Appeal by defendant from judgment entered 19 December 2006 by
Judge Ripley E. Rand in Durham County Superior Court. Heard in the
Court of Appeals 19 February 2008.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Benjamin Dowling-Sendor, for defendant-appellant.
Roy Oswald Bodden (defendant) appeals a judgment entered
upon a jury verdict finding him guilty of second-degree murder of
Nathan Alston (the victim). We find no error.
On 2 February 2004, Lathan Smith (Smith) and the victim
obtained drugs from one of defendant's drug suppliers for the
purpose of selling drugs for defendant. Instead of selling the
drugs, Smith and the victim personally used them. Later, at a
store adjacent to an Amoco gas station (the gas station store),
defendant asked Smith whether he had seen the victim. At the time,
defendant was unaware that the victim was also at the gas station
store. When the victim appeared, defendant confronted him.
Defendant told the victim, you better get my money. The
defendant also told the victim he would be right back and left thegas station store. About an hour later, defendant and Michael
Goldston (Goldston) returned to the gas station store looking for
the victim. When the victim noticed defendant and Goldston, he
started running down the sidewalk. The victim was shot five times
in front of his apartment building in Durham, North Carolina around
midnight on 3 February 2004.
Durham City Police Officer A. M. Cristaldi (Officer
Cristaldi) responded to a dispatch call just after midnight.
Officer Cristaldi arrived at the victim's apartment at 2507 South
Roxboro Street in Durham, North Carolina. Officer Cristaldi found
the victim bleeding, lying on the floor and screaming for help.
Officer Cristaldi asked the victim who shot him. The victim told
the officer he was shot outside in the parking lot and he did not
know who the shooter was, but the defendant was with him. The
victim was transported by ambulance to the emergency room at Duke
Hospital. Durham City Police Officer Dana Keith (Officer Keith)
spoke to the victim at the hospital. When Officer Keith asked the
victim who shot him, the victim told him Roy shot him. Officer
Keith asked if Roy's last name was Bodden. The victim answered
affirmatively. The victim died from the gunshot wounds. Defendant
was charged with first-degree murder of the victim.
On 4 December 2006, defendant was tried in Durham County
Superior Court before the Honorable Ripley E. Rand. Defendant
filed a pre-trial motion in limine to exclude the victim's
statements to Officers Cristaldi and Keith. Defendant's motion was
denied. At trial, the State presented evidence regarding how thevictim was shot. Smith testified that defendant and Goldston
started shooting at the victim after he ran from the gas station
store. Pamela Page (Page), an acquaintance of the victim,
testified she was at the gas station store the night the victim was
shot. Page heard defendant tell the victim he was tired of taking
his shit and stuff. Page also heard the defendant say to the
victim, Man, I'm going to get you, I'll kill you. After
defendant left the gas station, Page and the victim walked together
down a sidewalk. When Page and the victim separated, only the
victim continued walking down the sidewalk. Page then heard
gunshots coming from the victim's apartment building that was
located near the gas station.
The trial court instructed the jury on first-degree murder,
second-degree murder, aiding and abetting, and acting in concert.
On 13 December 2006, the jury returned a verdict finding defendant
guilty of second-degree murder of the victim. Defendant was
sentenced to a minimum term of 189 months and a maximum term of 236
months in the North Carolina Department of Correction. Defendant
I. Admissibility of Evidence: The Nine-Millimeter Bullet
 Defendant argues the trial court committed reversible
error by admitting a nine-millimeter bullet found near the scene of
the crime because there was no evidence that the bullet was
connected to the crime. We agree that the trial court's admission
of the nine-millimeter bullet was error, however we disagree that
this error was prejudicial. Pursuant to North Carolina Rule of Evidence 401, relevant
evidence means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence. State v. Grant
, 178 N.C. App. 565, 573, 632 S.E.2d 258,
265 (2006) (quoting N.C. Gen. Stat. § 8C-1, Rule 401 (2005))
(internal brackets and quotations omitted). Although a trial
court's rulings on relevancy are not discretionary and we do not
review them for an abuse of discretion, we give them great
deference on appeal. Id.
