Carrethers also tested positive for the gunpowder, otherwise it could mislead the jury into thinking that Johnson was either not tested or he tested negative. Known as the “impeachment exception,” the doctrine would allow illegally-obtained evidence to surface at trial to impeach a defendant’s testimony.
Jurors heard witness testimony that heavily implicated Johnson, and convicted him of first degree murder, as well as felony menacing for pointing the gun at a male acquaintance. Johnson appealed, challenging the judge’s ruling that his defense could not mention Carrethers’ positive test for residue without clearing the way for his own test results to be discussed.
Prosecutors argued that the trial court made no error because the judge gave Johnson advice, and the defense chose to not introduce the residue evidence. Judge Ted C. Tow, III, writing for the Colorado Court of Appeals’ three-member panel, disagreed, explaining that the judge “was forcing [Johnson] to choose between enforcing his right to be free from unreasonable searches and his right to present a complete defense.”
Tow noted that the judge’s exact words to the defense were that they were “on notice” of the implications of their residue decision.
The court cited Walder v. United States, the 1954 case that established the impeachment exception. The defendant testified that he had never purchased, sold or possessed narcotics, even though that was untrue. In response, the government was allowed to introduce testimony of the officer who illegally seized the narcotics from the defendant and the chemist who analyzed them.
“It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained,” wrote Justice Felix Frankfurter for the majority. “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.”
Tow, in his opinion, reasoned that because the impeachment exception was intended for untruthful testimony, the trial court erred in applying it to Johnson’s intended truthful testimony about Carrethers’ residue test. The jury consequently never got to consider the possibility, however remote, that Carrethers fired the bullet into her brother's girlfriend. (Carrethers fatally stabbed her husband five weeks after the Griego murder, which the district attorney concluded was self defense.)
“The effect of the trial court's ruling was to chill Johnson's presentation of truthful and favorable evidence,” Tow wrote. “This is precisely the danger the Supreme Court protected against when it limited the scope of the impeachment exception.”
Tow reversed Johnson’s murder conviction and ordered a new trial.
Judge Daniel M. Taubman disagreed with Tow’s ruling, and wrote in his dissent that he did not believe the exception for releasing suppressed evidence applied to anything other than impeachment of defense witness testimony. Furthermore, Johnson could have bypassed the ruling in his favor to exclude the residue evidence if he had wanted.
“[T]he trial court did not preclude the introduction of [gunshot residue] 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,” wrote Taubman, who retired earlier this year.
The case is The People of the State of Colorado v. Elmo Jesse Johnson.