*1 CASES ARGUED AND DETERMINED IN THE SUPREME COURT
OF North Carolina
AT Raleigh
STATE OF NORTH CAROLINA MICHAEL EDWARD FINCHER and TERRY JEROME WRIGHT
No. 453A82 (Filed 1983) August 63; Jury § 1. jurors § Constitutional Law 7.11— capital punish- exclusion of ment community views—cross-section of jury Defendant’s Sixth Amendment to select a from a cross-section community was not permitted violated when question the State was prospective jurors regarding penalty their death views and the court excluded jurors certain for cause on the basis of those views. § youthful Searches and Seizures 14— age consent to and mental defi- search — ciency I.Q. 17-year-old A defendant with an of between 50 and 65 was not in- capable giving a valid consent to search as a matter of law virtue of his deficiency. age and mental § 3. Searches and Seizures 14— lawfulness of consent to search ample support There was evidence of findings record to the trial court’s that defendant understood a consent to search form and that no force or coer- against any promises cion was used him signature made to him to obtain his form, findings supported on the and those the trial court’s conclusion that voluntarily, willingly understandingly consented to a search of bedroom, notwithstanding presented evidence that he was 17 search, years I.Q. only old at the time of the that he had an 50 to that he disorder, schizophreniform suffered from a susceptible that he was more average person, fear and intimidation than an that ten officers were arrested, present when he was and that officers told him that if he refused form, sign way going a warrant would be obtained and “either we are apartment.” search the *2 in-custody 75.16; 17-year-old inter- § 17— § Infants 4. Criminal Law defendant — juveniles warnings rogation-right for warnings required 17-year-old was entitled to receive the A defendant 7A-595(a) in-custody interrogation, by prior and juveniles to his G.S. murder, rape burglary in-custody in inadmissible statements were right guardian parent, that he had a to have where he was not advised However, prejudiced during questioning. defendant was not present custodian overwhelming light by in of the admission of his statements the erroneous presented crimes guilt evidence that the of his where the evidence night; was seen in the area of the victim’s defendant occurred on Halloween evening possession night; had in his apartment on that crimes; which later recovered from scene Halloween mask was thought he had killed someone on Halloween a witness that he defendant told was identified night; recovered from defendant’s bedroom a bloodstained coat night; wearing bloodstains on the coat on Halloween as the coat defendant type; on the coat and blood with defendant’s blood blood were inconsistent reaction; fibers removed from the victim’s blouse had a similar PGM found on microscropically with fibers removed from a coat were consistent bloody handprint apartment; victim’s and defendant’s pillowcase found in the apartment. in victim’s G.S. a mattress cover on a bed was found on 15A-1443(a). right interrogation § of defendant —no invocation of 75.11— 5. Criminal Law remain silent right silent invoke his Fifth Amendment to remain did not any give written not wish to further he told officers that did when at- the truth from a codefendant where an officer until he heard statements Fifth Amend- tempted intended to invoke his to ascertain whether defendant by question, and inquiring he could ask another as to whether ment affirmatively, thereby immediately unhesitatingly answered expression of an intent clarifying his earlier statement was not an questions. preclude all further by deception by of- § codefendant —no 75.3— statements 6. Criminal Law confession taint on defendant’s ficer—no the truth if a codefendant officers that he would tell Where defendant told crime, people officer’s state- were involved in the an and that two would do so going truth about it” defendant “was to tell the to the codefendant that ment deceptive or un- were both involved was not said and that defendant involuntary confession and a taint codefendant’s truthful so as to render the subsequent confession. youthfulness voluntary and mental retard- § Law 75.14— 7. Criminal confession— ation of defendant I.Q. only totality youthful Although and had an defendant was judge’s that defendant supported the trial conclusions of the circumstances understanding and that making waiver of his Miranda capable of understandingly. freely, voluntarily and were made his confessions — Burglary Breakings felony § and Unlawful 6.2— instruction on intended error cured burglary jury In a case in which court had instructed the that in degree burglary, order to convict a codefendant of first it must find that at the breaking entering time of the the codefendant intended to commit the felony rape, incorporating by the trial court erred in such instruction refer- in rence the instructions as to defendant when the State’s evidence related only felony larceny, to defendant’s intent to commit the but such error was cured the court’s further correct instruction and the written verdict larceny. form which referred an intent to commit felonious concurring Justice result. Martin part concurring dissenting part.
