IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 91,163
STATE OF KANSAS,
Appellee,
v.
ERICK DONALDSON,
Appellant.
SYLLABUS BY THE COURT
Under the facts of this case, we hold: (1) The charges were not improperly joined, (2) there was sufficient competent evidence to support the felony-murder conviction, (3) the aiding and abetting instructions were properly given, (4) it was not erroneous to allow endorsement of a State witness during trial, (5) prosecutorial statements during closing argument do not require the granting of a new trial, (6) it was not erroneous to allow the complaint to be amended prior to trial, (7) the defendant's confession was properly admitted, (8) there was sufficient competent evidence to support the sale of cocaine conviction, and (9) cumulative errors did not violate the defendant's right to a fair trial. The convictions of felony murder and sale of cocaine are affirmed.
Appeal from Sedgwick district court; CLARK V. OWENS II, judge. Opinion filed June 3, 2005. Affirmed.
Carl F.A. Maughan, of Maughan Hitchcock LC, of Wichita, argued the cause and was on the briefs for appellant.
Debra S. Byrd Peterson, deputy district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with her on the briefs for appellee.
The opinion of the court was delivered by
LARSON, J.: This is the direct appeal by Erick Donaldson of his convictions by a jury of first-degree felony murder, K.S.A. 21-3401, and sale of cocaine, K.S.A. 65-4161(a).
Donaldson raises nine issues on appeal, including: (1) improper joinder of charges, (2) insufficient evidence to support felony-murder conviction, (3) erroneous aiding and abetting instruction, (4) erroneous endorsement of State witness during trial, (5) prosecutorial misconduct during closing argument, (6) erroneous amendment of complaint, (7) erroneous admission of defendant's confession, (8) violation of fair trial by cumulative errors, and (9) insufficient evidence to support the sale of cocaine conviction.
Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1) (conviction of an off-grid crime with sentence of life imprisonment).
This is a companion case to our recent decision in State v. Harris, 279 Kan. 163, 105 P.3d 1258 (2005).
We find no reversible error and affirm both convictions and the resulting sentences.
We first set forth the facts that connect both convictions. We will then discuss each alleged error.
On December 31, 2001, Donaldson and his friend, Lana Jackson, decided to "jack" Benny Zeigler for $3,000 to $4,000 with a phony drug deal. They were going to sell baking soda, and Jackson was to convince Zeigler that it was cocaine.
Donaldson and Zeigler knew each other. Afraid Zeigler would be suspicious if he saw him, Donaldson asked Vernon Harris to help Jackson steal Zeigler's money. Donaldson, however, accompanied Jackson and Harris so he could receive part of the money. To avoid being seen, Donaldson was lying down on the backseat of Jackson's car.
Jackson took a gun with her in case something went wrong. She gave the gun to Harris before they met with Zeigler. They arranged to meet Zeigler at Trisha Shelinbarger's house.
Just before the shooting, two black men and a woman Shelinbarger recognized as Jackson approached her house and knocked on the door. Shelinbarger told her daughters to refuse to allow them in the house. Shelinbarger watched as the three individuals returned to the street.
Shelinbarger saw the two men begin fighting. Jackson sprayed Zeigler with mace. Harris demanded Zeigler's money and during the ensuing struggle, Harris shot Zeigler in the head, resulting in Zeigler's death. Jackson and Harris jumped in the car and sped away.
While they were driving away, Harris was counting the money. Donaldson thought Harris had $650 but claimed he never received any of the money.
An investigation led police to Jackson, who told police that Harris shot Zeigler while trying to rob him during a drug sale. Harris ultimately told Wichita Detective Robert Chisholm that Donaldson was involved as the shooter.
Detective Chisholm issued a pick-up order for Donaldson in January 2002, so he could be questioned about Zeigler's murder. Donaldson left Wichita for some time to avoid arrest. In the fall of 2002, he returned to Wichita and made a videotape for Harris stating he (Donaldson) was in the backseat of the car when Zeigler was killed and that Harris was not there.
