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Erika Sifrit v. State of MarylandNo. 139, September Term, 2003 AGREEMENT BETWEEN THE STATE AND DEFENDANT — When the defendant breaches anagreement between himself/herself and the State, the State is not required to honor its obligationspursuant to the agreement. DUE PROCESS — INCONSISTENT THEORIES OF PROSECUTION — For a due process violationto exist the inconsistency must exit at the core of the State’s case. Discrepancies based on rationalinferences from ambiguous evidence will not support a due process violation provided the multipletheories are supported by consistent underlying facts.
CONSTITUTIONAL LAW — FOURTH AMENDMENT — SEARCH AND SEIZURE — CONSENTEXCEPTION TO WARRANT REQUIREMENT — The scope of a suspect’s consent to a search ismeasured by an objective standard – what would a reasonable person have understood by the exchangebetween the officer and the suspect to be the scope of the consent? The Court also must consider whatthe parties knew to be the object of the search at the time the consent was given.
In the Circu it Court for F rederick C ountyCriminal No. K-02-31811 Bell, C.J.
RakerWilnerCathellHarrellBattagliaGreene, A jury in the Circuit Court for Frederick County, on June 10, 2003, convicted Erika Sifrit (“Erika”), of first degree murder, second degree murder, and various theft charges.1 Erika’s convictions and this appeal arise out of events that occurred over the Mem orial Day w eekend 2 002 in O cean City, M aryland, resulting principally in the d eath of two people, Martha Crutchley and Joshua Ford.2 In a related case, a separate jury in the Circuit Court for Montgomery County, on April 9, 2003, conv icted Benjamin Sifrit (“B enjamin”),3 Erika’s husband, of second degree murder and first degree assault of Martha Crutchley and accessory after the fact for the murders of both Ms. Crutchley and Mr. Ford. We granted Erika Sifrit’s petition for wr it of certi orari. Sifrit v. State, 380 M d. 230 (20 03). Subse quently, while Benjamin’s appeal was pending in the Court of Special Appeals, we granted his petition for writ of certiorari befo re consider ation of his c laims by the interm ediate appe llate court. Sifrit v. State, 381 Md. 324 (2004). Even though, many of the facts, issues and legal arguments in these two cases overlap we answer the issues and contentions of the parties in sepa rate opinion s of this Co urt.
Erika raises a number of issues on appeal: Whether the State failed to comply with the express terms of theMem orandum of Und erstanding where th e State agre ed not to pro secute 1 Erika was also tried and convicted of burglary related to the break-in at Hooters.
2Due to ex tensive pretria l publicity Erika’s c ase was re moved f rom the C ircuit Cou rt fo r Wo rces ter C oun ty and tran sfer red t o the Circ uit C ourt for F rede rick Cou nty.
3 Benjamin is referred to by a number of witnesses by his nickname, B.J. When we quote the witnesses we shall also use the nickname.
Erika for m urder if certa in condition s were m et.
Whether the State violated fundamental principles of fairness and dueprocess by pre senting tw o directly conflic ting factual th eories in sep aratetrials of Erika and her h usband, B enjamin, bo th of wh om we re charged withcommitting the same crimes.
Whether the police conducted an unlawful search of Erika’s purse.
We shall affirm Erika’s convictions. Based on the language of the pre-trial Memorandum of Understanding, entered into by Erika and the State, Erika represented that she had not participated in the murders, and she breached the agreement by thereafter making “ prospectiv e reliable incu lpatory statemen ts.” In light of h er breach, th e State was not re quired to ho nor its obligatio ns pursua nt to the agre ement. Secondly, a due process vio lation does n ot exist in a situa tion involvin g multiple trials b ased upo n a single criminal transaction, unless the prosecution presents inconsistent theories and the inconsistency exists at the core, rather than the margins, of the State’s case. It is not enough for us to find a due process violation that there are discrepancies because of rational inferences draw n from amb iguous evidence, pro vided the multiple theories are supported by consistent underlying facts. In the present case, the State’s theory that Benjamin and Erika committed the criminal offenses together as a team remained consistent throughout both trials. Any inconsistency in inferences or emphasis placed on particular facts by the State was consistent with the State’s underlying theory of the case and did not violate Erika’s right to due process. Lastly, the search of Erika’s purse did not violate the F ourth Am endmen t. The prop er scope o f Erika’s co nsent enco mpassed all areas in her purse where the requested medication could have been contained.
On Friday, May 24, 2002, Martha Crutchley and her boyfriend, Joshua Ford, drove from Virginia to Ocean City, Maryland, for the Memorial Day weekend. Erika and her husband Benjamin were also vacationing in Ocean City over the holiday weekend. On Saturday night, May 25, 2002, the Sifrits met Ms. Crutchley and Mr. Ford on a bus on their way to Seacrets, a popular Ocean City nightclub. The Sifrits did not have the exact change for the fare so Ms. Crutchley and Mr. Ford offered to pay the Sifrits’ fare if they would buy them a drink when they arrived at Seacrets. The foursome and two other people from the bus, friends Anne Carlino and Jeff Hysee, spent the rest of the evening What ha ppened in the early morn ing hours f ollowing the night at S eacrets is unknown. We do know, however, that at 3:00 a.m. on Sunday morning, May 26, 2002, Erika called 911 claiming that people she did not know were in her condominium unit and she could not find he r purse. She was “af raid I’m go ing to have a robbery her e.” The ca ll abruptly ended and no one was dispatched to the condominium.
On Tuesday, May 28, 2002, one of Ms. Crutchley’s co-workers notified the Fairfax City police that Martha Crutchley failed to show up at work following the Memorial Day weekend. Fa irfax City police contacted the O cean City police who f ound Ms. C rutchley’s car outside the condominium where she and Mr. Ford were staying for the weekend. The police found the couple’s belongings left in their condominium as if they had just stepped out. Concerned about Ms. Crutchley and Mr. Ford, the police began to search actively for On May 31, 2002, around midnight, the Ocean City Police Department responded to an alarm call from the closed-for-the-night Hooters Restaurant and Bar merchandise store on 122nd Street in Ocean City. There they found Erika and Benjamin loading Hoote rs merc handis e into the ir Jeep C heroke e. The c ouple w ere plac ed in ha ndcuf fs. Upon searching the couple, the police found a 9 millimeter handgun and a knife on Benjamin and a fully-loaded .357 magnum revolver tucked into Erika’s blue jeans in the small of her back. Another knife was found on Erika. Discovered in the Sifrits’ car were a .45 calibre gun, ski masks, flex cuffs, and tape.4 The two were arrested and charged At the scene of the burglary, Erika told the officers that she had anxiety problems and that she needed her Xanax and Paxil from a brown leather pouch in her purse located in the front of the Jeep. One of the police officers, Sgt. Beene, looked in Erika’s purse for the pills. He found only one type of the pill inside the brown leather pouch. Sgt. Beene continued to look for the other type of pill inside a red pouch because he noticed medicine bottles in that pouch. When the officer did not find the second type of pill in the red pouch he looked in a zippered pouch in the back of the purse. There he discovered four 4 Investigators later found other items in the Jeep including but not limited to a knife, spent .357 magnum shell casings and one live round. The sergeant continued to look for the second pill in a gray change purse, also inside Erika’s purse, and found the iden tific ation card s of M r. Fo rd an d M s. Cr utch ley.5 Fearing for the safety of Ms.
Crutchley and Mr. Ford, the police ordered an immediate search of the Sifrits’ Upon entering the Sifrits’ condominium, the police observed photographs and two bullets on a glass table. The pictures were of the Sifrits, Ms. Crutchley, and Mr. Ford, taken before the murders. Both of the bullets on the table had been fired from the .357 magnum recovered from Erika at Hooters, and one of the bullets had Mr. Ford’s blood and tissue on it. Police also found a key to Ms. Crutchley and Mr. Ford’s condominium on another table. Crime scene technicians found bloodstains in the Sifrits’ master bathroom on the top of the counter, the underside of the counter top, the floor, the floor under the vanity, the back side of the bottom drawer of the vanity, under the mirror, under the baseboard, under the hot tub faucet, on the hot tub step, on a sailboat candle holder on the hot tub, on the window, and in the shower. Swabs were taken from these bloodstains, which were a ll later ide ntified a s match ing the D NA o f either M s. Crutc hley or M r. Ford. There was also a hole in the back wall of the bathroom, fresh paint on the wall, and 5 There was also a silver ring with a dragon engraving found in Erika’s purse that was later identified as belonging to Mr. Ford. DNA testing revealed blood from both Joshua Fordand Martha Crutchley on the ring. Ms. Crutchley was a major contributor to the DNA samplefound on the ring and Mr. Ford was a minor contributor, according to a forensic chemist for theState of Maryland.
numerous cleaning supplies on the floor next to the bathroom door. The cleaning supplies, it was later discovered, had been purchased on Sunday, May 26, 2002, the day after Martha Crutchley and Joshua Ford were murdered.
