State v. Marion

• Decision Date: 01 April 2014
• Docket Number: No. COA13–200.,COA13–200.
• Citation: 756 S.E.2d 61
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Tiffany Leigh MARION.

756 S.E.2d 61

STATE of North Carolina

v.Tiffany Leigh MARION.

No. COA13–200.

Court of Appeals of North Carolina.

April 1, 2014.

Appeal by defendant from judgments entered 19 March 2012 by Judge Marvin Pope in Swain County Superior Court. Heard in the Court of Appeals 26 September 2013.

Roy Cooper, Attorney General, by Mary Carla Hollis, Assistant Attorney General, for the State.

Staples Hughes, Appellate Defender, by Daniel R. Pollitt and Paul M. Green, Assistant Appellate Defenders, for defendant-appellant.

DAVIS, Judge.

Tiffany Leigh Marion (“Defendant”) appeals from her convictions for two counts of first-degree murder, one count of attempted murder, two counts of robbery with a dangerous weapon, and one count of first-degree burglary. Defendant's primary argument on appeal is that there was insufficient evidence presented at trial to support her convictions under either an acting in concert theory or an aiding and abetting theory. After careful review, we vacate in part and remand in part as set out below.

Factual Background

The State's evidence tended to establish the following facts: On 5 August 2008, Defendant traveled from Atlanta, Georgia to Cherokee, North Carolina to visit Harrah's casino. Defendant was accompanied by Jada McCutcheon (“McCutcheon”)—a friend from the massage therapy school Defendant attended—and three men, Jeffrey Miles (“Miles”), Jason Johnson (“Johnson”), and a man known as “Freak.” The group used ecstasy and smoked marijuana during the car trip and during their entire stay in North Carolina. Some of the ecstasy they used during their trip was mixed with other controlled substances, including heroin and cocaine. Once they arrived, part of the group gambled for several hours at the casino. Afterwards, Miles checked into a hotel room and listed Defendant as his guest. The group congregated in Miles' room over the next several days to “chill” and use drugs.

On 7 August 2008, Miles, Johnson, and “Freak” went to the local Wal–Mart, where they met two local residents, Mark Goolsby (“Goolsby”) and Dean Mangold (“Mangold”). Miles asked Goolsby and Mangold if they wanted to take ecstasy and go to the casino with them, and the two replied affirmatively. Miles eventually brought them back to his hotel room and showed them an AR–15 firearm that he was interested in selling. Mangold suggested trying to sell the gun to a man named Scott Wiggins (“Wiggins”) and offered to take them up to see Wiggins. Mangold also told Miles that Wiggins “had drugs.” During this conversation, Defendant was lying on the bed and seemed “messed up.”

Goolsby, Mangold, Miles, Johnson, McCutcheon, and Defendant got into their van and drove to Wiggins' home. During the drive, Mangold told Miles that Wiggins owed him money and that Wiggins had “all this stuff” and “a lot of money.” Miles was driving the van and parked it on a gravel logging road where it could not be seen from Wiggins' house. Everyone exited the vehicle, and Miles told everyone that they were “fixin' to hit a lick,” meaning that they were about to rob someone. Defendant stayed by the van and told McCutcheon that she “didn't want to go up there.”

Johnson kicked in the door of the residence and proceeded to hold Wiggins and another person present in Wiggins' home, Michael Heath Compton (“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. Goolsby and Mangold heard the gunshots, “got scared,” and left the scene. Defendant then left the area by the van where she had been waiting, walked towards the house, found Johnson, and informed him that Goolsby and Mangold had left. She then returned to the van.

Johnson, Miles and McCutcheon proceeded to load the stolen items into Wiggins' pickup truck. Defendant attempted to drive the van but was unable to release the parking brake so McCutcheon drove the vehicle. Defendant and the others traveled back to Georgia and moved the stolen items into Miles' apartment.

On 18 August 2008, the Swain County grand jury returned bills of indictment charging Defendant with 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. The matter came on for a jury trial during the February and March 2012 Criminal Sessions of Swain County Superior Court.

