Peo v. Johnson

Opinion

23CA0084 Peo v Johnson 03-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0084 Arapahoe County District Court No. 19CR458 Honorable Elizabeth Weishaupl, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Marcus Alan Johnson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE PAWAR Harris and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 27, 2025

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Marcus Alan Johnson, appeals the judgment of

conviction entered on a jury verdict finding him guilty of second

degree murder. We affirm.

I. Background

¶2 Johnson and the victim, T.J. Cunningham, were neighbors

who had a contentious relationship and had engaged in several

verbal altercations over a period of many months. One Sunday

morning, the two men got into another argument on the street in

front of their respective homes. Although it did not become

physical in the street, immediately after the two men retreated to

their homes, Cunningham told his brother to come with him

because he and Johnson were going to fight to settle their

differences. Cunningham and his brother drove to a nearby high

school parking lot. Johnson followed.

¶3 After both men parked, they exited their vehicles and walked

toward each other. As they converged, Johnson drew a gun and

shot Cunningham three times from a distance of several feet, killing

him. Johnson then called 911 to report the shooting and claimed

he had shot Cunningham in self-defense.

1 ¶4 The prosecution charged Johnson with first degree murder.

Before trial, the prosecution moved to exclude evidence from the

autopsy that showed the presence of cocaine metabolite and

tetrahydrocannabinol (THC) metabolite in Cunningham’s blood. At

trial, the court ruled the evidence inadmissible and excluded it.

The court also excluded testimony from two witnesses about

whether Cunningham, who had played professional football, might

have been diagnosed with or suffering from chronic traumatic

encephalopathy (CTE).

¶5 Johnson testified in his own defense, explaining that he shot

Cunningham to defend himself from Cunningham and

Cunningham’s brother, who was at the scene but waiting near

Cunningham’s vehicle.

¶6 The jury found Johnson guilty of second degree murder, a

lesser included offense of first degree murder. He was convicted

and sentenced accordingly.

¶7 Johnson appeals, arguing that the trial court erred by (1)

excluding the cocaine metabolite and THC metabolite evidence; (2)

excluding the CTE testimony; and (3) instructing the jury on the

provocation exception to self-defense. He also argues that the

2 cumulative effect of these errors warrants relief. We disagree with

all of these arguments and affirm.

II. Drug Metabolite and CTE Evidence

¶8 The trial court ruled that the drug metabolite and CTE

evidence was inadmissible under CRE 403. Johnson contends that

this was error. We disagree.

A. Governing Standards

¶9 We review evidentiary rulings like those applying CRE 403 for

an abuse of discretion. See People v. Vanderpauye, 2023 CO 42,

¶ 23. A trial court abuses its discretion by misapplying the law or

making a ruling that is manifestly arbitrary, unreasonable, or

unfair. Id.

¶ 10 Evidence is relevant and generally admissible if it has “any

tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable.”

CRE 401, 402. However, relevant evidence is inadmissible if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury. CRE

403. When applying this balancing test, we assume the maximum

3 probative value and the minimum unfair prejudice attributable by a

reasonable fact finder. See Vanderpauye, ¶ 59.

B. Drug Metabolite Evidence

¶ 11 Johnson argues that the drug metabolite evidence was

relevant and admissible because it showed that Cunningham was

under the influence of cocaine and THC at the time of the shooting

and was therefore more likely to have behaved aggressively, in turn

making it more likely that Johnson was justified in using force to

defend himself. But Johnson concedes that the drug metabolite

evidence did not establish that Cunningham was under the

influence of either cocaine or THC on the day of the shooting. As

Johnson recognizes, the drug metabolite evidence merely showed

that Cunningham ingested cocaine and THC at some undetermined

time prior to the shooting, perhaps even days earlier.

Consequently, the drug metabolite evidence was not very probative

of Cunningham’s behavior on the day of the shooting.

¶ 12 On the other hand, the danger that this evidence would result

in unfair prejudice or mislead the jury was significant. Had jurors

heard that Cunningham died with cocaine metabolite and THC

metabolite in his body, they would have been invited to make

4 improper inferences based on Cunningham’s prior drug use. The

evidence would have also likely created confusion about whether

the presence of the drug metabolites meant that Cunningham was

under the influence of the drugs at the time of the shooting.

¶ 13 The trial court determined that these dangers substantially

outweighed the limited probative value of the drug metabolite

evidence. We cannot say that this determination was manifestly

arbitrary, unreasonable, or unfair. We therefore conclude that the

court did not abuse its discretion by excluding the drug metabolite

evidence.

C. CTE Evidence

¶ 14 Johnson argues that the CTE testimony should have been

admitted under the CRE 403 balancing test to show that

Cunningham was “acting in an overly aggressive (or unusual)

manner” on the day of the shooting.

