SUMMARY

October 24, 2019

2019COA159

No. 16CA0152, People v. Johnson — Constitutional Law —

Fourth Amendment — Searches and Seizures — Warrantless 

Search — Exclusionary Rule — Impeachment Exception

The division considers the limits of the impeachment exception to 

the exclusionary rule announced in Walder v. United States, 347 

U.S. 62 (1954), and limited in James v. Illinois, 493 U.S. 307 

(1990). Under this rule, evidence that was suppressed as 

unconstitutionally obtained may nevertheless be admissible under 

certain limited circumstances. The majority holds that the trial 

court erred in ruling that the use of truthful testimony about an 

alternate suspect’s positive test for gunshot residue would open the 

door to the otherwise suppressed evidence of the defendant’s 

positive test. The partial dissent would hold that the trial court 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
appropriately ruled that the evidence of defendant’s test would be 

admissible to prevent the defense from misleading the jury.
COLORADO COURT OF APPEALS 2019COA159

Court of Appeals No. 16CA0152

Arapahoe County District Court No. 14CR2330

Honorable Michelle A. Amico, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Elmo Jesse Johnson,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE TOW

Berger, J., concurs

Taubman, J., concurs in part and dissents in part 

Announced October 24, 2019

Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Stephen C. Arvin, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 Defendant, Elmo Jesse Johnson, successfully sought 

exclusion of evidence improperly seized without a warrant. 

However, in granting the motion to suppress, the trial court 

informed Johnson that if he offered in his defense similar evidence 

related to an alternate suspect, the prosecution would be permitted 

to present the suppressed evidence to the jury. In this matter of 

first impression, we are asked to explore the limits of the 

impeachment exception to the exclusionary rule: specifically, 

whether Johnson, in offering truthful testimony that might 

nevertheless mislead the jury in the absence of the suppressed 

evidence, opened the door to the otherwise inadmissible evidence. 

We answer that question “no.” As a result, we reverse his 

conviction for first degree murder, and remand for a new trial on 

that charge. Because the error did not affect Johnson’s conviction 

for felony menacing, we affirm that conviction.

I. Background

¶ 2 Danielle Griego, Johnson’s girlfriend, was shot to death in the 

apartment Johnson shared with his sister, Toni Carrethers, and 

Carrethers’s husband. Hours after Griego’s murder, Griego’s 

mother discovered Griego’s body on the couch. Johnson lay next to 
2

her, unconscious due to alcohol and drugs. Griego’s mother called 

911. Before law enforcement officers arrived, Carrethers picked up 

two shell casings that were near Griego’s body, rinsed them, and 

returned them to where she had found them. 

¶ 3 Johnson was transported to the hospital. Once there, and 

while Johnson remained unconscious, officers collected swabs from 

his hands and face. These swabs ultimately tested positive for 

gunshot residue (GSR).1 The officers also collected ammunition 

from his pants pocket. In addition, they found Griego’s blood on his 

clothing. After regaining consciousness, Johnson denied killing 

Griego. 

¶ 4 Before trial, Johnson moved to exclude the GSR evidence 

collected from him without a warrant.2 The trial court granted the 

motion.3 In doing so, however, it noted that it would not permit 

 1 Both Carrethers and Griego’s mother also tested positive for GSR. 2 Johnson also moved to exclude the evidence that his clothing 

collected by the police at the hospital contained ammunition and 

was stained with Griego’s blood. The trial court denied this motion. 

Johnson does not challenge that ruling on appeal. 

3 The trial court noted, based on its experience and knowledge, that 

GSR evidence is the type of evidence that likely falls within the 

exigent circumstances exception. However, the court observed that 

it could neither impute its own knowledge into the case nor take 
3

Johnson “to use the Fourth Amendment as both a shield and a 

sword.” The trial court warned Johnson that, should he offer 

evidence that Carrethers tested positive for GSR, he would open the 

door for the prosecution to admit Johnson’s positive test. The trial 

court explained that it was concerned about “misleading the jury 

into believing that either and/or both [Johnson] was never tested or 

he was not positive.” 

¶ 5 At trial, Carrethers testified that Griego and Johnson slept 

that night on Carrethers’s couch. She explained that while she was 

in bed with her husband in the middle of the night, she awoke to 

hear Griego say, “Oh my God, what are you doing?” Johnson 

replied, “Shut up,” and Carrethers heard two gunshots. Neither 

Carrethers nor her husband left their room to determine what had 

happened. Carrethers told police that she did not check the couch 

the next morning before leaving the home to run errands. 

 

judicial notice of the ephemeral nature of GSR evidence. So, 

because the prosecution had presented no evidence at the motions 

hearings that would establish that GSR can be easily and quickly 

destroyed, the trial court concluded it could not apply the exigent 

circumstances exception to the warrant requirement. The People 

did not challenge that ruling.
4

¶ 6 Two male witnesses, Eli Eva and Anthony Pasquale, who had 

been with Griego earlier on the day of the murder, testified that 

when Johnson had found Griego with them, he pointed a gun at 

them, asked if they were sexually involved with Griego, and 

threatened to kill them. They testified that he also told Griego, “if I 

can’t have you, bitch, nobody will.” After hearing this, the two 

witnesses flagged down police officers and Griego called 911. Law 

enforcement officers were not able to locate Johnson at that time. 

¶ 7 Police officers testified that, during their investigation, they 

heard Carrethers tell her daughter, “Elmo killed Danny.” They also 

described observing bullet holes, casings, and ammunition near the 

body, and finding a handgun hidden in the couch. 

¶ 8 The jury found Johnson guilty of first degree murder in the 

death of Griego. The jury also convicted Johnson of felony 

menacing for pointing the gun at Eva. Johnson now challenges 

both convictions. Specifically, he asserts the trial court erred in 

three ways: (1) by ruling that he could not admit the evidence that 

Carrethers tested positive for GSR without opening the door to the 

prosecution offering the otherwise suppressed evidence of 

Johnson’s GSR test; (2) by excluding evidence that Carrethers later 
5

killed her husband; and (3) by permitting Carrethers to testify to 

several statements made by Griego. 