Donaldson avoided Wichita police until October 26, 2002, when Wichita police received a tip that Donaldson could be contacted using his girlfriend's cell phone. Officer Eddie Padron called the number he was given and spoke with Donaldson. Officer Padron said his name was "T" and asked to buy $100 of crack cocaine. Donaldson told Officer Padron that he had the drugs, and the two arranged to meet at a parking lot in Wichita.
Because he was in his uniform, Officer Padron contacted Officer Kevin Kochenderfer, another Wichita police officer who was working undercover with a confidential informant (CI), to meet with Donaldson. Officer Kochenderfer and the CI went to the designated parking lot and waited for Donaldson. Donaldson, accompanied by two other men, drove into the parking lot and parked beside Officer Kochenderfer's car near the CI. The CI got out of the car, spoke with Donaldson, and started to hand Donaldson the money for the drugs.
Before Donaldson could hand over the drugs to the CI, Officer Kochenderfer became concerned that Donaldson recognized him as a police officer. He pulled out his badge and gun and ordered Donaldson to exit the vehicle. Seconds later, several other officers, including Officer Padron, arrived to assist in arresting Donaldson.
Officer Kochenderfer saw Donaldson drop a small package out of the window of the vehicle before Donaldson got out. When Donaldson got out of the vehicle, he stomped his foot on the ground, complaining that an old gunshot wound caused his leg to go numb. After the officers arrested Donaldson, they found a small package of crack cocaine in the area where Donaldson had been standing and stomping.
Before Donaldson was taken to jail, he made statements about the Zeigler murder. Donaldson told officers he knew why detectives wanted to talk to him. He said he was glad he had finally been caught, and he was tired of looking over his shoulder all the time. Donaldson said he, a female, and another man set up a spoof drug deal involving 4 ounces of baking soda. Since Donaldson had a problem with Zeigler, he stayed in the car and hid. The female maced Zeigler, "Vernon" ended up shooting Zeigler, and the female, "Vernon," and Donaldson fled.
Detective Chisholm met Donaldson at the jail. Donaldson agreed to talk to him about Zeigler's murder. Donaldson initially told Detective Chisholm the same story he told on the videotape he had made for Harris. But, when confronted with Harris' statement that Donaldson was the shooter, Donaldson admitted he was there but said Harris shot Zeigler.
Donaldson was charged with felony murder based on the underlying felony of theft for Zeigler's death and sale of cocaine. Prior to trial, the State moved to consolidate the two charges into one trial and added an alternative count of felony murder based on the underlying felony of aggravated robbery. The motions were granted. Donaldson was convicted of all charges. Donaldson was sentenced to life imprisonment for felony murder and 44 months' imprisonment for the sale of cocaine conviction, to run consecutive to his sentence for felony murder. Donaldson appeals both his convictions and his sentences.
Improper Joinder
Donaldson first argues it is reversible error for the trial court to consolidate the felony murder and cocaine sale charges into one trial because they do not qualify under the joinder statute.
The trial court's decision to grant the State's motion to consolidate is reviewed on appeal using an abuse of discretion standard of review. The trial court's decision will not be disturbed unless no reasonable person would agree with the trial court's decision. State v. Plaskett, 271 Kan. 995, 1018-19, 27 P.3d 890 (2001). Even if it is demonstrated that the trial court abused its discretion by consolidating the charges, the defendant has the further burden of establishing prejudice that requires reversal. State v. Hill, 257 Kan. 774, 780, 895 P.2d 1238 (1995).
We are not constrained to give credence to Donaldson's argument that we should adopt de novo review for issues such as this. It is essential that trial judges be given necessary latitude in the conduct of trials without appellate courts reviewing judgment issues under a de novo standard. We retain abuse of discretion as our standard of review of consolidation issues.
K.S.A. 22-3202(1) authorizes the joinder of charges and provides:
"Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."
In requesting consolidation, the State argued the crimes charged were acts or transactions that are related or connected together in that (1) both involved drug transactions, (2) the sale of cocaine charge was directly connected to efforts to locate Donaldson for the murder of Zeigler, and (3) when Donaldson was arrested he stated he knew why detectives wanted to talk to him and he was glad he had finally been caught, and he made statements before being taken to jail on the cocaine charge about the Zeigler murder. The State further argued both events were cocaine related and the jury was clearly instructed that: "[e]ach crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge." Finally, the State argues there was substantial evidence and admissions that existed as to each charge.