¶ 15 The first witness through whom Johnson sought to admit CTE

evidence was the forensic pathologist who conducted the autopsy.

On appeal, Johnson argues that she would have testified about

whether she examined Cunningham’s brain for signs of CTE during

the autopsy and, if so, what she found. Importantly, at trial,

5 defense counsel represented to the court that the forensic

pathologist would have testified that she did not examine

Cunningham’s brain for CTE.

¶ 16 Contrary to Johnson’s argument on appeal, the forensic

pathologist’s testimony that she did not examine Cunningham’s

brain for CTE would have shed no light on whether he was behaving

aggressively on the day of the shooting. And admitting it would

have risked confusing the issues for the jury — it would have

invited the jury to speculate about whether Cunningham had CTE

without explaining what CTE is or how it can affect a person’s

behavior. We therefore disagree with Johnson’s argument that the

court abused its discretion by excluding CTE testimony from the

forensic pathologist.

¶ 17 The second witness who might have testified about CTE was

Cunningham’s wife. Defense counsel sought to ask her about

whether Cunningham had CTE or had ever been diagnosed with

CTE. The trial court sustained the prosecution’s objection to this

line of inquiry under CRE 403.

¶ 18 As above, we do not see how this testimony would have been

probative of Cunningham’s behavior on the day of the shooting.

6 Even if Cunningham’s wife had testified that he had been diagnosed

with CTE, there is no indication in the record that she would have

been able to explain to the jury what CTE is and how the disease

affects a person’s behavior. Without that explanation,

Cunningham’s wife’s testimony would be minimally probative of his

behavior on the day of the shooting. And this testimony carried the

same risk of confusing the issues for the jury as the forensic

pathologist’s excluded testimony. Accordingly, we conclude that

preventing Cunningham’s wife from testifying about CTE was not

manifestly arbitrary, unreasonable, or unfair.

III. Provocation Instruction

¶ 19 Johnson next argues that the trial court erred by instructing

the jury on the provocation exception to self-defense because there

was no evidence to support provocation. We review the court’s

decision to give this instruction de novo. See Galvan v. People,

2020 CO 82, ¶ 33 n.9. We conclude that there was enough

evidence of provocation to justify giving the instruction.

¶ 20 The affirmative defense of self-defense allows a defendant to

use a reasonable degree of physical force to defend against what the

defendant reasonably believes to be the imminent use of unlawful

7 physical force by another. § 18-1-704(1), C.R.S. 2024. However,

there are exceptions — circumstances under which the affirmative

defense of self-defense is unavailable. One of these exceptions is

provocation. Under the provocation exception, self-defense is

unavailable to any defendant who, with intent to cause bodily injury

or death to another person, provokes the use of unlawful physical

force by that other person as a pretext for the defendant’s own use

of physical force. § 18-1-704(3)(a); Galvan, ¶ 19.

¶ 21 The prosecution is entitled to a provocation instruction if there

is “some evidence” to support provocation. Galvan, ¶ 25. The

“some evidence” threshold is low — it requires only a scintilla of

evidence to meet it. Id. at ¶ 24. And reviewing courts evaluate

whether that low threshold was met by viewing the evidence in the

light most favorable to giving the instruction. Id. at ¶ 33.

¶ 22 Johnson argues that a provocation instruction was

inappropriate here because there was no evidence of the intent

element of provocation. In other words, he contends there was no

evidence that Johnson provoked Cunningham with the intent to

make Cunningham attack first as a pretext for Johnson’s own use

8 of physical force. Viewing the evidence in the light most favorable

to giving the instruction, we disagree.

¶ 23 Several surveillance cameras recorded the altercation in the

street in front of the two men’s homes. The videos show

Cunningham retrieving items from his car when Johnson

approaches him and initiates an interaction. During that

interaction, Johnson is the first to adopt a fighting stance and

maintains that fighting stance for significantly longer during the

interaction than Cunningham does. A reasonable juror could view

that footage as evidence that Johnson approached Cunningham

that morning intending to goad Cunningham into a physical fight,

whether that fight was to occur on the street or minutes later at the

high school. And the fact that Johnson so quickly shot

Cunningham at the high school reasonably suggests that he goaded

Cunningham into a physical altercation intending all along to

ultimately use deadly force.

¶ 24 Because there was at least a scintilla of evidence supporting

provocation, we conclude that the court did not err by giving the

instruction.

9 IV. Cumulative Error

¶ 25 Finally, Johnson argues that if no single error alleged on

appeal warrants reversal, their cumulative effect does. Having

rejected all his individual claims of error, we necessarily reject this

one as well.

V. Disposition

¶ 26 The judgment of conviction is affirmed.

JUDGE HARRIS and JUDGE GROVE concur.