(citing State v. Streckfuss
, 171 N.C.
App. 81, 88, 614 S.E.2d 323, 328 (2005)).
Items that are not connected to the crime charged and which
have no logical tendency to prove any fact in issue are irrelevant
and inadmissible. State v. Wallace
, 104 N.C. App. 498, 502, 410
S.E.2d 226, 228-29 (1991). For example, in State v. Patterson
N.C. App. 650, 653, 297 S.E.2d 628, 630 (1982), where a robbery was
committed with a small handgun, admission of a sawed-off shotgun
into evidence was error. However, in State v. Burke
, 342 N.C. 113,
119, 463 S.E.2d 212, 216 (1995), a forty-four caliber handgun with
a box of forty-four caliber bullets found in a dumpster were
relevant and admissible where the defendant admitted he owned a
forty-four caliber handgun.
Here, three bullets from the same revolver were removed from
the victim's body. According to Agent Thomas Trochum with the
State Bureau of Investigation, the bullets used to shoot the victim
were either .38 or .357 caliber bullets. The day after theshooting, the police canvassed the area around the gas station and
recovered a nine-millimeter bullet near the mailbox of apartment
building 2519, which is approximately halfway between the gas
station store and the victim's apartment. This bullet came from a
semi-automatic weapon, but it was not the same weapon as the one
that fired the bullets that were removed from the victim's body.
The State argues admission of the nine-millimeter bullet was
not error because there was some evidence presented that two
shooters and two guns were involved in the shooting. However, the
issue is whether the admission of the nine-millimeter bullet tends
to prove a fact of consequence at issue in the case. Grant, supra.
The fact at consequence is defendant's connection with the crime
charged. In the absence of evidence connecting the nine-millimeter
bullet to the victim or to defendant, the bullet does not have any
tendency to prove that the defendant committed the crime.
Even if the admission of the nine-millimeter bullet was
error, in order to reverse the trial court, the appellant must
establish the error was prejudicial. N.C. Gen. Stat. § 15A-1443(a)
(2007) (defendant must show there is a reasonable possibility a
different result would have occurred but for the error). If the
other evidence presented was sufficient to convict the defendant,
then no prejudicial error occurred. State v. Sierra,
335 N.C. 753,
762, 440 S.E.2d 791, 796 (1994).
The State asserts admission of the evidence, if error, was not
prejudicial because the State presented overwhelming evidence that
defendant acted in concert with Goldston. We agree. We concludethat admission of the nine-millimeter bullet, although irrelevant,
does not amount to prejudicial error, because there is no
reasonable possibility that admission of the bullet contributed to
the defendant's conviction considering the other evidence
presented. Witnesses testified that defendant was at the scene of
the murder, argued with the victim before the shooting, and
threatened to kill the victim. Furthermore, the victim identified
the defendant as the person who shot him. We conclude there was no
II. Admissibility of Evidence: Reference to Gang Activity
A trial court's rulings on relevancy are not discretionary and
not reviewed under an abuse of discretion standard, however such
rulings are given great deference on appeal. Wallace
, 104 N.C.
App. at 502, 410 S.E.2d at 228. The standard of review on
admission of relevant evidence is abuse of discretion. Id.
410 S.E.2d at 229.
 Defendant contends admitting the testimony of a
prosecution witness that he was afraid to testify for fear of
gangs, and the prosecutor's reference to that testimony during
closing arguments constituted prejudicial error.
The State argues defendant waived his right to object to
admission of this testimony because the State's witness Derrick
Trice (Trice) testified to Goldston's involvement in gang
activity without an objection by the defendant. State v. Whitley
311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984) (Where evidence is
admitted over objection, and the same evidence has been previouslyadmitted or is later admitted without objection the benefit of the
objection is lost.). Further, the State contends because this
evidence was previously admitted, allowing repetition of the
evidence by the State in closing arguments was not an abuse of
discretion. We agree.
Trice testified on direct examination that he was afraid to
testify because the defendant may be involved with certain
activities, gangs, and, you know, I have family . . . that's my
first priority is to protect my family. Defendant did not object.
