E. SIFRIT v. State

GREENE, J. 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 Memorial Day weekend 2002 in Ocean City, Maryland, resulting principally in the death 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, convicted Benjamin Sifrit (“Benjamin”), 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 writ of certiorari. Sifrit v. State, 380 Md. 232 , 844 A.2d 428 (2004). Subsequently, while Benjamin’s appeal was pending in the Court of Special Appeals, we granted his petition for writ of certiorari before consideration of his claims by the intermediate appellate court.

Adam v. State, 381 Md. 324 , 849 A.2d 473 (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 separate opinions of this Court. Erika raises a number of issues on appeal: L Whether the State failed to comply with the express terms of the Memorandum of Understanding where the ⁸² State agreed not to prosecute Erika for murder if certain conditions were met. 2. Whether the State violated fundamental principles of fairness and due process by presenting two directly conflicting factual theories in separate trials of Erika and her husband, Benjamin, both of whom were charged with committing the same crimes. 3.

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 “prospective reliable inculpatory statements.” In light of her breach, the State was not required to honor its obligations pursuant to the agreement. Secondly, a due process violation does not exist in a situation involving multiple trials based upon 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 drawn from ambiguous evidence, provided 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 Fourth Amendment.

The proper scope of Erika’s consent encompassed all areas in her purse where the requested medication could have been contained. I. On Friday, May 24, 2002, Martha Crutchley and her boyfriend, Joshua Ford, drove from Virginia to Ocean City, ⁸³ 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 together at Seacrets. What happened in the early morning hours following the night at Seacrets 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 her purse.

She was “afraid I’m going to have a robbery here.” The call abruptly ended and no one was dispatched to the condominium. On Tuesday, May 28, 2002, one of Ms. Crutchley’s coworkers notified the Fairfax City police that Martha Crutchley failed to show up at work following the Memorial Day weekend. Fairfax City police contacted the Ocean City police who found Ms. Crutchley’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 them. 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 Hooters merchandise into their Jeep Cherokee. The couple were placed in handcuffs.

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’ ⁸⁴ car were a .45 calibre gun, ski masks, flex cuffs, and tape. 4 The two were arrested and charged with burglary. 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 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 identification cards of Mr. Ford and Ms. Crutchley. 5 Fearing for the safety of Ms. Crutchley and Mr. Ford, the police ordered an immediate search of the Sifrits’ condominium.

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 ⁸⁵ 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 all later identified as matching the DNA of either Ms. Crutchley or Mr. Ford. There was also a hole in the back wall of the bathroom, fresh paint on the wall, and 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 bodies, she told the detective that her husband, Benjamin, had shot Mr. Ford and Ms. Crutchley, “cut their bodies into pieces” and “put them in garbage bags.” On June 2, 2002, Erika’s then attorney, Arcangelo Tuminelli, entered into negotiations with Joel Todd, the State’s Attorney for Worcester County, regarding the charges against Erika. A Memorandum of Understanding (MOU) came out 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 without parole against Erika as long as she provided reliable information 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 ⁸⁶ prosecute Erika for the homicide charges. 6 The exact language of the relevant portion of the MOU is as follows: Additionally, Defendant agrees to subject herself to a polygraph examination to be conducted by an active federal polygraph examiner, said examiner to be agreed upon by the State and Defendant. If Defendant tests “not deceptive” on all material questions related to the homicides of the victims referenced in Paragraph 1 above asked of her by the polygraph examiner, and absent any compelling independent evidence to the contrary (i.e. eye witness testimony, photographs and/or prospective reliable inculpatory statements by the Defendant) the State agrees not to prosecute 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 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 condominium that she shared with Benjamin when three of the shots were fired. Erika was scheduled to have a polygraph examination on July 23, 2002, but Deputy State’s Attorney Scott Collins terminated the polygraph because of incriminating statements that Erika ⁸⁷ made in her pre-polygraph interview with United States Secret Service agents. Erika filed a Motion to Enforce the Memorandum, which she claimed required that the State give her the polygraph examination. 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 testimony was received concerning Erika’s behavior 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 purchase paint for the condominium. At the Home Depot, Erika met and spoke to Anne Wright, who testified at the trial as follows: Q Now I want to direct your attention back to May 28th of 2002 last year.

