People v. Johnson (183 Cal. App. 4th 253, 2010)

Opinion

NICHOLSON, J.

During a two-week period in 2005, defendants Joseph Terrell Johnson and Jessica Nicole Holmes, along with Holmes’s boyfriend, Corey Schroeder, robbed or attempted to rob at least five gas stations in the Sacramento area. Their mode of operation was virtually the same for each robbery: Schroeder would case the station, Johnson would rob the station attendant at gunpoint, and Holmes would drive them away. On the trio’s last attempted robbery, Johnson shot and killed the station attendant, Prem Chetty.

Separate juries convicted Johnson and Holmes of murder during the commission of an attempted robbery, and multiple counts of second degree robbery and attempted second degree robbery. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17), 211, 664.) They also found true gun-use enhancements and principal-armed enhancements as to each count. (Pen. Code, §§ 12022, subd. (a)(1), 12022.53, subds. (b), (d).)

The trial court sentenced Johnson to a prison term of fife without the possibility of parole for the special circumstance murder, an additional 25 years to life for the firearm enhancement attached to the murder conviction, and an additional consecutive determinate term of 34 years four months for the remaining convictions and enhancements.

The trial court sentenced Holmes also to a prison term of life without the possibility of parole for the special circumstance murder, an additional 25 years to life for the firearm enhancements attached to the murder conviction, and an additional consecutive term of seven years eight months for the remaining convictions and enhancements.

Both defendants appeal. Johnson claims the trial court erred when it:

(1) Determined the pretrial and in-court identification procedures used by the police and the prosecution were not unduly suggestive;

(2) Ruled that evidence of an uncharged robbery that Johnson sought to introduce to show third party culpability was inadmissible under Evidence Code section 352 where the court relied on his confession to that robbery which was suppressed under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] 0Miranda); and

(3) Ruled that evidence of an exculpatory statement purportedly made by Johnson to a girlfriend did not qualify for admission under Evidence Code section 356.

Johnson also asserts cumulative constitutional error, and a sentencing error for not receiving any custody credit.

Defendant Holmes claims the trial court erred by:

(1) Refusing to suppress confessions Holmes made to police while in custody allegedly in violation of her Miranda rights; and

(2) Imposing cruel and/or unusual punishment in violation of her federal and state constitutional rights.

Holmes also asserts sentencing error for not receiving any custody credit.

Except to modify the judgments to award custody credit to each defendant, and to correct Holmes’s abstract of judgment, we affirm.

FACTS

June 25, 2005 Robbery at L&S Shell Gas Station, Madison Avenue and Auburn Boulevard (Count Three—Johnson only)

About 11:20 a.m. on June 25, 2005, Johnson entered the automotive repair store adjacent to the L&S Shell gas station. Timothy Meton was working as the cashier. After the other customers left, Johnson pulled a gun from his waistband and demanded Meton give him “all the money.”

As Meton took the money out of the cash register, Johnson “gestured” with the gun and told him to “[h]urry up.” Meton gave Johnson all of the cash in the tray. Johnson told Meton to give him the money underneath the tray. Meton showed Johnson there was no money underneath the tray. Johnson stuffed the money into the front pocket of his sweatshirt and ran out the door toward a McDonald’s restaurant located across the street. Meton estimated he gave Johnson about $700.

Meton participated in two lineups. The first, on July 10, 2005, was a photographic lineup that included Johnson. Meton did not identify anyone. The second, on July 15, 2005, was a live lineup. Meton requested the individuals each say “hurry up” and “underneath too.” He identified Johnson after hearing the individuals speak. Johnson was the only person who was in both the photographic lineup and the live lineup.

Meton also identified Johnson in court as the robber.

Holmes’s jury heard Holmes’s July 11, 2005 interview with Sacramento County Sheriff’s detectives. Regarding this robbery, Holmes stated Johnson had called her and asked her to pick him up. She, Schroeder, and another girl did so. Johnson directed Holmes to park at the McDonald’s, and he went across the street to the Shell station. After he came back from the Shell station, he said, “Let’s leave.” After they drove out of the parking lot, Johnson told Holmes he had robbed the station. Holmes knew Johnson had a gun with him. She drove Johnson to another location, and he gave her $20 for the ride.

June 28, 2005 Robbery at Arco Gas Station, Walerga Road and Hillsdale Boulevard (Count Four—Johnson and Holmes)

On June 28, 2005, Kuljit Rai was working alone at his Arco gas station on the comer of Walerga Road and Hillsdale Boulevard in Sacramento County. About 2:00 p.m., Johnson entered the store and robbed Rai at gunpoint of about $75. After Johnson ran out, Rai followed him and saw Johnson get into the back passenger seat of a small, white, four-door car. Rai could not see anyone else in the car.

The store’s surveillance tape showed a White male in a white tank top enter the store. The tape also shows Johnson entering the store.

On July 15, 2009, Rai identified Johnson at a live lineup as the robber. Rai also identified Johnson in court as the robber.

During closing arguments, Johnson conceded his guilt to this crime.

June 28, 2005 Attempted Robbery of Shell Gas Station, Auburn Boulevard and Antelope Road (Count Five—Johnson and Holmes)

About 30 minutes after the Arco robbery, Johnson attempted to rob a Shell gas station at the comer of Auburn Boulevard and Antelope Road in Citrus Heights. Ewa Her was working at that station when, about 2:30 p.m., he heard a voice behind him coming from the cash register counter. He turned around and saw Johnson standing at the counter and pointing a gun at him. Johnson repeatedly demanded that Her give him the money. When Her did not, Johnson put his hand on top of the gun and pulled back the slide. Her “freaked out” and ran to the back room. He never gave Johnson any money.

About a minute before Johnson came into the store, a White man in a white tank top came into the store and purchased a soda and some chips. Her did not attend a live lineup and he did not identify Johnson at trial.

There were two minors in the store at the time of the robbery. One of the minors saw Johnson put a glove on his right hand and possibly his left, pull a gun out, and heard him tell the clerk to give him money. The minors both identified Johnson at a live lineup and at trial as the robber.

Holmes’s jury heard Holmes’s statement that she had driven Johnson to this gas station, and she drove away after Johnson came back from the store.

During closing argument, Johnson conceded his guilt to this count.