However, defendant objected to Durham Police Investigator Anthony
Smith's later testimony that Trice was reluctant to testify because
he was afraid of gangs in the area. Defendant lost the benefit of
his objection because the same evidence was previously admitted
without objection. Whitley, supra.
The standard of review for assessing alleged improper closing
arguments that fail to provoke timely objection from opposing
counsel is whether the remarks were so grossly improper that the
trial court committed reversible error by failing to intervene ex
. See State v. Jones
, 355 N.C. 117, 133, 558 S.E.2d 97,
107 (2002) (citing State v. Trull
, 349 N.C. 428, 451, 509 S.E.2d
178, 193 (1998), cert. denied
, 528 U.S. 835, 120 S.Ct. 95, 145 L.
Ed. 2d 80 (1999)).
At closing arguments, the State referenced Trice's testimony
that he was afraid to testify because [h]e knew what was going on
in the neighborhood. Defendant did not object to this portion ofthe State's closing argument. We conclude these remarks do not
rise to the level of gross impropriety.
The decision by a trial court to overrule an objection to a
closing argument is reviewed under an abuse of discretion standard.
, 355 N.C. at 131, 558 S.E.2d at 106. In order to assess
whether a trial court has abused its discretion when deciding a
particular matter, this Court must determine if the ruling 'could
not have been the result of a reasoned decision.' Id.
at 131, 558
S.E.2d at 106 (quoting State v. Burrus
, 344 N.C. 79, 90, 472 S.E.2d
867, 875 (1996)). This Court determines first whether the remarks
were improper and, second, if so, whether they were prejudicial.
Defendant timely objected to the State's reference to gang
activity during closing arguments. The prosecutor stated, Did you
hear why Derrick Trice didn't want to come to court? Do you
remember that? Because he was afraid for his family because he knew
about the drugs and the gangs in there. We conclude the trial
court did not abuse its discretion in overruling defendant's
objection to these remarks. This statement is an accurate
representation of Trice's testimony, which was admitted without
objection earlier during trial. This assignment of error is
III. Dying Declaration
 Defendant argues the trial court erred in admitting the
victim's statements in the apartment and in the emergency room
because the statements do not qualify as dying declarations and are
barred under the Confrontation Clause of the Sixth Amendment. We
A. Requirements to Admit a Dying Declaration
The standard of review for admission of evidence over
objection is whether it was admissible as a matter of law, and if
so, whether the trial court abused its discretion in admitting the
evidence. State v. Bell
, 164 N.C. App. 83, 88, 594 S.E.2d 824, 827
(2004). The North Carolina Rules of Evidence permit admission of
certain out-of-court statements that would otherwise be
inadmissible hearsay statements where such statements meet the
following requirements, in pertinent part:
(b) Hearsay exceptions.--The following are not
excluded by the hearsay rule if the declarant
is unavailable as a witness:
. . . .
(2) Statement Under Belief of Impending
Death.--A statement made by a declarant while
believing that his death was imminent,
concerning the cause or circumstances of what
he believed to be his impending death.
N.C. Gen. Stat. § 8C-1, Rule 804(b)(2) (2007).
The requirements for a dying declaration are: (1) at the time
declarant made the statements, the declarant was in actual danger
of death; (2) declarant had full apprehension of the danger; (3)
death occurred; and (4) declarant, if living, would be a competent
witness to testify to the matter. State v. Richardson
, 308 N.C.470, 486, 302 S.E.2d 799, 808-09 (1983) (dying declaration properly
admitted where declarant repeatedly told police officers I am
dying; somebody please help me).
Defendant argues the victim's statements to the police
officers do not satisfy the requirements for a dying declaration
because the victim did not believe his death was imminent.
Defendant asserts the fact that the victim did not identify
Goldston as the shooter indicates he was afraid of retaliation by
Goldston, and therefore did not believe his death was imminent.
