The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2021 CO 35

Supreme Court Case No. 20SC6

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 16CA152

Petitioner:

The People of the State of Colorado,

v.

Respondent:

Elmo Jesse Johnson.

Judgment Affirmed

en banc

May 24, 2021

Attorneys for Petitioner:

Philip J. Weiser, Attorney General

William G. Kozeliski, Senior Assistant Attorney General

Denver, Colorado

Attorneys for Respondent:

Megan A. Ring, Public Defender

Stephen C. Arvin, Deputy State Public Defender

Denver, Colorado

JUSTICE BERKENKOTTER delivered the Opinion of the Court.

JUSTICE MÁRQUEZ dissents.
2

¶1 We review the court of appeals’ split decision in People v. Johnson, 2019 COA 

159, __ P.3d __, reversing Elmo Johnson’s conviction for first degree murder and 

remanding the case for a new trial based on the division’s determination that the 

trial court violated Johnson’s right to present a complete defense. We consider, as 

a matter of first impression, whether the impeachment exception to the 

exclusionary rule extends to a defendant’s truthful testimony that could mislead a 

jury.

1 We hold that a defendant may offer truthful, albeit potentially incomplete,

evidence without opening the door to previously suppressed evidence. 

Accordingly, we affirm the judgment of the court of appeals. 

I. Facts and Procedural History

¶2 Johnson lived in an apartment with his sister, Toni Carrethers, and 

Carrethers’s husband. One night, Johnson’s girlfriend, Danielle Griego, stayed at 

the apartment and was shot and killed. 

¶3 The next day, Griego’s mother discovered Griego’s body on a couch in the 

apartment. Johnson was laying next to Griego, unconscious due to his 

1 We granted certiorari to consider the following issue:

1. Whether the court of appeals erred in holding that the 

exclusionary rule precludes the prosecution from offering 

constitutionally suppressed evidence in response to 

defense-elicited truthful, yet incomplete evidence that may 

mislead the jury. 
3

consumption of alcohol and drugs. Griego’s mother called 911. Before police 

officers arrived, Carrethers picked up two shell casings that were near Griego’s 

body, rinsed them, returned them to where she had found them, and then washed 

her hands.

¶4 Johnson was transported to the hospital, where officers collected swabs 

from his hands and face while he remained unconscious. These swabs tested 

positive for gunshot residue (“GSR”), as did swabs the police subsequently 

collected from Carrethers and Griego’s mother. After he regained consciousness, 

Johnson denied killing Griego. 

¶5 As pertinent here, the prosecution charged Johnson with first degree 

murder. Before trial, Johnson moved to suppress the GSR evidence that the 

officers collected from his hands and face at the hospital without a warrant. The 

trial court granted Johnson’s motion concerning the GSR evidence. In ruling, the 

trial court noted that it would not allow Johnson “to use the Fourth Amendment 

as both a shield and a sword.” Concerned that Johnson may “mislead[] the jury 

into believing that . . . [he] was never tested or he was not positive” for GSR, the 

court indicated that if Johnson offered evidence regarding Carrethers’s positive 

GSR test, he would open the door for the prosecution to admit his suppressed 

positive test results. 
4

¶6 At trial, the court asked whether Johnson intended to introduce evidence 

that Carrethers tested positive for GSR. Johnson’s counsel responded that he 

planned to do so as part of Johnson’s alternate suspect defense. He explained that

he would lay the proper foundation through two of the prosecution’s witnesses: 

the crime scene investigator, who swabbed Carrethers for GSR, and the GSR 

analyst, who tested Carrethers’s swabs. 

¶7 The trial court ruled that if Johnson elected to introduce evidence of 

Carrethers’s positive GSR test results, then the prosecution would be allowed, 

under CRE 403, to introduce evidence with respect to all the GSR test results, 

including Johnson’s, notwithstanding the court’s previous suppression order. The 

court reasoned that Johnson’s introduction of Carrethers’s positive GSR test 

results could mislead the jury into thinking that Johnson did not test positive for 

GSR or that he wasn’t tested at all and the investigation into Griego’s death was 

“subpar.” Johnson’s counsel objected, asserting that the court’s ruling put him “in 

a position of having to make a Hobson [sic] choice of either deciding to present a 

defense and render ineffective assistance of counsel or to have this 

unconstitutionally obtained evidence come in against Mr. Johnson.”

¶8 Johnson elected not to inquire into Carrethers’s GSR test results. The jury 

ultimately found Johnson guilty of first degree murder.
5

¶9 Johnson appealed his judgment of conviction, contending that the trial court 

erred by forcing him to choose between exercising two constitutional rights: his 

right to present a complete defense and his right to exclude constitutionally 

inadmissible evidence at trial. In a published, split decision, a division of the court 

of appeals agreed, holding as a matter of first impression that a defendant may 

offer truthful evidence that may nevertheless mislead the jury without opening 

the door to constitutionally inadmissible evidence. Johnson, ¶ 1.

¶10 The division majority primarily based its reasoning on the holdings from 

two United States Supreme Court cases: Walder v. United States, 347 U.S. 62, 65

(1954) (recognizing the impeachment exception to the exclusionary rule by 

holding that evidence unconstitutionally seized under the Fourth Amendment is 

admissible to impeach a defendant’s untruthful testimony), and James v. Illinois, 

493 U.S. 307, 320 (1990) (holding that illegally obtained evidence may not be used 

to impeach a defense witness’s testimony). Johnson, ¶¶ 17–25. Applying these

holdings, the majority determined that the impeachment exception “cannot 

possibly permit the use of [suppressed] evidence to counter truthful testimony.” 

