{ "id": 2531784, "name": "STATE OF NORTH CAROLINA v. GORDON MICHAEL MARLOW", "name_abbreviation": "State v. Marlow", "decision_date": "1993-07-30", "docket_number": "No. 497A91", "first_page": "273", "last_page": "289", "citations": [ { "type": "official", "cite": "334 N.C. 273" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "4 ALR3d 671", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "16 ALR4th 1089", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "weight": 4, "year": 1968, "pin_cites": [ { "page": "126" }, { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/us/391/0123-01" ] }, { "cite": "281 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575150 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0680-01" ] }, { "cite": "286 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566323 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0143-01" ] }, { "cite": "356 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "331" } ], "opinion_index": 0 }, { "cite": "319 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4743418 ], "year": 1987, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0577-01" ] }, { "cite": "303 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710863 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0736-01" ] }, { "cite": "116 L. Ed. 2d 648", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "116 L. Ed. 2d 174", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "402 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543341 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0550-01" ] }, { "cite": "108 L. Ed. 2d 603", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1022", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5540, 5547, 5516, 5166, 5366, 4823, 5560 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1022-04", "/us/494/1022-06", "/us/494/1022-03", "/us/494/1022-05", "/us/494/1022-01", "/us/494/1022-02", "/us/494/1022-07" ] }, { "cite": "381 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "623" } ], "opinion_index": 0 }, { "cite": "325 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492504 ], "year": 1990, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0081-01" ] }, { "cite": "395 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493012 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0364-01" ] }, { "cite": "360 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724272 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0718-01" ] }, { "cite": "417 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "495" } ], "opinion_index": 0 }, { "cite": "331 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497387 ], "year": 1992, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0583-01" ] }, { "cite": "312 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "447" } ], "opinion_index": 0 }, { "cite": "310 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403141 ], "year": 1984, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0410-01" ] }, { "cite": "285 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570356 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0658-01" ] }, { "cite": "349 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732391 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0457-01" ] }, { "cite": "352 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "319 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748383 ], "year": 1987, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0073-01" ] }, { "cite": "232 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "438" } ], "opinion_index": 0 }, { "cite": "292 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567601 ], "year": 1977, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0132-01" ] }, { "cite": "423 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "64", "parenthetical": "quoting State v. Tilley, 292 N.C. 132, 138, 232 S.E.2d 433, 438 (1977)" } ], "opinion_index": 0 }, { "cite": "332 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503651 ], "year": 1992, "pin_cites": [ { "page": "593-94", "parenthetical": "quoting State v. Tilley, 292 N.C. 132, 138, 232 S.E.2d 433, 438 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0583-01" ] }, { "cite": "340 S.E.2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704008 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0055-01" ] }, { "cite": "265 S.E.2d 172", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "176-77" } ], "opinion_index": 0 }, { "cite": "300 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559906 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0142-01" ] }, { "cite": "467 U.S. 504", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203373 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "507" }, { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/us/467/0504-01" ] } ], "analysis": { "cardinality": 1307, "char_count": 38787, "ocr_confidence": 0.762, "pagerank": { "raw": 1.7210217015537946e-07, "percentile": 0.7039476046672991 }, "sha256": "50a3e4d0aeeef1640f437d0f42eb45de908ddb7c4cf0c933ec9c3a106567a550", "simhash": "1:6f6fe16034c38472", "word_count": 6501 }, "last_updated": "2023-07-14T14:40:35.485142+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. GORDON MICHAEL MARLOW" ], "opinions": [ { "text": "MEYER, Justice.