June 30, 2005 Robbery of Arco/Valero Gas Station at San Juan Avenue and Winding Way (Count Nine—Evidence Presented to Holmes’s Jury Only)

Thomas Claussen was working alone the evening of June 30, 2005, at the Arco/Valero gas station at San Juan Avenue and Winding Way. A tall, Black male entered the store. The man was slim, about 18 years old, wearing a blue Kobe Bryant jersey, a black baseball hat, and a glove on his hand. The man aimed his gun at Claussen and demanded money. Claussen gave the man all of the money in the cash drawer, about $130. After the robber left, Claussen went outside, but he could not see the man. Claussen saw a maroon pickup truck leave the area, but he did not know if the truck was related to the robbery.

Claussen attended a live lineup that included Johnson. However, Claussen was unable to identify anyone as the robber of his store. On the sheriff’s department lineup identification form, Claussen wrote that the robber was darker skinned than any of the lineup participants.

Holmes told detectives she drove Johnson to the Arco/Valero station. Johnson told her where to park. Johnson went into a nearby liquor store and then went into the Arco/Valero station. Johnson said nothing about a robbery when he came back to the car. Holmes did not know Johnson had robbed the station until a couple of days later.

Deputies later seized a Kobe Bryant jersey from the home where Johnson had been living. Johnson appears to be wearing the same jersey in a DMV photo.

As to Holmes, the court declared a mistrial on this count after her jury announced it was deadlocked. The prosecutor subsequently moved to dismiss the charge, and the court granted the motion.

June 30, 2005 Robbery of Chevron Gas Station at Dewey Drive and Madison Avenue (Count Six—Johnson and Holmes)

Also on June 30, 2005, about 8:20 p.m., Johnson entered a Chevron gas station on the comer of Dewey Drive and Madison Avenue, walked to the counter, pointed a gun at the employee, Jesus Fernandez, and demanded all the money. Fernandez put all of the money from the cash register, between $250 and $300, into a bag and gave it to Johnson. Johnson left the store and went behind a building.

On July 21, 2005, Detective Biondi showed Fernandez surveillance images from the robbery, and then showed him a photographic lineup. Fernandez identified himself and the robber in the surveillance images. Then, when viewing the photographs, Fernandez first pointed to Johnson and another person, but then he identified Johnson as the robber. Fernandez did not attend a live lineup. He identified Johnson in court as the robber.

As to Holmes, the court declared a mistrial on this count after her jury announced it was deadlocked. The court later granted the prosecution’s motion to dismiss the charge against Holmes.

July 5, 2005 Uncharged Robbery in Roseville

Shortly before 7:00 p.m., July 5, 2005, Johnson walked into a Valero gas station at Sunrise Avenue and Coloma Road in Roseville. He picked up a soda, walked to the counter, pointed a gun at the employee, Rui Mar, and demanded she give him money from the cash register. Mar told Johnson she could not open the register unless he purchased something. Johnson continued pointing the gun at Mar and threatening her. She tried to hide behind an ice machine next to the register. Johnson fired two shots and left.

Officers found two bullet holes behind the counter area. One .380-caliber bullet was found inside cigarette packs stored behind the register. Two .380-caliber shell casings were also found. Surveillance video taken from the store showed a man in a white tank top inside the store before the robber entered the store.

On July 8, 2005, at the request of a Roseville police sergeant, Mar viewed a media release and still photos posted on the Sacramento County Sheriff’s Department Web site regarding a July 7 murder in Citrus Heights. Mar informed the officer the person in the still photos was the same person who had attempted to rob her.

On July 15, 2005, Mar attended a five lineup in Sacramento County. She quickly identified Johnson from the lineup as the robber. Later, Mar identified Johnson in court as the robber.

Holmes’s jury heard Holmes’s statement to detectives that she drove Johnson to the Valero station in Roseville. Schroeder went into the store to buy Holmes a soda. Then Johnson went inside and came back with a soda. Holmes had the radio on and did not hear any gunshots. Johnson and Schroeder talked about Johnson shooting at the clerk. Johnson said he had “shot right next to her.”

Holmes denied she had known Johnson was going to commit a robbery. She claimed she drove and parked wherever Johnson told her because “he needed [her] to take him.” She thought she was taking Johnson to buy marijuana.

July 5, 2005 Robbery of Chevron Gas Station at Walnut Avenue and Marconi Avenue (Counts Seven and Eight—Johnson and Holmes)

About 30 minutes after the uncharged Roseville robbery, Johnson walked into a Chevron gas station store at Walnut Avenue and Marconi Avenue in Sacramento County. He picked up a container of milk and a bag of chips, walked to the counter, and asked the employee, Mathew Johnson, for a cigar. Mathew turned around to get the cigar, and when he turned back around, Johnson was pointing a gun at him. Johnson threatened to shoot unless Mathew gave him the money from the register. As Mathew pulled the tray out of the register, another station employee, Lidia Fretwell, entered the store from the outside. Mathew told Fretwell they were being robbed. He tried to give Johnson the tray, but Johnson refused to touch it. He ordered Mathew to remove the money and give it to him. Mathew gave him about $170. Johnson took the money and left.

Mathew followed Johnson outside and saw Johnson get into a white compact car, possibly a Ford Escort, behind the station. He could not see if anyone else was in the car. At trial, Mathew testified that Corey Schroeder, a man he knew from his apartment complex, had come into the store about one hour before the robbery and had bought a pack of cigarettes.

A customer, Corrine Kelly, entered the store as a Black man exited the store holding a Nestle Nesquik. Kelly saw the man walk to an adjacent parking lot and get into a white or beige Ford Escort occupied by two other people.

Mathew identified Schroeder and Johnson in separate live lineups; Schroeder as the man who came into the store an hour before the robbery, and Johnson as the robber. Mathew also identified Johnson as the robber at trial.

Fretwell identified Johnson as the robber from a photographic lineup. She also identified Johnson at trial as the robber after she looked at the photo she had previously identified. She did not attend a five lineup.

Holmes’s jury heard Holmes’s statement to detectives that she had driven Johnson to the Chevron station. He told her to park behind the gas station. Schroeder went into the store first to buy fireworks, she thought. When Schroeder came back, Johnson asked him how many people were working inside the store. Johnson told Holmes he had to get something and got out of the car. Holmes drove away after Johnson came back. Later, Johnson told her he had robbed the store.