Later, at the police station, Erika agreed to take Detective Bernal to where she claimed the bodies of Martha Crutchley and Joshua Ford were located. Erika directed Det. Bernal to two dumpsters located behind grocery stores in Rehoboth Beach, Delaware. Other officers went to the stores to check the dumpsters, but did not find the bodies. While Detective Bernal traveled with Erika to the places where she claimed he could find the bod ies, she told the detective that her husba nd, Benjamin, had shot Mr.
Ford a nd M s. Crutc hley, “cut t heir bo dies into pieces” and “p ut them in garb age ba gs.” On Jun e 2, 2002, E rika’s then atto rney, Arcang elo Tum inelli, entered into negotiations with Joel Todd, the State’s Attorney for Worcester County, regarding the charges against Erika. A Memorandum of U nderstanding (MOU) came o ut of those negotiations. The MOU stated that Erika agreed to “cooperate with the State in the prosecution of Benjamin, her husband, and further agrees to testify truthfully on behalf of the State at his trial.” The MOU provided that the State would not seek a sentence of death or life w ithout parole against Erik a as long as she provid ed reliable inf ormation to the State “. . . detailing the way and manner in which the bodies of Martha Margene Crutchley and Joshua Ford were packaged prior to disposal, as well as information on the location where the bodies were disposed of.” The MOU also provided that if Erika took a polygraph examination and if she tested “. . . ‘not deceptive’ on all material questions related to the homicides of the victims . . .” then the State would not prosecute Erika for the homicide charges.6 The exact language of the relevant portion of the MOU is as Additionally, Defendant agrees to subject herself to a polygraphexamination to be conducted by an active federal polygraphexaminer, said examiner to be agreed upon by the State andDefendant. If Defendant tests “not deceptive” on all materialquestions re lated to the ho micides of the victims re ferenced inParagraph 1 above asked of her by the polygraph examiner, andabse nt an y com pelli ng in dep end ent e vide nce t o the con trary ( i.e. eyewitness testim ony, photogr aphs and /or prospec tive reliableinculpatory statem ents by the D efendan t) the State agr ees not toprosecute Defendant for these homicide charges.
After the MOU was executed, Erika told Detective Bernal that most of Joshua Ford’s and Martha Crutchley’s body parts were in black garbage bags that Benjamin had packed into Navy kit bags before throwing in a dumpster. Erika told the detective that she helped Benjamin throw the bags containing the body parts in a dumpster behind a Food Lion grocery store. The Food Lion dumpster was located across the street from the dumpster that Erika had previously directed the detective to search. After searching the landfill where the contents of the Food Lion dumpster had been emptied, police recovered body parts of Mr. Ford and Ms. Crutchley. Police recovered only the left leg of Ms.
Crutchley. Thus, her cause of death was never determined. Police recovered the torso 6 Erika never took the polygraph examination.
and both arms of Mr. Ford. Additionally, two bullets fired from the .357 magnum recovered from Erika at Hooters on the night of May 31 were found in Mr. Ford’s torso.
In an interview with Detective Bernal on June 24, 2002, Erika admitted to being present in the condom inium that she shared w ith Benjamin wh en three of the shots w ere fired. Erika w as schedu led to have a polygraph e xaminatio n on July 23, 2 002, but D eputy State’s Attorney Scott Collins terminated the polygraph because of incriminating statements that Erika made in her pre-polygraph interview with United States Secret Service agents. Erika filed a Motion to Enforce the Memorandum, which she claimed require d that the State giv e her the polygrap h exam ination. The Circuit Court for Worcester County denied the Motion to Enforce the Memorandum on the grounds that the incriminating statements that Erika had made violated a condition of the MOU.
At Erika’s jury trial, much testim ony was rec eived con cerning E rika’s beha vior in the days after Martha Crutchley and Joshua Ford were killed. On Tuesday, May 28, 2002, Erika and Benjamin went outlet shopping in Rehoboth Beach. Erika got a new tattoo, and the couple went to a Home Depot store to buy supplies to replace the bathroom door and to purchas e paint for th e condom inium. At th e Hom e Depo t, Erika met a nd spoke to Anne Wright, who testified at the trial as follows: Now I want to direct your attention back to May 28th of 200 2 last year. Were you in Ocean City resort area about that time? And did you have occasion to go to the local Home Depot store? Okay. Was the Defendant carrying anything? Um, she had a triangular shaped piece of wood.
And did she say anything to you about this triangular shaped piece ofwood? She said do you believe tha t’s all that’s left of my door.
And I said that m ust h ave b een s ome part y.
She laugh ed and sa id I guess you c ould call it that.
The State’s theory in both cases was that after leaving Seacrets that night, the two couples h ad returned to the Sifrits’ co ndomin ium. Onc e in the con dominium the Sifrits engag ed in a “ missing purse g ame” in which they claim ed Erik a’s purs e was m issing. They demanded the other couple find the purse and when it couldn’t be found, somehow got them into the upstairs bathroom where both Sifrits shot Mr. Ford and in some other The State’s theory is based in part on the testimony of Melissa Seling (“Melissa”) who m et the Sif rits the nig ht of M ay 29 thro ugh he r friend Justin T odd W right (“T odd”). Melissa testified that when she met Todd, he and the Sifrits were intoxicated and she was the only one that was sober. Melissa joined the Sifrits and Todd at a couple of bars but she did not drink. At the e nd of the evening , Melissa was w orried about Benjam in’s ability to drive so she agreed to follow the Sifrits back to their condominium. When the four arrived at the condominium, Melissa, at Benjamin’s urging, helped Erika up to the condo minium becau se she s eemed so intox icated th at she m ight fall o ver wit hout he lp. Then, once at the door, Erika located her keys in her purse and opened the door with no problem. Erika began showing Melissa around the condominium. Within 5-10 minutes of having the purse at the door, Erika and Benjamin claimed that someone had taken Erika’s pu rse and that M elissa had to lo ok for it.
At some point during the search for the purse, Benjamin brandished a gun and became more ada mant abo ut finding th e purse. Be njamin m ade a num ber of statem ents during the search regarding people that had been there before who had tried to rip them off and that he was “doing the world a justice by ridding the earth of bad people.” Melissa testified that he also told her “if we ripped them off . . . he would kill us the same way he killed those other people.” Melissa was not clear in her recollection whether Benjamin had said “just like I killed the other people” or “just like we killed the other people” (emphasis added). Melissa testified that she felt threatened by the gun and asked that it be put away. She also testified that during the search she saw a door upstairs off of its hinges with a bullet hole in it. Eventually, Benjamin discovered the purse in a location that had previously been searched. He then sat down with Melissa to show her his gun and what he called Erika’s gun, the .357 magnum used to kill Joshua Ford.
Erika was convicted of the first degree murder of Joshua Ford, second degree murder of Martha Crutchley, and theft related to the burglary at Hooters. She was sentenced to life imprisonment for the first degree murder of Mr. Ford, 20 years to run consecutive for the second degree murder of Ms. Crutchley, and 18 months to run Additional facts will be provided throughout this opinion as appropriate to our The first qu estion prese nted for ou r review b y Erika is wh ether the Sta te failed to comply with the express terms of the MOU.
