{
  "id": 8520696,
  "name": "STATE OF NORTH CAROLINA v. WILLIAM PAUL MARLOW",
  "name_abbreviation": "State v. Marlow",
  "decision_date": "1983-03-15",
  "docket_number": "No. 8223SC621",
  "first_page": "300",
  "last_page": "304",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
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      "cite": "294 N.C. 446",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "opinion_index": 0,
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    {
      "cite": "300 S.E. 2d 819",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1983,
      "opinion_index": 0
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    {
      "cite": "61 N.C. App. 225",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8520231
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      "year": 1983,
      "opinion_index": 0,
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        "/nc-app/61/0225-01"
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  "last_updated": "2023-07-14T21:13:54.976609+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge VAUGHN and Judge Braswell concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIAM PAUL MARLOW"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nDefendant contends he was denied his statutory right to a speedy trial and that his trial was improperly joined for trial with defendant Tena Marion.\nG.S. 15A-701(al)(l) required that defendant\u2019s trial begin within the 120 days of the date of his indictment. G.S. 15A-701(b)(6) allows the trial court to exclude from the 120 day period, \u201c[a] period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted.\u201d The period may not be excluded unless the co-defendants were formally joined. State v. Capps and Staton, 61 N.C. App. 225, 300 S.E. 2d 819 (1983). Since defendant Marlow and Tena Marion were not formally joined as co-defendants between 14 December 1981 and 8 February 1982, the trial judge erred in excluding that period from the 120 days that the State had in which to commence defendant\u2019s trial and defendant was entitled to a dismissal under G.S. 15A-703.\nWhile it is not necessary for us to address defendant\u2019s joinder argument, under the facts in this case, we deem it appropriate.\nG.S. 15A-927(c)(2)a, in pertinent part, is as follows:\n(c) Objection to Joinder of Charges against Multiple Defendants for Trial; Severance.\u2014\n(2) The court, ... on motion of the defendant . . . must deny a joinder for trial or grant a severance of defendants whenever:\na. If before trial, it is found necessary to protect a defendant\u2019s right to a speedy trial . . .\nWhile ordinarily the decision as to severance or joinder of defendants lies within the sound discretion of the trial judge, State v. Braxton, 294 N.C. 446, 242 S.E. 2d 769 (1978), in this case the trial court\u2019s findings of fact show that, if it had been correct for the trial court to exclude defendant Marion\u2019s delay days, it would have been necessary to deny the State\u2019s motion to join co-defendant Tena Marion\u2019s trial in order to protect defendant\u2019s rights to a speedy trial.\nUpon remand, the trial court shall determine whether to order that the charges against defendant be dismissed with or without prejudice. G.S. 15A-703.\nBecause of the result we have reached, we deem it unnecessary to reach or determine defendant\u2019s remaining assignments of error.\nFor the reasons stated, the judgment entered is vacated and the cause is remanded.\nVacated and remanded.\nChief Judge VAUGHN and Judge Braswell concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten, by Assistant Attorney General Richard L. Kucharski, for the State.",
      "Doughton & Evans, by Samuel C. Evans, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM PAUL MARLOW\nNo. 8223SC621\n(Filed 15 March 1983)\n1. Criminal Law \u00a7 91\u2014 statutory speedy trial \u2014 absence of formal joinder for trial \u2014exclusion of time for co-defendant \u2014time not excluded for defendant\nWhere cases against defendant and a co-defendant had not been formally joined for trial during a time when the co-defendant was unavailable for trial because of pregnancy, the trial judge erred in excluding such time from the statutory speedy trial period for the commencement of defendant\u2019s trial. G.S. 15A-701(b)(6).\n2. Criminal Law \u00a7 92\u2014 statutory speedy trial \u2014 exclusion of delay for co-defendant \u2014 denial of motion for joinder to protect defendant\u2019s rights\nIf it was correct for the trial court to exclude delay caused by a co-defendant\u2019s pregnancy from the statutory speedy trial period, it would have been necessary for the court to deny the State\u2019s motion for joinder of the cases against defendant and the co-defendant in order to protect defendant\u2019s rights to a speedy trial. G.S. 15A-927(c)(2)a.\nAPPEAL by defendant from Rousseau, Judge. Judgment entered 12 February 1982 in WILKES County Superior Court. Heard in the Court of Appeals 17 January 1983.