II. The Trial Court Erred by Ruling That Admission of Evidence of 

Carrethers’s GSR Test Would Open the Door to Johnson’s 

Suppressed GSR Evidence

¶ 9 Johnson contends that the trial court improperly required him 

to choose between exercising two constitutional rights — the right 

to present a complete defense and the right to exclude evidence 

seized in violation of the Fourth Amendment. Under the 

circumstances of this case, we agree. 

A. Standard of Review

¶ 10 We review a trial court’s determination that a party’s actions 

have 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 if it misconstrues or 

misapplies the law or otherwise reaches a manifestly arbitrary, 

unreasonable, or unfair result. People v. Melillo, 25 P.3d 769, 773 

(Colo. 2001). 

¶ 11 A trial court’s application of the legal standard in a 

suppression ruling is a question of law that we review de novo. See 

People v. Smith, 40 P.3d 1287, 1290 (Colo. 2002). Similarly, “a trial 
6

court’s interpretation of a statute or rule governing the admissibility 

of evidence is reviewed de novo.” People v. Salas, 2017 COA 63, ¶ 

30 (citing People v. Hill, 228 P.3d 171, 173 (Colo. App. 2009)). 

¶ 12 The People assert that Johnson either waived or invited this 

error, and thus we should not review it. Specifically, the People 

assert that because Johnson never offered the evidence of 

Carrethers’s positive GSR test, no inadmissible evidence was 

admitted nor was Carrethers’s admissible GSR test excluded. Thus, 

the People argue, no evidentiary error occurred. Essentially, the 

People argue that the trial court never actually ruled on the issue, 

but rather merely gave Johnson an advisory warning as to what 

might happen if he sought to admit certain evidence. We disagree. 

¶ 13 When the trial court initially ruled, Johnson objected, arguing 

that the trial court was forcing him to choose between enforcing his 

right to be free from unreasonable searches and his right to present 

a complete defense. At trial, the court revisited the issue, indicating 

that it was not precluding inquiry into the GSR issue and 

reiterating that the door would only be opened “if the nature of their 

inquiry was misleading, i.e., [Johnson] wasn’t positive or the 

investigation was subpar, he wasn’t tested.” Johnson’s counsel 
7

made an offer of proof as to what testimony he would seek to offer 

and what he would (and would not) argue to the jury. The next 

morning, the trial court announced that it was treating Johnson’s 

request as a motion in limine and ruled that, should the defense 

proceed in that manner, it would open the door to the previously 

submitted evidence. The trial court concluded, “So defense now is 

on notice of what the Court’s ruling is and can make a decision 

about whether or not to introduce that.” 

¶ 14 Johnson’s counsel reiterated his prior objections, that the trial 

court was impermissibly forcing Johnson to make a Hobson’s 

choice between excluding constitutionally inadmissible evidence or 

foregoing constitutionally permissible and potentially exculpatory 

evidence. Based on the trial court’s ruling, Johnson elected not to 

offer the evidence of Carrethers’s GSR test. In these circumstances, 

we cannot conclude that the trial court’s ruling was merely 

advisory. Nor, in our view, did Johnson waive or abandon his 

objections to the trial court’s ruling merely by abiding by it. Thus, 

we conclude that the issue is properly before us. 

¶ 15 Because Johnson preserved this issue, and it is of 

constitutional dimension, any error will require reversal unless it 
8

was harmless beyond a reasonable doubt. Krutsinger v. People, 219 

P.3d 1054, 1058 (Colo. 2009). To avoid reversal, the prosecution 

must establish that there is no reasonable possibility that the error 

might have contributed to the conviction. Hagos v. People, 2012 CO 

63, ¶ 11. 

B. Applicable Law

¶ 16 “Ordinarily, when police obtain evidence in violation of the 

Fourth Amendment, that evidence may not be introduced against 

the aggrieved individual in either a state or federal criminal 

prosecution.” People v. Gutierrez, 222 P.3d 925, 941 (Colo. 2009) 

(citing Mapp v. Ohio, 367 U.S. 643 (1961)). However, this rule, 

known as the exclusionary rule, is not without exceptions. One 

such exception is known as the impeachment exception, recognized 

in Walder v. United States, 347 U.S. 62 (1954). 

¶ 17 In Walder, the defendant was prosecuted for multiple counts 

of distribution of narcotics. Id. at 63. A couple of years earlier, the 

defendant had faced a narcotics possession charge, but that case 

was dismissed after a court ruled that the drugs had been illegally 

seized by the police. Id. at 62-63. While testifying at his trial on 

the later distribution charges, the defendant denied ever possessing 
9

any narcotics in the past. Id. at 63. On cross-examination, over 

the defendant’s objection, the prosecution inquired about the 

defendant’s prior possession charge. Id. at 64. The defendant 

denied that any narcotics had been found on him in that case. Id.

¶ 18 In rebuttal, the prosecution was permitted to present the 

testimony of one of the officers who had been involved in the prior 

unconstitutional seizure of the narcotics and of the chemist who 

had analyzed the improperly seized contraband. Id. The defendant 

was convicted and appealed, arguing that admission of the 

previously excluded evidence violated his constitutional right to be 

free from unreasonable searches and seizures. Id. 

¶ 19 The United States Supreme Court rejected the defendant’s 

challenge. The Court observed: 

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. 

Id. at 65. The Court ruled that the prior constitutional violation 

would not provide justification “for letting the defendant 
10

affirmatively resort to perjurious testimony in reliance on the 

Government’s disability to challenge his credibility.” Id. 

¶ 20 The Supreme Court later revisited this exception, providing 

clarity and boundaries to its application. In James v. Illinois, 493 

U.S. 307 (1990), the defendant, a suspect in a murder, was arrested 

while sitting under a hair dryer in his mother’s beauty parlor. Id. at 

309. When he was arrested, his hair was black and curly. Id. 

However, he told the officers that the previous day (the day of the 

murder) his hair had been reddish brown, long, and straight (which 

matched the description witnesses had provided of the murderer). 

Id. at 309-10. He also told them that he had gone to the beauty 

parlor to change his appearance. Id. at 309. 