Were you in Ocean City resort area about that time? A Yes. Q And did you have occasion to go to the local Home Depot store? A We did ...

Q And who did you meet? A Erika Sifrit Q And did you see anyone else with her? A Um, her husband. H* * * Q Okay.

Was the Defendant carrying anything? A Um, she had a triangular shaped piece of wood. Q And did she say anything to you about this triangular shaped piece of wood? A She said do you believe that’s all that’s left of my door.

Q And did you respond? ⁸⁸ A And I said that must have been some party. Q Did she respond to you? A She laughed and said I guess you could call it that. The State’s theory in both cases was that after leaving Seacrets that night, the two couples had returned to the Sifrits’ condominium.

Once in the condominium the Sifrits engaged in a “missing purse game” in which they claimed Erika’s purse was missing. 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 manner killed Ms. Crutchley. The State’s theory is based in part on the testimony of Melissa Seling (“Melissa”) who met the Sifrits the night of May 29 through her friend Justin Todd Wright (“Todd”). 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 end of the evening, Melissa was worried about Benjamin’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 condominium because she seemed so intoxicated that she might fall over without help. 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 purse and that Melissa had to look for it. At some point during the search for the purse, Benjamin brandished a gun and became more adamant about finding the purse. Benjamin made a number of statements 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 ⁸⁹ 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 concurrent for theft. 7 Additional facts will be provided throughout this opinion as appropriate to our analysis.

II

The Memomndum of Understanding The first question presented for our review by Erika is whether the State failed to comply with the express terms of the MOU. Prior to her trial, Erika filed a motion to enforce the agreement she had made with the State and to dismiss the homicide charges against her. 8 After an evidentiary hearing, the Circuit Court for Worcester County denied her requests. Erika argues that this Court should reverse her murder convictions because “the State violated fundamental principles of fairness and due process by breaching its written agree ⁹⁰ ment with Ms. Sifrit and prosecuting her for the homicides of Ms. Crutchley and Mr. Ford.” Erika’s argument is unpersuasive. 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 that Erika breached the agreement when she made “prospective reliable inculpatory statements” after the signing of the agreement with the State. It is clear from the language of the agreement itself that if such statements were made, the State would not be obligated to refrain from prosecuting her for murder. In light of those facts, it was entirely proper for the State to refuse to honor the rest of the agreement. 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 of the gruesome details of the murders and even admitted to her direct 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 agreement, conducting the polygraph after hearing those inculpatory statements would have been a pointless exercise. 10 To suggest that the State should have upheld its ⁹¹ end of the bargain after the blatant breach by Erika is illogical and unpersuasive. 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 exchange for reliable information from the Defendant to the State detailing the way and manner in which the bodies of Martha Margene Crutchley and Joshua Ford were packaged prior to their disposal, as well as information on the location where the bodies were disposed of, the State of Maryland agrees not to seek the sentence of death or life without parole against Defendant. 2.

Additionally, Defendant agrees to subject herself to a polygraph examination to be conducted by an active federal polygraph examiner, said examiner to be agreed upon by the State and Defendant. If Defendant tests “not deceptive” on all material questions related to the homicides of the victims referenced in Paragraph 1 above asked of her by the polygraph examiner, and absent any compelling independent evidence to the contrary (i.e. eye witness testimony, photographs and/or prospective reliable inculpatory statements by the Defendant) the State agrees not to prosecute Defendant for these homicide charges. (Emphasis added.) In addition, paragraph 6 of the agreement notes that “if Defendant fails to comply with paragraphs 2 and 3[ 11 ] of this Memorandum of Understanding, this Memorandum ⁹² of Understanding becomes null and void (except for Paragraph 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 Paragraph 2 of the agreement. The judge discussed the evidence of Erika’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 “if she goes in there and tells the polygraph examiners, ‘I’m the one that did one or more 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 condition. Moreover, the judge stated: I also think that after the polygraph was called off by Mr. Collins and eventually Mr. Todd came down, I think the question was asked, “Are we in agreement now, she didn’t complete the terms of this agreement?” or words to that effect, and that Mr. Tuminelli said, “Absolutely. Yes. That’s so,” or something close to that.

