Opinion
No. COA20-729
01-04-2022
STATE of North Carolina, v. Tiffany Leigh MARION, Defendant.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Mary Carla Babb, for the State. N.C. Prisoner Legal Services, Inc., by Lauren E. Miller, for Defendant-Appellant.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Mary Carla Babb, for the State.
N.C. Prisoner Legal Services, Inc., by Lauren E. Miller, for Defendant-Appellant.
WOOD, Judge.
¶ 1 Defendant Tiffany Marion ("Defendant") appeals from an order denying her motion for appropriate relief ("MAR"). On appeal, Defendant contends the trial court erred in denying her MAR wherein she alleged the State violated her right to equal protection under the law and in denying Defendant complete discovery of emails between prosecutors. After careful review of the record and applicable law, we affirm the order of the trial court denying Defendant's MAR.
I. Factual and Procedural Background
¶ 2 This case returns to the Court for a second time. See State v. Marion , 233 N.C. App. 195, 756 S.E.2d 61 (2014) ("Marion I" ). On August 4, 2008, Defendant "was smoking ... [and] taking ecstasy" with Jeffrey Miles ("Miles"), Jason Johnson ("Johnson"), Jada McCutcheon ("McCutcheon"), and a boy known as "Freak." Prior to August 2008, Defendant knew McCutcheon but did not know Miles, Johnson, or Freak. After some time "riding around" in Johnson's ex-girlfriend's van ("Johnson's van"), Miles suggested the group go to a casino. Defendant had never been to a casino before, but "thought it would be fun." Thereafter, at approximately 1:00 or 2:00 a.m. on August 5, 2008, the group traveled to a casino located in Cherokee, North Carolina. Because Johnson, McCutcheon, and Freak were under 21 years of age—the mandatory age requirement for entry—only Defendant and Miles entered the casino floor to gamble. After they finished gambling, Defendant and Miles reserved a room for three nights.
In 2008, Defendant was twenty-five years old.
Defendant, Miles, Johnson, McCutcheon, and Freak were all African American individuals. McCutcheon and Johnson were in a romantic relationship at the time.
¶ 3 The casino hotel room had "one big bed," that Defendant and Miles slept in while they stayed in Cherokee. During their stay, Defendant and Miles engaged in sexual intercourse and Miles represented himself as Defendant's boyfriend. McCutcheon, Johnson, and Freak reserved a room in a hotel across the street. Throughout the day on August 5, 2008, the group took ecstasy and smoked marijuana.
¶ 4 Throughout August 6 and 7, 2008, Defendant did not gamble but stayed in the room where she and the others watched television and took drugs. At one point on August 7, 2008, Miles, Johnson, and Freak went to a nearby Wal-Mart, while Defendant and McCutcheon stayed in the casino's hotel room. While at Wal-Mart, Miles, Johnson, and Freak met local residents Dean Mangold ("Mangold") and Mark Goolsby ("Goolsby"). Both Mangold and Goolsby were white males.
¶ 5 After meeting Mangold and Goolsby, Miles began talking about "wanting to sell his AR-15 he had." Mangold, Goolsby, Miles, Johnson, and Freak then went to several locations to obtain beer and to sell the firearm. However, they could not find a purchaser. After some time of attempting to sell the firearm, Miles, Johnson, Mangold, Goolsby, and Freak returned to the casino hotel room, where they took ecstasy and smoked marijuana. While in the hotel room, Miles, Johnson, Goolsby and Mangold discussed trying to sell Miles’ firearm and where they could purchase additional marijuana. Defendant did not engage in the conversation regarding the sale of Miles’ firearm. Later that evening, Mangold suggested to Miles they could sell a firearm to a man named Scott Wiggins ("Wiggins"). Mangold also stated that Wiggins could provide them with more drugs. Thereafter, everyone except Freak got into Johnson's van to go to Wiggins’ residence.
¶ 6 Because Miles was driving and was unfamiliar with the area, Mangold provided directions. While on their way to Wiggins’ residence, Mangold explained that he used to live with Wiggins and that Wiggins owed him money. In response, Johnson stated, "We'll take care of it." Upon arriving at Wiggins’ residence, Mangold told Miles to park the vehicle some distance from the driveway to avoid any cameras. The group parked the van by a nearby logging road at the bottom of a hill next to Wiggins’ residence. As the group exited the van, Miles armed himself with a loaded shotgun, and Johnson armed himself with an AR-15.