¶ 21 Before trial, the trial court ruled that the officers had lacked 

probable cause to arrest the defendant and suppressed the 

defendant’s statements as fruits of that unlawful conduct. Id. at 

309-10. At trial, the defendant did not testify. However, he 

presented testimony of a family friend, who testified that on the day 

of the shooting the defendant’s hair had been black. Id. at 310. 

Over the defendant’s objection, the trial court permitted the 
11

prosecution to offer the defendant’s suppressed statements to 

impeach the friend’s credibility. Id. 

¶ 22 On appeal, the Illinois Appellate Court reversed the conviction, 

holding that the statements were improperly admitted. Id. But the 

Illinois Supreme Court reversed the intermediate appellate court, 

ruling that the impeachment exception ought to be expanded to 

permit impeachment of defense witnesses other than the defendant 

himself, and thus “deter the defendant from engaging in perjury ‘by 

proxy.’” Id. at 311. 

¶ 23 The United States Supreme Court disagreed. The Court 

recognized that the impeachment exception “further[s] the goal of 

truth-seeking by preventing defendants from perverting the 

exclusionary rule ‘into a license to use perjury by way of a defense.’” 

Id. at 652 (quoting United States v. Havens, 446 U.S. 620, 626 

(1980)). However, the Court clarified 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.” Id. at 652-53.
12

¶ 24 Ultimately, the Court declined to extend the impeachment 

exception to encompass the testimony of all defense witnesses for 

two reasons. First, the Court observed that “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 653. Second, 

expanding the 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. The 

Court was concerned that defendants would fear that a defense 

witness, “in a position to offer truthful and favorable testimony, 

would also make some statement in sufficient tension with the 

tainted evidence to allow the prosecutor to introduce that evidence 

for impeachment.” Id. 

¶ 25 Thus, the impeachment exception to the suppression rule 

permits the use of constitutionally excluded evidence to impeach a 

defendant’s own untruthful testimony. In this way, the exception 

“generally discourages perjured testimony without discouraging 

truthful testimony.” Id. 
13

C. Application

¶ 26 Understandably concerned that admission of Carrethers’s 

positive GSR test coupled with silence as to whether Johnson was 

also positive — or even tested at all — would potentially mislead the 

jury, the trial court sought to protect the truth-seeking function of 

the trial process by applying the impeachment exception. However, 

in doing so, the trial court expanded the impeachment exception 

even further than the Illinois Supreme Court’s ill-fated attempt to 

do so in James.4 The trial court erred. 

¶ 27 The effect of the trial court’s ruling was to chill Johnson’s 

presentation of truthful and favorable evidence. This is precisely 

the danger the Supreme Court protected against when it limited the 

scope of the impeachment exception in James. As the Supreme 

Court made clear in James, the exception does not permit the use 

of otherwise suppressed evidence to contradict obviously untruthful 

testimony, so long as such testimony is not provided by the 

 4 In our view, the Supreme Court in James spoke definitively 

regarding the constitutionally permissible extent of the Walder

exception to the exclusionary rule. It is not the place of an 

intermediate state appellate court to extend the reach of Walder

beyond the boundaries expressed in James. If such an extension is 

to be made, it must be made by a court higher than this one.
14

defendant himself. It necessarily follows that the exception cannot 

possibly permit the use of such evidence to counter truthful

testimony. 

¶ 28 Johnson should have been permitted to offer truthful evidence 

related to the GSR testing conducted on individuals other than 

Johnson without fear of opening the door to the unconstitutionally 

obtained evidence related to his GSR test.5 Yet, because of the trial 

court’s ruling, not only did the officers’ unconstitutional search 

improperly result in the collection of inculpatory evidence, it also 

effectively shielded potentially exculpatory evidence from use by the 

defense. Such a result falls far short of effectuating the “sole 

purpose” of the exclusionary rule, which is “to deter future Fourth 

Amendment violations.” Davis v. United States, 564 U.S. 229, 236-

37 (2011). Indeed, it arguably encourages future violations, by 

significantly softening the adverse impacts of an unconstitutional 

search by law enforcement. 

 5 We do not suggest that it would be proper for Johnson to ask the 

jury to infer from this evidence that he either was not tested or that 

he tested negative. However, Johnson’s counsel acknowledged that 

he had no intention of advancing such an argument.
15

¶ 29 Because the trial court misapplied the impeachment 

exception, we conclude that the court abused its discretion.

¶ 30 The People argue that any error was harmless “under any 

standard.” Again, we disagree. The People argue that evidence of 

GSR on Carrethers would likely have had little impact on the jury 

for several reasons: GSR is not conclusive proof of who actually 

fired a gun; there was a logical explanation for why Carrethers 

would have tested positive without having fired a gun; Carrethers’s 

purported motive to kill Griego was “not compelling”; Carrethers’s 

credibility was effectively attacked even without the GSR evidence; 

and the focus of defense counsel’s closing argument was not on 

Carrethers as an alternate suspect, but rather on whether the 

prosecution had failed to prove that Johnson killed Griego. The 

People’s argument, however, misapprehends the standard in this 

case. 

¶ 31 Having found error, and because that error implicates 

Johnson’s constitutional rights, we must reverse unless the People 

demonstrate beyond a reasonable doubt that there is no reasonable 

possibility the ruling impacted the verdict. Hagos, ¶ 11. Though 

the People correctly note that the GSR test is not conclusive, it is 
16

certainly sufficient grounds on which to base an inference that 

Carrethers fired a gun.6 Similarly, regardless of whether Johnson’s 

theory that Carrethers had a motive to kill Griego was compelling, it 

was at least one the jury may have found worthy of consideration. 

And although Johnson’s counsel had been able to attack 

Carrethers’s credibility, he was not permitted to fully explore the 

potential that she may have been an alternate suspect. Finally, the 

focus of defense counsel’s closing argument was necessarily a 

function of what evidence had been admitted. Had he been able to 

present Carrethers’s GSR results, his closing argument would likely 

have had a different focus. 

¶ 32 Under these circumstances, we conclude that there is a 

reasonable possibility that the trial court’s prophylactic ruling, 

which effectively precluded Carrethers’s GSR evidence, affected the 

verdict. At the very least, the prosecution has not carried its 

burden of proving otherwise. Thus, the error was not harmless 

 6 We note that GSR evidence was important enough to the 

prosecution that it vigorously defended against Johnson’s efforts to 

suppress his GSR test results. 
17

beyond a reasonable doubt. Johnson’s murder conviction must be 

reversed.