He acquiesced and agreed. And I think that took place. I don’t think they came in here and just simply made that up. The judge also noted that he reviewed the interview between the polygraph examiners and Erika, and found that she did make “prospective reliable inculpatory statements.” 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 ⁹³ 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. Partnership v. Levering Assocs., 340 Md. 223, 230 , 665 A.2d 1062, 1065 (1995). With that standard in mind, we see no reason to hold that the trial judge’s findings of fact on this matter are clearly erroneous. After reviewing the evidence, the trial court decided not to enforce the agreement against the State. The judge explained his decision by stating that 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 agreement were rendered impossible to perform.

The trial judged summed up his reasoning by stating: [Erika] simply could not have answered the questions because they basically were the opposite of what she just told the polygraph examiner. So obviously she could not pass that part of it. She — it was — she made it impossible to perform. She did not meet the conditions precedent in the contract and that’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. Gunter, 367 Md. 386, 392 , 788 A.2d 609, 612 (2002). The interpretation of a contract is ordinarily a question of law. Wells v. Chevy Chase Bank, 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 at 630 . In addition to the objective principles of contract interpretation, the interpretation of the agreement in this case ⁹⁴ must also be interpreted by “the standard to be 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 , 357 A.2d 376 (1976) 12 Even considering fair play and equity, we can see no reason for the State to continue to abide by an agreement that was rendered void solely by the voluntary actions of the defendant. 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 obligations under the bargain. Brockman, 277 Md. at 698 , 357 A.2d at 384 ; Blinken v. State, 291 Md. 297, 309 , 435 A.2d 86, 91-2 (1981) (noting that both the State and the defendant have a duty to uphold the terms of the agreement between them); Butler, 55 Md.App. at 435, 437, 462 A.2d at 1243-4 (stating that “[tjhere is, of course, the ever-present reality that [the ⁹⁵ 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 case included an implicit representation that she was not culpable in the murders.

Making “reliable inculpatory statements” as to her active participation in the murders 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 obligated to adhere to the agreement. 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 for a different reason.

It is clear that Erika breached the agreement because her preliminary statements to the polygraph examiners constituted “prospective reliable inculpatory statements.” 15 Therefore, it is equally clear, from the plain language of the ⁹⁶ 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 inculpatory statements) to conduct the polygraph exam is, thus, specious. In fact, Erika made it impossible for the State to continue to honor the agreement by her own actions. To argue that the State “had an absolute obligation to afford her the opportunity 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 in this case did ⁹⁷ nothing to prevent Erika from complying with the agreement. Rather, Erika voluntarily made inculpatory statements after the signing of the agreement, rendering the agreement null and void and releasing the State from its promise not to prosecute her for homicide. In order to support our holding that the Circuit Court did not err by finding that Erika made inculpatory statements, rendering the agreement null and void, it is appropriate that we discuss the preliminary statements made by Erika to the polygraph examiners. 17 On July 23, 2002, Secret Service Special Agents met with Erika at the Ocean City 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 questionnaire was completed, followed by a U.S. Secret Service history questionnaire. 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 out all night at the club with Mr. Ford 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 Atlantis (where Mr. Ford and Ms. ⁹⁸ Crutchley were staying) to pick up swimsuits and then the four of them walked on the beach to the Sifrit’s condominium. 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 pills were missing so she called 911 to report that there were, “[intruders in my house and my stuff is missing.” According to Erika, she hung up on 911 when Josh came upstairs. She yelled for Benjamin to come up. Erika and Benjamin then accused Joshua and Martha of taking their things and Benjamin grabbed Erika’s gun and pointed it at Joshua and Martha. Erika stated that when Benjamin took the gun, she “knew he was going to kill them.” Benjamin told them to take off their clothes.

The victims complied and, according to Erika, asked Benjamin and Erika why they were doing this and said that they did not take any of the Sifrits’ things. According to Erika, Benjamin continued to point the gun at the victims and told 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 Benjamin asked her, “I’m supposed to fucking waste them? Cool?” The narrative continues as follows: Mrs. Sifrit said they were, “getting very loud and I just wanted them to shut up.” Mrs. Sifrit said she was worried about the police coming and people out 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 bathroom window.