\nOn 18 March 1981, defendant was arrested under a warrant charging him with the murder of Dennis Wyatt. On 14 September 1981, defendant was charged in an indictment for the murder of Wyatt. Defendant remained in custody until his trial, which began on 8 February 1982.\nWhen defendant\u2019s case was called for trial, on 8 February 1982, the following pertinent events took place. Defendant\u2019s pending motion to have the charges against him dismissed for lack of a speedy trial was brought to the attention of the trial court. Defendant asserted both constitutional and statutory grounds. Defendant then presented evidence showing that his trial was delayed beyond 12 January 1982, the last day of the 120 day period required under G.S. 15A-701(al)(l), that none of the delay was caused by defendant and that there had been five weeks of criminal court in the Superior Court for Wilkes County between 14 October 1981 and 8 February 1982, the last one of which terms began on 14 December 1981. Following defendant\u2019s evidence on the motion, the following exchange took place between the trial court, defendant\u2019s counsel, Mr. Evans, the District Attorney, Mr. Ashburn, and Mr. Freeman, counsel for Tena Marion,\nThe Court: Of course, this client \u2014 this defendant\u2019s case was a companion case to the motion I just heard on the continuance of Ms. Marion and two other co-defendants; is that correct?\nMr. Evans: Yes, sir; that is correct.\nThe Court: Now, this defendant is charged along with three other co-defendants; is that correct?\nMr. Ashburn: Yes, sir, your Honor, correct.\nThe Court: And, of course, one of the co-defendants had a baby the 1st of January and was not able to be tried in December.\nMr. Evans: Your Honor, I object to that.\nMr. Freeman: We contend that we were ready to try it in December.\nThe Court: What do you say to that Mr. District Attorney?\nMr. Ashburn: Yes, sir, I talked to counsel for defendants who \u2014 at sometime prior to that I believe \u2014 that we talked also about her being pregnant and I told them that I wasn\u2019t going to try a pregnant woman in front of a jury on accessory after the fact and be responsible for what might happen to her. The indications were that it was not long off that she would be delivering a child. I did that \u2014 well.\nFollowing further exchanges and arguments by defendant\u2019s counsel, the trial court found, in pertinent part, \u201cthat one of the co-defendants, Tena Lynn Marion, was pregnant and expecting to give birth to a child sometime in January, 1982, and did deliver the child January the 1st, 1982; that the District Attorney did not feel that the pregnant defendant was able to stand trial during the week of December 14th and did not place the case on the trial calendar . . .\u201d and later concluded, in pertinent part, \u201cthat since the date of the indictment, September 14, 1981, that inasmuch as the co-defendant, Tena Marion, was expecting to deliver childbirth, that the time from December 14, 1981 to February the 8th, should be excluded for the reason that the co-defendant was not physically able to appear in court; and the Court further concludes by excluding this time from the date of the indictment the defendant has not been denied his statutory right to a speedy trial. Therefore, the defendant\u2019s motion to dismiss is denied.\u201d\nThere then ensued an exchange between Mr. Evans and the Court as to discovery matters, and the sequestering of witnesses, and other matters affecting expected testimony from other \u201cco-defendants.\u201d The following exchange then took place:\nMr. Evans: Your Honor, I have a motion to sever, but I\u2019ll not argue that motion.\nThe Court: All right.\nMr. Freeman: I have a motion that I will argue.\nThe Court: All right. Wait just a minute. Any other motions, Mr. Evans.\nMr. Evans: No, sir.\nThe Court: I assume the State has made a motion to join them, consolidate them for trial?\nMr. Ashburn: Your Honor, the State does make that motion to join them and consolidate them for trial. Over defendant\u2019s objection, the Court ruled as follows: \u201cI\u2019ll grant the State\u2019s motion to consolidate the two cases for trial.\u201d Upon another motion by the State to also consolidate for trial charges against Ricky Marion, over defendant\u2019s objection, the trial court ruled: \u201cLet the three cases be joined for trial and consolidated.\u201d\nAt trial, the State\u2019s evidence tended to show that defendant murdered Wyatt by shooting him at the home of Ricky and Tena Marion, and that after the murder of Wyatt, the Marions and another person present at the murder scene aided and assisted in disposing of Wyatt\u2019s body in a remote mountain stream.\nThe jury returned a verdict of guilty of second degree murder. From judgment and sentence entered on the verdict, defendant appealed.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Richard L. Kucharski, for the State.\nDoughton & Evans, by Samuel C. Evans, for defendant."
  },
  "file_name": "0300-01",
  "first_page_order": 332,
  "last_page_order": 336
}