III. The Trial Court Did Not Err by Excluding Evidence That 

Carrethers Killed Her Husband

¶ 33 Johnson also contends that the trial court abused its 

discretion by excluding evidence that Carrethers murdered her 

husband, the only other person in the home the night Griego died. 

He argues that this ruling further undermined his ability to present 

his defense that Carrethers was an alternate suspect and violated 

his right to confront and cross-examine witnesses. Because this 

issue is likely to arise on remand, we address Johnson’s contention

but discern no abuse of discretion. 

A. Additional Facts

¶ 34 Approximately five weeks after Griego’s murder, Carrethers 

fatally stabbed her husband. Although Carrethers was initially 

arrested for first degree murder, the Adams County District 

Attorney’s Office did not file criminal charges because it concluded 

that Carrethers had acted in self-defense.7 Prior to Johnson’s trial, 

 7 The apartment in which both Griego and Carrethers’s husband 

were killed is in Arapahoe County. However, to avoid any 
18

the prosecution filed a motion in limine to preclude evidence 

regarding the husband’s death, asserting that it did not involve 

Johnson, did not result in criminal charges, and was irrelevant. 

Johnson objected, asserting that the nature and circumstances of 

the death might show that Carrethers testified at Johnson’s trial to 

avoid charges being filed against her for the killing. In addition, 

Johnson argued that, given alleged similarities between how the 

husband was killed and how Griego was killed, the evidence was 

relevant to his alternate suspect theory. 

B. Standard of Review

¶ 35 We review a trial court’s exclusion of evidence for an abuse of 

discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). 

Because the exclusion of this evidence did not entirely foreclose 

Johnson from presenting his alternate suspect theory, any error 

would not be one of constitutional dimension. See Krutsinger v. 

People, 219 P.3d 1054, 1062 (Colo. 2009) (rejecting the application 

 

appearance of a conflict of interest arising from the fact that 

Carrethers was a witness in the prosecution related to Griego’s 

murder, the matter was referred to a neighboring jurisdiction to 

independently determine whether Carrethers should be charged in 

the death of her husband. 
19

of constitutional harmlessness where an erroneous evidentiary 

ruling did not “effectively bar the defendant from meaningfully” 

presenting his defense). Thus, should we determine that the trial 

court abused its discretion, we reverse unless the error was

harmless. Hagos, ¶ 12. 

C. Applicable Law

¶ 36 A defendant pursuing an alternate suspect theory may 

introduce evidence of that suspect’s other acts to prove identity —

that the same person who committed the other act also committed 

the charged crime. People v. Elmarr, 2015 CO 53, ¶ 39. However, 

“an inference that the alternate suspect committed the other acts 

and the charged crime is permissible only where the prior acts and 

the charged crime share sufficient similar characteristics or 

details.” Id. “[T]he overarching relevance inquiry remains whether 

the evidence, taken collectively, establishes a non-speculative 

connection between the alternate suspect and the charged crime.” 

Id. at ¶ 40. Finally, “[e]ven relevant alternate suspect evidence may 

be excluded if its probative value is substantially outweighed by the 

danger of unfair prejudice, confusion of the issues, or misleading 

the jury . . . .” Id. at ¶ 43. 
20

D. Application

¶ 37 Johnson’s first argument against the People’s motion in limine 

was that the issue of Carrethers’s involvement in her husband’s 

death was relevant to impeaching her — that she may have had an 

incentive to testify favorably for the prosecution in order to avoid 

being prosecuted herself for the later homicide. We disagree. 

¶ 38 As the trial court noted, a defendant is generally allowed broad 

cross-examination of a prosecution witness with respect to that 

witness’s motive to testify where that witness is charged with or 

threatened with criminal prosecution for other offenses. See People 

v. King, 179 Colo. 94, 98, 498 P.2d 1142, 1144-45 (1972). 

However, at the time Carrethers testified, charges against her were 

neither pending nor threatened. Further, because the 

determination of whether to charge her was not made by the office 

prosecuting Johnson, there was no evidence to suggest that her 

testimony was bargained for by the prosecution in this case. 

Perhaps most importantly, as the trial court noted, Carrethers’s 

initial statements to law enforcement occurred five months before 

she killed her husband. Finally, Johnson’s contention that, 

because first degree murder has no statute of limitations, 
21

Carrethers may have been motivated to testify favorably for the 

prosecution in the hopes of preventing some future change of heart 

by the Adams County District Attorney is pure speculation. 

¶ 39 Thus, the trial court did not abuse its discretion in concluding 

that Carrethers’s involvement in the death of her husband was not 

relevant to her motive or bias in this case. 

¶ 40 The trial court also rejected Johnson’s argument that this 

evidence was relevant to his alternate suspect defense. Again, we 

perceive no abuse of discretion. 

¶ 41 The trial court noted certain similarities between the two 

incidents, including (1) the deaths occurred on the same couch in 

the same residence; (2) Carrethers moved or handled evidence after 

both deaths; and (3) both weapons were located under the couch 

cushion. However, the trial court noted that the husband’s death 

involved a claim of self-defense sufficiently compelling that no 

charges were filed. We further note that, even under Johnson’s 

theory, the killings were not similar; the motives for the two killings 

differed, as did the method of killing (Griego was shot, but 

Carrethers’s husband was stabbed). We agree with the trial court 

that Johnson failed to establish more than a speculative connection 
22

between Carrethers’s killing of her husband in self-defense and 

Greigo’s murder, and that the other acts evidence was “not 

distinctive or unusual enough” to support a finding that Carrethers 

was probably responsible for both crimes. Id. at ¶ 39 (quoting 

People v. Salazar, 2012 CO 20, ¶ 26). 

¶ 42 Finally, applying a CRE 403 analysis, the trial court concluded 

that evidence that Carrethers killed her husband carried a 

substantial danger of unfair prejudice, confusion of the issues, and 

misleading the jury. Here, too, we perceive no abuse of discretion 

in the trial court’s analysis and conclusion. 