She stated she could hear Josh pounding on the bathroom door and yelling “Why are you doing this!” over 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 and said, ⁹⁹ “Now you have me on murder.” I asked Mrs. Sifrit what she meant by, “just fucking do it” and “just do it” and she continued by saying, “I meant just kill them.” I asked Mrs. Sifrit this same question approximately ten times and her answer was always the same, “I meant kill them, I knew he wanted to.” B.J. fired the Smith & Wesson into the bathroom door and then kicked it open. She described the kick as being so hard that B.J. fell backwards.

The bathroom door flew open and lodged itself in the wall. B.J. went into the bathroom and Mrs. Sifrit stated she saw Josh fall to the right side of the bathroom 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” on Josh.

According to Mrs. Sifrit, she then wet her pants and went to go sit on the edge of the bed and “waited for it to be over.” I asked what she meant by “waited for it to be over” and she said the killings. Mrs. Sifrit said she heard two more shots close together (about 5 seconds) and then B.J. came out flexing his muscles covered in blood she described that “he had obviously 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, and to watch out for the police. 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 check her to see if she’s dead. Get down there and make sure ...” Mrs. Sifrit said, “But, I thought you said she ... ’’and Mrs. Sifrit walked over to Martha who was huddled in the fetal position under the vanity and began “to cut on her body.” I moved into the position I thought Martha would have been in and Mrs. Sifrit corrected me and she herself got into the fetal position to show exactly how Martha was and where she cut on her body. Mrs. Sifrit said the blood was very deep around Martha and it got on her clothes as she went down on her ¹⁰⁰ knee to cut on Martha.

She showed us the right side of her abdomen above her right hip as the location she cut. She said, “I was surprised how much pressure it took to cut the skin since I had never cut someone before. I cut her twice like this.” Mrs. Sifrit showed us how she held the knife and cut Martha. After saying, “I cut her twice” she stopped and said, “now you have me on murder.” I asked her if Martha was dead or alive when she cut on her.

Mrs. Sifrit said she did not know but thought Martha was probably dead. I asked if she checked Martha in any way before 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, placed them into Navy duffle bags and put the bodies in two 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 comment to her along the lines of, what a number she had done on 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 examiners did not administer the polygraph test. It is clear, after reviewing the statements Erika made prior to her polygraph examination, that she breached the agreement by making reliable inculpatory statements and implicating herself in the murders. Once Erika breached the agreement, the State had no obligation to uphold its end of the bargain.

III

Inconsistent Theories of Prosecution The first question presented for our review is whether the State violated Erika’s right to due process by presenting factually inconsistent theories of the case at her trial and that of her husband, Benjamin. This is a matter of first impres ¹⁰¹ sion in this State. Other courts, however, have addressed the issue and in the vast majority of cases failed 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 States Court of Appeals for the Ninth Circuit. It first addressed the issue briefly in the case of Haynes v. Cupp, 827 F.2d 435 (9th Cir.1987), in which Haynes relied on evidentiary and argumentative differences between his trial and that of a co-defendant 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 throughout.

In view of this underlying consistency, the variations in emphasis are not cause for reversal.” Id. at 439 . More than a decade later, that court was again presented with the question in Thompson v. Calderon, 120 F.3d 1045 (1997) (en banc), rev’d on other grounds, 523 U.S. 538 , 118 S.Ct. 1489 , 140 L.Ed.2d 728 (1998). In 'Thompson two men were charged for the same murder. The court 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 Thompson had raped the victim and then killed her to cover up the rape. Thompson, 120 F.3d at 1056-57 . In the second defendant’s case, the State argued that he had killed her because he saw her as a threat to his ability to reconcile with his estranged ex-wife. 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 . Relying in part on their Haynes opinion, the court stated that “it is well established that when no new significant evidence comes to light 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 . The court continued, however, “when there are claims of inconsistent prosecutorial conduct, ¹⁰² reversal is not required where the underlying theory ‘remains consistent’ ” Thompson, 120 F.3d. at 1058 -9 (quoting Haynes, 827 F.2d at 439 ).

Applying this standard 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 court found that there had not been a due process violation.

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 currently on trial had been the one to use the 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 .