\nOn 3 July 1989, defendant was indicted for first-degree murder, robbery with a dangerous weapon, first-degree burglary, and conspiracy to commit burglary. Defendant was tried capitally in the Superior Court, Johnston County, in May 1991 and was found guilty of all charges. Following a sentencing proceeding pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended a sentence of life imprisonment. In accordance with the jury\u2019s recommendation, the trial court sentenced defendant to life imprisonment for murder and imposed consecutive sentences of three years for conspiracy to commit second-degree burglary, fifteen years for first-degree burglary, and fourteen years for robbery with a dangerous weapon.\nOn appeal, defendant brings forward numerous assignments of error. After a thorough review of the transcript of the proceedings, the record on appeal, the briefs, and oral arguments, we conclude that defendant received a fair trial free of prejudicial error, and we therefore affirm his convictions and sentences.\nEvidence presented at defendant\u2019s trial shows the following. On 1 May 1989, the victim, Leland Mac Grice, and his wife, Ruby Grice, were living in a mobile home off of rural paved road 1934 north of Selma, North Carolina. On the night of 1 May 1989, severe storm warnings had been broadcast for the area. Because Mrs. Grice was afraid of stormy weather, she left the mobile home at approximately 8:20 p.m. and went to the residence of her daughter, Carol Daniels, less than a mile down rural paved road 1934.\nAt approximately 11:20 p.m., Mrs. Grice left her daughter\u2019s house and drove home. Upon arriving at her mobile home, Mrs. Grice entered through the back door and found papers and contents of drawers and cabinets scattered about the floor. The television was on, and the sound was turned up. In the living room, Mrs. Grice found her husband face down on the floor with a bullet hole in his head. A .22-caliber shell casing was on the floor at his right side, and his wallet was lying on his back. Mrs. Grice called her daughters, Mrs. Daniels and Sherry Hicks, who arrived within minutes.\nDetective Tommy Beasley of the Johnston County Sheriff\u2019s Department was on duty on 1 May 1989 and responded to a call to the Grice residence. Upon arriving at the scene, Beasley was told by rescue squad personnel that the victim had no vital signs.\nDr. Thomas B. Clark, the medical examiner, testified that an autopsy of the victim revealed a one-inch abrasion on his forehead and a gunshot wound behind his left ear, five and one-half inches from the top of his head and three inches to the left of the posterior midline. The wound track proceeded left to right. The projectile entered the left occipital bone and lodged in the soft tissue behind the jaw bone on the right side. Dr. Clark opined that the cause of death was the hemorrhaging along the wound track caused by the bullet.\nDetective Beasley received information that John Horton could help in the Grice homicide and met with Horton on 18 June 1989 at the home of Horton\u2019s sister, Tammy Horton. Beasley advised Horton that he was a detective with the sheriff\u2019s department and informed him that he needed to talk with him. At this point, Horton said that he was ready to talk. Horton then gave Beasley a statement of the events of 1 May 1989.\nJohn Horton testified at trial, in keeping with his statement to Detective Beasley, that on 1 May 1989, he lived with his girlfriend, Annette Cooper; his sister, Tammy Horton; and her boyfriend, Tommy Ray. Horton stated that at approximately 6:30 p.m. on the night in question, Franklin Dwayne Howell and defendant, Gordon Michael Marlow, came by Horton\u2019s mobile home in Howell\u2019s truck. Howell asked Horton if he would \u201cdrive for him later that night.\u201d Horton asked Howell why he wanted him to drive, but Howell gave no reason. Horton then told Howell that he would drive for him that night.\nAround 9:00 p.m., Howell and defendant came back to Horton\u2019s mobile home, and Horton went outside and spoke with them. Howell again asked Horton to drive. Horton testified that he could tell that Howell and defendant were \u201cdoing lacquer thinner\u201d because Horton could smell it. Horton agreed to drive and went back in the mobile home to dress. Horton testified that he assumed Howell and defendant wanted him to drive so that they could sniff lacquer thinner.\nHorton testified that he, Howell, and defendant got into Howell\u2019s pickup truck with Howell driving and left the mobile home. Horton noted that Howell\u2019s .22-caliber bolt-action rifle was in the cab. Horton had seen and fired the gun previously. Horton stated that Howell wore camouflage clothing and that defendant was dressed in black pants and a black shirt. The three men rode around for approximately thirty to forty-five minutes. During this time, Howell and defendant talked about \u201cwhere they could find easy money.\u201d Howell eventually asked Horton to drive. Horton testified that Howell went to the end of a dirt road near what he later learned was the Grice residence. Howell and defendant, who had the rifle with him, got into the back of the truck.\nHorton stated that Howell spoke to him through the sliding rear window of the cab and told him to drive slowly down the dirt road because he and defendant were going to jump out. Howell also told Horton that after he and defendant jumped out, Horton was to circle the dirt road twice and then they would jump back into the rear of the truck. Howell further told Horton that if Horton did not see them the second time around, he was to go down rural paved road 1934 to a red barn where they would meet him.\nHorton testified that he slowly proceeded down the dirt road adjacent to the Grice residence and that Howell and defendant jumped out. As they did so, Horton heard one of them say, \u201cLet\u2019s get it over with.