Prior to her trial, E rika filed a m otion to enf orce the ag reement sh e had ma de with 7 In a separate trial, Benjamin was sentenced to thirty years imprisonment for second degree murder of Martha Crutchley, 25 years to run concurrent for first degreeassault of M artha Crutc hley, and 5 years to run conse cutive for a ccessory after th e fact.
the State and to dismiss the ho micide charges aga inst her.8 After an evidentiary hearing, the Circuit Court for Worcester County denied her requests.
should reverse her murder convictions because “the State violated fundamental principles of fairness and due process by breaching its written agreement with Ms. Sifrit and prosecutin g her for th e homicid es of M s. Crutchley an d Mr. Fo rd.” Erika’s a rgumen t is Given the plain language of the agreement and the obvious intent of the parties, the Circuit Court did not err when it denied Erika’s motion to enforce the memorandum of understanding and to dismiss the homicide charges against her. Upon review of the record, it is clear th at Erika bre ached the agreeme nt when she mad e “prospe ctive reliable inculpatory statements” after the signing of the agreement with the State. It is clear from the langua ge of the a greemen t itself that if such statements w ere made , the State w ould not be obligated to refrain from prosecuting her for murder. In light of those facts, it was entirely pro per for the State to refus e to hon or the re st of the agreem ent. As the State points out, the State entered into the agreement with Erika based on her representations that she had nothing to do with the murders. After the agreement was signed, but just before the polygraph examination was to take place, Erika answered some preliminary questions by the examiners and unexpectedly revealed an intimate knowledge 8 The mo tion was f iled in and d ecided by the C ircuit Court f or Worc ester Cou nty prio r to th e cas e bei ng tr ansf erre d to t he C ircu it Co urt f or Fr eder ick C oun ty.
of the grue some de tails of the m urders and even adm itted to her direc t participation in them.9 She now argues that, despite her confessions, the State should have conducted the polygraph examination to determine if she would have tested “not deceptive.” In view of the fact that her pre-polygraph confession to participation in the murders was a direct breach of the agree ment, conducting the polygraph after hearing those in culpatory statements would have been a pointless exercise.10 To suggest that the State should have upheld its end of the bargain after the blatant breach by Erika is illogical and The written agreement referred to is a document entitled “Memorandum of Understanding” which was signed by the State’s Attorney and by Erika’s attorney on June 2, 2002. The first two paragraphs of the agreement read as follows: 1. In excha nge for relia ble inform ation from the Defe ndant to the Statedetailing the way and manner in which the bodies of Martha MargeneCrutchley and Joshua Ford were packaged prior to their disposal, as well asinformation on the location where the bodies were disposed of, the State ofMaryland a grees not to seek the sen tence of d eath or life w ithout paroleagainst D efendan t.
9 Erika was adv ised of her Miranda warnin gs, Miranda v. Arizona, 384 U.S. 436 (1966), be fore the m eeting with the exam iners and th ere is no arg ument tha t Miranda hasbeen violated. In addition, none of Erika’s inculpatory statements made on the day of themeetin g with t he polyg raph ex amine rs were offere d again st her at tri al. 10 For example, three of the polygraph examination questions that would have been asked include: “Did you shoot a gun at any of those people? Did you cut on any ofthose people? Did you plan in any way to cause the death of those people?” As will bediscussed f urther, after h earing the sta tements m ade by Erika about her p articipation inthe murde rs, to condu ct a polygraph examina tion in wh ich question s such as tho se wouldbe asked would have been pointless.
2. Additionally, Defendant agrees to subject herself to a polygraphexamina tion to be co nducted b y an active fed eral polygraph examine r, saidexam iner to b e agree d upon by the Sta te and D efend ant. If Defend ant tests“not deceptive” on all material questions related to the homicides of thevictims referenced in Paragraph 1 above asked of her by the polygraphexam iner, and absent any compelling independent evidence to the contrary(i.e. eye witness tes timony, photo graphs an d/or prospe ctive reliableinculpatory statem ents by the D efendan t) the State agr ees not to pr osecuteDefe ndant f or these homic ide cha rges. (Emphasis added.) In addition, paragraph 6 of the agreement notes that “if Defendant fails to comply with paragraphs 2 and 3[11] of this M emorand um of U nderstand ing, this Mem orandu m of U ndersta nding b ecom es null a nd void (excep t for Pa ragrap h 1).” After conducting an evidentiary hearing on the matter, the trial judge determined that the agreement became null and void when Erika failed to comply with the conditions in Paragrap h 2 of the a greemen t. The judg e discussed the eviden ce of Erik a’s failure to comply with the agreement and noted the testimony regarding a conversation between the State’s Attorney and Erika’s then attorney. The judge noted that the parties agreed that 11 The State notes in its brief that from the context of the agreement, it is apparent that this should have read “Paragraphs 2 and 4." Paragraph 3 notes that the State mayprosecute Erika for ac cessory after the fact and any charge s other than homicide th at werenoted in the Statement of Charges served on her on May 31, 2002. Paragraph 4 of theagreeme nt states that: Defend ant agrees to cooperate with the S tate in the pros ecution of Benjam inSifrit, her husband, and further agrees to testify truthfully on behalf of theState at his trial. Defendant agrees not to invoke her marital privilege at thetrial or any pretrial hearing of Benjamin Sifrit. Defendant agrees to beinterviewe d by the State o f Maryland as it prepares for the trial of B enjaminSifrit. “if she goes in there and tells the polygraph examiners, ‘I’m the o ne that did one or mo re of the murders or I was an active participant in either one of them,’ we don’t have a deal.” The judge stated that he believed the testimony that Erika’s attorney agreed to that I also think that after the polygraph was called off by Mr. Collins andeventually M r. Todd ca me dow n, I think the q uestion w as asked, “A re we inagreement now, she didn’t complete the terms of this agreement?” or wordsto that effect, and that Mr. Tuminelli said, “Absolutely. Yes. That’s so,” orsomething close to that. He acquiesced and agreed. And I think that tookplace. I d on’t thin k they cam e in here and jus t simply m ade tha t up. The judge also noted that he reviewed the interview between the polygraph examiners and Erika, a nd fou nd that s he did m ake “p rospec tive reliab le inculp atory statem ents.” Md. Rule 8-131(c) provides that when an action has been tried without a jury, “the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” We must consider the evidence in the light most favorable to the prevailing party and decide “not whether the trial judge’s conclusions of fact were correct, but only whether they were supported by a preponderance of the evidence.” Urban Site Venture II Ltd. Partne rship v. L evering Assoc s., 340 M d. 223, 230 , 665 A.2d 1062, 10 65 (1995 ). With that standard in mind, we see no reason to hold that the trial judge’s findings of fact on After reviewing the evidence, the trial court decided not to enforce the agreement against the S tate. The jud ge explain ed his decis ion by stating tha t there were certain conditions precedent to the agreement that Erika did not meet (meaning, not making any prospective reliable inculpatory statements) and that, consequently, most of the terms of the agreem ent were re ndered im possible to p erform. T he trial judged summe d up his [Erika] simply could not have answered the questions because theybasicall y were th e oppo site of w hat she just told th e polygra ph exa miner. So obvio usly she could not pass tha t part of it. She – it was – she made itimpossible to perform. She did not meet the conditions precedent in thecontrac t and tha t’s how I see it. The clearly erroneous standard does not apply to legal conclusions made by the trial judge, which are given no deference. This Court must determine whether the trial court’s conclusions are legally correct “under a de novo standard of review.” Walter v. Gunte r, 367 M d. 386, 392 , 788 A.2d 609, 612 (2002). Th e interpretation of a contra ct is ordina rily a ques tion of la w. Wells v . Chev y Cha se Ban k, F. S. B ., 363 Md. 232, 250, 768 A.2d 620, 629-30 (2001). In interpreting a written contract, “where the language employed in a contract is unambiguous, a court shall give effect to its plain meaning and there is no need for further construction by the court.” Wells, 363 Md. at 251, 768 A.2d In addition to the objective principles of contract interpretation, the interpretation of the agre ement in th is case mu st also be interp reted by “‘the sta ndard to b e applied to plea negotiations . . . of fair play and equity under the facts and circumstances of the case, which, although entailing certain contract concepts, is to be distinguished from . . .the strict application of the common law principles of contracts.” State v. Brockman, 277 Md 687, 697 (1976)12 Even considering fair play and equity, we can see no reason for the State to continue to abide b y an agreement that wa s rendered void solely by the voluntary actions of th e defend ant.13 While it is true that fairness and equity “require the State to be held to its bargain,” there is no such requirement if the defendant has not performed his or her obl igations under t he barg ain. Brockman, 277 M d. at 698, 35 7 A.2d a t 384; Blinken v. State, 291 Md. 297, 309, 435 A.2d 86, 91-2 (1981) (noting that both the State and the defenda nt have a d uty to uphold th e terms of th e agreem ent betwe en them); Butler, 55 12 It is appropriate to consider fair play and equity when reviewing an agreement between the State an d a crimina l suspect, w here crimin al charges a re involved , even ifthat agre emen t is not tec hnically a plea ag reeme nt. See Butler v. State, 55 Md. App. 409,428-32, 462 A.2d 1239, 1239-42 (discussing “miscellaneous bargains” with the State thatare not plea agreeme nts, but nonetheless implicate du e process considerations “ [w]herethere is pend ing before the judge a criminal cha rge”). We point out fo r the sake of claritythat the agreement in this case was not a plea agreement. Erika made no promise to pleadguilty or nolo contendere when entering this agreement with the State. Gray v. State, 38Md. App. 343, 356, 380 A.2d 1071, 1079-80 (1977) (stating that a plea bargain or pleaagreement “con templates a conditional plea o f guilty or nolo contendere to on e or morepending charges, the condition usually being either the dismissal or lessening of othercharges b y one mean s or anothe r, or some c oncession being ma de with res pect to disposition, or both.”). Nonetheless, it is appropriate to consider due process whenreviewing the agreement in the present case because there were criminal charges pendingat the tim e of the agreem ent. 13 We think it is important to note at this point that Erika was represented by couns el whe n the ag reeme nt was made and w hen sh e met w ith the po lygraph e xamin ers. Consequently, no persuasive argument can be made that the State took some kind ofunfair advantage of an unrepresented suspect, requiring a different outcome because ofnoti ons o f fai r pla y and equ ity.