Id. at ¶ 27. The majority held that the trial court erred in its CRE 403 ruling because 

“the effect of [that] ruling was to chill Johnson’s presentation of truthful and 

favorable evidence.” Id. at ¶ 27. And because Carrethers’s GSR test results could 

support an inference that she fired a gun around the time that Griego was killed, 
6

thus furthering Johnson’s alternate suspect theory, the majority concluded that the 

error was not harmless beyond a reasonable doubt. The division majority 

accordingly reversed Johnson’s first degree murder conviction and remanded the 

case for a new trial. Id. at ¶¶ 31–32.

¶11 Judge Taubman dissented in relevant part, noting that he would have 

affirmed Johnson’s conviction because, in his view, the isolated presentation of 

Carrethers’s GSR evidence would have prompted the jury to believe something 

that both parties and the trial court knew was not true—that Johnson either was 

not tested, or tested negative, for GSR. Id. at ¶¶ 79, 84, 89 (Taubman, J., concurring 

in part and dissenting in part). Thus, according to Judge Taubman, “the court’s 

truth-seeking function tilts the scale toward permitting the prosecution to 

introduce [Johnson’s] GSR evidence that had been previously excluded by the trial 

court to avoid misleading the jury.” Id. at ¶ 79. Judge Taubman concluded that 

the trial court’s CRE 403 ruling did not deprive Johnson of his right to exclude 

unconstitutionally seized evidence or his right to present a complete defense. Id.

at ¶ 84. Rather, the trial court’s ruling presented Johnson with a permissible, albeit 

difficult, tactical decision that defendants often face when determining how to best 

present a defense. Id. at ¶ 82. 

¶12 We granted certiorari and now affirm the judgment of the court of appeals. 
7

II. Analysis

¶13 We begin by outlining the controlling standards of review. We then detail 

the applicable law concerning the impeachment exception to the exclusionary rule. 

Finally, we apply those principles to the facts presented here.

¶14 Like the division majority in this case, we draw guidance from Walder, James, 

and other relevant caselaw, as well as the United States and Colorado

Constitutions, and conclude that a defendant may offer truthful, albeit potentially 

incomplete, evidence without opening the door to previously suppressed

evidence. This is because the important truth-seeking rationale that prohibits a

defendant from turning the exclusion of illegally obtained evidence into a shield 

for perjury does not apply with equal force to truthful but potentially misleading 

testimony. Accordingly, we affirm the judgment of the court of appeals.

A. Standards of Review

¶15 We review a trial court’s interpretation of the law governing the 

admissibility of evidence de novo. People v. Salas, 2017 COA 63, ¶ 30, 405 P.3d 446, 

453; see People v. Smith, 40 P.3d 1287, 1290 (Colo. 2002) (stating that a trial court’s 

application of legal standards in a suppression ruling is a question of law that we 

review de novo). This review encompasses the broader legal question of whether 

a defendant can open the door for the admission of evidence otherwise barred by 

the exclusionary rule. See People v. Melillo, 25 P.3d 769, 777 (Colo. 2001).
8

¶16 However, we review a trial court’s determination of whether a party opened 

the door to otherwise inadmissible evidence for an abuse of discretion. People v. 

Lesney, 855 P.2d 1364, 1366–67 (Colo. 1993). A trial court abuses its discretion when 

its ruling is manifestly arbitrary, unreasonable, or unfair, People v. Campbell, 

2019 CO 66, ¶ 21, 443 P.3d 72, 76, or when it misapplies the law, People v. Jefferson, 

2017 CO 35, ¶ 25, 393 P.3d 493, 499.

¶17 If we conclude that the trial court erred in its evidentiary ruling, we must 

then determine whether such error necessitates reversal of Johnson’s conviction. 

Hagos v. People, 2012 CO 63, ¶ 9, 288 P.3d 116, 118. Because Johnson preserved this 

issue through a contemporaneous objection, and because the issue implicates 

Johnson’s Sixth Amendment right to present a complete defense, we review for

constitutional harmless error. Id. at ¶ 11, 288 P.3d at 119; see Krutsinger v. People, 

219 P.3d 1054, 1061 (Colo. 2009) (discussing a defendant’s right to present a 

complete defense). Under that standard, “errors require reversal unless the 

reviewing court is ‘able to declare a belief that [the error] was harmless beyond a 

reasonable doubt.’” Hagos, ¶ 11, 288 P.3d at 119 (quoting Chapman v. California, 

386 U.S. 18, 24 (1967)). That is, we must reverse if “there is a reasonable possibility

that the [error] might have contributed to the conviction.” Chapman, 386 U.S. at 23 

(quoting Fahy v. Connecticut, 375 U.S. 85, 86–87 (1963)). The State bears the burden 
9

of proving that the error was harmless beyond a reasonable doubt. Hagos, ¶ 11, 

288 P.3d at 119.

¶18 With these standards in mind, we turn to the applicable law. 

B. The Impeachment Exception to the Exclusionary Rule

¶19 The Fourth Amendment to the United States Constitution and article II, 

section 7 of the Colorado Constitution protect against “unreasonable searches and 

seizures.” However, because the Fourth Amendment is silent regarding how this 

right is to be enforced, the Supreme Court adopted the “exclusionary rule,” which 

serves as a “deterrent sanction that bars the prosecution from introducing 

evidence obtained by way of a Fourth Amendment violation.” Davis v. United 

States, 564 U.S. 229, 231–32 (2011); see Mapp v. Ohio, 367 U.S. 643, 660 (1961). The 

exclusionary rule’s purpose is to deter future Fourth Amendment violations “by 

removing the incentive to disregard” the Amendment’s constitutional guarantee. 

Elkins v. United States, 364 U.S. 206, 217 (1960). 

¶20 Because the exclusionary rule bars the prosecution from introducing 

evidence obtained through a Fourth Amendment violation, there is tension 

between the Fourth Amendment rights the exclusionary rule protects and the 

future search and seizure violations it seeks to deter, on the one hand, and the 

courts’ truth-seeking function, on the other. See United States v. Havens, 446 U.S. 