July 5, 2005 Purchase of Bullets at Big 5

About 8:00 p.m. on July 5, 2005, the evening of the Chevron gas station robbery and the uncharged Roseville robbery, Johnson, Holmes, Schroeder, and an unidentified Black male purchased ammunition at a Big 5 Sporting Goods store on Arden Way near Watt Avenue. They bought a box of Remington .380-caliber bullets with cash. Video from the store’s surveillance system shows the four people all standing by the ammunition counter at one point. Schroeder is wearing a white tank top.

Holmes’s jury also heard Holmes’s statement to detectives that she had driven Johnson to Big 5 to buy bullets. She denied knowing what Johnson intended to do with them. Holmes’s sister’s ex-boyfriend went with them to buy the bullets.

July 7, 2005 Murder and Attempted Robbery at Shell Gas Station at Greenback Lane and Auburn Boulevard (Counts One and Two—Johnson and Holmes)

On July 7, 2005, Prem Chetty was working at a Shell station at Greenback Lane and Auburn Boulevard in Citrus Heights. He was killed that evening in an attempted robbery.

Surveillance videotape from the station recorded a Black man wearing a gray sweatshirt and a black cap take something out of one of the store’s coolers. He walked up to the store’s counter where Chetty was waiting. The man picked up another item to buy, and then handed Chetty some money. When Chetty opened the cash register drawer, the man pulled a gun on Chetty and demanded the money. When Chetty did not give the robber any money, the man shot Chetty more than once and then left the store. Chetty died of gunshot wounds to the neck and chest.

The video also appears to portray Schroeder wearing a red shirt inside the store prior to the robbery.

Three witnesses who were in the vicinity of the Shell station at the time of the murder testified. Kimberly Irvine was at the Chevron station across the street when she heard a couple of gunshots. She looked toward the Shell station and saw a man wearing dark clothing run out of the store and toward the fence and bushes that divided the Shell station from a Jack in the Box restaurant. The man ran out of view and she did not see where he went.

Dee Scott-Chee and Carol Webber were in a car stopped at the traffic light at Greenback Lane and Auburn Boulevard when Chee heard two gunshots. She saw a person run quickly from the Shell station into the bushes dividing the station and the Jack in the Box.

Webber stated she saw the face of the man leaving the station. At a photo lineup, Webber selected the photograph of Johnson’s cousin, Thaddeus Taylor, as the person who looked “the closest in the eyes.” Later, at a subsequent photo lineup, Webber again did not select Johnson as the man she saw.

Randy Cockrell was sitting inside his car with his girlfriend at the Gold’s Gym parking lot near Greenback Lane and Auburn Boulevard when he heard two gunshots. He looked in his rearview mirror and saw a White male run from the Shell station toward a white, four-door sedan that was parked behind the Jack in the Box. The sedan drove onto Greenback Lane toward the freeway.

Deputies recovered three spent shell casings and two deformed copper-jacketed bullets from the scene. The casings were each marked with a head stamp of “R-P .380 auto.”

Holmes’s jury heard her statement to detectives in which she admitted driving Johnson to the Shell station. She drove a white, 1994 Ford Escort, which was registered in her mother’s name. She had picked Johnson up at the home of his cousin, Thaddeus Taylor, with whom he had been living. Johnson told Holmes he wanted to “get something,” so Holmes stopped at the Shell station. Johnson told her to park by the fence between the station and the Jack in the Box. Johnson got out of the car with Schroeder. Schroeder went inside the store to buy cigarettes. He returned to the car and told Johnson and Holmes he could not buy them because the store clerk had asked him for identification.

Holmes stated Johnson either went through a hole in the fence or jumped the fence to get to the station. Holmes heard three gunshots. Johnson came back to the car and got in the backseat. After they drove away, Johnson told Holmes and Schroeder that he had “tried to rob” the clerk and had shot him. Neither Holmes nor Schroeder believed him. Holmes told the detectives she did not know about the murder until the day of her interview.

Johnson had two girlfriends, Chelsea Ciscoe and Natalie Brand, with whom he spent time after the murder and prior to his arrest. He admitted the murder to both women. Chelsea told detectives that Johnson told her the clerk at the Shell station had reached for Johnson’s gun and Johnson “freaked out.” Johnson said the clerk was going for the gun and Johnson thought he might be shot. Johnson told Chelsea he “blinked” and the whole incident was over.

Natalie told detectives that Johnson had admitted he killed the clerk. Johnson told Natalie that he went to rob the clerk, but he did not mean to shoot and kill him. The clerk had grabbed for the gun, Johnson had been scared, and he fired the gun. Johnson told Natalie that he had gone to do the robbery because his uncle with whom he had been living had kicked him out of the house. Natalie recanted her statements at trial.

Detectives searched the bedroom Johnson shared with his cousin, Thaddeus Taylor. Thaddeus directed detectives to a speaker box. Inside, detectives found a Beretta model 84, nine-millimeter handgun. There was a live round inside the chamber and nine live rounds in the magazine. Detectives also found a box of Remington .380-caliber ammunition from Big 5. Inside the box were 44 .380-caliber round-nose bullets and three .380-caliber hollow-point bullets. The box had empty spaces for three bullets.

At the sheriff’s station, Thaddeus’s father, Fred Taylor, viewed still photographs from the Shell station surveillance videotape and also the surveillance video. He identified Johnson as the person depicted in the surveillance photos.

Thaddeus told detectives the person depicted in the still photos resembled Johnson, and Johnson had a hat and sweatshirt like the person in the video wore. Thaddeus began to cry when he saw the surveillance video. He told the detectives the person in the video looked like Johnson, and he was pretty sure it was Johnson.

Thaddeus testified that Johnson first showed him a gun after Johnson returned from a trip to Los Angeles. Thaddeus saw the gun maybe one or two more times. The gun was kept in the bedroom in a speaker box connected to the computer. Thaddeus had never fired the gun.

Immediately prior to his arrest, Johnson called his uncle Fred. Fred encouraged Johnson to turn himself in. Johnson told Fred that he had “shot someone Thursday night.” Johnson then surrendered himself to authorities.