\u201d As the two men ran in the direction of the Grice residence, Horton stated that Howell had something tucked under his arm and defendant had the rifle.\nHorton stated that he drove down the dirt road for approximately one and one-half miles until it intersected with a paved road. He then turned left on the paved road and looped back around to the start of the dirt road at the intersection next to the Grice residence. Horton testified that he did not see anyone, and therefore he looped around again. On his second time around, Horton saw defendant running across the field with the rifle. Defendant jumped into the back of the truck and instructed Horton to turn around and go back to the end of the dirt road and turn left on rural paved road 1934. Horton stated that he followed defendant\u2019s instructions. When he got to the barn between the Grice and Daniels residences, defendant screamed, \u201cslow down.\u201d At that point, Howell jumped into the back of the truck. Horton proceeded down the road until it intersected Highway 39. Howell and defendant then got back into the cab.\nHorton testified that once defendant and Howell were inside the cab, Howell asked, \u201cwho reloaded it.\u201d Defendant responded that he had. Horton stated that as he drove back to his mobile home, Howell and defendant were \u201cjoking, carrying on.\u201d Once back at Horton\u2019s home, defendant \u201cpulled out a black bag\u201d and threw it into the glove compartment. Horton testified that the bag sounded like it had change in it. As Horton walked around the truck, he saw a duffel bag with a tape player inside, which was later identified as belonging to the Grices. Horton stated that he then went into the mobile home and went to bed. He testified that he did not know anything about the Grice murder until he heard the news the following morning.\nAdditional facts will be set forth as necessary with respect to the various issues.\nBy his first assignment of error, defendant contends that the trial court violated his federal and state due process rights in rejecting his pleas of guilty to second-degree murder and other offenses because his pleas had been entered and were binding upon the court. Defendant further alleges that, in reliance upon a plea agreement, he submitted to a polygraph examination to his detriment and was thus prejudiced by this violation. We do not agree.\nOn 13 March 1990, with Judge Wiley F. Bowen presiding, the State called the cases of defendant and his codefendant, Franklin Howell. Counsel for defendant Marlow stated that \u201cdefendant has authorized me to tender in his behalf a plea of guilty to second degree murder,\u201d as well as a plea of guilty to first-degree burglary, robbery with a dangerous weapon, and felonious conspiracy to commit burglary. Howell\u2019s defense attorney then entered his pleas, among which was a plea of guilty to first-degree murder under the felony-murder theory. Judge Bowen stated that he could not accept a plea from Howell to first-degree murder absent a finding that the State had no evidence of any aggravating circumstance. The district attorney then stated that \u201cthis proposed plea arrangement is a package, as far as I am concerned, and is contingent the one upon the other.\u201d Judge Bowen then rejected the pleas from both defendant and Howell.\nOn 3 May 1991, Judge Robert H. Hobgood heard defendant\u2019s motion to enforce plea agreement. After hearing arguments from both sides, Judge Hobgood denied defendant\u2019s motion and entered a lengthy order containing extensive findings of fact and conclusions of law. The trial court concluded, as a matter of law, that \u201c[t]he District Attorney did have discretionary authority to enter into negotiated pleas among multiple defendants in package deals.\u201d\nIn Mabry v. Johnson, 467 U.S. 504, 81 L. Ed. 2d 437 (1984), the United States Supreme Court held that the federal Constitution does not preclude the prosecution from withdrawing a plea agreement once it has been accepted by the defendant. The Court noted that \u201c[a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.\u201d Id. at 507, 81 L. Ed. 2d at 442.\nN.C.G.S. \u00a7 15A-1023(b) provides that the trial court must first approve a recommended sentence under a plea agreement proposed by the State before it can become effective. In regard to N.C.G.S. \u00a7 15A-1023(b), this Court held in State v. Collins, 300 N.C. 142, 265 S.E.2d 172 (1980), that \u201cthe prosecutor ha[s] no authority to bind the State to the dispensation of a particular sentence in defendant\u2019s case until the trial judge ha[s] approved of the proposed sentence.\u201d Collins, 300 N.C. at 150, 265 S.E.2d at 176-77. Therefore, the prosecutor may rescind his offer of a proposed plea arrangement at any time before it is consummated by actual entry of the guilty plea and the acceptance and approval of the proposed sentence by the trial judge.\nIn the case at bar, we conclude that defendant tendered a guilty plea which was not accepted and approved by the trial judge. The prosecutor withdrew the offers to both defendants prior to actual entry of the pleas and approval by the court. Furthermore, we conclude that defendant did not rely to his detriment on the proposed agreement. The polygraph examination transpired 1 December 1989. During the examination, defendant was inconclusive on the questions directed to him as to whether he was in fact the person who shot Mr. Grice. The State argues that at no point did it intend to use the results of the polygraph examination against defendant or as part of the proposed agreement. We conclude that there was no detrimental reliance by defendant in taking the polygraph examination.