We disagree and conclude the trial court did not abuse its
discretion in admitting this evidence. The trial court found that
about three and a half minutes after the victim called 911, he told
his mother that he was going to die. The victim had been shot five
times and was bleeding. He was taken to the hospital, received
medical treatment in the emergency room, and later died the same
day. The circumstances surrounding the victim's statements support
the requirements for admission of a dying declaration. See State
, 302 N.C. 490, 496-97, 276 S.E.2d 338, 343 (1981)
([A]dmissibility of [dying] declarations is a decision for the
trial judge, and appellate review is limited to the narrow question
of whether there is any evidence to show the prerequisites of
Defendant also argues that the victim's statements to the
police were conflicting and not credible. The victim first told
Officer Cristaldi that the defendant was with the shooter, and
later told Officer Keith that defendant shot him. Because theweight and credibility of evidence is for the jury to determine, we
overrule any assignment of error on those grounds. State v.
, 222 N.C. 266, 270, 22 S.E.2d 562, 565 (1942) (weight and
credibility of a dying declaration is for the jury to determine; it
may be impeached or corroborated in the same manner as any other
B. Dying Declaration and the Confrontation Clause
Defendant next argues the victim's statements violated the
Confrontation Clause of the Sixth Amendment because they were
testimonial in nature under Davis v. Washington
, 547 U.S. 813, 165
L. Ed. 2d 224 (2006) and Crawford v. Washington
, 541 U.S. 36, 158
L. Ed. 2d 177 (2004). Defendant asserts that this Court should not
find that dying declarations are a historical exception to the
Sixth Amendment right of confrontation because Crawford
reliability as a factor in admitting testimonial statements. The
trial court determined that Crawford
did not bar dying
declarations. Defendant's objection was noted for the record.
Crawford v. Washington
held that the Confrontation Clause of
the Sixth Amendment prohibits admission of testimonial statements
of a witness who did not appear at trial, unless he was (1)
unavailable to testify and (2) the defendant had a prior
opportunity to cross-examine the witness. State v. Lewis
, 361 N.C.
541, 545, 648 S.E.2d 824, 827 (2007) (citing Crawford
, 541 U.S. at
53-54, 158 L. Ed. 2d at 194).
The State does not contest that the statements at issue were
testimonial. Statements are testimonial when circumstancesobjectively indicate there is no ongoing emergency and the primary
purpose of the interrogation is to establish or prove past events
that will be relevant later in a criminal prosecution. Lewis
N.C. at 546, 648 S.E.2d at 828 (quoting Davis
, 547 U.S. at 822, 165
L. Ed. 2d at 237). Statements made in response to police questions
in the course of interrogation are testimonial. State v. Sutton,
169 N.C. App. 90, 96, 609 S.E.2d 270, 275 (2005) (quoting Crawford
541 U.S. at 52, 158 L. Ed. 2d at 193) (police questioning of victim
at crime scene held to be testimonial). Here, the victim's
statement to Officer Cristaldi after the shooting, while the victim
waited for an ambulance, and the statement to Officer Keith at the
hospital were both testimonial statements.
Crawford v. Washington
did not decide whether the Sixth
Amendment provides an exception for testimonial statements made as
a dying declaration. Crawford,
541 U.S. at 56, 158 L. Ed. 2d at
195 n.6 (Although many dying declarations may not be testimonial,
there is authority for admitting even those that clearly are. We
need not decide in this case whether the Sixth Amendment
incorporates an exception for testimonial dying declarations. If
this exception must be accepted on historical grounds, it is sui
. (internal citations omitted)).
Our Supreme Court addressed this issue, prior to Crawford
State v. Stevens
, 295 N.C. 21, 243 S.E.2d 771 (1978). See also
State v. Penley,
318 N.C. 30, 40-41, 347 S.E.2d 783, 789 (1986)
(concluding defendant's argument that admission of a dying
declaration violates the Sixth Amendment is without merit). InStevens,
the victim, who was severely burned and was told by his
doctor he had a slight chance of surviving his injuries, was
questioned by the police at the hospital where he was treated. 295
N.C. at 24-25, 243 S.E.2d at 773-74. He later died from the
injuries and his statements were admitted at trial. On appeal,
defendant argued that the admission of the dying declaration
violated the confrontation clause of the Sixth Amendment. Id.