Johnson gave a statement to detectives in which he admitted shooting Chetty, shooting at Rui Mar in the uncharged Roseville robbery, and committing the other robberies, including the robbery at the Valero/Arco station against Thomas Claussen. The trial court suppressed Johnson’s confession on Miranda grounds.

A forensic specialist determined the two .380-caliber casings and one .380-caliber bullet recovered from the uncharged Roseville robbery scene, and the .380-caliber casings and two .380-caliber bullets recovered from the Shell station murder scene, were all discharged from the Beretta nine-millimeter handgun found in Thaddeus and Johnson’s bedroom.

We provide additional facts below as needed.

JOHNSON’S APPEAL

I

Suggestiveness of Identification Procedures

Johnson claims the court erred when it refused to suppress (1) the pretrial identifications made at live lineups by Timothy Meton, Rui Mar, Mathew Johnson, and Lidia Fretwell; (2) the pretrial identification made from a photo lineup by Jesus Fernandez; and (3) the in-court identifications made by these same witnesses, and, in particular, Mathew Johnson. Johnson asserts the procedures used to obtain the pretrial identifications were unduly suggestive, and that the procedures wrongfully tainted the in-court identifications. We disagree.

A. Live lineups

1. Background information

Meton, Mar, Mathew, and Fretwell identified Johnson at live lineups. In each lineup, the suspects were presented to the witnesses simultaneously rather than sequentially. Citing to psychological journals, Johnson claims group lineups produce less reliable identifications and thus identifications at such lineups should be suppressed.

Johnson also faults the live lineups because he was thinner than the other suspects and because he was the only suspect who had a braid protruding from one side of his hat.

Johnson also claims that police suggestively tainted the lineup identifications by Meton and Mar by showing the witnesses photos before the live lineups. Police showed Meton a sequential photo lineup that included Johnson’s photo, but Meton was unable to identify a suspect. Five days later, Meton viewed the live lineup. Johnson was the only person in the lineup whose photo had been included in the photo lineup. Meton identified Johnson as the suspect, but only after he asked the suspects to say “hurry up” and “underneath, too,” two phrases the robber had used at the time of the robbery.

As for Mar, she was asked by a Roseville police sergeant to view still photos taken from the surveillance video of the Chetty murder posted on the Sacramento County Sheriff’s Department Web site because the facts surrounding the two incidents were similar. Mar viewed the photos, recognized the suspect in them as the suspect who attempted to rob her, and reported her identification to the Roseville Police Department.

One week later, Mar attended a live lineup in Sacramento County, and she quickly identified Johnson as the person who had robbed her. Johnson claims the use of photos prior to the live lineups improperly tainted Melon’s and Mar’s pretrial identification of him.

2. Analysis

We review de novo a trial court’s ruling that a pretrial identification procedure was not unduly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 609 [31 Cal.Rptr.3d 160, 115 P.3d 472].)

“In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 989 [108 Cal.Rptr.2d 291, 25 P.3d 519].)

“[Defendant has the burden of showing that the identification procedure was unduly suggestive and unfair ‘as a demonstrable reality, not just speculation.’ [Citation.] A due process violation occurs only if the identification procedure is ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. ’ [Citation.]

“We have held that an identification procedure is considered suggestive if it ‘caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ [Citation.]” (People v. Cook (2007) 40 Cal.4th 1334, 1355 [58 Cal.Rptr.3d 340, 157 P.3d 950].)

If the defendant fails to show that the identification procedures were unduly suggestive, we need not address any arguments regarding the identifications’ reliability under the totality of the circumstances. (People v. Cook, supra, 40 Cal.4th at p. 1355; People v. Cunningham, supra, 25 Cal.4th at p. 989.)

Johnson has not shown that the live lineup procedures used here were unduly suggestive. First, he provides no legal authority to support his claim that group lineups are inherently impermissibly suggestive, and we are aware of none. Group lineups have long been an accepted identification procedure, and nothing in this case indicates we should question that format.

Second, the lineup itself was not unduly suggestive. Nothing in the lineup caused Johnson to “stand out” from the others in a way that would suggest the witness should select him. The lineup consisted of five Black men. Each appears to be of similar age, complexion, and body type. Each wore a blue cap and a gray sweatshirt over orange jail clothing and a T-shirt. At least two of the five, defendant and one other, had braids or dreadlocks in their hair, while two others appear to have similar type of hair. Viewed with the other suspects, defendant does not stand out in a way that would indicate to the witnesses they should have selected him.

Third, the use of photographs before Meton’s and Mar’s lineups was not impermissibly suggestive. California and federal courts have rejected Johnson’s argument, made against Meton’s identification, that identification procedures are impermissibly suggestive if the defendant is the only person appearing in both a display of photographs and a subsequent lineup. “[T]he fact that defendant alone appeared in both a photo lineup and a subsequent live lineup does not per se violate due process.” (People v. Cook, supra, 40 Cal.4th at p. 1355; see also People v. Wimberly (1992) 5 Cal.App.4th 773, 789 [7 Cal.Rptr.2d 152]; U.S. v. Davenport (9th Cir. 1985) 753 F.2d 1460, 1463.)

Regarding Mar’s identification, Johnson has not submitted copies of the photos Mar viewed on the sheriff’s Web site. Thus, we cannot determine what prejudicial effect, if any, those photos could have had on Mar’s subsequent identification of Johnson in the live lineup. Although the photos were made from the surveillance video, we do not know what exactly they depicted. We certainly cannot say the procedure was unnecessary. A police sergeant from a different jurisdiction asked Mar to view the photos based on the similarity in the crimes and in order to solve the crime against Mar. Under these circumstances, Johnson fails to demonstrate Mar’s identification of him occurred under unduly suggestive procedures.

B. Fernandez photo lineup identification

Johnson faults the procedure the sheriffs used in obtaining Jesus Fernandez’s pretrial identification. Prior to showing Fernandez a photo lineup, a detective showed him the surveillance video from his own robbery. After viewing the video and the photo lineup, Fernandez first identified two persons who could have been the robber, and then he identified Johnson as the robber.