620, 626 (1980) (“There is no gainsaying that arriving at the truth is a fundamental 
10

goal of our legal system.”); Davis, 564 U.S. at 237 (discussing the social costs 

generated by the exclusionary rule, including that its “bottom-line effect, in many 

cases, is to suppress the truth”); see also James, 493 U.S. at 311–12 (explaining that 

the Court has “carved out exceptions to the exclusionary rule . . . where the 

introduction of reliable and probative evidence would significantly further the 

truthseeking function of a criminal trial and the likelihood that admissibility of 

such evidence would encourage police misconduct is but a ‘speculative 

possibility’” (quoting Harris v. New York, 401 U.S. 222, 225 (1971))). 

¶21 It is that tension that led the Supreme Court to adopt the impeachment 

exception in Walder. During his direct examination in a narcotics distribution case, 

the defendant testified untruthfully that he had never sold or possessed narcotics. 

Walder, 347 U.S. at 63. On cross-examination, the prosecutor asked the defendant

about a prior drug possession charge, despite the fact that the charge was 

ultimately dismissed after evidence of the defendant’s heroin possession was 

suppressed. In response, the defendant untruthfully testified that the prior case 

never happened. Id. at 64. The trial court then permitted the prosecution to 

impeach the defendant’s credibility by presenting testimony from one of the 

officers who conducted the unlawful search in the prior possession case and the 

chemist who analyzed the heroin. Id. The defendant was ultimately convicted of 

distributing narcotics. Id.
11

¶22 The defendant appealed, asserting that the admission of the previously 

suppressed evidence violated his Fourth Amendment right to be free from 

unreasonable searches and seizures. Id. The Walder Court disagreed, noting, 

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. 

Such [practice] would be a perversion of the Fourth Amendment. 

Id. at 65. The Court held that the protection of the defendant’s Fourth Amendment 

right did not provide “justification for letting the defendant affirmatively resort to 

perjurious testimony in reliance on the Government’s disability to challenge his 

credibility.” Id. 

¶23 The Supreme Court revisited the impeachment exception in Havens. After

stressing the “importance of arriving at the truth in criminal trials, as well as the 

defendant’s obligation to speak the truth in response to proper questions,” Havens, 

446 U.S. at 626, the Court held that “a defendant’s statements made in response to 

proper cross-examination reasonably suggested by the defendant’s direct 

examination are subject to otherwise proper impeachment by the government, 

albeit by evidence that has been illegally obtained and that is inadmissible on the 

government’s direct case, or otherwise, as substantive evidence of guilt,” id. at 

627–28. 
12

¶24 While Havens undoubtedly expanded the scope of the impeachment 

exception, the question became how far? In other words, to what degree must a

defendant “reasonably suggest” an untruth in his or her direct examination before 

it may be contradicted by the prosecution with suppressed evidence? We

answered that question in LeMasters v. People, 678 P.2d 538 (Colo. 1984).

¶25 In LeMasters, the prosecution argued that the defendant opened the door to 

the admission of certain suppressed evidence for impeachment purposes “because 

on the direct examination by the defendant there has been a denial of his involvement in 

this crime.” Id. at 541. The trial court permitted the prosecution to introduce and

inquire into certain physical evidence that was previously suppressed. Id. at 

541–42. 

¶26 On appeal, we overturned the defendant’s conviction because “the requisite 

inconsistency between the suppressed physical evidence and the defendant’s 

statement is not present.” Id. at 543. Specifically, we observed, 

In our view, the United States Supreme Court did not intend that its 

decisions in Walder and its progeny be extended to the extreme 

asserted in this case. To [permit the prosecution to introduce the 

suppressed evidence] under the facts of this case would substantially 

burden a defendant’s right to take the stand in his own defense by 

sanctioning the use of unconstitutionally obtained evidence to 

establish guilt.

Id. at 544. Our decision in LeMasters makes it clear that the impeachment exception 

to the exclusionary rule permits the prosecution to admit previously suppressed 
13

evidence on cross-examination to impeach a defendant’s untruthful testimony on 

direct examination, but only when there is an apparent nexus between the 

defendant’s testimony and the suppressed evidence that contradicts the 

untruthful testimony.

¶27 Finally, in James, the United States Supreme Court addressed whether the 

impeachment exception allowed the use of suppressed evidence to impeach the 

testimony of defense witnesses in order to deter the defendant from engaging in 

perjury “by proxy.” 493 U.S. at 311. The Court concluded that the impeachment 

exception does not permit the prosecution to introduce illegally obtained evidence 

to impeach the credibility of a defense witness. Id. at 320. The Court explained

that “[e]xpanding the class of impeachable witnesses from the defendant alone . . . 

would not promote the truthseeking function to the same extent as did creation of 

the original exception, and yet it would significantly undermine the deterrent 

effect of the general exclusionary rule” for two reasons. Id. at 313–14. First, “the 

mere threat of a subsequent criminal prosecution for perjury is far more likely to 

deter a witness from intentionally lying on a defendant’s behalf than to deter a 

defendant, already facing conviction for the underlying offense, from lying on his 

own behalf.” Id. at 314. Second, because “[d]efendants might reasonably fear that 

one or more of their witnesses, in a position to offer truthful and favorable 

testimony, would also make some statement in sufficient tension with the tainted 
14

evidence to allow the prosecutor to introduce that evidence for impeachment,” id.

at 315, expanding the impeachment exception to all defense witnesses “likely 

would chill some defendants from presenting their best defense and sometimes 

any defense at all—through the testimony of others,” id. at 314–15. 

¶28 The Court additionally explained that the exception “leaves defendants free 

to testify truthfully on their own behalf; they can offer probative and exculpatory 

evidence to the jury without opening the door to impeachment by carefully 

avoiding any statements that directly contradict the suppressed evidence. The 

exception thus generally discourages perjured testimony without discouraging 

truthful testimony.” Id. at 314.