31, 243 S.E.2d at 777. The Court determined that the
constitutional guaranty of confrontation is not coextensive with
the hearsay rule. Further, the public necessity of preventing
secret homicides from going unpunished requires the preservation of
this uniquely valuable evidence notwithstanding the inability of
the defendant to cross-examine his accuser. Id.
at 32, 243 S.E.2d
at 778 (internal citations omitted).
Since the Crawford
decision, the precise question of whether
testimonial dying declarations violate the Sixth Amendment has not
been addressed by our Supreme Court. However, in State v. Calhoun,
189 N.C. App. 166, 168, __ S.E.2d __, __ (2008), this Court held
that dying declarations do not violate the Sixth Amendment right of
confrontation. This Court adopted the reasoning of People v.
, 22 Cal. Rptr. 3d 1, 101 P.3d 956 (Cal. 2004), writ of
, 546 U.S. 834, 163 L. Ed. 2d 89 (2005). Calhoun,
COA07-580, slip op. 9-10 (N.C. App. Mar. 4, 2008). Monterroso
cases from other jurisdictions mirror our conclusion that the
confrontation clause allows an exception for testimonial dying
; State v. Martin
, 695 N.W.2d 578, 585 (Minn.2005); Harkins v. State
, 143 P.3d 706, 711 (Nev. 2006); People v.
, 828 N.E.2d 293, 302 (Ill. App. Ct. 2005); People v. Durio,
794 N.Y.S.2d 863, 867 (N.Y. Sup. Ct. 2005). Accordingly,
defendant's assignment of error on this ground is overruled.
C. Forfeiture by Wrongdoing
Defendant also contends that the principle of forfeiture by
wrongdoing should not be applied in this case because such
application would violate the presumption of innocence standard.
accepted the rule of forfeiture by wrongdoing as a
valid exception to the Confrontation Clause. Crawford
, 541 U.S. at
62, 158 L. Ed. 2d at 199 ([T]he rule of forfeiture by wrongdoing
(which we accept) extinguishes confrontation claims on essentially
equitable grounds; it does not purport to be an alternative means
of determining reliability.). Some courts have determined the
rule of forfeiture by wrongdoing could apply to dying declarations
where the victim is made unavailable because of defendant's alleged
wrongdoing. See United States v. Mayhew
, 380 F. Supp. 2d 961, 968
(S.D. Ohio 2005) (finding by a preponderance of the evidence that
defendant's wrongdoing caused witness' unavailability, where
defendant confessed to shooting the victim); see also Gonzalez v.
, 155 S.W.3d 603, 610-11 (Tex. Crim. App. 2004) (concluding
that defendant's actions precluded him from excluding the victim's
excited utterance statements, whether or not defendant intended to
prevent witness from testifying at the time he committed the acts);
People v. Giles
, 55 Cal. Rptr. 3d 133, 146, 152 P.3d 433, 445 (Cal.
2007) (concluding the rule of forfeiture by wrongdoing applieswhere unavailability of the witness is due to defendant's
intentional actions, even if the wrongdoing is that same conduct
for which the defendant is being prosecuted), cert. granted by
Giles v. California
, 128 S.Ct. 976, 169 L. Ed. 2d 800 (2008).
However, other jurisdictions have declined to extend the
forfeiture exception to dying declarations where the defendant
denies killing the declarant, because to do so would violate the
presumption of innocence standard. United States v. Lentz
, 282 F.
Supp. 2d 399, 426 (E.D. Va. 2002).
Since we conclude that defendant's statements were properly
admitted as dying declarations and those statements do not violate
the Sixth Amendment right to confrontation, we need not reach
whether the forfeiture by wrongdoing exception applies in this
IV. Motion for Appropriate Relief
 Prior to oral arguments, defendant filed a motion for
appropriate relief asking this Court to reverse defendant's
conviction and order a new trial because the prosecution in
Goldston's trial argued an inconsistent theory regarding the
victim's belief of impending death.