¶ 7 After obtaining their firearms, Johnson asked if everyone was going to walk up to Wiggins’ house. At the time, Wiggins resided with Michael Heath Compton ("Compton"). Goolsby and Defendant stayed in or near the van. Goolsby testified he remained in the van because he feared the others were going to rob Wiggins and "want[ed] no part of it." The rest of the group walked up the hill to Wiggins’ house.
¶ 8 Upon arriving at Wiggins’ residence
Johnson kicked in the door of the residence and proceeded to hold Wiggins and [Compton] ... at gunpoint while the others began gathering valuables. While the group was searching for valuables, another person, Timothy Dale Waldroup ("Waldroup"), drove up to the house and was escorted into the residence at gunpoint. Miles shot Wiggins, Compton, and Waldroup during the course of the burglary, and only Waldroup survived.
Marion , 233 N.C. App. at 197, 756 S.E.2d at 64.
¶ 9 Mangold walked partially up the driveway but returned to the van five to ten minutes later, where he told Defendant and Goolsby that the others were killing people. In response, Goolsby stated, "I'm gone" and fled on foot into the neighboring woods. Mangold asked Defendant if she would like to join them, but she declined. Thereafter, Mangold ran into the woods with Goolsby.
¶ 10 After Mangold and Goolsby ran into the woods, Defendant walked up the hill toward Wiggins’ residence. Defendant testified she did so "to see where everybody was." Once she got to the bottom of Wiggins’ driveway, Defendant saw Johnson sitting in a dark colored pickup truck. Defendant asked Johnson where McCutcheon was, and he responded that McCutcheon and Miles were still in the residence. When Defendant looked past Johnson toward the house, she observed McCutcheon in the driveway, looking into another vehicle. Defendant shouted for the others to hurry up before returning to the van.
¶ 11 After the killings, Miles, McCutcheon, and Defendant returned to the casino hotel in Johnson's van. They picked up Freak before meeting Johnson, who was driving Wiggins’ white pickup truck, at a nearby parking lot. Once they rendezvoused with Johnson, Freak and Miles began "talking [sic] stuff from the back to the truck and putting it in the van." While doing so, Miles stated he needed to return to Georgia because he was getting evicted and he "need[ed] to help his wife out with that situation." Thereafter, Defendant and Miles traveled to Georgia in Wiggins’ truck, while Johnson, McCutcheon, and Freak returned to Georgia in Johnson's vehicle.
¶ 12 Once in Georgia, Defendant gathered McCutcheon's things and put them in Wiggins’ truck. Specifically, Defendant testified she helped Miles and McCutcheon move into their friend's apartment. Once McCutcheon returned to Georgia, she "showed [Defendant] a dog. She said, [m]y boyfriend got me this." The dog McCutcheon brought to Georgia belonged to Compton and was found in the apartment with Defendant when she was arrested.
¶ 13 Shortly after the group returned to Georgia, North Carolina State Bureau of Investigation ("SBI") agents arrived at the apartment in which McCutcheon was residing. Although Defendant did not reside in the apartment, she had been staying there since the group returned from North Carolina. Defendant told the SBI that she did not know what happened in North Carolina. After Defendant was interviewed, SBI agents interviewed McCutcheon, who confessed they had shot and killed Scott Wiggins and Michael Heath Compton.
¶ 14 On August 18, 2008, Defendant was indicted for two counts of first-degree murder, one count of attempted murder, one count of first-degree burglary, two counts of robbery with a dangerous weapon, and three counts of first-degree kidnapping. Defendant was also indicted in the alternative as an accessory after the fact to all charges. On December 28, 2010, Miles and Johnson, the undisputed shooters, entered plea agreements with the State for first-degree murder and received sentences of life without parole. Mangold entered a plea for second-degree murder in August 2011. In February 2012, Goolsby, who was indicted on the same charges as Defendant was offered a plea agreement to second-degree murder in exchange for testifying against Defendant. However, the State withdrew the plea offer to Goolsby before Defendant's trial began. Defendant never received a plea offer.
McCutcheon committed suicide while housed in the county jail.
¶ 15 Defendant's trial began on February 27, 2012. A jury convicted Defendant of two counts of felony murder under a theory of acting in concert, attempted felony murder, first-degree burglary, and two counts of robbery with a dangerous weapon. After Goolsby testified in Defendant's trial, he entered a plea to accessory after the fact to second-degree murder. Defendant timely filed her notice of appeal on March 22, 2012. Thereafter, this Court vacated Defendant's conviction for attempted felony murder and remanded the case to arrest judgment on one of Defendant's felony convictions under the merger doctrine. See Marion , 233 N.C. App. at 201,756 S.E.2d at 67.