Md. App . at 435, 437, 462 A .2d at 1243-4 (stating that “[t]here is, of co urse, the ever- present reality that [the defendant’s] failure to abide by the terms of the agreement thereby relieves the State of any obligation to perform its part of the bargain;” and “If the appellant failed to live up to his promise, the State is, of course, relieved of its reciprocal obligation to forbear to bring charges.”). One of Erika’s obligations under the agreement in this ca se inclu ded an implicit r eprese ntation t hat she was n ot culpa ble in the murde rs. Makin g “reliable inc ulpatory statem ents” as to h er active partic ipation in the m urders is inherently incompatible with that representation. The trial court found,14 and it is clear from our review that she made such statements and that consequently, the State was no longer obligate d to adh ere to the agreem ent. Because we do not think it is necessary to the resolution of the contract questions in this case, we do not adopt the trial court’s statements regarding conditions precedent and impossibility of performance of the contract between the parties. We do agree, however, with the denial of the motion to enforce the memorandum of understanding, but It is clear that Erik a breache d the agree ment bec ause her p reliminary statem ents to 14 The adequacy of the accused’s performance of his or her end of the bargain is a factual question to be decided by the trial judge, unless the agreement between theaccused and the State directs that someone else is empowered to decide if the accused hasadequ ately perf ormed . Butler, 55 Md. App. at 437, 462 A.2d at 1243-44.
the polyg raph ex amine rs cons tituted “p rospec tive reliab le inculp atory statem ents.”15 Therefore, it is equally clear, from the plain language of the agreement, that Erika failed to comply with Paragraph 2 of the agreement and that, as a result, the agreement became “null and void,” pursuant to Paragraph 6 of the agreement. Erika’s argument that the State made it impossible for her to comply with the agreement by refusing (after hearing her inculpa tory statements) to conduct th e polygraph e xam is, thus , specious. In f act, Erika made it impossible for the State to continue to honor the agreement by her own actions. To argue that th e State “had an absolu te obligation to afford he r the oppo rtunity to take a polygraph examination” after Erika, of her own accord, unexpectedly confessed to direct participation in the murders, is untenable. Consequently, the cases cited by Erika regarding not permitting the State to repudiate its agreements are unavailing.16 The State 15 Erika has argued that the term “compelling independent evidence to the con trary” mea ns ev iden ce ap pear ing o nly after (and of necessity to her argument, notbefore) the conducting of the polygraph examination. There is nothing in the language ofthe agreement that demands or even suggests that interpretation. She has also argued thatthe term “prospective” necessarily means only inculpatory statements made after thepolygraph examination. We re ject thos e interpr etations of the la nguag e of Pa ragrap h 2. In our view , it is clear from th e languag e of Parag raphs 2 an d 6 that any reliab leinculpatory statem ent made by Erika at any time after the signing of the agreement wouldbe inconsistent with the prem ises of the agreemen t and would rend er void the State’spromis e not to p rosecu te the de fenda nt for h omicid e. 16 We note that the case of Jackson v. State, 358 Md. 259 , 747 A.2d 119 9 (2000), does not support Erika Sifrit’s position. In Jackso n, the State and the defendant agreedthat the State would dismiss child sexual abuse and other charges against him if thedefendant agreed not to oppose a postponement of his case and if he was exonerated byDNA testing o f a stain on a sh eet belo nging t o the vic tim. Jackso n, 358 Md. at 262, 747A.2d at 1200. As agreed, the defendant did not oppose the State’s request forpostpo neme nt. Jackso n, 358 Md. at 263, 747 A.2d at 1201. In addition, the results of the in this case did nothing to prev ent Erika from co mplying with the agreem ent. Rather, Erika volu ntarily made inc ulpatory statem ents after the signing of the agreem ent, rendering th e agreem ent null and void and r eleasing the State from its promise n ot to In order to support our holding that the Circuit Court did not err by finding that Erika ma de inculpa tory statements, re ndering the agreeme nt null and v oid, it is appropriate that we discuss the preliminary statements made by Erika to the polygraph DNA test excl uded th e defe ndant. Id. The State realized later that they had tested thewron g sheet and the n refus ed to ho nor the agreem ent. Id. We noted that the defendanthad perfo rmed his e nd of the a greemen t, and we h eld that the S tate should b e held to itsend of the barg ain, eve n thoug h the St ate, in hin dsight, h ad ma de a ba d deal. Jackson,358 Md. at 278, 747 A.2d at 1209. The present case is distinguishable because ErikaSifrit made reliable inculp atory statemen ts that implicate d her in the m urders, leadin g tothe trial co urt’s rea sonab le conc lusion th at she d id not p erform her end of the a greem ent. As noted by the Court in Jackson, “‘[w]e thin k that once the State ha s made a b argain, itis bound to adhere to th e agreem ent so long as the accused performs his part.’” Jackson,358 Md. at 275-76, 747 A.2d at 1208 (quoting State v. T homp son, 48 Md. App. 219, 222,426 A .2d 14, 1 6 (198 1) (emp hasis ad ded). Osbo rne v. St ate, 304 M d. 323, 4 99 A.2 d 170 ( 1985) , abrogated on other grounds by State v. Hawkins, 326 Md. 270, 604 A.2d 489 (1991), is similarly inapposite. In thatcase we held that the State could not rescind a plea agreement merely because it wassurprised by the lower sentence imposed by the court after the defendant had performedhis end of the a greem ent. Osbo rne, 304 Md. at 338, 499 A.2d at 177. Again, the presentcase is d istinguis hable b ecause Erika b reache d the ag reeme nt she h ad with the State . 17 The statements made by Erika are recorded in a July 24, 2002, “United States Government Memorandum U. S. Secret Service,” written by one of the polygraphexaminers and admitted into evidence at the motions hearing as Joint Exhibit 1.
On July 23, 2 002, Secre t Service Sp ecial Age nts met w ith Erika at the Ocean C ity Police Station to administer a polygraph examination. Prior to the examination, the Special Agents gave Erika the Miranda warnings and informed her that the polygraph examination was a voluntary process.
After escorting Erika to the examination room, the Special Agents began the polygraph pre-test interview. At that time, a standard U.S. Secret Service medical questio nnaire w as com pleted, f ollowe d by a U .S. Secr et Serv ice histo ry questio nnaire. While completing the questionnaires, Erika, “talked about her life before being married and then began to detail the relationship between she and her husband, Benjamin Sifrit.” Erika then began to describe in great detail the events of the evening of May 25, 2002. Erika stated that she and her husband were vacationing in Ocean City, Maryland, when they met another couple, Joshua Ford and Martha Crutchley, while boarding a bus on their way to Seacret’s nightclub . After hanging ou t all night at the club with Mr. F ord and Ms. Crutchley, both couples decided to go “party” back at the Sifrits’ condominium at 1:30 a.m., now the morning of the 26th. They took a bus to the A tlantis (where Mr.