Justice Exum Frye joins *3 concurring dissenting opinion. in Justice Sitton, Judge, defendants at the March APPEAL County Session of Superior Criminal Court. MECKLENBURG Terry Defendants Michael Fincher and Wright were tried bills of indictment each of them with jointly upon charging Wallace, murder and of Henrietta first-degree first-degree rape the first-degree of her home. These offenses were burglary to have been on Halloween alleged night, committed October 1981. guilty Defendants entered of each of the of- pleas fenses charged. contentions,
Given the nature of an extensive defendants’ unnecessary. statement of at trial presented the evidence will Those facts issues be pertinent presented to the hereinafter set forth this opinion. Fincher guilty defendant jury first-degree
The found murder, felony theory first-degree rape murder on the was found Wright guilty Defendant of first- burglary. first-degree of murder.1 guilty and not degree burglary of the trial continued as phase penalty The that he be sentenced to jury and the recommended life Fincher of Ms. Wallace. first-degree for the murder Follow- imprisonment to a Fincher was sentenced sentencing hearing, consecutive ing years burglary charge. of 50 on the Since first-degree term Wright at the rape charge against was dismissed close State’s evidence. IN THE SUPREME COURT the commission of
felony premised upon murder conviction felony merged with the murder con- rape conviction rape, charge. no sentence was on the imposed rape viction and years on the first- Defendant was sentenced to degree burglary charge. directly the life sentence to this appealed 7A-27(a). matter right pursuant
Court as a G.S. Defendants’ bypass Appeals burglary charges motions to on the Court were appeals to consolidate the this Court allowed January 1983. General, III, Edmisten, L. Isaac T. Attorney Avery, Rufus General, Attorney State. Deputy
Special for Hinson, Kern, T. Jr. and David M. Edward for defendant- Michael Edward Fincher. appellant Terry Jerome Paul J. Williams defendant-appellant Wright. BRANCH, Chief Justice. of Fincher
Appeal court committed reversible [1] By his first assignment error error, permitting defendant contends ques *4 penal their views on the death jurors regarding tion prospective ty for who to it. excluding expressed opposition cause those jury of “death a argues qualifying” Defendant this process jury seg from service an eliminates consideration identifiable thereby his sixth amendment violating ment of the population, representative a cross-section jury to select community. consistently argument this has been Defendant concedes 272, Ladd, v. 308 S.E. N.C. 302 by this Court. See State
rejected 400, (1982); (1983); Davis, 574 305 290 S.E. 2d v. N.C. 164 State 2d (1981), 249, v. 283 S.E. 2d State Taylor, v. N.C. State (1980). 126, 2d 803 He cites no new 261 S.E. 299 N.C. Avery, these cases were position wrong- of his support arguments our decisions are sound and ly prior We hold that decided. of defendant’s conten- dispositive therefore binding precedent overruled. assignment tion. This is judge
We next consider contention that the trial from defend- erroneously admitted into evidence a blue coat taken of his during apartment. ant’s bedroom a warrantless search Fincher was coat was at as the coat defendant identified Burton, a on the of Ms. Wallace’s death. wearing night Jane Laboratory, Charlotte-Mecklenburg criminalist with the Crime testified that she found human bloodstains on the coat which had activity to the blood found on the blouse Ms. a similar PGM murder. wearing night According Wallace was Burton, Ms. the bloodstains on the coat were inconsistent with not, therefore, blood have come from types defendants’ and could the coat Wright. either Fincher or Dr. Louis Portis also identified removed from and testified that he fibers which were compared the coat with found Ms. pillowcase fibers taken from that the apartment. comparison Wallace’s He concluded from this fibers were consistent and that each had a similar microscopically dye color. evidence, suppress defendant’s motion to
Upon and concluded that the search of defendant’s judge found facts He therefore ruled that the was a valid consent search. apartment to the search was admissible into pursuant evidence obtained evidence. was not apartment the search of his argues totality of the cir-
based
lawful consent because
upon
the conclusion that
impels
his “consent”
surrounding
cumstances
voluntarily
given.
and intelligently
it was not
validity
challenged,
of a consent
to search
When
whether
hearing
voir dire
to determine
trial court must conduct a
voluntarily
compulsion.