¶ 16 In November 2015, Defendant filed a MAR in superior court, arguing her convictions and sentences violated her right to due process of law "because the State's decision to prosecute her for first-degree murder was unconstitutionally based on race." Defendant also filed a motion for discovery and a motion to stay the decision on the MAR pending completion of discovery. The trial court entered an order requiring the State to provide post-conviction discovery in March 2016.
¶ 17 Defendant filed additional motions in April 2017, including a motion to produce any standards, policies, practice, or criteria employed by the District Attorney's Office to guide decision making; motion to compel production and in camera review of emails for case-related emails exchanged by prosecutors using personal email accounts; and a motion to produce any plea offer made by the State to Defendant. Defendant filed an amendment to her MAR on April 21, 2017, adding additional arguments for ineffective assistance of trial counsel and arguments under the Eighth Amendment to the United States Constitution. On May 22, 2017, the trial court denied Defendant's motions to compel the State to produce any plea offer made by the State to Defendant and any standards, policies, practices, or criteria the District Attorney's Office employed to guide decision making; and deferred ruling on Defendant's motion to compel prosecutorial emails until the evidentiary hearing.
¶ 18 The evidentiary hearing on the MAR occurred in December 2017. At the conclusion of the hearing, Defendant renewed her motion to compel production and in camera review of emails. The court allowed Defendant's motion for in camera review of prosecutorial emails on December 22, 2017.
¶ 19 On January 5, 2018, Defendant filed a second MAR amendment to clarify that the equal protection claim applied to all members of the District Attorney's Office responsible for the charging decisions, determination of any plea offers, and disposition of the cases.
¶ 20 On August 6, 2018, the trial court informed the parties that it had conducted the requested in camera review of prosecutorial emails and entered a summary chart of the emails submitted. The court denied defense counsel's request for copies of the emails. Counsel filed a motion to reconsider, but the trial court denied that motion in January 2019. The court entered its orders denying Defendant's MAR and motion for additional discovery on July 23, 2019. On appeal of the trial court's denial of her MAR, Defendant challenges the following findings of fact:
8. Dr. Eric Howard testified as an expert on implicit bias and techniques to reduce the effect of implicit bias on decision making. ADA Jim Moore and ADA Ashley Welch testified they were familiar with implicit bias and techniques to reduce the effect of implicit bias on decision making. ADA Moore and ADA Welch both attended district attorney conferences when this topic was discussed. In addition ADA Welch participated and presented in a conference on these issues in 2017.
...
9. The State did not offer any plea to Defendant ..., which was less than life without parole. The Court does not find any merit to ... Defendant's claim of implicit bias based upon the decision of the District Attorney's office not to offer Defendant Marion a plea to lesser offenses(s). This Court specifically finds that implicit bias did not occur to ... Defendant ... in the preparation and trial of these matters.
...
12. Defendant[’s] ... testimony at trial in a recorded telephone call with her mother from the Swain County detention facility contradicted her assertion of innocence when she testified that she had knowledge of the robbery but not of the murder(s). In addition, Defendant returned to Georgia from North Carolina in a stolen van with stolen items and a dog in the van which all came from the scene of the crimes.
...
25. ... Defendant ... was prosecuted under the statutory and case law concerning felony murder. Defendant ... has failed to establish a discriminatory effect or pattern, either racially or in selective prosecution, in the manner in which she was prosecuted for first degree murder, specifically in the manner in which her other co-defendants were prosecuted or the manner in which the unrelated defendants in murder cases from 1994 to 2013 were dealt. The failure of the State of North Carolina to offer Defendant ... a plea arrangement is not based upon racial discrimination....
26. Reasons given by the State of North Carolina for not offering Defendant ... a plea arrangement were not pretextual but were supported by valid concerns discovered during the investigation of the facts of the entire case.
In its conclusions of law, the trial court included,
6. Defendant ... failed to prove that similar[ly] situated individuals belonging to a different racial group received more favorable treatment by establishing that the State had no legitimate non-pretextual reason for refusing to offer Defendant ... a plea to less than a life sentence when her similarly situated or more culpable ... white co-defendants were allowed to enter favorable plea bargains.
On February 11, 2020, Defendant filed a petition for writ of certiorari with this Court that was allowed on April 9, 2020.