\nFurthermore, because the trial court in the case sub judice did not approve the recommended sentence, we also reject defendant\u2019s state constitutional claim. As noted earlier, a plea agreement involving a sentence recommendation by the State must first have judicial approval pursuant to N.C.G.S. \u00a7 15A-1023(b) before it is enforceable. The alleged plea agreement in the present case involved a sentence recommendation that defendant enter pleas of guilty to the felonies of second-degree murder, first-degree burglary, robbery with a dangerous weapon, and conspiracy to commit second-degree burglary and that defendant receive two, concurrent life sentences. Thus, the proposed agreement between the defendant and the State had no effect as a matter of law because it had not been approved by the trial judge.\nBy his next assignment of error, defendant contends that the trial court committed prejudicial error by admitting certain evidence during the testimony of State\u2019s witness John Horton. Specifically, at trial, the State called Horton, who testified, over objection, to two conversations that he had on 2 May 1989 with codefendant Franklin Howell in the presence of Tommy Ray. In response to the prosecutor\u2019s question, \u201c[D]id you have a conversation with [Howell]?\u201d Horton testified, \u201cI asked him, did him and [defendant] have anything to do with the death of Mr. Grice.\u201d In response to the prosecutor\u2019s question, \u201cDon\u2019t say anything he said. As a result of any answer he gave you, did you make any other further comments to him?\u201d Horton responded, \u201cI told him the best thing to do is not to come back around. To stay away.\u201d Horton then testified, \u201cWell, right before we left, [Howell] come out with that particular tape player and a black one and tried to give it to me and Tommy.\u201d\nHorton then went on to testify that he saw Howell later that same afternoon, again with Tommy Ray present but in the absence of defendant, and Horton asked Howell, \u201cdid he kill [Mr. Grice].\u201d In response to the prosecutor\u2019s next question, \u201cDon\u2019t tell me what he said. As a result of him saying \u2014 making\u2014. Did he make any response to you, but don\u2019t tell me what it was, yes or no, did he answer that question?\u201d Horton answered, \u201cYes.\u201d Then the prosecutor asked, \u201cAnd as a result of that, did you respond anything to him?\u201d and Horton testified, \u201cAgain, I told him to leave and not to come back around.\u201d Horton then testified that Howell tried to give him a twenty-dollar bill, but he gave it back.\nUnder Rule 801 of the North Carolina Rules of Evidence, \u201chearsay\u201d is defined as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C.G.S. \u00a7 8C-1, Rule 801(c) (1992). A statement may be a written or oral assertion or nonverbal conduct intended by the declarant as an assertion. N.C.G.S. \u00a7 8C-1, Rule 801(a) (1992).\nClearly,' Horton\u2019s oral assertion that he told Howell \u201cnot to come back around. To stay away,\u201d constituted hearsay under Rule 801(a). Furthermore, Howell\u2019s actions of attempting to give Horton the tape player and later attempting to give him a twenty-dollar bill were nonverbal assertions also constituting hearsay. See State v. Satterfield, 316 N.C. 55, 340 S.E.2d 52 (1986).\nAn exception to the hearsay rule is that a statement by one conspirator made during the course and in furtherance of the conspiracy is admissible against his coconspirators. N.C.G.S. \u00a7 8C-1, Rule 801(d)(E) (1988). In order for the statements or acts of a conspirator to be admissible as evidence against the coconspirator, there must be a showing that \u201c \u2018(1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended.\u2019 \u201d State v. Mahaley, 332 N.C. 583, 593-94, 423 S.E.2d 58, 64 (1992) (quoting State v. Tilley, 292 N.C. 132, 138, 232 S.E.2d 433, 438 (1977)).\nIn this case, the conversations between Horton and Howell occurred after the termination of the conspiracy. The State\u2019s proffer of conspiracy was limited to the time frame beginning on the afternoon of 1 May 1989, when Howell and defendant began coming by Horton\u2019s mobile home, and ending when Howell and defendant dropped Horton back at his mobile home around midnight of the same night. The testimony objected to was of conversations occurring in the morning and afternoon of 2 May 1989 between Horton and Howell, while defendant was not present. These statements were neither made during the conspiracy nor in furtherance of it, and therefore do not fall within the coconspirator\u2019s exception to the hearsay rule. Thus, the admission of these statements was error. However, we conclude that defendant was not prejudiced by their admission. Had this evidence not been admitted, there is no reasonable possibility that a different result would have been reached. N.C.G.S. \u00a7 15A-1443(a) (1988).