¶ 43 Because the evidence related to the death of Carrethers’s 

husband was not probative for impeachment or for building an 

alternate suspect defense, and because any minimal relevance there 

may have been was far outweighed by the danger of unfair 

prejudice, the trial court did not abuse its discretion in preventing 

Johnson from presenting this evidence to the jury. 

IV. The Trial Court Did Not Err by Admitting Alleged Hearsay

¶ 44 Johnson claims that the trial court erred by admitting 

evidence of statements Carrethers claimed she heard Griego make. 

Despite our conclusion that Johnson’s first degree murder 
23

conviction must be reversed, we nevertheless review this contention 

because it is at least in part aimed at Johnson’s conviction for 

menacing as well. We discern no basis for reversal. 

A. Additional Facts

¶ 45 In a written motion, the prosecution sought to admit under 

CRE 807 certain statements Carrethers said she heard Griego utter. 

Specifically, the motion identified the following statements. 

• “If you hit me again, I’m going to call the police, you said 

you weren’t going to hit me”;

• “I don’t know them,” (said about Eva and Pasquale on the 

evening of the murder, after Johnson had pointed the 

gun at Eva); and

• “Oh my god, what are you doing?”, after which 

Carrethers heard Johnson respond, “shut up” and then 

heard two gunshots.

¶ 46 Johnson opposed the motion, arguing that admission of the 

evidence would violate his rights under Colorado’s Confrontation 

Clause. After a hearing, the trial court overruled Johnson’s 

objection and granted the prosecution’s motion. 
24

¶ 47 At trial, the statements came into evidence through the video 

recording of Carrethers’s interview with police and testimony from a 

police officer about that video. In the video recording, Carrethers 

also said that Griego had previously told her that Johnson had 

threatened to kill her. 

B. Standard of Review

¶ 48 We review evidentiary rulings for an abuse of discretion. 

Nicholls v. People, 2017 CO 71, ¶ 17. Because Johnson preserved 

these issues, we will determine if any error requires reversal by 

applying the harmless error test. Id. Under this test, “[i]f a 

reviewing court can say with fair assurance that, in light of the 

entire record of the trial, the error did not substantially influence 

the verdict or impair the fairness of the trial, the error may properly 

be deemed harmless.” People v. Gaffney, 769 P.2d 1081, 1088 

(Colo. 1989). 

¶ 49 We review de novo a defendant’s claim that the trial court 

violated his Confrontation Clause rights, applying the constitutional 

harmless error standard to any error. Nicholls, ¶ 17 (citing Bernal

v. People, 44 P.3d 184, 198 (Colo. 2002)). 
25

C. Applicable Law

¶ 50 Colorado’s constitutional protection of the right to confront 

witnesses applies only to testimonial statements. Id. at ¶ 33. A 

testimonial statement is one made “under circumstances that 

would lead an objective witness reasonably to believe that the 

statement would be available for use at a later trial.” Id. at ¶ 22 

(citing Crawford v. Washington, 541 U.S. 36, 51-53 (2004)). 

¶ 51 “‘Hearsay’ is a statement other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence 

to prove the truth of the matter asserted.” CRE 801(c). 

D. Application

¶ 52 As a threshold matter, we note that none of the statements 

Johnson challenges is testimonial. None of them was made to law 

enforcement, and none appears to have been made by Griego with 

an eye toward future use in court.8 Thus, Colorado’s Confrontation 

Clause is not implicated by any of these statements. 

 8 It is important to note that the testimonial inquiry is focused on 

the circumstances under which the declarant (i.e., Griego) made the 

statement. Nicholls v. People, 2017 CO 71, ¶ 33. Whether or not 

Carrethers made her statements to police understanding they 

would be used in court is irrelevant to this inquiry; because 
26

¶ 53 Nor is the hearsay rule implicated by at least some of the 

statements. For example, Griego’s statement that she did not know 

Eva and Pasquale was clearly not offered for the truth of the matter

asserted; the prosecution’s case assumed that she knew them. And 

her exclamation “Oh my god, what are you doing?” is not a 

declarative statement because there is no assertion being made. 

Because these statements were not hearsay, their admission was 

not evidentiary error.9 

¶ 54 Another of the statements, although not containing a direct 

assertion, may nevertheless meet the definition of hearsay. When 

Griego told Johnson, “If you hit me again, I’m going to call the 

police, you said you weren’t going to hit me,” she was at least 

implying that Johnson had hit her in the past. An implied 

assertion may qualify as a hearsay statement if the statement “was 

intended [by the out-of-court witness] to imply to the testifying 

witness a separate fact in question at trial.” People v. Griffin, 985 

 

Carrethers was present in the courtroom and subject to crossexamination about her statements to the police, her testimony 

presents no confrontation issue. 9 We may affirm an evidentiary ruling on any ground supported by 

the record. People v. Brown, 2014 COA 155M-2, ¶ 15. 
27

P.2d 15, 17-18 (Colo. App. 1998). Because we cannot tell from the 

record whether Griego intended Carrethers to overhear the 

statement and infer that Johnson was hitting her, we will assume 

this statement was an implied assertion. 

¶ 55 The final challenged statement — i.e., that Griego told 

Carrethers that Johnson threatened to kill Griego — was clearly 

hearsay. 

¶ 56 Nevertheless, we need not resolve whether these two 

statements were erroneously admitted under CRE 807. Neither the 

threat to Griego nor the implied assertion that Johnson had hit 

Griego in the past had any bearing on the allegation that Johnson 

pointed a gun at Eva. Thus, because these statements would have 

had no impact on the jury’s guilty verdict on the menacing charge, 

any error that may have occurred by admitting the statements was 

harmless.10 

 10 The statements are relevant to the murder conviction. However, 

because hearsay analysis is inherently a fact-specific and contextdriven one, and because we cannot predict the context in which this 

evidence may, if at all, arise on retrial of that charge, we do not 

address Johnson’s contention as it relates to the murder charge. 
28

¶ 57 Thus, we conclude that there is no basis to reverse the 

menacing conviction. 