II. Discussion
¶ 21 As a preliminary matter, we note that Defendant makes two assignments of error on appeal. First, Defendant contends that the trial court erred in denying her MAR. Secondly, Defendant argues the trial court erred in denying her motion for additional post-trial discovery. However, in allowing Defendant's petition for writ of certiorari, this Court limited appellate review to "Judge Marvin P. Pope, Jr.’s 19 July 2019 order denying [D]efendant's motion for appropriate relief." Accordingly, we decline to address whether the trial court erred by denying her motion for additional discovery.
We review a trial court's ruling on a motion for appropriate relief to determine whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court. When a trial court's findings on a motion for appropriate relief are reviewed, these findings are binding if they are supported by competent evidence and may be disturbed only upon a showing of manifest abuse of discretion. As a general rule, any determination requiring the exercise of judgment, or the application of legal principles, is more properly classified a conclusion of law.
State v. Jackson , 220 N.C. App. 1, 7-8, 727 S.E.2d 322, 329 (2012) (cleaned up). "We will review conclusions of law de novo regardless of the label applied by the trial court." Id. at 8, 727 S.E.2d at 329 (quoting Zimmerman v. Appalachian State Univ. , 149 N.C. App. 121, 131, 560 S.E.2d 374, 380 (2002) (citation omitted)). "If ‘the issues raised by Defendant's challenge to [the trial court's] decision to deny his motion for appropriate relief are primarily legal rather than factual in nature we will essentially use a de novo standard of review in evaluating Defendant's challenges to [the court's] order.’ " Id. (quoting State v. Taylor , 212 N.C. App. 238, 244, 713 S.E.2d 82, 86, disc. review denied , 365 N.C. 342, 717 S.E.2d 558 (2011) ) (alterations in original).
¶ 22 Defendant challenges findings of fact 8, 9, 12, 25, and 26. Since Defendant asserts that the prosecutors discriminated against her on the basis of race, we address the challenged findings of fact in order of the two-part test established for an equal protection violation: first, whether Defendant established a discriminatory effect or pattern in that she was treated differently than other similarly situated defendants; second, whether Defendant sufficiently established a discriminatory purpose.
We do not address findings of fact 8, 9, or 26 as they relate to whether Defendant established a discriminatory purpose.
A. Finding of Fact 12
¶ 23 Defendant first challenges finding of fact 12. Finding of fact 12 states
12. Defendant's ... testimony at trial in a recorded telephone call with her mother from the Swain County detention facility contradicted her assertion of innocence when she testified that she had knowledge of the robbery but not of the murder(s). In addition, Defendant returned to Georgia from North Carolina in a stolen van with stolen items and a dog in the van which all came from the scene of the crimes.
¶ 24 Defendant specifically assigns error to the trial court's finding that she "testified she had knowledge of the robbery," because she "consistently denied knowing about the robbery before it occurred." While it is true Defendant repeatedly denied that she had knowledge about the robbery before it occurred, she does not contend that she did not know about the robbery after it occurred. Indeed, Defendant returned to Georgia in one of the victim's vehicles driven by Miles, one of the undisputed shooters. Defendant knew the vehicle was stolen from one of the murder victims and knew that the others brought stolen property back to Georgia. Additionally, Defendant was arrested in an apartment in which the stolen items, including Compton's dog, were found. While in jail, Defendant made a phone call to her mother during which she stated she knew her co-defendants possessed stolen property after the robbery occurred. Finding of fact 12 does not state that Defendant had prior knowledge, merely that the phone call contradicted her trial testimony that she lacked knowledge regarding the events as they occurred on August 7, 2008. Although finding of fact 12 states that Defendant returned to Georgia in a "stolen van," rather than in Wiggins’ stolen truck, we decline to hold that such a typographical error is prejudicial to Defendant.
B. Similarly Situated Requirement
¶ 25 Defendant's primary argument on appeal concerns whether she was deprived of equal protection of the law by the prosecutors declining to offer her a plea deal. Finding of fact 25 states that Defendant failed to sufficiently establish a discriminatory effect or pattern to support this claim.
¶ 26 Notably,
[d]istrict attorneys have wide discretion in performing the duties of their office. This encompasses the discretion to decide who will or will not be prosecuted. In making such decisions, district attorneys must weigh many factors such as "the likelihood of successful prosecution, the social value of obtaining a conviction as against the time and expense to the State, and his own sense of justice in the particular case."