in fact
and without
given
the consent was
(1971),
denied,
561,
Vestal,
Michael city 8:30 At least ten a.m. approximately at November im- officer arresting present. were then officers police stated, rights. Fincher of his Miranda mediately advised Sanders, E. that he R. by Officer questions to direct response answer police ques- that he would the warnings understood not, however, ask The officer did lawyer present. tions without a to Defendant was permitted at that time. any questions apartment and taken was handcuffed dressed and get car. patrol to search form a consent prepared James Alsbrooks Officer Luvenia the form with He first discussed the apartment. determining After that defend- mother. Montgomery, Johnson, in fact the lessee of Amanda ant’s grandmother, Ms. Johnson approached Alsbrooks Officer apartment, duplex to conduct a search the officers permit if she would asked form to Ms. Johnson read the consent Alsbrooks residence. agreed per- to examine it. She an opportunity was afforded she Alsbrooks, and, signed to Officer according mit the search the docu- signing not remember Ms. Johnson did form. consent ment, signature like her it looked she admitted although form. to defend- the consent form D. Starnes then read W. Officer it. Defendant asked him about signing with and spoke ant for the permission had given his mother officers whether that defendant’s replied the house. The officers to search officers only defendant could but that permission her given mother had fact, In it was defendant’s his room. the search of consent granting permis- the consent form had signed who grandmother apartment. officers to search the police sion to it was but when consent form sign agreed it. When not understand that he did him he stated presented form, about not understand what he did asked if he did would happen know what wanted to that he responded give not have to he did although Fincher was told it. sign search, would obtain the officers if he refused permission *6 IN THE SUPREME COURT State v. Fincher and of his Sergeant search warrant conduct a search bedroom. said, way, “Either going apartment.” Starnes we are search the he signed Defendant thereafter stated that understood and form. consent to search testimony which tended presented psychiatric
Defendant mentally schizophren- show that he is and suffers from a retarded Groce, Dr. iform Jim a for the State psychiatrist disorder. Carolina, a North testified that Fincher’s mental illness causes behavior, to the disturbance of defendant’s mood and sometimes auditory Dr. extent that defendant suffers hallucinations. that if at a hallucinating particular Groce testified he talk to himself and point might perhaps respond time would him. nonsensically arresting officers questions posited however, testified, cooperative that defendant was coherent and him. questions and that he answered all asked responsively testimony of Dr. Further Groce indicated that more mental emotional would make him somewhat and condition in a than an individual. susceptible given average to fear situation easily by emo- Dr. Edwin Harris that Fincher is influenced agreed ability to In response his with stress is limited. tion and that deal however, dire, Dr. attorney on voir district questioning that, capable telling in his defendant was opinion, Groce stated not warnings. did understand the officers I.Q. Dr. although be Dr. determined defendant’s Groce I.Q. of 65. has verbal estimated that defendant a Edwin Harris that, functionally il Fincher is opinion, Dr. Harris testified his form have to search could not understood consent literate and Dix Dorothea performed Tests on defendant at that he signed. that he a level second and reads on between Hospital revealed Edwards, read expert Dr. Barbara reading grade. third education, would to read on stated an individual have ing on an in order comprehend eighth level grade tenth level grade stated, Both she Dr. the waiver forms. Groce to understand however, could prior experience repetition, explanations under results and enable an individual to better test affect the comprehend. stand and to search consent argument bases psy- on the primarily understanding^ given voluntarily ill- his mental He contends that testimony outlined above.
chiatric ness, arrest, with the coupled circumstances surrounding created a situation that frightened and intimidated him to the ex- tent that voluntary he was incapable giving and knowing con- *7 sent to search.
While most of our
mentally
cases
a
involving
deficient de-
fendant have been concerned with the voluntariness of an
statement made
inculpatory
during custodial
interrogation,
are
controlling legal principles
equally
apposite
situations
where the voluntariness of a consent to search is at issue. See
Bustamonte,
218, 223-27,
2041,
Schneckloth v.
2045-47,
412 U.S.
93 S.Ct.
(1973).
854,
36 L.Ed. 2d
860-62
consistently
We have
held that a defendant’s subnormal men
tal
is a factor
capacity
to be considered when determining
whether a knowing and
waiver of
intelligent
rights has been
Jenkins,
578,
(1980);
made. See State v.
300 N.C.
Although age
by
is also to be
considered
judge
confession,
ruling
admissibility
of a
upon
the fact
youthful
that the defendant is
will
preclude
the admission of
statement absent
inculpatory
by
mistreatment or coercion
v.
police officers. State
Thompson, supra;
Penley,
247,
(1973);
Lynch,
N.C.