V. Conclusion

¶ 58 Johnson’s conviction for menacing is affirmed. His conviction 

for first degree murder is reversed, and the case is remanded for a 

new trial on that charge. 

JUDGE BERGER concurs.

JUDGE TAUBMAN concurs in part and dissents in part. 
29

JUDGE TAUBMAN, concurring in part and dissenting in part.

¶ 59 This case presents the question of whether a defendant in a 

criminal case may retain the benefits of an evidentiary ruling in his 

favor concerning gunshot residue (GSR) when he proposes to 

introduce GSR evidence found on the woman in whose home the 

victim was killed. 

¶ 60 Resolving this issue requires us to analyze two United States 

Supreme Court cases addressing whether a defendant in a criminal 

case may use the Fourth Amendment as both a sword and a shield

— that is, to exclude evidence obtained in violation of the Fourth 

Amendment and then use the exclusion of that evidence to permit 

the introduction of other evidence the defendant considers 

necessary to present a complete defense. Resolution of this issue 

also requires us to analyze the applicability of the “opening the 

door” doctrine, which permits a court to allow the introduction of 

otherwise inadmissible evidence to prevent a party from gaining an 

unfair advantage or misleading the jury.

¶ 61 Because I conclude that the trial court properly ruled that 

defendant, Elmo Jesse Johnson, could not use the Fourth 

Amendment as both a sword and a shield, I would affirm his 
30

judgment of conviction entered on a jury verdict finding him guilty 

of both first degree murder and felony menacing. However, I agree 

with the majority’s rejection of his contentions that the trial court 

erred in excluding alternate suspect evidence and allowing certain 

statements that Johnson contends were inadmissible hearsay. 

I. Background and Procedural Posture

¶ 62 As a preliminary matter, I agree with and, thus, adopt the 

majority’s recitation of the factual background. I also agree that the 

matter is properly before us. Supra ¶ 14. However, I provide a 

more detailed background where necessary to support my analysis.

II. Opening the Door

¶ 63 Johnson contends that the trial court erred in warning him 

that, if he presented GSR evidence found on his sister, Toni 

Carrethers, he would open the door to allow the prosecution to 

introduce the GSR evidence suppressed by the trial court under the 

exclusionary rule. He asserts that this ruling forced him to choose 

between exercising two constitutional rights — the right to present 

a complete defense and his right to exclude evidence seized in 

violation of the Fourth Amendment. I disagree.
31

A. Additional Facts

¶ 64 Crime scene investigators swabbed Johnson’s hands and face 

without a warrant while he lay unconscious in the hospital. The 

swabs collected tested positive for GSR, as did swabs collected from 

Carrethers and the mother of Danielle Griego, Johnson’s girlfriend. 

The trial court granted Johnson’s motion to suppress the evidence 

collected from him because investigators violated his Fourth 

Amendment rights by obtaining it without a warrant. However, the 

court ruled that it “will not permit [Johnson] to use the Fourth 

Amendment as both a shield and a sword.” Thus, it repeatedly 

warned Johnson that, if he intended to present evidence that 

Carrethers had tested positive for GSR, such evidence would open 

the door and permit the prosecutor to introduce the otherwise 

suppressed GSR evidence found on Johnson. The trial court later 

elaborated by stating that its concern was the defense misleading 

the jury into believing either that Johnson was never tested or that, 

if he was tested, no GSR was found on his body. 

¶ 65 However, the trial court invited the defense to propose 

alternative ways to preserve both the suppression of the GSR found 

on Johnson and Johnson’s right to present a complete defense. It 
32

announced that, if the defense still intended to introduce evidence 

of the GSR found on Carrethers, it could propose a strategy to do so

in a motion in limine. In response, the defense, at a hearing on 

Johnson’s motion in limine, proposed the following:

Judge, we would recall [the crime scene 

investigator, Maria] Pettolina [a witness for the 

prosecution,] and we would ask CSI Pettolina if 

she conducted a — or collected a sample for 

[GSR] testing. We would then call [the 

analyst]. We would elicit from [the analyst] the 

fact that Toni Carrethers was positive for GSR 

or for gunshot residue.

The People responded that, if the defense elicited this testimony 

from Pettolina and the analyst, “the People will inquire as to 

whether samples were also collected from Griego’s mother and 

[three] others, which we don’t want to do that, because that even 

begs the question even more if the jury hears about every single 

collection of GSR but for the defendant.” The trial court agreed that 

allowing the jury to hear testimony that Carrethers and three others 

were tested would likely lead the jury to ask whether Johnson was 

also tested. Thus, ruling on the motion in limine, the court 

concluded that the defense’s proposed witness testimony would

open the door to the admission of the previously excluded evidence 
33

of GSR on Johnson. Consequently, it held that not allowing the 

People to rebut the defense’s proposed GSR testimony would 

mislead the jury.

B. Standard of Review and Preservation

¶ 66 We review a trial court’s determination of whether a party 

opened the door to responsive actions by the opposing party for an 

abuse of discretion. People v. Lesney, 855 P.2d 1364, 1366–67 

(Colo. 1993). However, the broader question of whether a defendant 

can open the door to evidence otherwise barred by the exclusionary 

rule raises a question of law that we review de novo. See People v. 

Melillo, 25 P.3d 769, 777 (Colo. 2001). 

C. Applicable Law

¶ 67 A defendant may not employ the Fourth Amendment’s 

exclusionary rule as both a sword and a shield. See Walder v. 

United States, 347 U.S. 62, 65 (1954). As the Walder Court stated:

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 
34

extension . . . would be a perversion of the 

Fourth Amendment.

Id. 

¶ 68 The issue before us is whether Walder, James v. Illinois, 493 

U.S. 307 (1990), or some combination of the two applies to 

Johnson’s desire to introduce evidence of GSR found on Carrethers, 

and whether the introduction of such evidence would open the door 

to allow the prosecution to introduce evidence otherwise excluded 

by the exclusionary rule. 