Ford and Ms. Crutchley were staying) to pick up swimsuits and then the four of them walke d on the beach to the S ifrit’s co ndom inium. Erika stated that Joshua, Martha, and Benjamin stayed on the beach and that she went into the condominium to get beers for everyone. Once inside the Sifrits’ penthouse unit, she noticed that her purse was on the back of the couch and not where she had originally put it. She stated that her jewelry and p ills were mis sing so she called 911 to report that the re were, “[ i]ntruders in m y house and my stuff is m issing.” Ac cording to Erika, s he hun g up on 911 w hen Jo sh cam e upsta irs. She ye lled for Benja min to c ome u p. Erika and Benjam in then accu sed Joshu a and M artha of tak ing their thing s and Be njamin grabbed Erika’s gun and pointed it at Joshua and Martha. Erika stated that when Benjam in took the g un, she “kn ew he w as going to kill them.” B enjamin to ld them to take off their clothes. The victims complied and, according to Erika, asked Benjamin and Erika w hy they we re doin g this an d said th at they did not take any of th e Sifrits’ things. Accord ing to Erika , Benjam in continue d to point the gun at the v ictims and to ld them to “[g]et in the bathroom.” Joshua and Martha locked the door behind them and were “yelling and pleading for their lives.” Erika stated that Benjam in asked her, “I’m supposed to fucking waste them? Cool?” T he narrative continues as follows: Mrs. Sifrit said they were, “getting very loud and I just wanted them to shutup.” Mr s. Sifrit said she was wo rried about th e police com ing and pe opleout on the beach hearing them. She stated she could hear Martha yelling“help me, help me, help me!” and banging against the glass on the bathroomwindow. She stated she could hear Josh pounding on the bathroom doorand yelling “Why are you doing this!” o ver and over.
Mrs. Sifrit stated she told B.J. to, “Just fucking do it! You got them naked,you put a gun to their heads, just do it!” After she told us that she had said,“Just fucking do it![,]” [s]he stopped for a minute during the interview andsaid, “Now you have me on murder.” I asked Mrs. Sifrit what she meantby, “just fucking do it” and “just do it” and she continued by saying, “Imeant just k ill them.” I aske d Mrs. Sif rit this same qu estion appr oximatelyten times and her answer was always the same, “I meant kill them, I knewhe wa nted to.” B.J. fired the Smith & Wesson into the bath room do or and then kicked itopen. She described the kick as being so hard that B.J. fell backwards. Thebathroom door flew open and lodged itself in the wall. B.J. went into thebathroom and Mrs. Sifrit stated she saw Josh fall to the right side of thebathroom against a closet. She said he was shot. Josh was still yelling,“Why are you doing this?” She then watched as B.J. took a “head shot” onJosh. According to Mrs. Sifrit, she then wet her pants and went to go sit onthe edge of the bed and “waited for it to be over.” I asked what she meantby “waited for it to be over” and she said the killings. Mrs. Sifrit said sheheard two more shots close together (about 5 seconds) and then B.J. came out flexing his muscles covered in blood she described that “he hadobviously put on himself.” B.J. called Mrs. Sifrit into the bathroom.
Erika then went to the jeep to get their radios, check for their things on the beach, She ran back up to the penthouse and into the bathroom. She stated B.J.
said, “Baby, open your knife like I taught you. Get down there and checkher to see if sh e’s dead. G et down there and m ake sure . . .” M rs. Sifritsaid, “But, I thought you said she . . .”and Mrs. Sifrit walked over to Marthawho was huddled in the fetal position under the vanity and began “to cut onher body.” I m oved into th e position I tho ught M artha wo uld have b een inand M rs. Sifrit correcte d me and she herself got into the f etal position toshow ex actly how M artha was and wh ere she cut o n her bod y. Mrs. Sifritsaid the blood was very deep around Martha and it got on her clothes as shewent down on her knee to cut on Martha. She showed us the right side ofher abdomen above her right hip as the location she cut. She said, “I wassurprised how much pressure it took to cut the skin since I had never cutsomeone before. I cut her twice like this.” Mrs. Sifrit showed us how sheheld the knife and cut Martha. After saying, “I cut her twice” she stoppedand said, “now you have me on murder.” I asked her if Martha was dead oralive when she cut on her. Mrs. Sifrit said she did not know but thoughtMartha was probably dead. I asked if she checked Martha in any waybefore cutting on her and she said, “No.” Erika then went on to detail how the couple cut up the bodies, put them in black trash bags, p laced them into Navy du ffle bags a nd put the b odies in tw o separate dumpsters behind a grocery store. After sleeping for a while, the Sifrits cleaned the bathroom. The next day, on May 27, 2002, they went to the dumpsters to be sure that they had been emptied. Erika stated that sometime on May 27 or May 28, Benjamin “[m]ade a com ment to her along the lines o f, what a numb er she had done o n Martha’s throat. Mrs. Sifrit stated she did not deny cutting Martha’s throat to B. J. She told us she was glad if he thought she had cut Martha’s throat.” In light of Erika’s statements, the polygraph ex aminers d id not adm inister the polygra ph test.
It is clear, after reviewing the statements Erika made prior to her polygraph examina tion, that she b reached th e agreem ent by makin g reliable incu lpatory statemen ts and implicating herself in the murders. Once Erika breached the agreement, the State had no obli gation to uphold its end o f the ba rgain. Inconsistent Theories of Prosecution The first question presen ted for our review is w hether the State violated Erika’s right to due process by presenting factually inconsistent theories of the case at her trial and tha t of her h usban d, Ben jamin. T his is a m atter of f irst impre ssion in this State . Other co urts, howe ver, have a ddressed th e issue and in the vast m ajority of cases f ailed to find a due process violation. We likewise fail to find a violation here.
The court that has addressed the issue of inconsistent theories the most is the United S tates Court o f Appe als for the N inth Circuit. It first a ddressed th e issue briefly in the case of Haynes v. Cupp, 827 F.2d 435 (9th C ir. 1987), in which Haynes relied on evidentiary and argumen tative differe nces betw een his trial an d that of a c o-defend ant to argue that his right to due process had been violated. Then Judge, now Justice, Kennedy wrote for the court that “[i]t is true that the trials differed in emphasis. However, the underlying theory of the case, that all three defendants were equally culpable, remained consistent thr oughou t. In view of this underlying c onsistency, the v ariations in em phasis are not cause for reversal.” Id. at 439. More th an a deca de later, that co urt was ag ain presente d with the q uestion in Thompson v. Calderon, 120 F.3d 1045 (1997) (en banc), rev’d on other grounds, 523 U.S. 538 (1998). In Thompson two men w ere charged for the sam e murder. The co urt found that the prosecuting attorney had offered conflicting theories regarding the two men’s motives for committing the crime. In Thompson’s case, the State argued that Thom pson h ad rape d the vic tim and then kill ed her to cover u p the rap e. Thompson, 120 F.3d at 1056-57. In the second defendant’s case, the State argued that he had killed her becau se he sa w her a s a threa t to his ab ility to recon cile with his estra nged e x-wif e. Id. The State presented completely different witnesses in the two trials, who, in some instances, provided testimony that wholly contradicted the testimony given in the other trial. Thompson, 120 F.3d at 1057. R elying in part on their Haynes opinion, the court stated that “it is w ell established that when no new significant e vidence c omes to ligh t a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime.” Thompson, 120 F.3d at 1058. T he court continued , howev er, “when there are claim s of incon sistent prosec utorial cond uct, reversal is not required where the underlying theory ‘remains consistent’” Thompson, 120 F.3d. at 1058-9 (quoting Haynes, 827 F.2d at 439). Ap plying this standa rd to Thompson’s case, the court found that “little about the two trials remained consistent other than the prosecutor’s desire to win at any cost.” Thompson, 120 F.3d at 1059. The court held that Thompson’s right to due process had been violated.