Donaldson argues that the charges are not connected together or of the same or similar character as required by K.S.A. 22-3202(1). Donaldson highlights the differences between the crimes, noting the distinction between the elements of the crimes, the 10-month interval between the crimes, the use of a firearm in only one of the crimes, the different locations of the crimes, and his familiarity with the victim in only one of the crimes.
We have broadly construed the phrase "connected together" in K.S.A. 22-3202(1) to apply in three situations. The first situation occurs when the defendant provides evidence of one crime while committing another. State v. Anthony, 257 Kan. 1003, 898 P.2d 1109 (1995). The State argues that Donaldson's crimes are "connected together" under the first situation, when the defendant provides evidence of the crime while committing another. The State relies on Anthony, where a drug sale was made to an undercover police officer and the seller bragged about a separate murder and robbery during the drug sale. The Anthony court held the crimes were connected together by the incriminating statements made during the drug sale. 257 Kan. at 1016-17. Under our facts, a connection exists between the crimes as argued by the State, although certainly not as directly as in Anthony.
A second situation where the court has found charges to be "connected together" under K.S.A. 22-3202(1) occurs when some of the charges are precipitated by other charges. See, e.g., State v. Dreiling, 274 Kan. 518, 555, 54 P.3d 475 (2002) (affirming the joinder of first-degree premeditated murder and conspiracy to commit murder with conspiracy to commit perjury because the perjury would have prevented evidence of the defendant's motive for murder); State v. Flynn, 274 Kan. 473, 481, 55 P.3d 324 (2002) (same as Dreiling); State v. Walker, 244 Kan. 275, 279-80, 768 P.2d 290 (1989) (upholding the joinder of terroristic threat charges with aggravated sodomy, endangering a child, and child abuse charges because the threat against a hospital worker occurred as a result of the child victim being hospitalized from being abused); State v. Pondexter, 234 Kan. 208, 216-17, 671 P.2d 539 (1983) (consolidating charges for unlawful possession of a firearm and aggravated assault of a law enforcement officer with charges of burglary and attempted murder because the intended murder victim was a witness against the defendant for the first two charges); State v. Moore, 226 Kan. 747, 750, 602 P.2d 1359 (1979) (joining charges of aggravated robbery and kidnapping with charges for corruptly influencing a witness and deprivation of property because the defendant committed the second two offenses while trying to avoid a conviction for the first two charges).
The third situation occurs when all of the charges stem from a common event or goal. See, e.g., State v. Simkins, 269 Kan. 84, 91, 3 P.3d 1274 (2000) (upholding joinder of first-degree murder and domestic battery against two different victims because both charges resulted from the victims' prior extramarital affair and the defendant's observation of the victims talking together); State v. Stewart, 219 Kan. 523, 528, 548 P.2d 787 (1976) (allowing joinder of charges for an aggravated battery against Sanders and a later aggravated robbery against Sanders' wife because both were based on the defendant's goal to get Sanders to repay a debt).
Although we might individually have ruled differently on the consolidation motion than did the trial court, it is difficult, under an abuse of discretion standard of review, to hold no reasonable person would agree with the trial court's decision. The crimes both involved drug sales of cocaine, Donaldson was apprehended for the felony-murder charge as the result of the drug sale. His comments at the drug scene arrest immediately connected him to the Zeigler murder. His statements were clearly admissible evidence.
Donaldson has contended that prejudice existed but has not shown prejudice in any direct and tangible manner. The court instructed the jury to decide each crime separately. The jury is presumed to follow the instructions to decide each charge separately. State v. Cromwell, 253 Kan. 495, 510, 856 P.2d 1299 (1993). We hold the trial court's decision to allow consolidation under K.S.A. 22-3202(1) was not an abuse of discretion sufficient to constitute reversible error under the facts of this case.
