In prosecuting two men for Nathan Alston's death, Tracey Cline made opposite arguments from the same evidence.
In February 2004, Alston was shot near an East Durham housing project. At the hospital, Alston told police the shooter was Roy Bodden.
Alston died in surgery.
Police charged two people in the shooting: Bodden and Michael Wayne Goldston, who had been seen with Bodden in an argument with Alston before the shooting.
In pursuing charges against Bodden, prosecutor Tracey Cline argued that Alston's last words were a "dying declaration" and should be allowed into the trial even though Bodden had no way to confront his accuser or have the witness testify in his trial.
Cline argued to a judge that Alston wanted to make sure his killer was prosecuted: "He knew he was dying. ... Mr. Alston knew he was going to die."
The judge allowed Alston's statement into the trial under an exception in the law. Bodden was convicted.
Later, at the separate trial of Goldston, Cline successfully argued an opposite position about Alston's last words.
Goldston maintains he did not shoot Alston, and that the two knew each other well. Alston could have fingered Goldston, too, his lawyers argued.
But in Goldston's trial, Cline had a different take when she made her closing argument.
"Why would (Alston) not say Michael Goldston shot me?" Cline said. "He's afraid of this man."
Cline said Alston thought he would survive the shooting and feared retaliation.
"I'm probably going to survive," she said of Alston's thoughts. "I'm not going to say he's the one who shot me."
On appeal, Goldston's lawyers said Cline's "diametrically opposed positions from identical evidence" should not have been allowed.
The state Court of Appeals disagreed. It said Cline's inference was logical.
The court pointed out that prosecutors are granted wide latitude in the scope of their closing argument to a jury.