\nThe evidence against defendant was overwhelming. During his testimony, Horton described the activities of himself, defendant, and Howell during the evening of 1 May 1989, which included dropping defendant, who carried a rifle, and Howell off near the Grice residence and then picking them back up. Horton then described seeing defendant throw a bag that sounded like it contained coins into the glove compartment of the truck, as well as seeing a duffel bag with a tape player in it in the back of the truck. Moreover, when officers searched Howell\u2019s truck two weeks after the murder, they discovered the gun that fired the shell casing found beside Mr. Grice and also found Mrs. Grice\u2019s tape player. We find that, in light of the overwhelming evidence against defendant, any error in admitting evidence of Howell\u2019s nonverbal conduct in Horton\u2019s presence was harmless beyond a reasonable doubt.\nIn his next assignment of error, defendant contends that the trial court erred in denying his motion to suppress statements allegedly made by defendant because the State had failed to provide such statements in a tim\u00e9ly manner pursuant to an order compelling discovery.\nOn 28 July 1989, defendant filed a motion for discovery, to which the State responded on 2 August 1989. During the course of pretrial litigation, Judge Wiley F. Bowen entered an order, in open court on 9 November 1989, compelling discovery. Section 2 of that order requires that \u201c[i]f any statement by the defendant was made to a person other than a law enforcement officer and if this statement is then known to the State, the State must divulge the substance of that statement no later than 12:00 noon, on Wednesday prior to the beginning of the week during which this case is calendared for trial.\u201d In addition to the discovery previously turned over by the State, supplemental discovery containing oral statements attributable to the defendant was supplied to the defense on 7 May 1991.\nDuring the prosecutor\u2019s opening remarks, defendant objected to the mention of the statements attributable to defendant that had been supplied in the supplemental discovery on 7 May 1991. Defendant argued that the State had failed to comply with Judge Bowen\u2019s order of 9 November 1989 because the order required the State to divulge such statements no later than the first Wednesday after the State came into possession of such statements prior to any week in which the case had been calendared for trial. Defendant alleges that because the State had his statements since February of 1990 and the case had been calendared for trial numerous times, the State failed to comply with the order compelling discovery by not turning over the statements until 7 May 1991.\nThe statements in question were never introduced into evidence nor was any attempt ever made to offer them into evidence. The only reference to the statements during the actual trial was by the prosecutor in his opening argument. Assuming arguendo that the furnishing of the statements on 7 May 1991 was not in apt time and that the prosecutor\u2019s mention of them in his opening statement was error, we conclude that the error, if indeed it was error, was harmless. In light of the strong substantive evidence against defendant, we conclude that there is no reasonable possibility that had the error not been committed, a different result would have been reached. Therefore, this assignment of error is overruled.\nBy his next assignment of error, defendant contends that the trial court committed prejudicial error by overruling his objections during the testimony of witness Tommy Ray.\nDefendant first argues that the trial court erred by overruling his objection to Ray\u2019s answer in the following line of testimony:\nQ. What happened after you pointed out to [Horton] that was the trailer that Mr. Grice had been killed [in] the night before?\nA. He couldn\u2019t believe it.\nQ. When he said that he couldn\u2019t believe it, he say [sic] anything to indicate that to you?\nA. He just started shaking. He didn\u2019t know what was going on or anything.\nIn overruling his objection, defendant contends that the trial court improperly allowed Ray to testify regarding Horton\u2019s state of mind.\nRule 701 of the North Carolina Rules of Evidence deals with opinion testimony of nonexpert witnesses. The rule provides:\nIf the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\nN.C.G.S. \u00a7 8C-1, Rule 701 (1992). The Official Commentary to the statute specifically states that \u201c[n]othing in the rule would bar evidence that is commonly referred to as a \u2018short-hand statement of fact.\u2019 \u201d Id. (quoting 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 125, at 474-76 (2d rev. ed. 1982)). We have held that a witness may testify to the instantaneous conclusions of the mind as to the condition, appearance, or physical or mental state of persons that are derived from the observance of a variety of facts presented to the senses at the same time. State v. Williams, 319 N.C. 73, 78, 352 S.E.2d 428, 432 (1987).\nWe conclude that when Ray testified that Horton \u201ccouldn\u2019t believe it,\u201d he was describing an instantaneous conclusion of the mind, the equivalent of which was that Horton was astonished or perplexed. This conclusion was clearly an inference or opinion rationally based on the perception of the witness and helpful to a clear understanding of his testimony. Thus, Ray\u2019s testimony was admissible under Rule 701 of the Rules of Evidence.\nDefendant next argues that the trial court erred in permitting Ray to testify that when he and Horton arrived at Howell\u2019s house on 2 May 1989, Horton \u201c[a]sked [Howell] did he murder somebody.\u201d Defendant contends that Ray\u2019s testimony was impermissible hearsay evidence of Howell\u2019s admission on behalf of defendant. We disagree.