Sufficiency of Evidence to Support Felony-Murder Conviction
Donaldson claims his conviction for felony murder is not supported by sufficient evidence. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Hanson, 277 Kan. 855, 856-57, 89 P.3d 544 (2004).
Donaldson's first argument is that his testimony denying involvement in both crimes must be given prime consideration. Appellate courts do not reweigh evidence and determine the credibility of witnesses. To do so invades the province of the jury. See State v. James, 276 Kan. 737, 753, 79 P.3d 169 (2003). The jury properly weighed the evidence, and there was substantial, credible evidence to support its verdict. It was not unreasonable for the jury to disregard Donaldson's testimony at trial.
Donaldson next asserts there was insufficient evidence to show he aided and abetted Jackson and Harris in killing Zeigler. He limits his involvement to "mere association" with the perpetrators of the crime. His reliance on State v. Green, 237 Kan. 146, 697 P.2d 1305 (1985), is misplaced. Green is completely different factually.
In State v. Wakefield, 267 Kan. 116, 142, 977 P.2d 941 (1999), we said: "Any person who counsels, aids, or abets in the commission of any offense may be charged, tried, convicted, and sentenced in the same manner as if he or she were a principal." Our Wakefield opinion relied on State v. Smolin, 221 Kan. 149, 153, 557 P.2d 1241 (1976), and stated:
"In the absence of anything in a person's conduct showing a design to encourage, incite, aid, abet, or assist in the crime, the trier of the facts may consider failure of such person to oppose the commission of the crime in connection with other circumstances and conclude therefrom that the person assented to the commission of the crime, lent his or her countenance and approval thereto, and thereby aided and abetted the commission of the crime." 267 Kan. at 121.
The evidence showed Donaldson helped plan the bogus drug transaction and called in Harris to assist. Donaldson expected to receive part of the proceeds. He knew Jackson had a gun. He went along but hid in the car because he knew Zeigler and did not want to spoil the deal. Zeigler's homicide was reasonably foreseeable from the commission of either theft or aggravated robbery.
Viewed in the light most favorable to the State, there is clearly sufficient evidence to support the jury's finding that Donaldson aided and abetted the commission of the felony theft or aggravated robbery that led to Zeigler's murder.
Donaldson's arguments that there was no evidence of the amount stolen to support felony theft and no evidence that theft by deception is an inherently dangerous crime are without merit.
Testimony showed the plan was to "jack" somebody for $3,000 to $4,000. Donaldson's statement to Detective Chisholm was that Harris had counted approximately $650 as his share. This is clear evidence as to the amount stolen.
The State charged Donaldson with felony murder based on felony theft as defined by K.S.A. 2004 Supp. 21-3701(a)(2), "obtaining by deception control over property." This is an inherently dangerous felony pursuant to K.S.A. 2004 Supp. 21-3436(a)(8).
The jury in this case was instructed, without objection by the defendant, that the underlying felony was "[t]hat the defendant obtained or exerted unauthorized control over the property," which is the language of K.S.A. 2004 Supp. 21-3701(a)(1). However, Donaldson does not complain about this instructional error on appeal. Rather, he contends the State failed to show that theft by deception was inherently dangerous to human life. Such is not necessary, as K.S.A. 2004 Supp. 21-3436(a) states that "[a]ny of the following felonies shall be deemed an inherently dangerous felony." and the list includes under subsection (8) "felony theft under subsection (a) or (c) of K.S.A. 21-3701 and amendments thereto," without further limitation. This makes Donaldson's appellate argument fail.
No claim of error is made as to the language listing the different subsection of K.S.A. 21-3701(a) in the complaint and instruction. This appears to have been inadvertent and unnoticed by the trial court or either counsel below. It was first pointed out in the State's brief on appeal. We hold it does not entitle defendant to relief because no prejudice has been shown. See K.S.A. 2004 Supp. 22-3201(b).