In Shaw v. Terhune, 353 F.3d 697 (2003), the Ninth Circuit again returned to the issue. Like in Haynes, the cou rt foun d that the re had n ot been a due p rocess v iolation . Shaw and an accomplice were both convicted of several crimes arising from an attempted robbery. Despite the fact that the evidence established that only one person had personally used a firearm during the robbery, the prosecutor argued at both trials that the man c urrently o n trial ha d been the one to use th e firearm . Shaw, 353 F.3d at 699. The court reviewed its holding in Thompson and found it “sufficiently dissimilar to the instant case that it is distinguishable.” Shaw, 353 F.3d at 702. The court noted that the Thompson case had rested on the “‘peculiar facts’ of the case.” Shaw, 353 F.3d at 702 (quoting Thompson, 120 F.3d at 1059). “The prosecutor in Thompson did not me rely suggest varying interpretations of ambiguous evidence; he ‘manipulated evidence and witnesses, a rgued inco nsistent mo tives, and in [ the other de fendant’s ] trial essentially ridiculed the theory he used to obtain a conviction and dea th sentence at Thom pson’s trial.’” Shaw, 353 F.3d at 702 (quoting Thompson, 120 F.3d at 1057). “By doing so, the prosecuto r brought h is conduc t squarely within an area fo rbidden b y the Suprem e Court – the ‘knowing [] present[ation of] false testimony.’” Shaw, 353 F.3d at 703 (quoting Thompson, 120 F .3d at 10 58) (inte rnal citati ons om itted) (alte ration in origina l). Returning to the facts of Shaw, the court stated “[i]n this case, Shaw does not contend that the prosecutor presented false evidence, and in reality cannot do so, because the evidence was nothing more than ambiguous. The evidence presented at the two trials was almost identical, and supported several critical conclusions . . . .” Shaw, 353 F.3d at 703. The [c]learly established federal law prohibits a prosecutor from‘knowingly presenting false evidence;’ it does not precludethat prosecutor from suggesting inconsistent interpretations ofambiguo us eviden ce. Whe n prosecu tors confro nt trulyambiguous evidence that supports multiple convictions forwhat is inherently a unilaterally committed crime, there a recompeting con cerns involved. In these situations, pro secutorsmust retain s ome am ount of d iscretion to ch ange theo ries inlater trials. Since no clearly established federal law precludes aprosecutor from supporting two theories which are in tensionwith one another but which are each arguably supported byambiguous evidence, Shaw’s due process rights were notviolated . . . . Shaw, 353 F.3d at 703, 705 (citing Nguyen v. Lindsey, 232 F .3d 123 6 (9th C ir. 2000 )). The holding in Shaw is consistent with the Ninth Circuit case Nguyen v. Lindsey, in which the court found that a defendant’s right to due process is not violated when a prosecutor uses incon sistent arguments at separate trials, provided the arguments are consistent with the evidence adduced at each trial and provided the prosecutor does not knowingly use false evidence or act in bad faith.18 Id. at 1240.
In Thompson, the Ninth Circuit relied, in part, on a concurring opinion accompanying the en banc reheari ng of a n Elev enth C ircuit cas e, Drake v . Francis , 727 F.2d 9 90 (11 th Cir. 1 984), rev’d on different grounds en banc, Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985). In Drake v . Francis , the defendant argued that by pursuing “wholly inconsistent theories” in his and a co-defendant’s trial, the prosecution violated his right to due p rocess. Drake, 727 F.2d at 994. Drake and a co-defendant were charged and convicted of the murder and armed robbery of a barber in Colbert, Georgia. In the co-defendant’s trial the prosecutor argued that the co-defendant committed the murder while Drake played a lesser role. In Drake’s trial, a year later, the prosecutor argued that the co-defendant was too old and weak to have committed the murder by himself and that 18 From a practical standpoint, the Nguyen court noted: Nor is it shocking or even unusual that the evidence came insomewhat differently at each trial. Any lawyer who has ever trieda case knows that trial preparation is not a static process. As a caseevolves, new witnesses come forward; others become unavailable. As new evidence is uncovered, other evidence loses itssignificance. What is received in evidence by stipulation in onetrial might draw vigorous objections in another.
Drake m ust have p layed a more significant ro le. The cou rt found tha t “the only inconsistent theory propounded in the two trials was that [the co-defendant’s] prosecutor believed [the co-defendant] was the sole murderer while in Drake’s case, the district attorney urged that, due to sheer physical necessity, Drake must have participated in the attack as well.” Id. “Viewed in this light,” continu ed the court, “the two theo ries are fairly consistent and there was no due process violation.” Id. On rehearing en banc, the majority o f the co urt decli ned to r each th e issue, in stead g ranting relief on other g round s. Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985) (en banc).
In Smith v. Groose, 205 F .3d 104 5 (8th C ir. 2000 ), cert. denied, Gammon v. Smith, 531 U.S . 985 (200 0), the Unite d States C ourt of A ppeals for the Eighth Circuit addressed the issue in the context of a prosecutor relying on two wholly inconsistent and irreconcilable statements made by the same witness. In the first of two trials in Smith, the prosecution relied on a statement by a witness that the victims were alive when they entered the house and that a colleague of the witness testifying had, in fact, killed the victims . Smith, 205 F.3d at 1048. In a subsequent trial of a different defendant, the prosecutor relied on a diff erent statement made b y the same witness that the victims w ere dead w hen the y arrived a t the hou se. Id. “In short, w hat the State c laimed to b e true in [the first case] it rejected in [the second case], and vice versa . . . . This before/after distinction is the heart of the prosecutorial inconsistency that allowed the State to convict as many defendants as possible in a series of cases in which the question of timing was crucial.” Smith, 205 F.3d at 1050-1051. Although the court held that the actions of the State in this case “constituted foul blows . . . that fatally infected Smith’s conviction,” the court also noted that “[w]e do not hold that prosecutors must present precisely the same evidence and theories in trials for different defendants. Rather, we hold only that the use of inherently factually contradictory theories violates the principle of due process.” Smith, 205 F.3d at 1052. T he court co ntinued by no ting that “Sm ith’s situation is unusual, and we doubt that claims such as his will often occur. To violate due process, an inconsistency must exist at the core of the prosecutor’s case against the defendants for the The theme requiring an inconsistency at the core of the state’s case before finding a due process violation runs throughout the majority of cases that have addressed the issue. See Clay v. Bowersox, 367 F.3d 993, 1004 (8th Cir. 2004) (“‘To violate due process, an inconsistency must exist at the core of the prosecutor’s cases against the two defendants for the same crime,’ and the State’s error must have ‘rendered unreliable’ the [petition ers] con viction.” ). Id. at 1004 (quoting Smith, 205 F.3d at 1052); United States v. Paul, 217 F .3d 989 , 998-9 9 (8th C ir. 2000 ), cert. denied, 534 U.S . 829 (200 1) (“Wh en it cannot be determined which of two defendants’ guns caused a fatal wound and either defendant could have been convicted under either theory, the prosecutor’s argument at both trials that the defendant on trial pulled the trigger is not factually inconsistent. Thus, because there was evidence that supported both theories, and since Paul could have been convicted of aiding a nd abetting under eithe r theory, we fin d no error.”) ; Nichols v. S cott, 69 F.3d 1 255 (5th Cir. 199 5), cert. denied, Nichols v. Johnson, 518 U.S. 1022 (1996) (Finding that where the facts support the conclusion that either defendant could have fired the fatal shot, the prosecutor did not violate due process by arguing at separate trials that the man o n trial was the one respo nsible for the fatal shot.); Illinois v. Caballero, 794 N.E.2d 2 51, 264 (Ill. 20 02) (“W e conclud e that no du e process v iolation has o ccurred in the present case when the State’s shifting positions involved matters of opinion, not of underlying fa ct.”); Iowa v. Watkins, 659 N.W.2d 526, 532 (Iowa 2003) (“We a re convince d that [Thompson and Smith] only stand for the proposition that a selective use of evidence by the prosecu tion in order to establish inco nsistent factu al contention s in separate crim inal prosecu tions for the s ame crim e may be so e gregious a nd lacking in good faith as to constitute a denial of due process. We view those situations as a narrow exception to the right of the prosecution to rely on alternative theories in criminal prosecutio ns albeit that the y may be incon sistent . . . . This right is p articularly obviou s in cases in which the evidence is not clear concerning which of two persons is the active perpetrator of the crime and which of them is an aider and abettor of the active perpetrator.” (Internal citations omitted.)).
Based o n our ana lysis of the releva nt case law , we are in a ccord w ith the courts that hold that a due process violation will only be found when the demonstrated inconsistency exists at the core of the State’s case. Discrepancies based on rational inferences from ambiguous evidence will not support a due process violation provided the two theories are supported by consistent underlying facts. We recognize that the evidence presented at multiple trials is going to change to an extent based on relevancy to the particular defendant and other practical matters. The und erlying core facts, however, should not change. The few courts that have found due process violations did so in cases where the incons istencies were inherent to the S tate’s whole theory of the case o r where the varying material facts were irrecon cilable. It is this type of inconsistency that renders the convic tion funda mentally unfa ir, thus violating due proc ess. With this s tandard in mind, we return to the present case.