C. Application

¶29 This case requires us to resolve the tension among the deterrent purpose 

animating the exclusionary rule, Johnson’s right to present a complete defense,

and the court’s truth-seeking function. The trial court, applying CRE 403, 

concluded that the admission of Carrethers’s positive GSR test results was 

misleading because it could imply that Johnson did not test positive for GSR or 

that he was not tested and the investigation was “subpar.” Thus, if Johnson 

introduced such evidence, it would open the door for the prosecution to admit his 

previously suppressed positive GSR test results. 
15

¶30 Judge Taubman concluded that the trial court’s ruling was correct because 

Johnson sought to use his suppressed GSR evidence to “obfuscate the court’s 

truth-seeking function.” Johnson, ¶ 73 (Taubman, J., concurring in part and 

dissenting in part). The People ask, for the same reason, that we expand the 

impeachment exception to the exclusionary rule to reach truthful testimony 

elicited by the defense that could mislead the jury. For the reasons detailed below, 

we decline to expand the impeachment exception to truthful testimony.

¶31 The Supreme Court outlined the contours of the impeachment exception in 

Walder and James. While the facts presented here do not perfectly align with those 

of Walder or James, the relevant language from those cases convince us that the

division majority got it right: “[T]he [impeachment] exception cannot possibly 

permit the use of [suppressed] evidence to counter truthful testimony.” Johnson,

¶ 27. We reach this conclusion because the expansion of the impeachment 

exception sought by the People would undermine the purpose of the exclusionary 

rule and chill defendants’ rights to present a complete defense through truthful 

testimony.

¶32 Permitting the prosecution to introduce Johnson’s GSR evidence could 

undermine the exclusionary rule’s “sole purpose,” which is “to deter future Fourth 

Amendment violations.” Davis, 564 U.S. at 236–37. As the division majority 

observed, such practice would “arguably encourage[] future violations” by 
16

“effectively shield[ing] potentially exculpatory evidence from use by the defense.” 

Johnson, ¶ 28. If we expand the impeachment exception to include a defendant’s 

truthful testimony, the expected value of illegally obtained evidence would be 

enhanced, and an uptick in police misconduct may occur. See James, 493 U.S. at 

318 (explaining that it is “far more than a ‘speculative possibility’ that police 

misconduct will be encouraged by permitting such use of illegally obtained 

evidence” because “police officers and their superiors would recognize that 

obtaining evidence through illegal means stacks the deck heavily in the 

prosecution’s favor” (quoting Harris, 401 U.S. at 225)).

¶33 More significantly, expanding the impeachment exception to encompass

defendants’ truthful testimony “likely would chill some defendants from 

presenting their best defense and sometimes any defense at all.” Id. at 314–15. 

That is precisely what occurred here. In effect, the trial court, through its CRE 403 

ruling, expanded the impeachment exception to preclude Johnson from presenting 

truthful testimony that supported his alternate suspect theory. And in so doing, 

Johnson’s constitutional right to present a complete defense was violated. See 

Walder, 347 U.S. at 65 (“[T]he Constitution guarantees a defendant the fullest 

opportunity to meet the accusation against him. He must be free to deny all the 

elements of the case against him without thereby giving leave to the Government 

to introduce by way of rebuttal evidence illegally secured by it . . . .”). 
17

¶34 Moreover, Carrethers’s positive GSR test results would have been admitted 

not through Johnson or another defense witness, but rather through two of the 

prosecution’s witnesses. And if the fear of “perjury by proxy” is insufficient 

grounds to expand the impeachment exception to a defense witness who 

ostensibly has an incentive to lie on behalf of the defendant, James, 493 U.S. at 310, 

314, there is absolutely no reason to expand the exception to reach truthful 

testimony elicited by the defense through the prosecution’s witnesses.

¶35 The trial court’s and Judge Taubman’s concerns regarding the courts’ 

truth-seeking function are laudable. We affirm the importance of that principle 

here by emphasizing that it would not be proper for Johnson to ask the jury to 

infer that he was not tested for GSR, that he did not test positive for GSR, or that 

the investigation into Griego’s death was subpar based on the GSR testing. 

However, there is no indication that Johnson planned to do so. Rather, defense 

counsel expressly stated to the trial court that he would avoid asking any questions 

involving Johnson’s GSR evidence or the nature of the investigation, thereby 

diminishing the concern that the court’s truth-seeking function would be 

undermined by the introduction of Carrethers’s positive GSR test results. Under 

these circumstances, we agree with the division majority that the “effect of the trial 

court’s ruling was to chill Johnson’s presentation of truthful and favorable 

evidence,” id. at ¶ 27, by “expand[ing] the impeachment exception even further 
18

than . . . [the rejected expansion] in James,” id. at ¶ 26. The court’s evidentiary 

ruling under CRE 403 presented Johnson with the quintessential Hobson’s choice: 

he could either rely on the trial court’s ruling excluding his unconstitutionally 

seized GSR evidence at trial, or he could protect his right to present a complete 

defense, by introducing Carrethers’s GSR test results, which supported his

alternate suspect theory. Johnson could not do both. By forcing Johnson to make 

this choice, the trial court necessarily violated Johnson’s right to present a 

complete defense. 

¶36 We, accordingly, agree with the division majority and conclude that the trial 

court abused its discretion. See Jefferson, ¶ 25, 393 P.3d at 499.

¶37 Having found that the trial court erred, we will reverse if “there is a 

reasonable possibility that the [error] might have contributed to the conviction.” 