Johnson acknowledges this type of procedure was approved in People v. Ingle (1986) 178 Cal.App.3d 505, 512-514 [223 Cal.Rptr. 723], but he nonetheless claims the procedure here tainted Fernandez’s identification of him. It did not. “[U]nlike the recollections and descriptions of a human witness, the recorded memory of the video surveillance camera has little serious potential to mislead. Indeed, its opposite potential to correct and enhance the reliability of an eyewitness identification in cases like the present would appear greater than its potential to cause an incorrect result. Accordingly, we find nothing inherent in the procedure with which we deal in this case that can be said to be unnecessarily suggestive and conducive to irreparable mistaken identification.” (Id. at p. 513.)

C. In-court identifications, especially by Mathew Johnson

Johnson argues the in-court identifications by the witnesses should have been suppressed due to their pretrial identification procedures. Having determined the pretrial procedures were not unduly suggestive, we agree the trial court correctly refused to suppress the witnesses’ in-court identifications.

Johnson particularly attacks Mathew Johnson’s in-court identification. Mathew, who previously identified Johnson at a live lineup, did not bring his glasses to court, so he was allowed to leave the witness stand and approach counsel table to make an identification of Johnson.

Later, defense counsel moved for a mistrial, claiming Mathew’s identification was a suggestive identification procedure. The trial court disagreed with the argument and denied the motion. It explained: “I did this in the context of a very clear and unequivocal identification at the lineup which I found to be fair, and given the circumstances that Mr. Johnson is the only black male seated at the counsel table, the difference between this witness sitting at the witness stand with glasses on and looking at the counsel table to identify the black man there as being the robber or not being the robber is not distinguishable from being walked up to the counsel table and looking at the same person more closely.”

As the trial court explained, its action in allowing Mathew to view Johnson at the counsel table did not cause Johnson to stand out any more than did the fact that defendant was the only Black man sitting at the counsel table. Someone could have given Mathew a pair of glasses, and the procedure would have been no different substantively. The court’s action was not unduly suggestive.

Johnson faults the procedure because on cross-examination, Mathew stated Johnson had a tattoo on the left side of his neck. Mathew had never told anyone that fact before. Johnson claims this statement could have resulted only from the identification procedure. However, on further cross-examination, Mathew explained he recalled seeing the tattoo at the time of the robbery but he likely did not mention it to police because he was “stunned” over having been in a robbery. The matter thus went to the weight of Mathew’s identification, not to its admissibility.

In sum, the identification procedures used in this case were not unduly suggestive.

II

Excluding Evidence of Uncharged Robbery under Evidence Code Section 352 Based on Suppressed Confession

Johnson claims the trial court erred when it relied on his suppressed confession to the uncharged robbery of Thomas Claussen at the Arco/Valero station to determine the evidence from that robbery, which Johnson claimed was exculpatory, was inadmissible under Evidence Code section 352 as misleading and likely to confuse the jury. We conclude the trial court did not err by relying on the suppressed confession in this instance.

A. Background information

Originally, both Johnson and Holmes were charged with the June 30, 2005 robbery of Thomas Claussen at the Arco/Valero gas station at San Juan Avenue and Winding Way. The prosecution later dropped the charge against Johnson but continued to press the charge against Holmes.

After his arrest, Johnson confessed to detectives that he committed the Claussen robbery and that he wore the Kobe Bryant jersey seen on him on the store’s surveillance video. The trial court, however, suppressed all of Johnson’s statement from being used in the People’s case-in-chief because Johnson did not receive an adequate Miranda warning. The statement was admissible only to impeach defendant if he testified, as the court found the statement was not a product of coercion.

Holmes also admitted her involvement in the Claussen robbery. She informed detectives after her arrest that she drove Johnson to the Arco/Valero station. She claimed Johnson did not say anything to her afterwards. She did not know what Johnson had done there until a couple of days later when Johnson told her.

Claussen, the victim of that robbery, viewed a live lineup about two weeks after the incident. Johnson was in the lineup. Claussen was unable to identify anyone as the robber. Claussen wrote he was unable to identify anyone because “the guy who came in was darker.”

During motions in limine, and after the People had dropped the Claussen robbery charge against Johnson, Johnson’s attorney asked the court to allow Johnson’s jury to hear evidence of this uncharged robbery that would otherwise have been presented only to Holmes’s jury. Defense counsel claimed the evidence was relevant and exculpatory because Claussen had stated the culprit was darker skinned than those in the lineup and thus had eliminated Johnson as a suspect.

The prosecutor urged the court not to admit the evidence pursuant to Evidence Code section 352. The prosecutor argued that admitting the evidence in Johnson’s case as exculpatory was a fraud on the court because Johnson had confessed in his suppressed statement that he committed this robbery.

The trial court denied Johnson’s motion, but it did so without prejudice if Johnson chose to develop an affirmative defense arguing that his cousin, Thaddeus Taylor, was the gunman or had performed other robberies.

Thaddeus testified at trial. He acknowledged his complexion is darker than Johnson’s. Both he and Johnson wore their hair in braids at times. Johnson wore an earring in his left ear, and Natalie and Chelsea testified that Thaddeus wore an earring. (Thaddeus denied he wore an earring.) Both Johnson and Thaddeus had their tongues pierced. When Natalie first met Johnson, she sometimes confused him with Thaddeus because they looked similar. A friend of Natalie’s who had been dating Thaddeus also confused Johnson and Thaddeus.

One difference between Johnson and Thaddeus was that Johnson has a tattoo on the left side of his neck with the words, “Smile now cry later.” Thaddeus did not have a tattoo.

Of relevance to Johnson’s case, Thaddeus stated he and Johnson shared a room at his father’s house in 2005. Thaddeus’s father, Fred Taylor, required Thaddeus and Johnson to have jobs and pay rent in order to stay at the house. Thaddeus and Johnson had worked at the same drug store for a time, but both had quit and neither was working at the time of the crimes. They shared each other’s clothes, and Thaddeus owned a Kobe Bryant jersey like the one the Claussen robber wore. Defendant Holmes was one of Thaddeus’s friends, and she had given him rides a couple of times in her car. Thaddeus knew where Johnson kept his gun. A few days after Chetty’s murder, Thaddeus showed detectives where Johnson’s gun was hidden inside a speaker box in his bedroom. Thaddeus denied committing any of the robberies or the murder.