During closing arguments at the trial of defendant's co-
defendant, Goldston, the prosecutor argued to the jury that the
victim did not believe he was going to die when he told the
officers that defendant shot him. In defendant's trial, the same
prosecutor argued to the judge that defendant knew he was dying inorder to admit the statements under the dying declaration
Defendant contends the State's inconsistent theories regarding
the victim's belief of impending death support defendant's argument
that the victim's statements do not satisfy the dying declaration
exception. Defendant also argues making diametrically opposed
factual claims in the two trials violated defendant's due process
rights. We disagree.
As to defendant's first contention, the State's theories were
permissible inferences interpreting the same evidence. In both
trials, the State presented identical evidence of the victim's
hearsay statements. While the prosecution adopted a different
interpretation of those statements in Goldston's trial, we
conclude that the trial court could correctly infer the opposite
conclusion: the victim believed he was dying since he had been shot
multiple times and told his mother repeatedly he loved her and he
was going to die. We reject defendant's argument that the
prosecution's theory in a separate trial taints or negates the
permissible inferences regarding admissibility of the hearsay
statements in defendant's trial.
As to defendant's second contention in his motion for
appropriate relief, we have examined the cases cited by defendant
and find no due process violation. Defendant relies on the
principle that in separate trials of co-defendants, the State may
argue alternative but not mutually inconsistent factual theories.
State v. Leggett
, 135 N.C. App. 168, 175, 519 S.E.2d 328, 333(1999). The State responds to this argument by distinguishing the
cases cited by the defendant as pertaining to the core issues in
the trial and not a tangential issue such as admission of a hearsay
statement. We agree with the State's argument.
, 135 N.C. App. at 175, 519 S.E.2d at 333, during
the trial of Leggett's co-defendant, the State sought to impeach
two of the co-defendant's witnesses. Later, the State used the
same two witnesses at Leggett's trial. Id.
Leggett argued that
because the State sought to impeach the witnesses at his co-
defendant's trial, the State could not in good faith offer those
same individuals later as credible witnesses. Id.
at 175, 519
S.E.2d at 333. This Court disagreed and determined that it was
appropriate for the State to argue alternative but not mutually
inconsistent theories at different trials. It was also appropriate
for the State to argue credibility of the witnesses to the
different juries. Id.
at 176, 519 S.E.2d at 334. The witnesses'
statements were consistent with Leggett's admission that he shot
the victim. Id.
at 175, 519 S.E.2d at 333.
In State v. Flowers,
347 N.C. 1, 15, 489 S.E.2d 391, 399
(1997), the defendant, a prison inmate, along with three other men,
was charged with stabbing another inmate. Defendant admitted to
killing the victim and at the trial of the three co-defendants,
defendant testified he acted alone in the killing. Id.
489 S.E.2d at 399. At the co-defendants' trial, the prosecution
argued the defendant was only a lookout and did not participate in
the stabbing. Id.
at 18, 489 S.E.2d at 401. However, atdefendant's trial, the prosecution argued defendant was both the
lookout and a participant in the stabbing of the victim. Id.
Defendant appealed his capital conviction and argued the
prosecution's inconsistent positions violated his due process
at 18-19, 489 S.E.2d at 401. Our Supreme Court
determined the prosecution relied upon essentially the same
evidence in both trials and the inferences by the prosecution were
reasonable based on the evidence. Id.
at 19-20, 489 S.E.2d at 401-
We also find the reasoning in Parker v. Singletary,
1562 (11th Cir. 1992), relied upon by the Leggett
to the case at bar. Parker
involved three defendants charged with
first-degree murder. However, there was uncertainty as to who shot
the victim. At the separate trials of the defendants, the
prosecution argued different theories as to who committed the
killing. The court held that it was not improper for the State to
take inconsistent positions as long as doing so did not involve the
use of necessarily contradictory evidence. Leggett
, 135 N.C. App.
at 176, 519 S.E.2d at 333 (citing Parker,
974 F.2d at 1578).
Here, the evidence presented at both trials was identical.
