The opinion of the court was delivered by: Siggins, J.
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Arthur F. Appling, Jr. and Mario E. Matthews appeal their jury convictions for murder and attempted second degree robbery, following a joint trial where each of them blamed the other and claimed duress. Appling contends the instructions prevented the jury from fairly evaluating his testimony that Matthews threatened to shoot him if he did not participate in the robbery. We conclude the combined effect of the instructions constituted prejudicial error, and reverse Appling's conviction.
Matthews challenges the racial composition of the jury, the denial of his severance motion, admission of prior testimony by a prosecution witness, exclusion of certain evidence regarding Appling's juvenile misconduct and alleged jailhouse communications, alleged prosecutorial misconduct, additional jury instructions issues, and cumulative error. We conclude all but one of Matthews's claims of error lack merit, and any error was harmless. We therefore affirm Matthews's conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Early one evening, Eli Griffin walked from his apartment to a nearby mini-mart. He was shot and killed in the parking lot of his apartment building while on his way home. He was found with approximately $20 in his pocket. A wig and a nine-millimeter shell casing were also found at the scene. A pathologist determined that he was shot in the chest from at least 18 inches away. Griffin also had scratches and bruising on the right side of his neck that occurred before or close to the time of his death.
Appling and Matthews were jointly charged with murder and attempted second degree robbery. Matthews was also charged with firearm enhancements on the murder count. The trial revealed the following facts surrounding Griffin's killing.
The afternoon of the murder, Blanca Vigil and her friend Rachel Campos, who lived next door to Matthews, were with a group of people in front of Campos's house. Matthews and Appling were there. Matthews was drinking and acting "hyperactive," and had a black handgun. Both Campos and Vigil testified they saw Matthews with the gun. Some of the people, including Matthews and Appling, were taking turns wearing a mask and wig.
Campos and Vigil decided to drive to get some fast food, and Matthews and Appling asked for a ride. Vigil drove her orange Dodge Neon, with Campos in the front passenger seat and Matthews and Appling in the back. At Matthews's request, Vigil stopped at his friend's house and where Matthews's mother worked so he could get money from her.*fn1 Once the group got some food, Matthews wanted to go to a liquor store to buy alcohol, so Vigil drove to a nearby mini-mart. Matthews went inside the store while the others waited in the car.
Campos and Vigil could see Matthews through the store window trying to get Appling's attention. When Matthews entered the store, the owner of the mini-mart was waiting on Griffin. The owner had known Matthews "since he was [a] little kid," and saw him standing right behind Griffin, peering over his shoulder and singing, "I'm going to get paid tonight."
Matthews returned to the car and told Appling they should rob the man in the store because he had a wad of money. Appling refused to go and told Matthews to get back in the car. Matthews returned to the store and, in order to get behind Griffin, cut in front of several other customers. When Griffin left the store carrying a bag, Matthews followed him.
Matthews returned to Vigil's car and told Appling they should "get this guy [and] get that money." Despite his initial reluctance, when Matthews tugged on Appling's shirt, he got out of the car and followed Matthews toward Griffin's direction.*fn2 Vigil was fairly certain the two men were going to rob Griffin, and Campos had a bad feeling about what was going to happen.
Juan Carlos Escobar was an employee of the mini-mart who also observed Matthews while he was in the store. Escobar was concerned that something might happen, and watched Griffin when he left to see where he was going. Escobar saw Matthews and a companion who got out of an orange car walk out of sight in Griffin's direction. Within five minutes, Escobar heard a gunshot.
Vigil left the mini-mart and was on her way back to Campos's house when she saw Matthews and Appling on the street. They flagged her down, got back into the car, and returned to their neighborhood.
Vigil was interviewed by police approximately three weeks after Griffin's murder. She told police that after Matthews and Appling got back into the car, Appling said, "I was holding him, you should have done it," and "You should have got into his pocket and took his money."
Campos testified that Matthews was upset at Appling after the men returned to the car, and he told Appling, "I should have done it myself." Matthews asked Appling, "Did you get the booze?" and Appling said he left it by the railroad tracks. Campos heard someone say, "Why didn't you do it," or "You should have just got in his pockets." She also told police that Matthews said he would have given each person in the car $500 if they had gotten Griffin's money.
Matthews did not testify. But when he was interviewed by police after Griffin was killed, Matthews claimed Appling always carried a gun. In closing argument, Matthews's lawyer told the jury he acted under duress from Appling, and was so intoxicated he could not form the specific intent for attempted robbery. His lawyer sought to portray Matthews as naive and childish, and suggested he was manipulated by Appling, who was cold and calculating.