¶ 69 Courts sometimes allow admission of otherwise inadmissible 

evidence when one party “opens the door” to such evidence by 

introducing evidence that would allow the party to gain an unfair 

advantage or mislead the jury. People v. Murphy, 919 P.2d 191, 

195 (Colo. 1996). In Walder, 347 U.S. 62, the Supreme Court 

carved out an exception to the exclusionary rule to prevent a 

defendant from using a favorable Fourth Amendment ruling to allow 

him to present misleading or untrue evidence to the jury. Although 

the Supreme Court did not use the phrase “opening the door,” its 

decision was based on that principle. Under the Walder exception, 

a prosecutor may introduce suppressed evidence to impeach a 
35

defendant who attempts to distort the purpose of the exclusionary 

rule by deploying it as a “license to use perjury by way of a 

defense.” United States v. Havens, 446 U.S. 620, 626 (1980)

(quoting Harris v. United States, 401 U.S. 222, 226 (1971)). 

However, it carefully limited its holding to ensure it did not extend 

to instances in which the prosecution attempts “to smuggle [tainted 

evidence] in on cross-examination” by baiting a defendant into 

impeaching himself or herself.1 Id. (quoting Walder, 347 U.S. at 

66). 

¶ 70 In James, 493 U.S. 307, the Supreme Court further limited its 

holding in Walder. Unlike in Walder, it concluded that a prosecutor 

 1 As the Walder court noted: 

The situation here involved is to be sharply 

contrasted with that presented by Agnello v. 

United States, 269 U.S. 20 [(1925)]. There, the 

Government, after having failed in its efforts to 

introduce the tainted evidence in its case in 

chief, tried to smuggle it in on crossexaminaton by asking the accused the broad 

question “Did you ever see narcotics before?” 

After eliciting the expected denial, it sought to 

introduce evidence of narcotics located in the 

defendant’s home by means of an unlawful 

search and seizure, in order to discredit the 

defendant. 

Walder v. United States, 347 U.S. 62, 66 (1954) (footnote omitted).
36

could not introduce evidence suppressed under the exclusionary 

rule to impeach a defense witness rather than the defendant. In so 

doing, the James Court allowed a defendant to introduce “probative 

and exculpatory evidence” from a defense witness, while 

discouraging perjury. Id. at 314. 

¶ 71 Both Walder and James promote the balancing of the 

judiciary’s truth-seeking function against the exclusionary rule’s 

protections for the defendant and deterrence of unconstitutional 

police conduct. See People v. Trujillo, 49 P.3d 316, 323 (Colo. 

2002).

¶ 72 In LeMasters v. People, the supreme court recognized the 

applicability of Walder but declined to apply its reasoning to the use 

of suppressed evidence for impeachment purposes when the 

evidence suppressed was not directly connected to the testimony 

the prosecutor sought to impeach. 678 P.2d 538, 543 (Colo. 1984). 

Thus, the issue the majority and I address today has not been 

decided by Colorado’s appellate courts.

D. Analysis

¶ 73 The circumstances here fall somewhere between those in 

Walder and those in James. The suppressed evidence here would 
37

have been introduced through neither the defendant nor a defense 

witness — yet, I would hold that the underlying premise of both 

cases applies. The exclusionary rule demands that illegally 

obtained evidence remain suppressed unless a defendant uses its 

unavailability to frustrate or obfuscate the court’s truth-seeking 

function.

¶ 74 I conclude that the Walder exception to the exclusionary rule 

applies to the narrow circumstances of this case. Here, the defense 

proposed to recall a witness for the prosecution, not a defense 

witness (as in James), to introduce GSR evidence found on 

Carrethers. 

¶ 75 The defense’s argument at the hearing on its motion in limine 

demonstrates the distinctions between this case and James. Had 

the defense questioned prosecution witness Pettolina and the

analyst about the GSR found on Carrethers, the prosecutor would 

have asked whether GSR samples were collected from others. Such 

evidence, without an admission that GSR evidence was also 

collected from Johnson, carried the potential to lead the jury to 

believe that Johnson was not tested or had tested negative for GSR. 
38

¶ 76 Thus, I conclude that James is distinguishable from the 

present case.2 In James, the prosecution impeached an eyewitness 

for the defense by introducing police officer testimony about a 

statement made by the defendant during the investigation of the 

charged crime that had been suppressed. The James Court 

reasoned that the truth-seeking rationale relied on to impeach the 

defendant in Walder “does not apply to other [defense] witnesses 

with equal force,” because the threat of subsequent criminal 

prosecution for perjury already deters defense witnesses from lying. 

James, 493 U.S. at 317. It added that to broaden the Walder 

exception to encompass the impeachment of other defense 

witnesses would provide an incentive for law enforcement officers to 

illegally obtain evidence without furthering the truth-seeking 

function of the court and “dissuade defendants from presenting a 

meaningful defense through other witnesses.” Id. at 317–20. 

 2 I respectfully disagree with the majority’s assertion that James 

unequivocally applies and that only a higher court may conclude 

otherwise. As discussed above, in my view, neither Walder nor 

James is directly on point. When this is the case, we distinguish 

relevant cases, including decisions of the United States Supreme 

Court, to reach what we believe to be a proper analysis and result.
39

¶ 77 In James, the Court rejected the theory of “perjury by proxy,” 

stating that allowing one witness to testify contrary to another 

witness’s testimony would not further the truth-seeking function 

because defense witnesses have far less incentive to perjure 

themselves than defendants, who are already faced with a possible 

criminal conviction. The same concerns of perjury would not likely 

arise in circumstances — like those presented here — when a 

witness for the prosecution, recalled by the defense, testifies. Thus, 

I conclude that the James decision rationale does not extend 

beyond the impeachment of defense witnesses’ testimony and does 

not govern the circumstances presented here.

¶ 78 Rather, the focus in this case is whether the introduction of 

some physical evidence would mislead the jury to believe that other

physical evidence was either not searched for or not found. As 

Justice Stevens observed in his concurring opinion in James, the 

issue “is whether the admission of the illegally obtained evidence in 

this case would sufficiently advance the truth-seeking function to 

overcome the loss to the deterrent value of the exclusionary rule.” 

Id. at 320. Although Justice Stevens answered that question in the 

negative in James, I conclude the balance tips the other way here. 
40

¶ 79 Here, the defense’s presentation of GSR evidence found on 

Carrethers would allow the jurors to believe something that both 

parties knew was not true. Therefore, the court’s truth-seeking 

function tilts the scale toward permitting the prosecution to 

introduce GSR evidence that had been previously excluded by the 

trial court to avoid misleading the jury. 