Chapman, 386 U.S. at 23 (quoting Fahy, 375 U.S. at 86–87). As we alluded to above, 

the error might have contributed to Johnson’s first degree murder conviction

because it prevented him from presenting a complete defense, which included 

advancing the theory that Carrethers killed Griego. In fact, the trial court’s

evidentiary ruling effectively barred Johnson from introducing the evidence that 

was most probative of this theory—Carrethers’s positive GSR test results—and 

limited the arguments defense counsel could make in closing. Had Johnson been 

able to fully explore Carrethers’s GSR evidence, the jury could have believed that 
19

she fired a gun around the time of Griego’s murder, and such belief could have 

supported an inference that Johnson was not responsible for the murder. 

Accordingly, the trial court’s error was not harmless beyond a reasonable doubt. 

See Hagos, ¶ 9, 288 P.3d at 118.

III. Conclusion

¶38 For the foregoing reasons, we affirm the judgment of the court of appeals.

JUSTICE MÁRQUEZ dissents.
1

JUSTICE MÁRQUEZ, dissenting.

¶39 I respectfully dissent. The majority effectively holds today that a defendant 

can exploit the exclusionary rule to present evidence to a jury in a manner that is 

affirmatively misleading. See Maj. op. ¶¶ 1, 14. It does so by allowing a defendant 

to introduce incomplete evidence without opening the door to previously 

suppressed information that is necessary to contextualize such evidence and 

prevent the jury from drawing a false inference. The majority’s ruling not only 

hinders the fundamental truthseeking function of trial but also allows a defendant 

to seek a verdict based in part on an inference that everyone in the courtroom, 

except the jury, knows to be untrue. Moreover, by inaccurately characterizing the 

suppressed evidence here as “impeachment,” I believe both the court of appeals 

and the majority misapply Walder v. United States, 347 U.S. 62 (1954), and James v. 

Illinois, 493 U.S. 307 (1990). 

¶40 Elmo Johnson sought to introduce evidence of Toni Carrethers’s positive 

test results for gunshot residue (“GSR”) to support an alternate suspect theory. 

But the value of this evidence to the defense lay in presenting it in isolation because 

doing so would give rise to an inference that Johnson did not test positive for 

GSR—an inference that the parties and the trial court knew was false. It does not 

matter that defense counsel pledged not to argue that inference or expressly ask 

the jury to draw it. The inference was natural, obvious, helpful to the 
2

defense—and indisputably untrue. The trial court correctly recognized that, by 

presenting an incomplete picture of the GSR testing (that is, by introducing 

evidence that Carrethers tested positive for GSR knowing the jury was prevented 

from hearing about Johnson’s suppressed GSR test results), Johnson sought to use 

the exclusionary rule both as a sword and a shield and to exploit the protection of 

that rule in a manner that undermined the truthseeking function of trial. To avoid 

misleading the jury, the trial court properly precluded Johnson from introducing 

evidence of Carrethers’s GSR testing in isolation and instead conditioned his 

choice to introduce such evidence on allowing the prosecution to also introduce 

testimony regarding Johnson’s GSR test results so that the jury would have a 

complete picture from which to draw any conclusions. In short, the trial court 

properly sought to prevent the jury from reaching a verdict based on an inference 

that the parties and the court knew to be false. In so doing, the trial court did not 

abuse its discretion or violate Johnson’s constitutional rights.

¶41 Importantly, the trial court never characterized the suppressed evidence as 

“impeachment” evidence, nor did it purport to apply the specific impeachment 

exception to the exclusionary rule from Walder and James. This is because the 

suppressed evidence regarding Johnson’s GSR testing would not somehow 

“impeach” or otherwise contradict testimony regarding Carrethers’s GSR testing. 

Rather, allowing the defense to introduce evidence of Carrethers’s results in 
3

isolation created an incomplete and misleading picture—presenting an 

“opening-the-door” or doctrine of completeness problem, not an impeachment 

issue. For this reason, both the court of appeals’ and the majority’s reliance on the 

Walder/James impeachment analysis is inapt and makes little sense on these facts. 

I. Walder/James 

¶42 The majority frames the issue here as whether the impeachment exception 

to the exclusionary rule from Walder and James should extend to the circumstances 

of this case. Because it asks the wrong question, the majority arrives at the wrong 

conclusion. 

¶43 At the outset, I note two things. First, “[w]hile fundamental, the right to 

present defense evidence is not absolute.” People v. Melendez, 102 P.3d 315, 320 

(Colo. 2004). Indeed, “the right to present a defense is generally subject to, and 

constrained by, familiar and well-established limits on the admissibility of 

evidence.” People v. Elmarr, 2015 CO 53, ¶ 27, 351 P.3d 431, 438. Second, under the 

Fourth Amendment, “[e]xclusion [of illegally obtained evidence] is ‘not a personal 

constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an 

unconstitutional search.” Davis v. United States, 564 U.S. 229, 236 (2011) (quoting

Stone v. Powell, 428 U.S. 465, 486 (1976)). Instead, the “sole purpose” of the 

exclusionary rule “is to deter future Fourth Amendment violations.” Id. at 236–37.
4

¶44 As the majority correctly recognizes, the U.S. Supreme Court has “carved 

out exceptions to the exclusionary rule . . . where the introduction of reliable and 

probative evidence would significantly further the truthseeking function of a 

criminal trial and the likelihood that admissibility of such evidence would 

encourage police misconduct is but a ‘speculative possibility.’” Maj. op. at ¶ 20 

(quoting James, 493 U.S. at 311).

¶45 One such exception to the rule—recognized in Walder and James—“permits 

prosecutors to introduce illegally obtained evidence for the limited purpose of 

impeaching the credibility of the defendant’s own testimony.” James, 493 U.S. at 312, 320 

(emphasis added) (holding that the impeachment exception to the exclusionary 

rule would not be expanded to permit the prosecution to use illegally obtained 

evidence to impeach the testimony of defense witnesses other than the defendant); 

see also Walder, 347 U.S. at 65–66 (holding that the prosecution could impeach a 

defendant’s credibility using suppressed evidence of unlawfully seized heroin 

where a defendant asserted that he never possessed any narcotics).