Appling presented the testimony of defense investigator Vincent Ghiringhelli to support his claim that it was he who acted under duress. Ghiringhelli interviewed Vigil, and she told him that Matthews appeared intoxicated and possibly under the influence of drugs that afternoon. Vigil thought he was demanding, confrontational, and out of control. Matthews was dancing that afternoon while wearing a mask and wig, raised a gun in the air, and said, "I have a full clip and one in the chamber. I'll shoot somebody. I don't care." Vigil told Ghiringhelli that Matthews became more demanding and aggressive as he asked her to drive from one place to another, and at times she was frightened of him.
Vigil told the investigator that when he first came out of the mini-mart, Matthews told Appling the man inside had $2,000. Appling told Matthews to "Just get back in the car." Instead, Matthews returned to the store. When Matthews came out again he told Appling, "Man, he's got money on him. He just bought a hundred dollar bottle of Moet." Matthews talked about committing a robbery, but Appling said he did not want to participate and told Matthews to get back in the car. When Matthews tried to pull Appling out of the car by his coat sleeve, the two men took off their jackets and exchanged words. Vigil could not hear what they were saying, but she said Appling "was standing there with his head hung down." When the two men got back in the car for the ride home, Matthews was yelling at Appling and said Griffin had pulled out a gun but they had beaten him.
Appling testified in his own defense. He said he walked to Campos's street looking for a ride to his mother's house. Appling was acquainted with Matthews and when he heard Matthews was getting a ride from Vigil, he asked for a ride too. When they stopped at the house of Matthews's friend, Appling saw Matthews flash a gun at an older man. Appling got back in the car because he did not want to be around a gun. When they stopped at Matthew's mother's place of employment, Matthews got a wig out of a truck.*fn3 On the way to the mini-mart, Matthews was acting loud and obnoxious, and was talking fast. When Matthews first came out of the store, he told Appling a man inside "had hecka money on him and he bought [a] $100 liquor bottle." Matthews wanted to rob the man, but Appling said, "you trippin," and told Matthews to get back in the car.
When Matthews came out of the store a second time, he opened the car door and told Appling, "Let's rob this guy." Appling declined, but Matthews was persistent and tugged on Appling's shirt, so he stepped out of the car. Matthews told Appling he would shoot him if Appling did not go along with the robbery. Appling thought the threat was serious because he had previously seen Matthews with the gun. So, Appling followed Matthews, fearing he would be shot if he tried to run.
Matthews covered his face with a mask and wig, ran up behind Griffin, and bear-hugged him while holding a gun in his left hand. As they struggled, Griffin dropped his bag. Matthews told Appling to pick it up, and he did. When Matthews told Appling to check Griffin's pockets, Appling instead ran across the railroad tracks, where he dropped Griffin's bag.*fn4 Around that time, Appling heard a shot. As Appling and Matthews were running away, they saw Vigil and Campos and got back into the car. Matthews yelled at Appling for not going into Griffin's pockets, and Appling told Matthews he did not want to be involved. Vigil drove back to Campos's house and Matthews warned Appling not to say anything or he would shoot him.
During cross-examination, Appling acknowledged he did not tell Vigil, Campos, his mother, his aunt, or one of his friends that Matthews had threatened to shoot him. When he was arrested for murder, although Appling expressed shock and denied responsibility, he did not tell police that Matthews made him do it. Appling denied that he recognized Griffin at the mini-mart or that he ever told Matthews there was a price on Griffin's head.
As part of his defense, Appling's counsel played for the jury a videotape of Matthews's interview with police approximately a week after Griffin was killed.*fn5 Matthews said that Appling told him to grab Griffin and get his money. Matthews grabbed Griffin around the neck from behind, but he refused to take Griffin's money. He instead let Griffin go, and when Griffin looked like he was about to "pull out something . . . that's when the dude shot him."*fn6 Matthews first said Appling told him "somebody had put a hit out on [Griffin]," but he later said they were "just trying to rob him." Matthews also said Appling was wearing a wig when he shot Griffin.*fn7
Matthews told police that Appling always carried a black nine-millimeter gun with a brown handle, and he knew Appling had it the night Griffin was killed. Matthews said "the guy told me to grab the dude, and if I don't grab him, he was gonna shoot me." Matthews claimed he did not know until the next day that anyone was shot. When Appling looked at the newspaper he bragged to Matthews, "Somebody got killed in the apartments. I guess I hit him." Matthews did not remember some of the things that happened on the day of Griffin's killing because he was high on cocaine. In the middle of the police interview, he tore up some of the detective's notes. During closing argument, Appling's counsel argued that Appling acted under duress because Matthews told him, "you're going to do what I tell you to do or I'm going to shoot you."
The jury convicted both men of murder and attempted robbery, but could not reach a verdict on the firearm allegation against Matthews, and it was dismissed on the prosecutor's motion. The court sentenced each man to 25 years to life in prison for the murder and stayed the term for the robbery. We granted the Attorney General's motion to consolidate the two timely appeals.
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