\nIt is well settled that a prior consistent statement of a witness is competent for corroborative purposes. See State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986); State v. Elkerson, 304 N.C. 658, 285 S.E.2d 784 (1982). Prior consistent statements are admissible only when they are, in fact, consistent with the witness\u2019 trial testimony. State v. Stills, 310 N.C. 410, 415, 312 S.E.2d 443, 447 (1984). In fact, such a statement need not merely relate to specific facts in the witnesses\u2019 testimony as long as the prior statement tends to add weight or credibility to such testimony. State v. McAvoy, 331 N.C. 583, 592, 417 S.E.2d 489, 495 (1992).\nWe hold that Ray\u2019s testimony corroborated that of the prosecuting witness, John Horton. Horton had previously testified as to the events of 1 and 2 May 1989 as they involved Howell and defendant. Horton stated that after he saw the crime scene tape around the Grice residence, he went to confront Howell. Horton testified that he asked Howell, \u201cdid him and [defendant] have anything to do with the death of Mr. Grice.\u201d\nIn addition, Ray\u2019s testimony corroborated that of Tammy Horton. Tammy had also previously testified, without objection, that she had asked Howell \u201cwhether he was responsible or a part of the death of Mr. Grice.\u201d We conclude that Ray\u2019s testimony was admissible to corroborate John Horton\u2019s, as well as Tammy Horton\u2019s, prior testimony and thus overrule this assignment of error.\nAs a final argument under this assignment of error, defendant contends that the trial court erred by allowing the State improperly to lead Ray during part of his testimony. Specifically, defendant assigns error to the following colloquy:\nQ. Did you hear [defendant] say anything about you needing to keep your mouth shut?\nPefense COUNSEL]: Objection, Your Honor. Leading the witness.\nA. I did hear that. I can\u2019t remember where I heard it at, though.\nTHE COURT: Overruled.\nN.C.G.S. \u00a7 8C-1, Rule 611(c) provides, in pertinent part, that \u201c[l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.\u201d A ruling on the admissibility of a leading question is in the sound discretion of the trial court, and these rulings are reversible only for an abuse of discretion. State v. Howard, 320 N.C. 718, 360 S.E.2d 790 (1987). Assuming arguendo that the prosecutor did ask a leading question of Ray, we conclude that defendant has failed to establish abuse of discretion. Ray\u2019s testimony related to equivalent testimony by Tammy Horton and John Horton that was introduced earlier in the trial. Tammy Horton was allowed to testify, without objection, that defendant told Ray \u201c[n]ot to say nothing, that [Ray] could be next.\u201d In addition, John Horton testified, without objection, that \u201c[defendant] looked at me and Tommy and told me that if anybody said anything that we would be next.\u201d This assignment of error is overruled.\nBy his next assignment of error, defendant contends that the trial court erred by denying his motion for a mistrial. Defendant\u2019s motion was based on his allegation that verbal and nonverbal hearsay of coconspirator Howell was admitted against the defendant after the conspiracy had ended. Defendant further contends that these statements were not revealed to him prior to trial.\nThe decision to grant or deny a mistrial rests within the sound discretion of the trial court. State v. Warren, 327 N.C. 364, 395 S.E.2d 116 (1990). A trial court should grant a mistrial \u201conly when there are improprieties in the trial so serious that they substantially and irreparably prejudice the defendant\u2019s case and make it impossible for the defendant to receive a fair and impartial verdict.\u201d State v. Laws, 325 N.C. 81, 105, 381 S.E.2d 609, 623, sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990), on remand, 328 N.C. 550, 402 S.E.2d 573, cert. denied, \u2014 U.S. \u2014, 116 L. Ed. 2d 174, reh\u2019g denied, \u2014 U.S. \u2014, 116 L. Ed. 2d 648 (1991). Consequently, a trial court\u2019s decision regarding a motion for mistrial will not be disturbed on appeal absent a clear showing that the trial court abused its discretion. Id. We are unable to say that the trial judge\u2019s ruling could not have been the result of a rational decision and we therefore hold that the defendant has failed to show that the trial court abused its discretion by denying a mistrial.\nDefendant next contends that the trial court erred by failing to act ex mero motu and require someone, other than the law enforcement officers to whom John Horton gave statements, to relate the statements to the jury for purposes of corroboration. Defendant alleges this perceived error to be of constitutional magnitude under both the state and federal constitutions but fails to cite a specific section of either constitution.\nBecause defendant failed to object to the officers\u2019 reading of the statements, the objection is deemed waived pursuant to Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure. However, in State v. Black, 308 N.C. 736, 303 S.E.2d 804 (1983), we held that the \u201cplain error\u201d rule was applicable to evidentiary matters.\nThe reading of the prior statements of Horton by the officers was not error. Assuming, however, that it was error, our review of the record fails to convince us that the jury would have reached a different verdict had the statements been read by someone else. This assignment of error is overruled.