{
  "id": 8553079,
  "name": "STATE OF NORTH CAROLINA v. MARGARET DELLINGER",
  "name_abbreviation": "State v. Dellinger",
  "decision_date": "1975-07-02",
  "docket_number": "No. 7527SC259",
  "first_page": "426",
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  "last_updated": "2023-07-14T16:59:13.418266+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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    "judges": [
      "Judges Martin and Clark concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MARGARET DELLINGER"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nDefendant Dellinger assigns error to trial court\u2019s admission into evidence of the extra-judicial statement of codefendant Jones. Quoting from State v. Jones, 280 N.C. 322, 339, 185 S.E. 2d 858, 868 (1972), she argues that \u201cthe prejudicial impact of testimony of out-of-court declarations of a codefendant, even when, the right to confrontation is afforded, must be evaluated in the light of the competent admitted evidence against the nondeclarent defendant referred to in such declarations.\u201d Defendant contends that since Jones\u2019 statement tended to corroborate Payseur\u2019s testimony, which was suspect because of his use of drugs, the court\u2019s limiting instruction had no effect and the admission of the statement was prejudicial. We disagree. Pay-seur\u2019s account of the events surrounding Smith\u2019s death was competent evidence incriminating defendant Dellinger. It was corroborated at various points by other competent evidence. In this case, as in Jones, supra, there was no gap between the impact of the statement made by Arnold Jones and of other evidence competent against defendant Dellinger. This assignment of error is overruled.\nDefendant next assigns error to the court\u2019s denial of her motions for. nonsuit. This assignment of error also is. pverruled. Viewed in the light most favorable to the State, there was ample evidence of acts both before and after the murder to support a jury finding that defendant agreed with Payseur to have Smith killed. See State v. Horton, 275 N.C. 651, 170 S.E. 2d 466, cert. denied 398 U.S. 959, rehearing denied 400 U.S. 857 (1970) ; State v. Locklear, 8 N.C. App. 535, 174 S.E. 2d 641 (1970).\nFinally, defendant assigns as error the court\u2019s refusal to declare a mistrial when the solicitor used portions of Jones\u2019 statement dealing with Dellinger in his argument to the jury. In noncapital cases, a ruling on motion for mistrial rests largely in the discretion of the trial court. State v. Daye, 281 N.C. 592, 189 S.E. 2d 481 (1972) ; State v. Brown, 18 N.C. App. 35, 195 S.E. 2d 567, cert. denied 283 N.C. 586, 196 S.E. 2d 810 (1973). The record shows that, upon defendant\u2019s objection to the solicitor\u2019s argument, the court repeated its limiting instruction to the jury. Under these circumstances, we find no abuse of discretion in denying defendant\u2019s motion.\nDefendant has received a fair trial free from prejudicial error.\nNo error.\nJudges Martin and Clark concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General . Charles M. Hensey, for the State.",
      "Wilson & Lafferty, P.A. by John O. Lafferty, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MARGARET DELLINGER\nNo. 7527SC259\n(Filed 2 July 1975)\n1. Criminal Law \u00a7 79 \u2014 extra-judicial statement of codefendant \u2014 admissibility\nThe trial court did not err in allowing into evidence an extrajudicial statement of a codefendant.\n2. Conspiracy \u00a7 6\u2014 conspiracy to commit murder \u2014 sufficiency of evidence\nIn- a prosecution for conspiracy to commit murder, evidence was sufficient to be submitted to the jury where it tended to show that defendant had conversations with one Payseur about having her son-in-law killed and that defendant saw Payseur after the killing and discussed payment with him.\n3. Criminal Law \u00a7\u00a7 79, 102 \u2014 extra-judicial statement of codefendant \u2014 use by solicitor in jury argument\nThe trial court did not err in denying defendant\u2019s motion for a mistrial when the solicitor used portions of a codefendant\u2019s statement dealing with defendant in his argument to the jury where the court did, upon defendant\u2019s objection to the solicitor\u2019s argument, repeat its limiting instruction to the jury.\nAppeal by defendant from Thornburg, Judge. Judgment entered 7 November 1974 in Superior Court, Lincoln County. Heard in the Court of Appeals 28 May 1975.\nDefendant was charged in an indictment, proper in form, with conspiracy to commit murder. She pleaded not guilty and together with Arnold Jones, who was charged with being an accessory after the fact, was tried before a jury.