Erika relies primarily on four ways in which she believes the State’s case differed in the two trials and in which she believes the differences rise to a violation of due process. They are: (1) ownership and possession of the murder weapon, (2) the testimony of Mich ael McIn nis, (3) the testim ony of M elissa Seling, a nd (4) the n umber o f shots None of the d ifferences in the two trials alleged b y Erika go to the State’s underlying theory of the case which remained consistent throughout both trials, which was that Benjam in and Erika com mitted the crimes together. Th e differences raised are differences in emphasis and inferences regarding certain facts tending to show the guilt of the defendant currently on trial, but in no way exculpating the other Sifrit. Evidence offere d tendin g to sho w Be njamin ’s guilt is n ot nece ssarily relev ant to sh ow E rika’s gu ilt. Provided the evidence remains consistent with the underlying facts, the inconsistent emphasis or inferences will not amount to a due process violation.
We begin with the issue of who owned the murder weapon. The evidence presented at the two trials established that both Benjamin and Erika had access to the murder weapon throughout the week. According to the evidence, Benjamin purchased the gun, apparently for Erika, both had possession of the gun at varying times during the week following the murders, and the two often exchanged their various weapons. Based on these facts, it is not inconsistent for the State to argue at Benjamin’s trial that the murder weapon was his.19 Nor is it inconsistent with the facts for the State to argue at Erika’s trial that th e wea pon w as hers. T he fac ts and in ferenc es supp ort both conclu sions. Furtherm ore, conside ring the fac ts established that the Sifrits o ften exch anged the ir weapo ns and bo th had acc ess to the m urder we apon, dete rmining w ho actually “ow ned” it The same is true w ith regard to the issue of w hether Erika fired one s hot or two. In both trials the State recognized that no one besides Erika and Benjamin can know for certain wh o fired w hich bullet.20 The facts established that four shots were fired from the 19 The State’s actual argument in Benjamin’s trial regarding the weapon was, in part, that “Benjamin Sifrit, the defendant, controlled both guns on various occasions” and that the gun“was purchased by the defendant. He picked it out for his wife, and yet he would have youbelieve that he never fired it.” 20 In Benjamin’s trial the State argued: I will never know and you will never know who pulled the triggeron that gun that night, but one thing is for certain: they were both .357 magnum. Two of the four shots were found in Mr. Ford’s torso. The other two bullets were found on the table in the Sifrit’s condominium, one with flesh on it that matched M r. Ford’s DNA . It was the State’s consistent theory that both Sifrits w ere present for the murde rs and that both participated in them by actually shooting at Mr.
Ford and by luring the couple up to the apartment. Whether Erika’s participation in the murders is limited to firing one shot or two, or simply by aiding Benjamin in luring the couple to th eir deaths, do es not affe ct her culpa bility. Under eithe r theory a jury could find both participants guilty of murder. This distinction falls squarely within the permissible differences allowed in Paul, Nichols , Caballero, and Watkins discussed Erika also argues that the State’s characterization of the testimony of Michael McIn nis (“M cInnis” ) in the tw o trials am ounted to a due proces s violatio n. McInnis is a former Navy SEAL and friend of Benjamin. He was called by the defense a t Erika’s trial to rec ount a con versation tha t he had w ith Benjam in. McInn is there and they both – whichever one of them didn’t pull the triggeraided and abetted the murder by helping the other one.
No one in this room will ever know who did what to whom thatnight. There’s certainly inferences to be drawn from the facts inthis case, and the State has argued those inferences to you, butnone of us will ever know definitively what happened in that room,but it’s clear that the defendant was there. It’s clear that thedefendant participated to the extent of luring these people up there. She aided and abetted the crime of murder, which makes her guiltyof the crime of murder.
testified that in 1999 the two men were at a strip club having drinks when the discussion turned to how Benjamin would dispose of a body if he ever killed someone. The conversation arose when McInnis asked Benjamin to “whack” his wife for him, to which Benjamin allegedly responded “[y]eah, sure.” McInnis asked what the going rate was for “whack ing” som eone, to w hich Ben jamin respo nded aro und $30 ,000. Acc ording to McInnis, Benjamin stated that he would dispose of the body by laying down plastic in a living room or an open space and then remove the arms, legs and head with a knife. Then he would remove the body in separate bags and dispose of the body in either the same dumpster over the course of a month or in different dumpsters throughout the city in a single trip. McInnis testified that the conversation was a typical conversation between SEALs, that they were “simply talking trash with guys over a few beers,” and that the con vers ation was not t o be take n ser ious ly.
Erika argues that the State too k inconsistent positions in the two trials with regard to this testimony. In Benjamin’s case, the State made reference to this evidence as “crucial,” bu t in rebuttal closin g remarks in Erika’s trial th e State argu ed: Michae l McInn is told you as far as he wa s concern ed, thiswas just guys talking over beer and nobody was serious aboutit. Now, that would sound easy if none of this other stuff hadhappened. Certainly it was a joke in McInnis’s mind. In lightof wha t happene d this past M emorial da y, perhaps it wa sn’t ajoke in Benjamin Sifrit’s mind. But, ladies and gentlemen,the important issue is not who quartered the bodies and putthem in the dumpste r, the importa nt issue is wh o’s respon siblefor their deaths? We find Erika’s argument unpersuasive. The question of whether Benjamin had thought about killing someone and how he would dispose of the dead body if he ever murdered someon e is clearly more r elevant to the State’s case a gainst Ben jamin than it is to Erika’s guilt or innocence in her role(s) regarding the murders. This is unlike Thompson where the prosecutor “essentially ridiculed the theory he used to obtain a conviction and death sentence in Thompson’s trial.” Rather, McInnis’s testimony established that Benjamin had considered committing almost the same type of crime three years before, not that he was incapable of committing the crime by himself. Furthermore, the que stion of wheth er the co nversa tion wa s a joke is a matte r of op inion, n ot fact. See Illinois v. Caballero, 794 N.E.2d 251, 264 (Ill. 2002) (“We conclude that no due process violation has occurred . . . when the State’s shifting positions involved matters of opinion, not underlying fact.”). The State’s shifting position regarding whether McInnis’s opinion that the conversation was a joke does not affect the core of the State’s case and does not The fina l way in wh ich Erika cla ims the State presented in consistent the ories is with regard to its reliance and interpretation of Melissa Seling’s testimony at the two Melissa Seling was called as a State’s witness against Benjamin and a defense witness in Erika’s trial. At various points in Benjamin’s trial, Melissa stated that Benjamin had told her that he was ridding the world of bad people, or that if they were “ripping the m off, you k now, he has had o ther people rip them of f and if w e ripped him off like the o ther people that were h ere, he wo uld do the s ame thing to us that he d id to them refe rring to the bu llet hole in the d oor.” On cross-exam ination in B enjamin’s tria l, the defense asked Ms. Seling “[y]ou are unsure whether or not he ever said he killed anyone, she killed anyone, or they both killed anyone; isn’t that right, Ms. Seling? To which she responded, “[n]o matter how you pick apart the words, he admitted to me throughout the night that in one way or another he was involved in the murder of these two peo ple.” Cou nsel then qu estioned he r regarding her stateme nt to the police shortly after the murders in which she said “[h]e was waving the gun around and making connotations to the people that they murdered and I am not sure if it was he murdered or she murdered or they both, you know, murdered them.” The attorney asked if that was the truth at the time and she said it was still the truth. She eventually responded: He stated to me several times throughout the night that he wasinvolved in these murders. Those ID’s, those people, youknow, with the b ullet in the door and everything. Y ou can’tjust pick words apart like that and try to shift the blame, youknow. The two people were there that night, four people andonly two cam e out and th at is what this is about.
In its closing argument in Benjamin’s trial, the State argued that Melissa is the best witness in this case, and I don’t say that justbecause her testimony helps the State a lot, but everybody elsein this ca se was so – ha d been drinkin g and M elissa ha d not. She told you the defendant told her, “If you’re ripping us off, I’ll do the same to you as I did to that other couple.” Heclaimed he was ridding the earth of bad people. He admittedthat he was involved in the killing of those two people, and hetold her , “I don’ t overre act; I just r eact.” Later, in its rebuttal argument, the State argued: Meliss a told you the truth . Meliss a was u nder oa th today. She was no t under oath whe n she talked to the police. Th ereis no testimon y or evidence that they placed her unde r oathwhen they questioned her.