\nIn defendant\u2019s final assignment of error, he contends that the trial court erred in granting the State\u2019s motion to sever defendant\u2019s trial from that of his codefendant, Franklin Howell, on the morning of the trial. Defendant argues that he had been preparing for a joint trial in excess of one year and that the motion to sever granted by the trial judge on the day of trial was an abuse of discretion. We disagree.\nOn 13 February 1990, the district attorney made a motion to join the cases of the defendants, Marlow and Howell, for trial. Judge Bowen heard and granted that motion. On 3 May 1991 at a hearing of motions before Judge Hobgood, the State announced its intention to try the defendants separately, with defendant Marlow being tried first beginning 13 May 1991. At that time, the intention to try the defendants separately and to proceed with defendant Marlow on the 13th was acknowledged by the defense. On 13 May 1991, the State formally made a motion to sever the defendants\u2019 cases for trial. Judge Bowen granted the motion.\nN.C.G.S. \u00a7 15A-927(c)(2) provides in pertinent part that:\nThe court, on motion of the prosecutor, . . . 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, or it is found necessary to promote a fair determination of the guilt or innocence of one or more defendants^]\nN.C.G.S. \u00a7 15A-927(c)(2) (1988). The disposition of a defendant\u2019s motion for a separate trial is a matter governed by the trial court\u2019s discretion. State v. Rasor, 319 N.C. 577, 581, 356 S.E.2d 328, 331 (1987). We have long held that the ruling upon a motion for severance will not be disturbed on appeal unless the defendant demonstrates an abuse of judicial discretion that effectively deprived him of a fair trial. See, e.g., N.C.G.S. \u00a7 15A-927(c)(2); State v. Lake, 305 N.C. 143, 286 S.E.2d 541 (1982); State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1981). We do not find such abuse in the present case.\nDuring the motions hearing on 3 May 1991, the State argued that a severance of the defendants\u2019 cases for trial was necessary to avoid potential error under Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476 (1968), and to avoid further delay in defendant\u2019s trial. In Bruton, the Supreme Court held that a nontestifying codefendant\u2019s extrajudicial confessions implicating the defendant cannot be admitted at their joint trial due to the devastating effect upon the confrontation rights of the other defendant, notwithstanding the trial judge\u2019s instructions to the jury that it consider the statements only as against the declarant. Id. at 126, 20 L. Ed. 2d at 479. Thus, in the case sub judice, the State would not have been able to introduce certain evidence if the two defendants were tried together.\nIn addition, the State argued that severance would avoid further delay in defendant Marlow\u2019s trial. On 26 March 1991, defendant filed a motion for a speedy trial, as well as a motion to dismiss for denial of a speedy trial.- At the motions hearing on 3 May 1991, defendant Howell requested and received a continuance. On 13 May 1991, Judge Bowen denied defendant Marlow\u2019s motion for a speedy trial and concluded, as a matter of law, that \u201cmuch of the delay was caused or acquiesced in by the defendant and [was] directly attributable to the number of motions filed by said defendant.\u201d Therefore, had the defendants\u2019 cases remained joined for trial, further delay would have been inevitable. We conclude that the trial court did not abuse its discretion and there was no error.\nIn summary, we conclude that defendant received a fair trial free of prejudicial error.\nNO ERROR.", "type": "majority", "author": "MEYER, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by G. Patrick Murphy and John H. Watters, Special Deputy Attorneys General, for the State.", "Thomas H. Eagen for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GORDON MICHAEL MARLOW\nNo. 497A91\n(Filed 30 July 1993)\n1. Criminal Law \u00a7 129 (NCI4th)\u2014 plea bargain \u2014not approved by judge \u2014withdrawal by State \u2014no error\nA first-degree murder defendant\u2019s federal and state due process rights were not violated when the state rejected his pleas of guilty to second-degree murder and other offenses where the trial judge indicated that he could not accept the codefendant\u2019s plea to first-degree murder based on felony murder absent a finding of no aggravating circumstances, the State indicated that the arrangement was a package, and the court rejected the pleas from defendant and the codefendant. The prosecutor may rescind his offer of a proposed plea arrangement at any time before it is consummated by actual \u2022 entry of the guilty plea and the acceptance and approval of the proposed sentence by the trial judge. The proposed agreement here had no effect as a matter of law because it had not been approved by the trial judge. Furthermore, defendant did not rely to his detriment on the proposed agreement by taking a polygraph examination because the examination was inconclusive on questions concerning whether he was the person who shot the victim and the State contends that at no point did it intend to use the results of the polygraph examination against defendant or as a part of the proposed agreement.\nAm Jur 2d, Criminal Law \u00a7\u00a7 481 et seq.\nRights of prosecutor to withdraw from plea bargain prior to entry of plea. 16 ALR4th 1089.