State v. Spicer , 299 N.C. 309, 311, 261 S.E.2d 893, 895 (1980) (citations omitted). "Of course, the district attorney may not, during the exercise of his discretion, transcend the boundaries of the Fourteenth Amendment's guarantee of equal protection." Id. at 312, 261 S.E.2d at 895. "The test for determining the limits of constitutionally permissible selective prosecution was first expressly articulated by the United States Supreme Court in Olyer v. Boles , 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962)." State v. Rogers , 68 N.C. App. 358, 366, 315 S.E.2d 492, 500 (1984). Following Olyer and Yick Wo v. Hopkins , 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), "a two-part test for discriminatory prosecution" has been developed:
"It is well established that there may be selectivity in prosecutions and that the exercise of this prosecutorial prerogative does not reach constitutional proportion unless there is a showing that the selection was deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification." State v. Gibson , 175 N.C. App. 223, 225, 622 S.E.2d 729, 731 (2005) (citation omitted).
To prevail on a selective prosecution challenge, a defendant must first make a prima facie showing that he has been singled out for prosecution while others similarly situated and committing the same acts have not.... If a defendant meets this first showing, he must then demonstrate that the government's discriminatory selection of him for prosecution has been invidious or in bad faith in that it rests upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.
Rogers , 68 N.C. App. at 367, 315 S.E.2d at 500 (citations omitted). Stated differently, a defendant may succeed on a selective prosecution challenge by showing both a discriminatory effect and a discriminatory purpose. See Wayte v. U.S. , 470 U.S. 598, 608, 105 S. Ct. 1524, 1531, 84 L. Ed. 2d 547, 556 (1985) ; see also U.S. v. Armstrong , 517 US. 456, 465, 116 S. Ct. 1480, 1487, 134 L. Ed. 2d 687, 699 (1996) ; State v. Howard , 78 N.C. App. 262, 266-67, 337 S.E.2d 598, 601-02 (1985) ; State v. Garner , 340 N.C. 573, 588, 459 S.E.2d 718, 725 (1995) (citation omitted). "When a defendant alleges that he has been selectively prosecuted, the defendant must establish discrimination by a clear preponderance of proof." State v. Pope , 213 N.C. App. 413, 415-16, 713 S.E.2d 537, 540 (2011) (citation and internal quotation marks omitted).
Although selective prosecution typically refers to instances in which one defendant is indicted and prosecuted for unlawful conduct where other similarly situated individuals are not prosecuted for the same conduct, we find the reasoning contained in our selective prosecution precedent persuasive and adopt it herein.
¶ 27 Finding of fact 25 provides that Defendant failed to establish a discriminatory effect or pattern that would support her equal protection claim. "To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted." Armstrong , 517 U.S. at 465, 116 S. Ct. at 1487, 134 L. Ed. 2d at 699. In determining whether individuals are similarly situated, "a court must examine all relevant factors." U.S. v. Olvis , 97 F.3d 739, 744 (4th Cir. 1996) (citations omitted). "[D]efendants are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them." Id. at 744. After careful review, we hold the trial court did not err in finding Defendant was not similarly situated to her white co-defendants: Mangold and Goolsby.
1. Mangold
¶ 28 Defendant contends she sufficiently established discriminatory effect in that Mangold received a plea offer where she did not. We disagree.
¶ 29 Defendant argues that "Mangold was more culpable than [Defendant.]" Mangold knew Wiggins personally, previously lived with him, and directed the group to Wiggins’ residence that night. Mangold went to the residence armed with a firearm and lied to law enforcement when questioned about the firearm. Mangold went with Miles and Johnson earlier in the evening to try to sell a firearm, and told Miles and Johnson that the victims had drugs, money, and "all this stuff and [how Wiggins] owed [Mangold] money." However, the evidence presented at trial tended to show that, when the others began shooting the victims, Mangold ran from the house in surprise. Thereafter, Mangold told Defendant and Goolsby what had occurred and left the scene of the crime. Put plainly, Mangold disengaged; warned his friend; and fled the scene of the crime. No evidence presented at trial suggested Mangold profited from the robbery.
¶ 30 In support of her contention that she was less culpable than Mangold, Defendant testified she was never armed. She remained in the hotel room, where she and McCutcheon took ecstasy and smoked marijuana, while the others went to sell the firearm. Defendant had not previously met Wiggins, Compton, or Waldroup and did not advertise that they had drugs or owed anyone money. Unlike Mangold—who fled from the scene, warned Defendant and Goolsby "they are killing people in there," and invited Defendant to leave with him—Defendant remained by the van, smoked a cigarette, and walked up the hill toward the residence where she observed Johnson sitting in a dark colored truck acting as a lookout and McCutcheon peering into one of the victims’ vehicles. She shouted for McCutcheon and the others to "come on"; actively encouraging Miles, Johnson, and McCutcheon to hurry so that they could leave the Wiggins’ residence together. Thereafter, Defendant returned to Georgia in one of the victim's stolen vehicles laden with property taken from the victim's home, thereby profiting from the crime. A careful review of the facts shows sufficient competent evidence presented at trial support the trial court's determination that the two were not similarly situated.