The State then argued that Benjamin had admitted to these murders and that he had opene d his he art to M elissa in s tating “I killed tw o peop le. I killed two pe ople.” In Erika’s trial, M elissa was c alled as a de fense w itness and a ggressively examined. She testified essentially as she did at Benjamin’s trial with the same uncertainty regarding whether Benjamin uttered “he killed, she killed, they killed.” The defense, obviously, was emphasizing her statements in which she stated Benjamin had said he killed the people or words to that effect. On cross-examination she testified that she was not positive which pronoun, “I, she, they,” Benjamin had used, but that her general impression was that he was involved. She also confirmed that she has never testified that Benjamin said anything about Erika not being involved.
In its closing remarks in Erika’s trial, the State argued: Melissa Seling was called to the stand Friday by the defense.
She was a defense witness. Melissa Seling told you that shewasn’t drinking that night, and that’s uncontradicted. But B.J.
Melissa was told that there has been another couple there acouple of nights befo re who tried to rip them o ff, and she toldyou that the defendant’s husband said either I killed, shekilled, or we killed, she wasn’t sure which. Now, granted onone occasion she said I killed, quoting the husband. Onanother occasion she said we killed. Because of thatcontradiction, Det. Case told you that he asked her to clarify that, and then that’s when she came back and said I killed, wekilled, she killed, she wasn’t sure.
The main thrust of the State’s closing argume nt, however, was that the two were These two people are working as a team, ladies andgentlema n. Erika, the d efendan t in this case, an d B.J. Sifritwere working as a team. They worked as a team all weeklong. The y were wo rking as a tea m whe n they broke in toHooters. They were working as a team, we know, when theylured Melissa back to the unit, and I would submit, ladies andgentleman, they were working as a team when they got Joshand Geney back to the unit and ultimately killed them. Whyinvite two people bac k to your unit, your room, if you’recomplete ly innocent of what had happene d a few n ightsbefore? W hy would you ask two people to come b ack thereand risk be ing harme d? If your hu sband is the bad guy, ifyour husband is the murdering son-of-a-gun that did this, why would you invite another couple to come there? It’s an easyanswer. Because you participated in it. You got a rush. Youwante d them to com e back . You w anted a nother rush. Based on our review of the record, we find no inconsistency in the State’s position in the two cases. Melissa’s testimony, while at times confused regarding whether Benjamin said “I killed, she killed or they killed,” was fundamentally consistent throughout both trials. She may have been confused at various times regarding the pronoun used, however, she was clear that her impression of Benjamin’s comments that night was that Benjamin had participated in the murder. She did not testify that anything that night led h er to believe E rika was n ot involved , nor has the S tate ever take n this position. We find no inconsistency in the State’s position sufficient to justify concluding that a due process violation occurred.
The last qu estion prese nted for ou r review is w hether the trial c ourt erred in denying Erika’s motion to suppress evidence recovered from her purse the night she was arrested at H ooters. Erika made an oral motion to suppress the identifica tion cards, sh ell casings, and everything that flowed from the search because she claimed that the search of her purse was unlawful. The Circuit Court denied the motion finding that the search of the purse was “valid and legitimate.” The Court found that the search was permissible for any one of three reasons: (1) it was a search incident to a valid arrest, (2) it would have been in evitably d iscove red wh en the c ar was search ed, (3) E rika con sented to the se arch. We sha ll hold that the s earch wa s valid base d on Erika ’s consent. 21 Judge Battaglia, writing for this Court in State v. Green, 375 Md. 595, 826 A.2d 486 (2003), summarized our standard of review in Fourth Amendment cases. She wrote: The ultima te burden o f proving that eviden ce seized w ithout awarrant should no t be suppressed falls on the State. In 21 Because we find the search lawful based on consent we do not reach the issue of whether it would have been valid based on the other two theories.
reviewing a Circuit C ourt’s grant o r denial of a motion tosuppress evidence under the Fourth Amendment, weordinarily consider only the information contained in therecord of the s uppres sion he aring an d not th e trial rec ord. Where, as here, the motion to suppress was denied, we viewthe facts in the record in the light most favorable to the State,the prevailing party on the motion. With respect to weighingand determining first-level facts (such as the number ofofficers at the scene, the time of day, whether certain wordswere spo ken, etc.), we extend gre at deferen ce to the fac t-finding of the suppression hearing judge. Therefore, “whenconflicting evidence is presented, we accept the facts as foundby the hearing judge unless it is show n that his findings are clearly erroneous.” As to the ultimate conclusion of whetherthere was a Fourth Amendmen t violation, however, “we mustmake our own independent constitutional appraisal byreview ing the la w and applying the fac ts of the case.” Green, 375 Md. at 607 , 826 A.2d at 493 (internal citations omitted).
The Fourth Amendment to the United States Constitution provides, in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreason able search es and seizu res, shall not be violated . . . .” It is ma de applicab le to the State s by applic ation of the Fou rteenth A mend ment. See Ma pp v. Oh io, 367 U.S. 643, 655, 81 S .Ct. 1684, 1 691, 6 L.E d.2d 108 1, 1090 (1 961); Dashiell v. S tate, 374 Md. 85, 94, 821 A.2d 3 72, 377 (2003). “The tou chstone o f the Fou rth Ame ndment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297, 302 (1991) (citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)). The Supreme Court has long approved consensual searches because it is clearly reasonable for a police officer to search something once they have been g iven pe rmissio n to do s o. Jimeno, 500 U.S. at 250-51, 111 S.Ct. at 1803, 114 L.Ed.2d 302 (citing Schneck loth v. Busta monte , 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973)). The scope of a suspect’s consent is measured by an objective standa rd. Jimeno, 500 U.S. at 251, 111 S.Ct. at 1803, 114 L.Ed.2d at 302 (1991). The question is, “what would a reasonable person have understood by the exchange between the officer and the suspect” to be the scope of the consent? Jimeno, 500 U.S. at 251, 111 S.Ct. at 1803-1804, 114 L.Ed.2d at 302 (citing Illinois v. Rodriquez, 497 U.S. 177, 183- 89, 110 S.Ct. 2793, 2798-2802, 111 L.Ed.2d 148 (1990)). The Court must also consider what th e parties knew to be the object o f the sea rch at the time. In re Tariq A-R-Y , 347 Md. 484, 497, 701 A.2d 691, 697 (1997) (citing Jimeno, 500 251, 111 S.Ct. at 1803-04, 114 L.Ed.2d at 302-03 (1991)).
The only witness to testify at the suppression hearing regarding the search of the purse wa s Sgt. Been e. He testified that Erika h ad inform ed him tha t she had an xiety problems and was going to have a panic attack if she didn’t take her medication, Xanax and Paxil. She told him what they looked like and that they were not in their original containers, rather they were in a brown zippered pouch in her purse. When Sgt. Beene looked in the brown zippered pouch, however, he only found one type of the requested pills. Next to the brown pouch was a red zippered pouch of the same size and feel as the brown one. He looked in the red pouch and found drugs inside but not the other one described by Erika. While continuing his search for the remaining pill, he looked in an open zippered area in the back of the purse and discovered spent shell casings. He also noticed “a gray change purse, snap-type change purse” that he opened to see if the medication was in there. Instead of the medication, Sgt. Beene found the identifications of Martha Crutchley and Joshua Ford, whom he recognized from their missing persons fliers. Shortly after the discovery, the immediate search of the Sifrits’ condominium was ordered. The second type of pill was never found in the purse.
Erika argues that the scope of her consent was limited to the search of the brown zippered pouch located in her purse. The State, however, argues that Erika had asked the officer to retrieve her medication, therefore it was reasonable for Sgt. Beene to look in the other places in the purse where the medicine might be located.
It is beyond question that the search was voluntary. Erika asked Sgt. Beene to go into her purse and retrieve her medication. The remaining question is what would a reasonable person have understood by the exchange between Sgt. Beene and Erika to be the proper s cope of th e consen t? In mak ing this determ ination we must take in to consideration what the parties knew at the time of the search. Applying this standard, we conclude that, viewed objectively, it wa s entirely reasona ble for Sg t. Beene to c ontinue to look in Erika’s purse for the missing medication. The purpose of the request and the subseq uent se arch w as to ob tain Erik a’s med ication to addres s her im minen t panic a ttack. The subject matter of the search was the medication, not the brown pouch. Therefore, we hold the sco pe of Erik a’s consen t extended to those par ts of her pu rse which physically could have contained the requested medication. The search of Erika’s purse and the pouches within it for h er requested medication did not viola te the Fourth Amen dment.


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