\nRussell Audie Payseur was the principal witness for the State. He testified that on the afternoon of 29 June 1974 he went to the home of defendant and discussed with her payment for his killing of Randall Smith, defendant\u2019s son-in-law. Prior to this occasion, defendant\u2019s daughter Kathy had promised Payseur $3,000.00 if he could arrange the death of Smith. This conversation took place in the presence of defendant, who later promised Payseur up to $5,000.00 for Smith\u2019s death. Defendant and her daughter told Payseur that the money would come from insurance on Smith\u2019s life.\nPayseur is paralyzed from the waist down. He was driven to defendant\u2019s home by Elbert Rickman. Arnold Jones was in the back seat. Payseur had prepared a sawed-off shotgun, using a .20 gauge barrel and a .16 gauge stock, which he put in the car.\nRandall Smith joined the men and they went for a ride. They left Jones at a place called Jud\u2019s Pantry and, since they had been drinking, drove back on a country road. They stopped at an isolated spot to \u201cuse the bathroom.\u201d Payseur testified that he decided to try out his shotgun and pointed it at a fence post. Afraid that the gun might explode, he turned to grasp the seat. When he turned around, Smith had seized the barrel. Smith pulled the gun and it fired, killing him. Blood spattered on the windshield. Payseur and Rickman left the body at the scene and went to pick up Jones. Rickman.and Jones washed the blood off the car. Defendant came to Payseur the next day and, when he told her Smith was dead, promised to pay him.\nDr. Guy Joseph Guarino testified that Randall Smith died of massive bleeding secondary to a gunshot wound in the left chest. In his opinion, the- wound was caused by a .20 gauge shotgun.\nPayseur further testified that defendant had told him she wanted Smith killed because he had beaten and threatened to kill her, his wife and his two children. Payseur said he did not promise to kill Smith but only to get someone else to do the job for the money which defendant and her daughter were going to pay him. On cross-examination Payseur admitted that at the time of the offense he was a heavy user of drugs and alcohol.\nElbert Rickman\u2019s testimony tended to corroborate Payseur\u2019s account of the events of June 29. Larry James Carpenter testified that he took Payseur to defendant\u2019s home on the Sunday after the killing and heard him tell defendant he wanted the money in tens, fifties and twenties. Barry Divine, an insurance agent, testified that in March 1974 he sold Randall Smith additional life insurance and that defendant and her daughter were present at the time.\nArnold Jones testified for defendant. He stated that he accompanied Payseur and Rickman to defendant\u2019s home but denied having overheard a conversation between defendant and Payseur about murder. On cross-examination the State introduced a statement made by Jones. on the morning after his arrest. It included the following: \u201cRusty [Payseur] said, \u2018l am going to keep my promise or bargin [sic].\u2019 Both, the women said the money will be waiting. It will be two or three weeks. Rusty told them to make sure it is in small bills. Rusty said something about $4,000.00.\u201d The court instructed the jury that if they found that such a statement was made they may consider it only as evidence against Jones and not against defendant Dellinger.\nDefendant\u2019s daughter Kathy testified that she and Payseur had discussed the killing of her husband but that she did not want him killed. Her mother was not present during this conversation. She testified that her husband drank excessively and often was absent from work. After Smith\u2019s death Payseur told her he was in a hurry for the money. She knew Payseur had killed her husband, and, when she discussed this fact with Pay-seur\u2019s mother, defendant overheard the conversation and became upset.\nDefendant Margaret Dellinger denied any prior knowledge or agreement with respect to the killing of her son-in-law. She denied having told neighbors she was afraid of him and denied knowing that he had increased his insurance coverage.\nThe State offered rebuttal evidence from Smith\u2019s employer that he had been a regular worker with a good reputation. The company had carried a $3,000.00 insurance policy on Smith\u2019s life, with his wife as beneficiary.\nThe jury found defendant Jones not guilty and defendant Dellinger guilty as charged. From judgment imposing a sentence of eight to ten years\u2019 imprisonment, Margaret Dellinger appealed to this Court.\nAttorney General Edmisten, by Assistant Attorney General . Charles M. Hensey, for the State.\nWilson & Lafferty, P.A. by John O. Lafferty, Jr., for defendant appellant."
  },
  "file_name": "0426-01",
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