2. Goolsby
¶ 31 Defendant further contends that she was similarly situated to Goolsby, who received a plea offer. However, a careful review of the evidence reveals that the trial court did not err in finding Defendant was not similarly situated to Goolsby.
¶ 32 Goolsby went with Mangold, Miles, and Johnson earlier in the evening to try to sell the firearm. Goolsby sat in the van and did not go to Wiggins’ residence after he deduced that the others were about to rob the victims, stating he "didn't want no part of it." When Goolsby learned that Miles and Johnson had shot Wiggins and Compton, Goolsby immediately fled the scene into the woods. After fleeing the scene of the crime, Goolsby remained in the woods, fearing that the others would come and "shoot him." When Goolsby heard the others calling into the woods that he and Mangold could "come out" from their hiding spot, he remained covered by leaves. Although Goolsby initially mislead police in that he told law enforcement officers that they threw Mangold's firearm into a nearby pasture, Goolsby also demonstrated a willingness to help prosecutors by testifying in Defendant's trial. No evidence presented at trial suggested Goolsby profited from the robbery.
¶ 33 Defendant, however, waited for her associates at the scene of the crime. Defendant walked partially up Wiggins’ driveway to encourage her associates to hurry and profited from the crime in that she traveled home to Georgia in one of the victim's vehicles that contained stolen items. Fingerprints lifted from Wiggins’ truck matched those of Defendant corroborating the testimony that she was in the vehicle. Once they returned to Georgia, Defendant helped her co-defendants move and stayed in the apartment that contained the victim's stolen property. Defendant was found with Compton's dog at the time of her arrest. Defendant stated to law enforcement that she knew nothing about the crime and did not testify against any of her co-defendants. Moreover, Defendant stated to law enforcement that she did not know about the plan to rob Wiggins and Compton beforehand, but she admitted during a phone call made to her mother while in jail that "she knew about the robbery which was being discussed in the van on the way to" Wiggins’ residence. Other evidence presented at trial suggested Defendant had knowledge of the robbery beforehand, including statements from McCutcheon that "everybody was talking about hitting a lick," or robbing someone because the group was out of money and "didn't know how [they] were gonna [sic] get home." Defendant rode to the residence in the front seat of the vehicle and observed the others arm themselves prior to walking up the hill to Wiggins’ residence. Thus, the evidence supports the trial court's conclusion that Defendant was not similarly situated to Goolsby.
3. Discriminatory Pattern
¶ 34 Defendant further contends she established a discriminatory pattern in North Carolina's Thirtieth Judicial District through statistical evidence regarding the disposition of first-degree murder cases between 1994 until 2013. However, "[s]tanding alone, these statistics simply show that the district attorney has in fact exercised ... discretion." Spicer , 299 N.C. at 312, 261 S.E.2d at 896. Moreover, none of the prosecutors involved in Defendant's trial were represented by the statistics presented—these statistics did not pertain to the prosecutors’ individual track records or prior cases.
¶ 35 Accordingly, we hold finding of fact 25 is supported by competent evidence. Defendant failed to show she was similarly situated to Mangold and Goolsby. Because we hold Defendant failed to meet her burden of proof that she was similarly situated to Mangold and Goolsby, we need not address whether the prosecutors in this case acted with a discriminatory purpose. Accordingly, we do not address whether the trial court's findings of fact 8, 9, and 26, which are related to a discriminatory purpose or intent, are supported by competent evidence.
III. Conclusion
¶ 36 After careful review of the record and applicable law, we hold Defendant failed to meet her burden in establishing she was similarly situated to her white co-defendants, Mangold or Goolsby. The record before us does not contain evidence to suggest Mangold and Goolsby profited from the crime, whereas competent evidence showed Defendant returned to Georgia in a stolen vehicle driven by one of the shooters, laden with stolen property, including a victim's dog, and was arrested in an apartment containing such property. Accordingly, we affirm the order of the trial court denying Defendant's MAR. It is so ordered.
AFFIRMED.
Report per Rule 30(e).
Judges DIETZ and INMAN concur.