Additionally, and more importantly, the jury also found Donaldson guilty of felony murder with the underlying felony of aggravated robbery. There was clearly sufficient competent evidence of the aggravated robbery in this case. Donaldson makes no argument to the contrary. There is no basis for setting aside Donaldson's felony-murder conviction based on the insufficiency of the evidence. State v. Boone, 277 Kan. 208, 218, 83 P.3d 195 (2004) (quoting State v. Davis, 247 Kan. 566, 573, 802 P.2d 541 [1990]), states that
"'[a] defendant's conviction for felony murder need not be vacated because of a rule requiring that a general guilty verdict be set aside if the jury was instructed that it could find the defendant guilty of felony murder on any two or more independent felonies, and one of the felonies is insufficient, if the jury expressly found a legally sufficient felony to support the murder conviction.'"
Donaldson's claim of insufficient evidence to support his felony-murder conviction does not entitle him to any relief.
Aiding and Abetting Instruction
Donaldson next argues the trial court erroneously instructed the jury on aiding and abetting, contending there is no evidence to support such a finding.
Donaldson did not object to the aiding and abetting instruction at trial, so we apply a clearly erroneous standard of review on appeal. As we said in State v. Bryant, 276 Kan. 485, 491-92, 78 P.3d 462 (2003): "'Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.' [Citation omitted.]"
We need not repeat here what we said as to the prior argument regarding the sufficiency of the evidence to support the State's aiding and abetting theory. See Wakefield, 267 Kan. at 142; Smolin, 221 Kan. at 153. The aiding and abetting instruction was clearly proper.
Endorsement of State's Witness During Trial
Donaldson argues the State should not have been allowed to endorse Clifton Brown as a witness during trial.
K.S.A. 2004 Supp. 22-3201(g) grants the trial court discretion over determining whether to allow a party to endorse witnesses during trial. State v. Valdez, 266 Kan. 774, 782-83, 977 P.2d 242 (1999). We review this issue using an abuse of discretion standard. The test is whether the defendant's rights have been prejudiced. 266 Kan. at 782.
Donaldson listed Brown as an alibi witness approximately 1 week before trial. Since Brown was in custody, he was transported to Wichita and arrived late on the first day of Donaldson's trial. He was interviewed by Donaldson's attorney and a Wichita police department detective.
Immediately prior to the beginning of the second day of trial, the State moved to endorse Brown as a witness. Donaldson objected but did not request a continuance. Finding it was not an unfair surprise to the defendant, the trial court granted the State's motion.
Brown's testimony was not favorable to Donaldson. He said Donaldson had been at his house for 30 minutes the morning of the day Zeigler was killed and had received several phone calls from Jackson. Brown overheard Donald and Jackson discussing a robbery. Brown testified Donaldson later returned to his house looking distraught, like something had gone wrong, and told him that "shit didn't go right." Donaldson had a gun, and Brown testified he told Donaldson to leave. About a month later, Brown said he ran into Donaldson, who said he "was on the run again." Brown arranged for a friend to drive Donaldson to Nebraska.
Donaldson attempted to discredit Brown's testimony by testifying Brown had a grudge against him for causing Brown's probation to be revoked and for having sex with Brown's wife. Brown denied that he had ill will against Donaldson for either reason.
K.S.A. 2004 Supp. 22-3201(g) requires the State to endorse the names of its witnesses on the complaint, information, or indictment. The State may endorse additional witnesses in accordance with the trial court's rulings. K.S.A. 2004 Supp. 22-3201(g). The purpose for requiring the State to include the names of its witnesses on the complaint, indictment, or information is to prevent surprise by allowing the defendant an opportunity to interview and examine the witnesses prior to trial. Valdez, 266 Kan. at 782.
This is simply a case of a witness who did not, under oath, testify as a defendant expected. There was no surprise once Brown was interviewed. Brown was effectively cross-examined, and Donaldson explained why Brown testified as he did.
We said in State v. Shelby, 277 Kan. 668, Syl. ¶ 1, 89 P.3d 558 (2004), in discussing the late endorsement of a witness, that the defendant must have been surprised and must also have objected and been denied a request for continuance of the trial. There was no surprise here, no request for continuance, and clearly no reversible error.
Prosecutorial Misconduct During Closing Arguments
Donaldson claims he was denied a fair trial because of the prosecutor's comments during closing argument.
There was no objection made at trial to the now complained-of comments. This historically meant there is no basis for finding reversible error.