¶46 The majority reasons that this “impeachment exception” does not apply to 

the facts here. Maj. op. ¶ 31. Of course it doesn’t—because the suppressed 

evidence here is not impeachment evidence. See People v. Johnson, 183 Cal. App.

4th 253, 283 (2010) (“James is inapposite here. The trial court did not authorize use 

of [the defendant’s] confession to impeach a witness. Rather, the court considered 
5

the confession in order to prevent [the defendant] from extrapolating a false 

argument from truthful testimony.”). 

¶47 “The sine qua non of impeaching a witness’[s] testimony is that the evidence 

contradicts his previous statements.” LeMasters v. People, 678 P.2d 538, 543 (Colo. 

1984) (emphasis added). Here, evidence of Johnson’s positive GSR results would

not have contradicted truthful witness testimony regarding Carrethers’s positive 

GSR results. Nor would it have contradicted any testimony by Johnson himself, 

untruthful or not. In short, the suppressed evidence is not “impeachment” 

evidence, and the majority’s treatment of it as such leads it to miss the broader 

point of Walder and James and the case law on which they are founded. 

¶48 That broader point is this: A defendant may not use the exclusionary rule as 

both a shield and a sword. While the exclusionary rule serves a deterrent function 

by requiring illegally obtained evidence to be suppressed in a prosecution’s 

case-in-chief, the protection it offers a defendant must give way when the 

defendant seeks to exploit the rule to frustrate or undermine the truthseeking 

function of a criminal trial. As the U.S. Supreme Court has explained:

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. 

Such an extension . . . would be a perversion of the Fourth 

Amendment.
6

Walder, 347 U.S. at 65. 

¶49 Ultimately, courts must balance the deterrent effect of the exclusionary rule 

with “the costs of withholding reliable information from the truth-seeking 

process.” Illinois v. Krull, 480 U.S. 340, 347 (1987). Where, as here, a defendant 

seeks to introduce evidence that invites a jury to draw an indisputably false 

inference—specifically, a false inference that relies on the continued suppression 

of the illegally obtained evidence—the protection of the exclusionary rule must 

yield to the truthseeking goals of our legal system. 

II. The Trial Court Did Not Abuse Its Discretion

A. The Trial Court’s Ruling was Consistent with the 

Doctrine of Completeness

¶50 The trial court did not abuse its discretion under the circumstances of this 

case. Under the concept of “opening the door,” this court has admitted evidence 

to “prevent [the defendant or the prosecution] in a criminal trial from gaining and 

maintaining an unfair advantage by the selective presentation of facts that, 

without being elaborated [upon] or placed in context, create an incorrect or 

misleading impression.” Golob v. People, 180 P.3d 1006, 1012 (Colo. 2008) (holding 

that the trial court erred in limiting the scope of the defense expert’s testimony 

because he should have been allowed to contextualize the prosecution expert’s 

testimony that their conclusions were consistent); People v. Miller, 890 P.2d 84, 

98–99 (Colo. 1995) (allowing the prosecution to introduce other crimes evidence 
7

where defense counsel had “questioned [a witness] in a manner that took selective 

advantage of evidence regarding [the witness’s] relationship with [the defendant] 

and sought to exclude the inadmissible [other crimes] evidence that would place 

that relationship in its proper context”); see also People v. Sams, 685 P.2d 157, 164 

(Colo. 1984) (“[O]nce the defendant opens the door by eliciting testimony 

about . . . suppressed identifications, the prosecution should not be foreclosed 

from eliciting additional testimony about these same procedures.”). 

¶51 Similarly, the doctrine of completeness, codified in part in CRE 106, favors 

admission of evidence that contextualizes incomplete information that would 

otherwise be misleading to the jury. See People v. Manyik, 2016 COA 42, ¶ 85, 

383 P.3d 77, 91 (“If admitting only one part of a written or recorded statement 

would be unfair or misleading, the rule of completeness favors admission of other 

parts of the statement.”); see also United States v. Lopez-Medina, 596 F.3d 716, 735 

(10th Cir. 2010) (holding that the purpose of the identical federal version of the 

rule “is to prevent a party from misleading the jury by allowing into the record 

relevant portions of [evidence] which clarify or explain the part already received”

(quoting United States v. Moussaoui, 382 F.3d 453, 481 (4th Cir. 2004))). 

¶52 Under the identical federal version of the rule, see Fed. R. Evid. 106, federal 

courts have admitted otherwise inadmissible evidence to correct a false 

impression created by incomplete testimony even where counsel did not 
8

affirmatively make a false argument. For example, in United States v. Womochil, 

778 F.2d 1311, 1315 (8th Cir. 1985), a witness testified out of the presence of the 

jury that the defendant’s alleged co-conspirator obtained cocaine from the 

defendant and another individual, Gilbert. On cross-examination, however, 

defense counsel asked the witness if he obtained cocaine from Gilbert, leaving the 

false impression that the witness obtained cocaine only from Gilbert. Id. Although 

defense counsel did not expressly argue that the witness did not obtain cocaine 

from the defendant, the U.S. Court of Appeals for the Eighth Circuit held that the 

prosecution was properly allowed on redirect to correct this false impression by 

introducing the co-conspirator’s complete statement that he obtained cocaine from 

both Gilbert and the defendant. Id.; see also Gov’t. of V.I. v. Archibald, 987 F.2d 180, 

188 (3d Cir. 1993) (noting that Womochil involved the “principle of completeness”).