Before Thaddeus completed his testimony, Johnson filed a motion asking the court to reconsider its ruling that excluded evidence of the uncharged Claussen robbery in his trial. Johnson asserted Claussen’s failure to identify him, and, in light of Thaddeus’s darker complexion, Claussen’s statement that the robber was darker than him, were relevant facts in opposition to the prosecution’s showing of a pattern in all of the robberies. He also noted a darker Black male was seen purchasing bullets at the Big 5 store with Johnson, Holmes, and Schroeder. Johnson argued his prior confession to the Claussen robbery was irrelevant and could not be considered because the court had suppressed his statement.

At a hearing on the motion, Johnson specifically raised the defense of third party culpability as another basis for admitting the evidence. The perpetrator of the Claussen robbery was wearing a Kobe Bryant jersey, Thaddeus owned such a jersey, and a detective had allegedly commented to Thaddeus during an interview that he looked like the person depicted in a surveillance photo from the Claussen robbery.

The trial court denied the motion to modify its prior order. The court researched the issue of whether it could rely on the suppressed confession in this instance and found no precedent. From that point, the court reasoned as follows:

“So that leaves me with a situation that there is an uncharged robbery and that the only reason not to allow Mr. Johnson to present it to this jury is that the Court is possessed of this knowledge: That out of a suppressed statement, a confession, the defendant admitted doing that robbery and wearing that shirt, and the jury does not know that; and out of an admissible statement, but not in Mr. Johnson’s trial, the co-defendant Ms. Holmes has said that the defendant did that robbery.

“One approach, obviously, would be for the Court to just step back and say that evidence is suppressed and it cannot be considered; there is no issue before me. Once I found that there’s third-party culpability evidence that was otherwise relevant, it goes before the jury; or that a third-party culpability defense is valid and that if there’s third-party culpability evidence otherwise relevant, it goes before the jury.

“But to do that, I would have to be complicitous in putting that misleading information before the jury, which I think would be contrary, among other things, to [section] 352 of the Evidence Code, although, plainly, I have the discretion to that.

“But more fundamentally, contrary to the Court’s responsibility to the integrity of the judicial system and of the trial itself, the integrity of the system has to stand for something, and if the Court were to consider what’s before me and affirmatively conclude that the uncharged offense which the Court makes a factual finding is something that the defendant and not Mr. Taylor did based upon the defendant’s own statement and the statement of Ms. Holmes, the Court would be complicitous in putting inaccurate, confusing and misleading information before the jury.

“The Miranda holding was designed to protect the defendant. It was not intended to give him a sword to go after the other side. If I in suppressing the Miranda—suppressing the confession insofar as it did violate Miranda, which it did, and even though the confession itself was voluntary, uncoerced and reliable, if I extend that to do more than simply prevent the People from using it in their case and allow the defendant to rely on it [(the exclusion)] to put misleading information in front of the jury, then I think I’m compromising the integrity of the trial process, and I would go a step further in compromising the integrity of the Miranda holding itself.

“I’m mindful that if the defendant were to take the stand, which plainly he wouldn’t if the Court allowed this uncharged count in, that the People could introduce his confession to impeach him.

“There are a number of ways to address that consideration. One would be to say to the defendant well, you may put on the evidence of the uncharged offense, but now the district attorney should be entitled by analogy to what would happen if you took the stand yourself, Mr. Johnson, and testified to apprise the jury of your contrary prior statement. There is no case law that stands for that proposition and I’m not going to do that because I think the proper thing to do would be to simply conclude that [a voluntary,] uncoerced, reliable but properly suppressed confession pursuant to Miranda in which the defendant admits to an uncharged count that the defendant is thereby precluded from presenting evidence that another person committed that uncharged count to advance a third-party culpability defense. Certainly the defendant can take the stand and advance the argument, but I don’t think he should be permitted to put before the jury through other witnesses information which he knows to be untrue.

“Miranda is a defensive, not an offensive, mechanism. It’s to protect the defendant, not to pull the wool over the jury. [][]... [f]

“. . . [I]t seems to me that the proper course is to preclude the defendant from putting this information in front of the jury through proxy. If he wishes to testify and subject himself to his prior inconsistent statement on that, that’s certainly his option.”

Before us, Johnson claims the trial court’s ruling is incorrect. He asserts that by excluding the third party culpability evidence based on his suppressed confession, the court wrongly set aside the constitutional presumption of innocence and made its own determination that Johnson was guilty of committing the Claussen robbery by relying on the inadmissible confession. He asserts the court was required to apply the normal standard of admissibility of third party culpability evidence, and this evidence satisfied that standard and was not unduly prejudicial under Evidence Code section 352.

B. Analysis

Johnson appears to have modified his direct attack under Miranda. He now argues the court’s reliance on the confession as the basis for not admitting the Claussen robbery evidence amounted to a violation of the presumption of innocence that attached to him at trial. In other words, Johnson claims the trial court applied the presumption of innocence differently to him, because he was a confessing defendant, than it would have applied the presumption to a nonconfessing defendant. He asserts the court determined Johnson was guilty of committing the uncharged robbery based on his confession, and it thus determined the third party culpability evidence was inadmissible because it had already found Johnson to be guilty of that crime. The court’s doing so, Johnson claims, ultimately denied him his right to present a defense, particularly in light of the rule of Miranda.

Johnson’s argument misstates the trial court’s action, and it misunderstands how the presumption of innocence and the right to present a defense apply to his case. The court did not find Johnson guilty of the uncharged robbery. It concluded only that his confession was relevant, reliable, and admissible for the limited purpose of the court’s weighing the prejudicial effect of admitting the Claussen robbery evidence.

The presumption of innocence does not prohibit a court from weighing the credibility and prejudicial nature of third party culpability evidence under Evidence Code section 352. The presumption is not irrebuttable, as Johnson’s argument implies. Any competent evidence which tends to rebut the presumption is admissible, and the presumption is overcome by proof of guilt beyond a reasonable doubt. (People v. Yeager (1924) 194 Cal. 452, 486 [229 P. 40].)