\n2. Evidence and Witnesses \u00a7 1154 (NCI4th)\u2014 murder \u2014testimony regarding statements of codefendant \u2014hearsay\u2014coconspirator exception \u2014 not applicable \u2014 admission not prejudicial\nThere was no prejudice in a murder prosecution from the admission of testimony regarding statements made by a codefendant where the conversations between the witness and the codefendant occurred after the termination of the conspiracy, the statements were neither made during the conspiracy nor in furtherance of it and did not fall within the coconspirator\u2019s exception to the hearsay rule, and any error was harmless in light of the overwhelming evidence against defendant.\nAm Jur 2d, Homicide \u00a7 345.\nAdmissibility of statements of coconspirators made after termination of conspiracy and outside accused\u2019s presence. 4 ALR3d 671.\n3. Criminal Law \u00a7 113 (NCI4th)\u2014 murder \u2014 discovery\u2014statements not furnished \u2014no prejudice\nThere was no prejudice in a murder, robbery, and burglary prosecution in the State\u2019s failure to divulge defendant\u2019s statements to people other than law enforcement officers as directed by the court because the statements were never introduced into evidence, no attempt was made to offer the statements into evidence, and the only reference was by the prosecutor in his opening statement. Assuming error, there was no reasonable possibility of a different result had the error not been committed in light of the strong substantive evidence against defendant.\nAm Jur 2d, Depositions and Discovery \u00a7\u00a7 426, 427.\n4. Evidence and Witnesses \u00a7 2051 (NCI4th)\u2014 murder \u2014 testimony as reaction of another \u2014instantaneous conclusion of the mind\nThe trial court did not err in a prosecution for murder, robbery, and burglary by allowing a witness to testify regarding another person\u2019s state of mind when the trailer in which the killing occurred was pointed out. The testimony described an instantaneous conclusion of the mind, the equivalent of which was that the person was astonished or perplexed, and was admissible under N.C.G.S. \u00a7 8C-1, Rule 701.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 10, 11.\n5. Evidence and Witnesses \u00a7 3161 (NCI4th)\u2014 murder \u2014 testimony regarding statement of third party \u2014corroborative\nThe trial court did not err in a prosecution for murder, robbery, and burglary by allowing a witness to testify that, when he and Horton had arrived at a codefendant\u2019s house, Horton had asked the codefendant if he murdered someone. This testimony was admissible to corroborate the prior testimony of John Horton as well as that of Tammy Horton.\nAm Jur 2d, Witnesses \u00a7\u00a7 1001-1005.\n6. Evidence and Witnesses \u00a7 2807 (NCI4th)\u2014 murder \u2014leading on direct examination \u2014no abuse of discretion\nThere was no abuse of discretion in a prosecution for murder, robbery, and burglary where the prosecutor was allowed to lead a witness on direct examination because the testimony related to equivalent testimony that was introduced earlier in the trial. A ruling on the admissibility of a leading question is in the sound discretion of the trial court and, assuming that the prosecutor here asked a leading question, defendant has failed to establish abuse of discretion. N.C.G.S. \u00a7 8C-1, Rule 611(c).\nAm Jur 2d, Witnesses \u00a7\u00a7 752-756.\n7. Criminal Law \u00a7 508 (NCI4th)\u2014 murder \u2014mistrial denied \u2014no abuse of discretion\nThere was no abuse of discretion in denying defendant\u2019s motion for a mistrial in a prosecution for murder, robbery, and burglary where defendant\u2019s motion was based upon allegations that verbal and nonverbal hearsay of a coconspirator was admitted against defendant after the conspiracy had ended. It could not be said that the trial court\u2019s ruling could not have been the result of a rational decision and defendant therefore failed to show abuse of discretion.\nAm Jur 2d, Trial \u00a7\u00a7 1706 et seq.\n8. Evidence and Witnesses \u00a7 3191 (NCI4th)\u2014 murder \u2014 statement of State\u2019s witness \u2014read by law enforcement officers\nThere was no plain error in a prosecution for murder, robbery, and burglary in not requiring someone other than the law enforcement officers to whom statements were given to read the statements to the jury for purposes of corroboration. Moreover, assuming error, the jury would not have reached a different result had the statements been read by someone else.\nAm Jur 2d, Witnesses \u00a7\u00a7 1001 et seq.\n9. Criminal Law \u00a7 329 (NCI4th)\u2014 murder \u2014severance of defendants on morning of trial \u2014no abuse of discretion\nThere was no abuse of discretion in a prosecution for murder, robbery, and burglary in granting the State\u2019s motion to sever defendant\u2019s trial from that of his codefendant on the morning of the trial. The State would not have been able to introduce certain evidence if the two defendants were tried together and, had the cases remained joined, further delays would have been inevitable.\nAm Jur 2d, Trial \u00a7\u00a7 157 et seq.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a life sentence upon defendant\u2019s conviction of first-degree murder entered by Bowen, J., at the 13 May 1991 Criminal Session of Superior Court, Johnston County. Defendant\u2019s motion to bypass the Court of Appeals as to his convictions of conspiracy to commit second-degree burglary, first-degree burglary, and robbery with a dangerous weapon was allowed by this Court on 30 June 1992. Heard in the Supreme Court 10 May 1993.\nMichael F. Easley, Attorney General, by G. Patrick Murphy and John H. Watters, Special Deputy Attorneys General, for the State.\nThomas H. Eagen for defendant-appellant." }, "file_name": "0273-01", "first_page_order": 297, "last_page_order": 313 }