¶53 Here, the trial court’s ruling properly recognized that Johnson’s effort to 

introduce evidence of Carrethers’s GSR test results would “open the door” to 

evidence of GSR testing and, under the doctrine of completeness, would require 

the jury to also hear evidence of Johnson’s own test results. In its initial order, the 

court ruled that it would “not permit inquiry by [Johnson] that elicits the fact that 

Toni Carrethers was positive for gunshot residue which also then misleads the jury 

into believing either [Johnson] was never tested for gunshot residue or he was not 

positive for gunshot residue.” (Emphasis added.) Later, when ruling on the 
9

motion in limine regarding the same evidence, the court further explained that the 

jury would be left with the notion that only Carrethers, and not Johnson, was in 

an environment where a gun was fired, which is “flat out contrary to what the true 

evidence is” and is “tantamount to just being a half[-]truth” that “is completely 

misleading to the jury under the facts of this particular case.” (Emphasis added.)

The trial court thus properly concluded that the “jurors best get at the truth if they 

either hear that [Carrethers], [Johnson,] and [the victim’s] mother were all positive 

and in an environment where a gun was fired or none of it.” The court’s ruling 

was consistent with the purposes of the doctrine of completeness.

1 

B. The Trial Court’s Ruling Is Consistent with CRE 403 

¶54 The trial court’s ruling is also consistent with CRE 403. It found “on a 

[CRE] 403 analysis [that] not to permit the People to rebut [Carrethers’s positive 

GSR test results] with the true facts [that Johnson also tested positively] would be 

completely misleading to the jury.” It thus ruled that if Johnson introduced 

1 Importantly, to determine whether evidence must be admitted under the rule of 

completeness, a “district court considers whether (1) it explains the admitted 

evidence, (2) places the admitted evidence in context, (3) avoids misleading the jury, 

and (4) insures fair and impartial understanding of the evidence.” United States v. 

Li, 55 F.3d 325, 330 (7th Cir. 1995) (emphasis added). In other words, it is not 

enough that the introduced evidence is merely incomplete; the evidence must also 

have been introduced without the context necessary to avoid misleading the jury. 
10

Carrethers’s positive GSR test results, the prosecution could also reveal Johnson’s 

positive GSR test results. In so doing, the court did not abuse its discretion. 

¶55 CRE 403 allows relevant evidence to be excluded “if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury.” (Emphasis added.) 

¶56 Here, the jury was already aware that Carrethers had handled the shell 

casings. Thus, the probative value of evidence that Carrethers tested positive for 

GSR is arguably minimal. However, introducing that evidence in isolation 

without informing the jury about Johnson’s results also would have been

affirmatively misleading because it invited the jury to draw the false inference that 

Johnson either tested negatively for GSR or was not tested at all (perhaps due to a 

“subpar” investigation). The trial court therefore did not abuse its discretion when 

it concluded that the minimal probative value of introducing Carrethers’s GSR 

results in isolation was substantially outweighed by the risk of misleading the jury. 

See United States v. Morel, 751 F. Supp. 2d 423, 431 (E.D.N.Y. 2010) (holding that, 

under the identical Fed. R. Evid. 403, a defendant could not reference the fact that 

the government initially declined to prosecute him because, without also 

introducing the constitutionally suppressed confession that caused the 

prosecution to change its mind, it would create a substantial risk of misleading the 
11

jury into thinking that the prosecution charged the defendant for improper 

reasons).

¶57 Federal courts have observed the interplay between Rule 403 and the rule 

of completeness, explaining that Rule 403 can also be used to rectify the unfairness 

that the rule of completeness aims to prevent. One court explained that Rule 403 

should not be overlooked when considering the implications of the 

rule of completeness . . . . If[, for example,] allowing a government 

witness to testify only to a defendant’s inculpatory statements, 

without being subject to cross[-]examination about the exculpatory 

portions of the same statement (because they are not independently 

admissible) would leave the jury with a misleading understanding of 

the defendant’s statement to the extent that it would cause unfair 

prejudice, the court may give the government a choice: either allow 

cross[-]examination to provide a complete picture of what the 

defendant said; or exclude the testimony of the incomplete portion of 

the statement.

United States v. Bailey, 322 F. Supp. 3d 661, 673 (D. Md. 2017). That choice is similar 

to the one the trial court provided Johnson here: either allow the prosecution to 

provide a complete picture of the GSR results or exclude the incomplete GSR 

results. In other words, the trial court concluded that the jury could hear all of the 

GSR evidence, or none of it, but Johnson could not mislead the jury by introducing 

only evidence of Carrethers’s GSR results.2 

2 The trial court’s concern was well-founded. The jury in fact submitted questions 

following Detective Mark Yacano’s testimony asking whether Johnson, his hands, 
12

¶58 The trial court was in the best position to assess the potential prejudicial 

impact of this evidence. Wend v. People, 235 P.3d 1089, 1097 (Colo 2010); see also 

People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995) (“Under CRE 403, trial courts are 

given broad discretion in balancing the probative value of the evidence against the 

danger of unfair prejudice.”). It did not abuse its broad discretion when it 

concluded that the introduction of Carrethers’s GSR results, in isolation, would 

mislead the jury in violation of CRE 403, and thus properly conditioned the 

introduction of that evidence on the admission of Johnson’s GSR results. 

III. The Trial Court’s Ruling Did Not Violate Johnson’s

Constitutional Rights

¶59 The trial court’s ruling did not violate Johnson’s constitutional rights. As 

noted above, the “[e]xclusion [of illegally obtained evidence] is ‘not a personal 

constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an 

unconstitutional search.” Davis, 564 U.S. at 236 (quoting Stone, 428 U.S. at 486). 

Instead, the “sole purpose” of the rule “is to deter future Fourth Amendment 

violations.” Id. at 236–37 (emphasis added). Accordingly, if a defendant has no 

constitutional right to the exclusion of evidence, a defendant certainly has no 

or his clothing were tested for GSR and, if so, what were the results. Given the 

court’s ruling, the parties agreed that neither question should be asked.
13

constitutional right to thwart the trial court’s truthseeking function by using the 

exclusionary rule as both a sword and a shield. 