The statements are the same and the only inconsistency is in the
State's argument about whether the defendant was afraid to name
Goldston as the shooter. Defendant concedes that the State did not
present different theories regarding defendant's culpability and
that the officers' testimony about the victim's statements was
identical in both trials. In both trials, the State argued thatGoldston and defendant acted in concert to kill the victim. We
conclude it was appropriate for the State to argue different
inferences regarding the same evidence to different juries.
Defendant also cites cases from other jurisdictions, Bradshaw
545 U.S. 175, 162 L. Ed. 2d 143 (2005); Smith v.
205 F.3d 1045 (8th Cir. 2000); Thompson v. Calderon,
F.3d 1045 (9th Cir. 1997), rev'd on other grounds
, 523 U.S. 538,
140 L. Ed. 2d 728 (1998); Boyd v. United States,
908 A.2d 39 (D.C.
2006). We have examined those cases and find them distinguishable.
In Smith v. Groose
, the Eighth Circuit reversed a thirteen-
year-old conviction because the State's use of inconsistent
prosecutorial theories violated the inmate's due process rights.
205 F.3d at 1047. The defendant was convicted of felony murder
based on the State's theory that the victims were murdered during
the commission of a robbery. There was conflicting testimony as to
whether the killing was committed by defendant and his co-
defendants, or another robber who robbed the victims before the
arrival of the defendant and co-defendants. During defendant's
trial, the State argued the victims were murdered after defendant
arrived to burglarize the house. At the other robber's trial, the
State argued the murder occurred before the defendant arrived.
Since the State argued factually inconsistent theories regarding
the timing of the murder, theories which were based on different
evidence, such manipulation of the evidence rendered defendant's
trial fundamentally unfair. Id.
at 1050-51. The Ninth Circuit reached a similar result in Thompson v.
, 120 F.3d 1045 (9th Cir. 1997). Where the prosecution
presented markedly different and conflicting evidence at the two
trials of co-defendants for the same crime, the defendant's due
process rights were violated. Id.
at 1056. However, the court
also noted that when there are claims of inconsistent
prosecutorial conduct, reversal is not required where the
underlying theory remains consistent. Id.
at 1058-59 (citations
and internal quotations omitted). The prosecution presented
conflicting theories using different evidence on the motive for the
victim's murder, which led to the convictions of two defendants for
the same crime under different theories.
In contrast, here, the State did not introduce inconsistent
evidence. The inference as to whether the victim was afraid to
name Goldston as the shooter was inconsistent with the State's
theory in support of admission of the dying declarations in
defendant's trial, but this inconsistency was based on the same
evidence. This does not rise to the level of fundamental
unfairness as in Groose
. The Eighth Circuit emphasized
that [t]o violate due process, an inconsistency must exist at the
core of the prosecutor's cases against defendants for the same
, 205 F.3d at 1052. Since the State in this case
used the same theory at both trials, that Goldston and defendant
acted in concert to kill the victim, we conclude the inconsistency
in theories is not at the core of the prosecutor's cases but
involves a tangential matter - whether the statements wereadmissible under the dying declaration hearsay exception in
defendant's trial. See Bradshaw
, 545 U.S. at 187, 162 L. Ed. 2d at
156 (concluding that the prosecutor's use of inconsistent theories
as to who was the triggerman in defendant's and co-defendant's
trials was immaterial to defendant's conviction for aggravated
murder entered on defendant's guilty plea); Boyd,
908 A.2d at 51-52
(stating that the presence of inconsistency in prosecutorial
theories does not warrant reversal where inconsistency did not
exist at the core of the State's case and render the conviction
unreliable). Accordingly, defendant's motion for appropriate
relief is denied.
We conclude the trial court did not commit prejudicial error
in admitting the nine-millimeter bullet; that defendant waived his
objection to the prosecution witness's testimony that he was afraid
of gangs as well as the prosecutor's reference to such testimony in
closing arguments; the victim's statements to police were properly
admitted under the dying declaration exception to the hearsay rule
and the trial court did not err in concluding that dying
declarations do not violate the confrontation clause of the Sixth
Judge McGEE concurs.
Judge WYNN concurs in the result.
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