Considering and weighing inculpatory evidence does not violate the presumption of innocence. “It is true, as suggested by appellant, that where two conclusions may reasonably be drawn concerning the defendant’s conduct, one assigning a guilty and the other an innocent purpose thereto, it is the law that innocence will be presumed [by the jury], rather than guilt. But to give due weight to the presumption of innocence does not require that jurors [or, in this instance, the court] blind their eyes and shackle their reason in viewing the evidence and in judging the defendant’s intentions.” (People v. McDougal (1925) 74 Cal.App. 666, 672 [241 P. 598].) Certainly if a jury may weigh evidence without voiding defendant’s presumption of innocence when fulfilling its factfinding responsibilities and deciding his guilt, the court may weigh evidence without violating defendant’s presumption of innocence when fulfilling its factfinding responsibilities to decide whether to admit evidence under Evidence Code section 352.

Here, the court accorded great weight to Johnson’s suppressed confession, and rightly so. Johnson made his confession voluntarily, and Holmes corroborated Johnson’s admission in her confession. The court did not violate the presumption of innocence in making this factual determination.

In short, the presumption is not a bar to the court weighing evidence when called upon to do so. Johnson cites no case that so much as even intimates the presumption of innocence would interfere with a court’s weighing of evidence when determining admissibility under Evidence Code section 352. The presumption simply does not apply in the manner Johnson asserts.

Nor does the court’s weighing of evidence under Evidence Code section 352 deny Johnson a right to present a defense of third party culpability. Our Supreme Court faced this same argument in People v. Hall (1986) 41 Cal.3d 826 [226 Cal.Rptr. 112, 718 P.2d 99], and rejected it. The court wrote: “Defendant contends his constitutional right to present a defense precludes any application whatever of [Evidence Code] section 352 to third-party culpability evidence: even remote evidence of motive without more, he argues, might raise a ‘reasonable doubt’ of guilt. Indeed, defendant insists, the concept of reasonable doubt is itself so elusive that any attempt to weigh the probative value of such evidence must fail. He asserts that no amount of time spent presenting such a defense could be regarded as ‘undue,’ and the only prejudice the court must avert is ‘emotional bias.’ [f] The claim does not withstand scrutiny. As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.] As we observed in [People v. Mendez (1924) 193 Cal. 39 [223 P. 65]], this principle applies perforce to evidence of third-party culpability: ‘if evidence of motive alone upon the part of other persons were admissible, ... in a case involving the killing of a man who had led an active and aggressive life it might easily be possible for the defendant to produce evidence tending to show that hundreds of other persons had some motive or animus against the deceased . . . .’ (People v. Mendez, supra, 193 Cal. at p. 52.) Trials must reach an end, and that end must be logical. (Ibid.)” (People v. Hall, supra, 41 Cal.3d at pp. 834-835, original italics.)

Even without the Claussen robbery evidence, Johnson was still able to present his third party culpability defense. The jury heard all of the testimony concerning the similarities between Johnson and Thaddeus. They looked similar, they lived together, they shared clothes, and they both were unemployed and needed money to pay rent. Thaddeus knew Holmes. He also knew where Johnson kept his gun. There was even evidence that one of the witnesses who came upon the murder scene, when shown two photo lineups, excluded Johnson as the suspect but included Thaddeus as someone who resembled the suspect. Defense counsel also argued to the jury that Thaddeus was the perpetrator. The court’s ruling did not deny Johnson his right to present this defense.

Thus, the presumption of innocence and the right to present a defense did not prevent the court from weighing all of the evidence before it to determine whether the Claussen robbery evidence would be misleading and prejudicial. The only question, then, is whether Johnson’s Fifth Amendment right not to incriminate himself and the Miranda rule prevented the corn! from relying on the suppressed confession when it ruled under Evidence Code section 352. We conclude it did not.

The Miranda exclusionary rule is a prophylactic and constitutional rule employed to protect against violations of the Fifth Amendment’s self-incrimination clause as applied to the states under the Fourteenth Amendment. (United States v. Patane (2004) 542 U.S. 630, 636 [159 L.Ed.2d 667, 674-675, 124 S.Ct. 2620] (plur. opn.) (Patane); Dickerson v. United States (2000) 530 U.S. 428, 444 [147 L.Ed.2d 405, 420, 120 S.Ct. 2326].) The rule fosters the “general goal of deterring improper police conduct” and “the Fifth Amendment goal of assuring trustworthy evidence . . . .” (Oregon v. Elstad (1985) 470 U.S. 298, 308 [84 L.Ed.2d 222, 231-232, 105 S.Ct. 1285] (Elstad).)

Miranda, however, has never been interpreted as barring all use of suppressed confessions at trial. “Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to [being warned or] having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” (Harris v. New York (1971) 401 U.S. 222, 224 [28 L.Ed.2d 1, 4, 91 S.Ct. 643] (Harris).) “[T]he Miranda presumption, though irrebuttable for purposes of the prosecution’s case in chief, does not require that the statements and their fruits be discarded as inherently tainted.” (Elstad, supra, 470 U.S. at p. 307.)

The United States Supreme Court has carved out exceptions to the exclusionary rule upon “recognition that the concerns underlying the Miranda . . . rule must be accommodated to other objectives of the criminal justice system.” (Patane, supra, 542 U.S. at p. 644 (conc. opn. of Kennedy, J.).) In James v. Illinois (1990) 493 U.S. 307 [107 L.Ed.2d 676, 110 S.Ct. 648] (James), the high court set forth the balancing test it uses to establish exceptions to the Miranda exclusionary rule. Under that test, exceptions to the rule are made “where the introduction of reliable and probative evidence would significantly further the truth-seeking function of a criminal trial and the likelihood that admissibility of such evidence would encourage police misconduct is but a ‘speculative possibility.’ [Citation.]” (James, supra, 493 U.S. at pp. 311-312, fn. omitted.)

In particular, the Miranda exclusionary rule does not prohibit the introduction of a voluntary, uncoerced and reliable but unwarned statement made by a defendant in order to prevent the defendant from committing perjury or a fraud on the court. “ ‘It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. 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.’ ” (Harris, supra, 401 U.S. at p. 224, quoting Walder v. United States (1954) 347 U.S. 62, 65 [98 L.Ed. 503, 507, 74 S.Ct. 354].)

