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Name: People v. Johnson
Case #: C055139
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/30/2010

De novo review of a pre-trial identification procedure using the traditional group showing and following other photo identification procedures was not so unduly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. To determine if an identification violates a defendant’s right of due process the court considers whether the procedure was unduly suggestive and unnecessary, and, if so, whether it was nevertheless reliable under the circumstances. Johnson was charged with murder during a robbery, second degree robberies and attempted robberies. Johnson was thinner than others in the live lineup of five Black men of similar age, complexion, and body type. Each of the men wore a blue cap and at least one other beside the defendant had braids or dreadlocks in their hair. Viewed with the others, Johnson would not have stood out in a way that would indicate the witnesses should select him. The fact that Johnson was the only person appearing in both a photo display and then a lineup was not a per se violation of due process. One witness had viewed photos from a surveillance videio on the sheriff’s website, but the reviewing court could not determine if there was any resulting prejudice because appellant had not submitted copies of the photos. Exclusion of evidence of an uncharged robbery, offered by the defense as exculpatory, third party culpability evidence, was properly excluded pursuant to Evidence Code section 352, based in part on the suppressed confession by the defendant that he committed the uncharged robbery. Johnson confessed to the robbery but the confession was suppressed because of a Miranda violation. The suppressed statement would only have been admissible to impeach the defendant if he testified. The victim of that robbery was unable to identify Johnson because the perpetrator was darker. That robbery charge was dropped as to Johnson, but pursued against his codefendant Holmes who was the driver. Johnson had a defense theory that pointed to his cousin as the perpetrator and the motion to introduce the uncharged robbery was renewed again after his darker cousin testified. The court again excluded the evidence on the basis of section 352 and because the court did not want to be complicitious in putting inaccurate, confusing and misleading information before the jury. On appeal, it was argued that the reliance on the Miranda-violative-and-suppressed confession violated the presumption of innocence and denied Johnson the right to present a defense because the court found him guilty of the uncharged robbery. The appellate court found the presumption of innocence did not prohibit the trial court from weighing the credibility and prejudicial nature of third party culpability evidence as part of its factfinding responsibilities in deciding whether to admit evidence under section 352. The defendant’s exculpatory statements to his girlfriend were not part of the same conversation as the inculpatory statements he made to her so that it was not error to exclude the exculpatory statements under Evidence Code section 356. Johnson’s girlfriend told detectives during her first and second interviews that before he was arrested he told her he did not mean to shoot and kill the clerk, but only to rob him. In a third interview two months later, she related that after his arrest Johnson said that he did not do it, but that he was protecting someone else. The court ruled that the statements from the third interview were not admissible pursuant to section 356 because they did not fill out the context of the earlier conversations, but stood alone as self-serving, out-of-court statements. Section 356 allows that “when a . . . conversation is given in evidence, any other . . . conversation . . . which is necessary to make it understood may also be given in evidence.” There was no abuse of discretion found because the separate, distinct conversation was not necessary to make the previous conversation understood and the earlier admissions were unambiguous. A challenge to a Miranda warning that statements “can” be used rather than “will” be used was forfeited on appeal because in the trial court the defendant had taken the position that the warning was adequate. There was no express waiver following the Miranda warning, but there was an implied waiver under a totality of the circumstances. No trickery was found in the officers minimizing or downplaying her rights as a technicality or their other deceptive, aggressive, sarcastic tactics.