State v. Dellinger

302 S.E.2d 194, 308 N.C. 288, 1983 N.C. LEXIS 1164
CourtSupreme Court of North Carolina
DecidedMay 3, 1983
Docket430A82
StatusPublished
Cited by9 cases

This text of 302 S.E.2d 194 (State v. Dellinger) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dellinger, 302 S.E.2d 194, 308 N.C. 288, 1983 N.C. LEXIS 1164 (N.C. 1983).

Opinion

EXUM, Justice.

In this appeal defendant’s assignments of error relate to the Speedy Trial Act, a motion for change of venue, admission of evidence and sufficiency of the evidence. We find no merit in any of the assignments and uphold the judgment of the trial court.

The state’s evidence tends to show:

*291 On 22 January 1970 the victim, John LaFayette Marlowe, age 69, was living alone in a house in a rural section of Catawba County. In the early evening of that day he left a friend’s garage, intending to go to his home several hundred feet away. Early the next morning, Marlowe’s dead body was found in a cornfield near his house. Multiple head injuries caused his death.

On 17 August 1981, Fred Clifford Sigmon, who had been charged with Marlowe’s murder, entered into a plea bargain with the state and agreed to testify with respect to the murder. Defendant was thereafter indicted, and at his trial Sigmon testified as follows: He became acquainted with defendant two or three weeks before 22 January 1970. They began drinking together. Sigmon heard that Marlowe had a large sum of money. Sigmon and defendant decided to rob Marlowe, but defendant promised there would be no violence. Soon after dark on 22 January 1970 they went to Marlowe’s home. No one was there. They entered the house but could not find any money. Defendant left the house before Sigmon. When Sigmon left the house defendant “had that man [Marlowe] on the ground beating the hell out of him.” Defendant struck Marlowe on his head a number of times with a gun. When Sigmon asked defendant to stop beating Marlowe, defendant threatened to kill Sigmon. After defendant stopped beating Marlowe, defendant and Sigmon went to Hickory. Defendant gave Sigmon $250 or $260 of the $600 defendant said he took from Marlowe.

Defendant offered no evidence.

I.

Defendant’s assignments of error one, two, five and six relate to defendant’s contentions that the state failed to comply with the Speedy Trial Act, codified in article 35 of Chapter 15A of the General Statutes. G.S. 15A-701(al) provides in pertinent part:

(T)he trial of a defendant charged with a criminal offense who is arrested, served with criminal process, waives an indictment or is indicted, on or after October 1, 1978, and before October 1, 1983, shall begin within the time limits specified below:
(1) Within 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last ....

*292 G.S. 15A-701(b) provides in pertinent part:

The following periods shall be excluded in computing the time within which the trial of a criminal offense must begin:
(1) Any period of delay resulting from other proceedings concerning the defendant including, but not limited to, delays resulting from:
d. Hearings on any pretrial motions or the granting or denial of such motions.
The period of delay under this subdivision must include all delay from the time a motion or other event occurs that begins the delay until the time a judge makes a final ruling on the motion or the event causing the delay is finally resolved. . . .

Defendant was indicted on 31 August 1981. On the same day defendant, then an inmate at the Federal Correctional Center in Butner, N. C., 2 pursuant to the Interstate Agreement on Detainers Act, G.S. 15A-761 to -767, filed a written request for final disposition of the charges against him relating to Marlowe’s murder. According to Judge Johnson’s 11 January 1982 order, discussed below, on 2 September 1981 the district attorney began proceedings to have defendant delivered temporarily to this state’s custody for trial. 3 Defendant invoked his thirty-day waiting period under the detainer statutes, and on 18 September 1981 he began to file numerous motions. He made motions for a writ of coram nobis, for a change of venue, to dismiss the indictment on various grounds, and for discovery. He filed his motion for change of venue, based on allegations of prejudicial pretrial publicity, on 18 September 1981.

On 22 October 1981 federal authorities offered temporary custody of defendant to the state, and on 15 December 1981 the *293 Catawba County Sheriff took physical custody of him. On 16 December 1981 defendant appeared before Judge Mills in superior court and Mr. Brackett was appointed to represent him. Judge Mills considered what times might be excludable under the Speedy Trial Act, but no order by Judge Mills relating to the Speedy Trial Act appears in the record on appeal. 4 Judge Mills continued the case until 11 January 1982.

On 11 January 1982 defendant’s pretrial motions and the state’s motion to exclude time from the 120-day Speedy Trial Act provision came on for hearing before Judge Johnson. Judge Johnson denied defendant’s motions for change of venue, to dismiss the indictment, and for coram nobis, and allowed defendant’s motions to proceed as an indigent, for a bill of particulars, and for discovery. Judge Johnson allowed the state’s motion to exclude, among other periods, the time between the filing of defendant’s motion for change of venue on 18 September 1981 and its determination on 11 January 1982, and he continued the trial to 18 January 1982.

The case could not be reached for trial at the 18 January 1982 session due to the trial of other cases and the district attorney moved for a continuance. Judge Johnson ordered the case continued until 15 February 1982 and the trial began on that date. On 15 February 1982 defendant orally moved to dismiss the indictment for the state’s failure to comply with the Speedy Trial Act.

Defendant argues: (1) Judge Mills erred in failing to enter a written order following a hearing which he conducted on 16 December 1981 and at which he determined that 104 days had then elapsed in computing the time in which defendant had to be tried pursuant to the Speedy Trial Act; and (2) Judge Johnson erred in concluding that the time between the filing of defendant’s motion for change of venue and its determination was excludable from the 120-day Speedy Trial Act provision, thus effectively overruling the earlier “order” of Judge Mills. We find no merit in these arguments.

*294 It is well established in this jurisdiction that it is the duty of the appellant to see that the record on appeal is properly made up and transmitted. State v. Stubbs, 265 N.C. 420, 144 S.E. 2d 262 (1965). It is also settled that the record imports verity and the court is bound on appeal by the record as certified. State v. Williams, 280 N.C. 132, 184 S.E. 2d 875 (1971); State v. Fields, 279 N.C. 460, 183 S.E. 2d 666 (1971).

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Cite This Page — Counsel Stack

Bluebook (online)
302 S.E.2d 194, 308 N.C. 288, 1983 N.C. LEXIS 1164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dellinger-nc-1983.