Harris authorized impeaching a testifying defendant with his voluntary but suppressed confession. “The Court in Harris rejected as an ‘extravagant extension of the Constitution,’ the theory that a defendant who had confessed under circumstances that made the confession inadmissible, could thereby enjoy the freedom to ‘deny every fact disclosed or discovered as a “fruit” of his confession, free from confrontation with his prior statements’ and that the voluntariness of his confession would be totally irrelevant. [Citation.]” (Elstad, supra, 470 U.S. at p. 307.)

Although Harris concerned the admission of a defendant’s suppressed statement to impeach the defendant when he testifies at trial, the ruling’s principle of admitting the evidence in a context other than the prosecution’s case-in-chief so as to avoid false testimony applies equally here and satisfies the James balancing test. First, considering the evidence for the limited purposes of Evidence Code section 352 substantially furthers the trial court’s truth-seeking function. Johnson sought to use the testimony of Claussen to convince the jury he did not rob Claussen and, by extension, commit the other robberies, when in fact he was the person who robbed Claussen. The court’s reliance on his suppressed confession significantly furthered its truth-seeking function by ensuring the jury was not confused or misled by a bogus argument.

Second, the court’s use of the suppressed confession in this instance raised no threat of police misconduct. A law enforcement officer has nothing to gain from this decision. It is entirely improbable a law enforcement officer would omit or incompletely give a Miranda warning in the hope a resulting confession may be considered in a Evidence Code section 352 motion to counter a misleading argument by a duplicitous defendant. Such a scenario is too speculative and tenuous for a law enforcement officer to entertain while conducting an interrogation.

Moreover, the court’s use of Johnson’s confession under Evidence Code section 352 was outside the sweep of the Miranda presumption and did not violate Johnson’s Fifth Amendment rights, as the evidence was not used by the prosecution in its case-in-chief. The confession was not used to determine Johnson’s guilt of any of the crimes with which he was charged. The jury never heard or knew of Johnson’s confession. Indeed, the trial court considered only that portion of the confession where Johnson admitted committing an uncharged offense. Johnson cannot argue the confession resulted in him incriminating himself when he was not charged with the crime to which he confessed.

Johnson argues the trial court’s consideration of his confession violated the rule of Holmes v. South Carolina (2006) 547 U.S. 319 [164 L.Ed.2d 503, 126 S.Ct. 1727], but that case does not apply here. There, the Supreme Court struck down a state rule of evidence that third party guilt was inadmissible where there was strong evidence, particularly, strong forensic evidence, of the defendant’s guilt. The high court invalidated the rule in part because it preempted the trial court from considering the prejudicial effects of the third party evidence with its probative value, as well as the credibility of the prosecution’s evidence, and thus was an arbitrary rule. (Id. at pp. 326-331.) Of course, the process missing in the state rule was the very process in which the trial court here was engaged when it considered Johnson’s confession— weighing the probative value of Johnson’s third party evidence with its prejudicial effect and in consideration of the prosecution’s suppressed evidence. Holmes v. South Carolina did not involve the effect of Miranda on the court’s consideration of a suppressed confession under Evidence Code section 352, and thus it does not aid Johnson at all.

We are aware the Supreme Court in James, supra, 493 U.S. 307, determined the impeachment exception to the Fourth Amendment’s exclusionary rule did not extend to the prosecution’s use of evidence illegally obtained from a defendant to impeach the testimony of defense witnesses besides the defendant. In that case, the high court reasoned that allowing a defendant’s inculpatory statement, suppressed as fruit of an unlawful arrest, to be used to impeach other defense witnesses would not significantly promote the court’s truth-seeking function as it would likely chill defendants from presenting a defense through the testimony of others. (493 U.S. at pp. 314-316.) The court also determined that admitting the suppressed statement to impeach all defense witnesses would encourage police misconduct to obtain evidence unlawfully, as such evidence could be used against potentially many more witnesses. (Id. at pp. 317-319.)

Although we apply the balancing test announced in James, we reach a different conclusion on the facts presented to us. The reasoning of James is inapposite here. The trial court did not authorize use of Johnson’s confession to impeach a witness. Rather, the court considered the confession in order to prevent Johnson from extrapolating a false argument from truthful testimony. James was concerned that a broad exception to the exclusionary rule would chill defendants from calling witnesses “who would otherwise offer probative evidence.” (James, supra, 493 U.S. at p. 316, italics added, fn. omitted.) James said nothing about a defendant’s attempt to use Miranda as a sword to force the jury to consider a false and misleading argument.

As already stated, unlike in James, allowing the trial court to utilize the suppressed confession when ruling on the admissibility of evidence under Evidence Code section 352 significantly promotes the court’s truth-seeking function, as it prevents false or misleading argument from being made to the jury. The only defense chilled by the trial court’s action was a false defense.

Moreover, the trial court’s consideration of the suppressed confession did not weaken the exclusionary rule’s deterrent effect. It did not increase the number of witnesses against which the confession could be used, nor did it significantly increase the occasions on which the confession could be used.

In effect, the trial court was using Johnson’s suppressed confession to impeach Johnson’s implied claim that he did not perform the Claussen robbery. Such use was approved in Harris and recognized approvingly in James. (James, supra, 493 U.S. at pp. 312-313.) Because the focus here is solely on Johnson, the risks contemplated by the James court do not exist in this case.

The Supreme Court of Illinois faced a situation similar to this case in People v. Payne (1983) 98 Ill.2d 45 [74 Ill.Dec. 542, 456 N.E.2d 44] (Payne), and reached the same result we do. There, after arresting the defendants, police officers searched their apartment without a warrant. They found two handguns inside a refrigerator. The trial court suppressed the weapons. (Id., 456 N.E.2d at pp. 45-16.)

On defendant’s cross-examination of one of the arresting officers, however, counsel asked if the defendants and their apartment were searched. The officer said they were, and counsel asked no further questions. The trial court determined this cross-examination “ ‘opened the door’ ” to admitting one of the suppressed weapons to rebut the false impression created by the cross-examination that nothing was recovered from the apartment. (Payne, supra, 456 N.E.2d at p. 46.)

The Illinois Supreme Court upheld the trial court’s admission of the suppressed weapon. Although Payne preceded James, the Illinois Supreme Court presciently applied the balancing test later established by James, and its reasoning applies equally here: “The problem in this case arose not from false statements, made by defendants while testifying, but rather from cross-examination and p