¶ 80 I acknowledge Johnson’s argument that he was presented with 

a Hobson’s choice between effectuating his constitutional right to 

present a complete defense and enforcing an exclusionary rule 

decision in his favor. However, the trial court did not preclude the 

introduction of GSR evidence found on Carrethers. Rather, it 

warned him that, if he chose to introduce it in a manner that would 

mislead the jury, the prosecution would be allowed to admit the 

suppressed GSR evidence found on Johnson in rebuttal. 

¶ 81 I conclude that Johnson knowingly surrendered any right to 

present the GSR evidence on Carrethers. See Jeffers v. United 

States, 432 U.S. 137, 153 n.21 (1977) (stating that an “alleged 

Hobson’s choice between asserting the Sixth Amendment fair trial 

right and asserting the Fifth Amendment double jeopardy claim is 

illusory”; had the defendant chosen an alternative strategy, the 
41

outcome may have been different). As discussed, GSR was collected 

from Carrethers, Griego’s mother, and Johnson. Thus, it is not 

clear what the GSR found on Carrethers would show other than 

that she had touched the gun used to kill Griego, which was a fact 

already admitted. This suggests that the GSR found on Carrethers

was not critical to enable Johnson to present a complete defense. 

¶ 82 Rather than a Hobson’s choice, this situation presented 

counsel with a tactical decision — whether the presentation of the 

GSR evidence found on Carrethers outweighed the prejudice of 

admitting the otherwise excludable GSR evidence. Counsel 

presumably decided, as he had the discretion to do, that such a 

risk would not have benefitted Johnson. See Dooly v. People, 2013 

CO 34, ¶ 7, 302 P.3d 259, 262 (“While we have often noted that trial 

counsel is generally accepted to be the ‘captain of the ship’ with 

regard to tactics and matters of trial strategy, we have at the same 

time made clear that he must always apply his professional 

experience in making these tactical choices to effectively represent 

the interests of his client . . . .”). As the supreme court has noted, 

“A defendant may constitutionally be required to make difficult 
42

strategic choices . . . .” People v. Skufca, 176 P.3d 83, 88 (Colo. 

2008).

¶ 83 Moreover, contrary to Johnson’s contention, the trial court’s 

ruling regarding the admissibility of the otherwise suppressed GSR

evidence found on Johnson did not prevent him from presenting an 

alternate suspect defense. The trial court’s ruling meant only that 

he could not present the GSR evidence without also allowing the 

suppressed evidence to be admitted. 

¶ 84 Accordingly, in my view, Johnson was deprived of neither his 

Fourth Amendment right nor his right to present a complete 

defense. 

III. Admission of Hearsay Statements

¶ 85 I agree with the majority’s conclusion that the two statements 

“Oh my god, what are you doing?” and “I don’t know them” were not 

hearsay. However, I write separately because I would also affirm 

the trial court’s admission of “If you hit me again, I’m going to call 

the police, you said you weren’t going to hit me” and the final 
43

challenged statement — that Griego told Carrethers that Johnson 

threatened to kill Griego.3

A. Standard of Review

¶ 86 We review the trial court’s ruling admitting evidence under an 

exception to the rule against hearsay for an abuse of discretion. 

People v. McFee, 2016 COA 97, ¶ 17, 412 P.3d 848, 855. “A court 

abuses its discretion when its decision is manifestly arbitrary, 

unreasonable, or unfair, or is based on an erroneous understanding 

or application of the law.” Id. (citation omitted).

B. Applicable Law and Analysis

¶ 87 The rules of evidence permit the court, in its discretion, to 

admit certain statements, not subject to the hearsay exceptions 

under CRE 803 and 804, that would otherwise constitute 

inadmissible hearsay if the statements offer sufficient guarantees of 

trustworthiness. CRE 807. To determine the admissibility of a 

statement under CRE 807, the supreme court has established five 

prerequisites:

 3 Because the majority reverses the murder conviction, it does not 

address the admissibility of those statements with respect to that 

charge.
44

[1] [T]he statement is supported by 

circumstantial guarantees of trustworthiness; 

[2] the statement is offered as evidence of 

material facts; [3] the statement is more 

probative on the points for which it is offered 

than any other evidence which could be 

reasonably procured; [4] the general purposes 

of the rules of evidence and the interests of 

justice are best served by the admission of the 

statement; and [5] the adverse party had 

adequate notice in advance of trial of the 

intention of the proponent of the statement to 

offer it into evidence.

Vasquez v. People, 173 P.3d 1099, 1106 (Colo. 2007) (quoting 

People v. Fuller, 788 P.2d 741, 744 (Colo. 1990)). “The proponent 

must establish circumstantial guarantees of trustworthiness by a 

preponderance of the evidence.” People v. Preciado-Flores, 66 P.3d 

155, 164 (Colo. App. 2002). “In considering the trustworthiness of 

a statement, courts should examine the nature and character of the 

statement, the relationship of the parties, the probable motivation 

of the declarant in making the statement, and the circumstances 

under which the statement was made.” People v. Jensen, 55 P.3d 

135, 139 (Colo. App. 2001). 

¶ 88 I agree with the trial court’s analysis that the statements at 

issue were made to Carrethers during the course of her close 

relationship with Griego; thus, she had no reason to fabricate them. 
45

I disagree with Johnson’s argument that Carrethers fabricated the 

statements to avoid charges against her for killing her husband. No 

evidence suggested that Carrethers would be charged with her 

husband’s death because the Adams County District Attorney’s 

Office had concluded that Carrethers had acted in self-defense. 

Further, she was a hostile witness for the prosecution, claiming 

that she did not recall the statements she had previously told 

detectives. Because the statements satisfy the five prerequisites 

established in Fuller, I would hold that the trial court properly 

admitted them.

IV. Conclusion

¶ 89 Accordingly, I concur in the decision affirming Johnson’s 

conviction for menacing, but I dissent in part because I would also 

affirm his conviction for first degree murder.