Defendant offered evidence at trial and testified in her defense. She testified that she was using drugs during the entire trip and did not learn what had happened at Wiggins' house until she returned to Georgia on 11 August 2008. She further stated that she never heard or was a part of any conversations regarding a plan to rob Wiggins and explained that she “had no idea what was going on” when the group went to Wiggins' house, “had nothing to do with it,” and “would never, ever be a part of anything like this.”

The jury found Defendant guilty of two counts of first-degree murder, one count of attempted murder, one count of first-degree burglary, and two counts of robbery with a dangerous weapon. Defendant was found not guilty of the three kidnapping charges. The trial court entered judgments based on the jury's verdicts, sentencing Defendant to two consecutive terms of life imprisonment without parole for the first-degree murder charges, a presumptive-range term of 125 to 159 months for the attempted murder conviction, and presumptive-range terms of 51 to 71 months imprisonment for each of the remaining charges. Defendant gave timely written notice of appeal.

Analysis

Defendant raises a number of arguments on appeal. We address each in turn.

I. Defendant's Statement to Detective Posey

Defendant first argues that the trial court erred by allowing the State to impeach her trial testimony through the use of a “written instrument [ ] the prosecutor improperly characterized, described, and referred to in court as ‘defendant's written statement.’ ” Defendant acknowledges that she did not object to the use of this evidence at trial and therefore seeks review under the plain error doctrine. Under plain error review, Defendant bears the burden of showing that the alleged error was such that it “had a probable impact on the jury's finding that the defendant was guilty.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and quotation marks omitted).

Relying on State v. Walker, 269 N.C. 135, 152 S.E.2d 133 (1967), Defendant contends that the trial court committed plain error by admitting into evidence notes prepared by Detective Carolyn Posey (“Detective Posey”) memorializing a conversation with Defendant and allowing the State to impeach Defendant's testimony with those notes.

In Walker, our Supreme Court held as follows:

If a statement purporting to be a confession is given by [the] accused, and is reduced to writing by another person, before the written instrument will be deemed admissible as the written confession of [the] accused, he must in some manner have indicated his acquiescence in the correctness of the writing itself. If the transcribed statement is not read by or to [the] accused, and is not signed by [the] accused, or in some other manner approved, or its correctness acknowledged, the instrument is not legally, or per se, the confession of [the] accused; and it is not admissible in evidence as the written confession of [the] accused.

Id. at 139, 152 S.E.2d at 137 (citation and quotation marks omitted).

Our Supreme Court has explained, however, that the authentication requirements outlined in Walker, and later reiterated in State v. Wagner, 343 N.C. 250, 470 S.E.2d 33 (1996), do not apply to statements made by a defendant that are not confessions. See State v. Moody, 345 N.C. 563, 579, 481 S.E.2d 629, 637 (holding that “the requirements outlined in Wagner do not apply” because “[a]t no time was [the law enforcement officer's] record of his interview with defendant characterized as defendant's written confession”), cert. denied,522 U.S. 871, 118 S.Ct. 185, 139 L.Ed.2d 125 (1997).

Here, Detective Posey testified that she took notes while she and Deputy Scott Cody transported Defendant from Georgia to North Carolina on 20 August 2008. Detective Posey explained that the notes were taken in shorthand, and they were “not exactly word for word.” She replied affirmatively when asked if what she wrote was “as best [as] you can recall ... what [Defendant] said while she was in the car.”

After reviewing the transcript and record, we have found no indication that Defendant's statements to Detective Posey were ever characterized as Defendant's confession. A confession is “an acknowledgment in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it.” State v. Jones, 294 N.C. 642, 659, 243 S.E.2d 118, 128 (1978) (citation and quotation marks omitted). Defendant's statements to Detective Posey, conversely, did not admit her guilt or participation in the crimes. Rather, the notes memorializing the conversation reflected Defendant's assertions that she did not know “anything about robbing anybody”; “did not even know anyone had passed”; that “nobody said anything to [her] about guns”; and that she only knew what had happened afterwards because McCutcheon told her.

A defendant's statement that is not purported to be a written confession is admissible under the exception to the hearsay rule for statements by a party-opponent and does not require the defendant's acknowledgement or adoption. Moody, 345 N.C. at 579, 481 S.E.2d at 637; see State v. Randolph, ––– N.C.App. ––––, ––––, 735 S.E.2d 845, 852 (2012) (“[S]o long as oral statements are not obtained in violation of the...