¶60 Notably, courts prevent defendants from using the Fifth Amendment as 

both a sword and shield, even where their express constitutional privilege to avoid 

self-incrimination is implicated. See United States v. $133,420.00 in U.S. Currency, 

672 F.3d 629, 640 (9th Cir. 2012); United States v. $148,840.00 in U.S. Currency, 

521 F.3d 1268, 1277 (10th Cir. 2008) (“[A] district court may strike conclusory 

testimony if the witness asserts the Fifth Amendment privilege to avoid answering 

relevant questions, yet freely responds to questions that are advantageous to his 

cause. This doctrine exists to prevent a party from converting the Fifth 

Amendment privilege from its intended use as a shield against compulsory 

self-incrimination into an offensive sword.” (citations omitted)). 

¶61 Courts prevent this dual use “to protect the integrity and truth-seeking 

function of the judicial system,” and do so by “preventing [a] witness from using 

the privilege to ‘mutilate the truth a party offers to tell.’” $133,420.00, 672 F.3d at 

640–41 (quoting Lawson v. Murray, 837 F.2d 653, 656 (4th Cir. 1988)). Given that 

defendants may not use their express Fifth Amendment constitutional privilege as 

both a sword and a shield, surely they may not exploit a judicially created rule to 

similarly thwart the truthseeking process of a criminal trial. 
14

¶62 The trial court’s ruling likewise did not infringe on Johnson’s Sixth 

Amendment guarantee of “a meaningful opportunity to present a complete 

defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. 

Kentucky, 476 U.S. 683, 690 (1986)). A defendant is deprived of this right only if he 

is denied “virtually his only means of effectively testing significant prosecution 

evidence.” Krutsinger v. People, 219 P.3d 1054, 1062 (Colo. 2009). 

¶63 A trial court may exclude defense evidence without infringing a defendant’s 

Sixth Amendment rights, so long as the exclusion serves a legitimate purpose and 

is proportionate to the ends it is asserted to promote. Holmes, 547 U.S. at 326. 

Notably, the U.S. Supreme Court in Holmes concluded that “well-established rules 

of evidence permit trial judges to exclude evidence if its probative value is 

outweighed by . . . [the] potential to mislead the jury.” Id. This court similarly has

held that the right to present a defense is limited by evidentiary rules and that 

“even relevant alternate suspect evidence may be excluded if its probative value 

is substantially outweighed by . . . the danger of . . . misleading the jury.” Elmarr, 

¶ 25, 351 P.3d at 438. 

¶64 Here, the trial court did not actually preclude Johnson from introducing 

Carrethers’s GSR test results; it merely warned him that if he introduced it in a 

manner that would mislead the jury, the prosecution would be allowed to 

introduce Johnson’s own GSR test results. Johnson has no constitutional right to 
15

present evidence in an incomplete and misleading manner. Thus, he merely faced 

a difficult strategic decision—whether the value of introducing Carrethers’s GSR 

test results outweighed the admission of the otherwise excludable GSR evidence. 

See People v. Skufca, 176 P.3d 83, 88–89 (Colo. 2008) (noting that a “defendant may 

constitutionally be required to make difficult strategic choices” and deeming the 

decision of whether to risk self-incrimination by testifying about drug transactions 

introduced in the prosecution’s case-in-chief a tactical choice, but not one 

implicating constitutional rights).

3 Finally, the choice Johnson faced did not 

prevent him from presenting an alternate suspect defense. Johnson presented 

evidence that Carrethers killed the victim because she was in the apartment when 

the victim was shot, had tampered with evidence, made several implausible 

statements about not investigating the gunshots, and left the next day without 

checking on Johnson or the victim. Accordingly, the trial court’s ruling did not 

run afoul of Johnson’s constitutional rights. 

3 Johnson contends that, because he had to choose between his right against illegal 

search and seizure and his right to present a defense, the trial court forced him to 

make a Hobson’s choice involving “an intolerable tension between two 

constitutional rights.” See People v. Chavez, 621 P.2d 1362, 1365 (Colo. 1981). 

However, as explained above, Johnson has no personal right under the Fourth 

Amendment to exclude illegally obtained evidence, and his Sixth Amendment 

right to present a complete defense was not violated. Therefore, he was not forced 

to choose between two constitutional rights.
16

IV. Conclusion

¶65 “[A]rriving at the truth is a fundamental goal of our legal system.” James, 

493 U.S. at 311 (quoting United States v. Havens, 446 U.S. 620, 626 (1980)). And 

while the exclusionary rule is an example of a constitutional rule that limits the 

means by which the government may conduct this search for truth in order to 

promote other constitutional values, see id., the U.S. Supreme Court has carved out 

exceptions to the exclusionary rule “where the introduction of reliable and 

probative evidence would significantly further the truthseeking function of a 

criminal trial and the likelihood that admissibility of such evidence would 

encourage police misconduct is but a ‘speculative possibility,’” id. at 311–12 

(quoting Harris, 401 U.S. at 225).

¶66 The majority holds today that “a defendant may offer truthful, albeit 

potentially incomplete, evidence without opening the door to previously 

suppressed evidence.” Maj. op., ¶ 14. In so doing, the majority effectively allows 

defendants to exploit the exclusionary rule by introducing incomplete evidence to 

mislead a jury, knowing that the information necessary to contextualize such 

evidence will remain suppressed. I am concerned that the majority’s ruling 

undermines our legal system’s fundamental goal of arriving at the truth, see 

Havens, 446 U.S. at 626, by allowing a defendant to wield the exclusionary rule as 

both a shield and a sword in ways directly contrary to the principles animating 
17

James, Walder, and the case law on which they rely. Accordingly, I respectfully 

dissent.