However, if the prosecutor's comments are so egregious as to violate a defendant's right to a fair trial and deny his or her Fourteenth Amendment right to due process, an appellate court may find reversible error without a contemporaneous objection. If the appellate court determines the claimed conduct may have violated the defendant's right to a fair trial, it will consider the error. State v. Ly, 277 Kan. 386, 392, 85 P.3d 1200 (2004).
In considering the alleged errors, we must follow the directions of State v. Tosh, 278 Kan. 83, Syl. ¶ ¶ 1, 2, 91 P.3d 1204 (2004), which state:
"A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error, that is, whether the statements prejudiced the jury against the defendant and deny him or her a fair trial, thereby requiring reversal. The second step is a particularized harmlessness inquiry for prosecutorial misconduct cases."
"In the second step of the two-step analysis for alleged prosecutorial misconduct the appellate court considers three factors to determine if the prosecutorial misconduct so prejudiced the jury against the defendant that a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met."
See also State v. Elnicki, 279 Kan. 47, 64-65, 105 P.3d 1222 (2005).
The essence of the defendant's argument is the prosecutor hinted and said that the defendant was a liar while bolstering the credibility of a State's witness. In contrast, the State claims the statements were fair comment on the evidence based on Donaldson's three conflicting stories and testimony. The State further relies on the presumption that the jurors weigh the evidence themselves, determine the weight and credibility to be given to a witness, and use their common knowledge and experience as they are instructed to do.
On appeal, Donaldson complains of 11 comments made by the prosecutor in closing arguments. We have examined them all in isolation and in context, and while we find several to be improper, others are nothing more than attempts to comment on the evidence in a proper persuasive manner.
For example, it is not improper to say: "All they've done is attack the credibility of police officers that did excellent police work in this case, excellent police work. What Officer Padron did in this case, quick thinking, very quick thinking." This was a fair comment on the evidence concerning the drug sale which led to Donaldson's arrest.
Donaldson objects to the prosecutor saying, when he was discussing the sale of cocaine:
"Now, the sale of cocaine, he makes a decision to sell cocaine. And folks, he's driving the car. You've heard the evidence of what happened. Again, if you don't believe that it happened the way it happened, you believe what he had to tell you, how does this guy that he doesn't even know end up with his girlfriend's phone?"
This is nothing more than pointing out inconsistencies in testimony and Donaldson's denial of involvement, which is not misconduct.
The following statement by the prosecutor relating to Brown's testimony is now claimed to be misconduct:
"But [Brown] testifies that he saw Erick Donaldson on that day, and Erick Donaldson talked to Lana Jackson about doing a juke or jack or a robbery, whatever words you want to call it, and that he left and he came back with a funny look on his face, and he said shit went bad and he had a gun. Clifton Brown's going to come in here and tell you that because of some unsupported allegation that Erick slept with his wife?"
This again is a fair comment on the evidence and is intended to show that Donaldson's explanation for Brown's testimony had no basis.
Donaldson objects to the prosecutor saying he should not be given any credibility. The record reflects the prosecutor said: "You have a right to use common knowledge and experience in regard to the matter about which a witness has testified. You decide how much credibility to give somebody. Erick Donaldson shouldn't be given--Erick Donaldson shouldn't be given any credibility." This statement came right after the prosecutor discussed instruction No. 5, which says: "It is for you to determine the weight and credit to be given to the testimony of each witness." This comment was followed by a discussion of why Donaldson's trial testimony was not credible. It was not an improper statement.
Donaldson says it was improper for the prosecutor to say: "He's going to make himself guilty of felony murder to help a friend?" The defendant first told Detective Chisholm the version of events as had been stated on the videotape he had made for Harris. Under that version, Donaldson knew about the bogus drug deal and that Jackson had a gun. Donaldson placed himself in the car, yet claimed he passed out. The prosecutor was appealing to the jury's common sense in assessing the credibility of the first statement, which placed Donaldson in the midst of felony murder. This was clearly proper.
We find nothing wrong with any of the previous statements objected to on appeal. Because Donaldson told at least two conflicting stories during interrogation and te