Following Sitton found facts consistent Judge the evidence presented specifically found: 7th, 1981,
1. That on November 6th and both defendants alert, coherent, to be were not under the influence appeared IN SUPREME THE COURT of alcohol or narcotic threatened, that neither defendant drugs; or any reward they promised nor were or offered to make a state- inducements the law enforcement officers ment or the waivers herein. sign or
2. That violence show of suggested no threats persuade or induce violence law enforcement officers their make statements ex- the defendants to waive isted. That Fincher understood questions the defendant search the non-testimonial form and consent to regard
form. [3] lack Despite intelligence testimony cited comprehensive defendant as indicative ability, there is ample of his *8 findings that de judge’s support evidence record that no force or coercion was understood form and fendant any findings him. These are him or made to against promises used 201, Rook, v. 304 upon this Court. State N.C. binding therefore 1038, 1741, (1981), denied, 102 S.Ct. 283 S.E. 2d cert. U.S. (1982); Pruitt, S.E. 2d 155 turn, v. 286 N.C. L.Ed. 2d State (1975). conclusion that legal In these findings support consented to voluntarily, understandingly and willingly correctly We hold that the trial court search of his bedroom. to the search was ad coat seized pursuant ruled that blue missible. of his motion to as error the denial assigns
Defendant also given into evidence of statements and the admission suppress con- November 1981. Defendant on 6 and 7 him officers his fifth statements violated of these tends that admission self-incrimination, sixth free from right to be amendment as advised be right to counsel and right amendment with G.S. 7A-595. in accordance juvenile
[4] find error We do in the failure to not reach the constitutional properly advise defendant issues raised as a because we juvenile G.S.7A-595. pursuant 7A-517(20) who has juvenile “[a]ny person as defines a G.S. married, eman- birthday is not and his eighteenth
not reached .” is un- . . It services. of the armed or a member cipated, disputed years that defendant Fincher was seventeen old at time he committed the offenses at charged and the time was he interrogated police officers 6 and 7 November 1981. He juvenile therefore is a statutory within the definition of that term. 7A-595(a) that: provides
G.S. juvenile Any custody prior must be advised to ques- tioning:
(1) silent; he That has a to remain right (2) any That he may statement does make be can be used him; against (3) he That has a to have a parent, guardian or custo-
dian present during questioning; and (4) he has a right attorney That to consult with an and that will appointed
one be for him if he not represented representation. wants added.)
(Emphasis The uncontroverted evidence reveals is, defendant was never of the warning, advised third guardian was entitled to have a parent, present custodian dur- ing questioning.
The trial judge recognized omission but determined that statutory entitled to the protections He enumerated G.S. 7A-595. concluded a matter law not, defendant Fincher within the meaning “[t]hat law, *9 but, treatment; or juvenile, any a minor a requiring special that he may be treated within the law of State as the an adult.” the entirely basis for the trial court’s is not Although ruling 7A-517(12) clear, the argues State that since “G.S. defines a delin- for of quent juvenile purposes juvenile jurisdiction court anyone yet who has not birthday,” reached his sixteenth years since Fincher was seventeen old and the age being “over of a juvenile delinquent,” apply. G.S. 7A-595 does not 7A-517(12)
This is position simply unsupportable. G.S. reads: —Any juvenile years age Juvenile. less than 16 of Delinquent who under State has committed a criminal offense law IN THE SUPREME COURT Fincher including under ordinance of local violation of government, the motor vehicle laws. contention, not
Contrary to the State’s this statute does define jurisdiction. court The word juvenile the limitations age statute, not even in the nor is there a jurisdiction appear does other of the Juvenile jurisdictional provisions reference to Code. is, Furthermore, is a juvenile delinquent whether defendant is entitled our irrelevant a consideration whether he opinion, to the of G.S. 7A-595. protections Code, of the North Juvenile
The definitional section Carolina 7A-517, the by the “Unless prefaced following language: G.S. is otherwise, words have clearly following context requires added). stated, . .” As (emphasis previously . . meanings listed (20) “[a]ny 7A-517 as per- in subdivision G.S. juvenile defined birthday,” with a few ex- eighteenth son who not reached his has juvenile the term not here We conclude that ceptions applicable. given meaning” be this “listed as it is used in G.S. 7A-595 must in- a not nor even different require, suggest, for the context does that, as defendant was juvenile, We hold terpretation. therefore in G.S. warnings of the set forth 7A-595. to receive all entitled 7A-595(d), hold, it was on the basis of further G.S. We November admit judge error fact defendant was light into evidence statements advised. properly 7A-595(d) that: provides G.S.
(d) any resulting statement admitting Before evidence, must find judge into interrogation custodial understanding^ knowingly, willingly, juvenile rights. waived his was not informed that defendant reflects
Since record during ques- present or custodian guardian parent, to have a “knowing- finding that defendant no tioning, there can be In the privilege. waived” this understandingly ly, willingly, to admit judge was error for it finding, such absence statements. challenged was prej- of whether now to the question We turn evidence. of this admission by the erroneous udiced *10 failure advise defendant of his a parent, have custodian or guardian present during is questioning error magnitude of constitutional privilege statutory because this is in Therefore, and does not emanate from the origin Constitution. we 15A-1443(a) set in apply standard forth G.S. to determine whether the erroneous admission into evidence of defendant’s statements is police officers sufficient to warrant newa trial. 15A-1443(a) provides, part, G.S. as follows:
A prejudiced defendant errors to rights relating other than under the Constitution of the United States when that, there is a reasonable had the error in possibility ques- committed, tion not been a different result would have been reached at trial out which the appeal arises. The burden prejudice such under showing subsection is upon the defendant.
We that conclude light overwhelming evidence of guilt, defendant’s there is not reasonable possibility that had admitted, in-custody defendant’s statements not been different result would have been at reached trial.
Several that pfersons testified saw defendant in the area apartment Tony of the victim’s on Halloween night. Camp and Billy Charles that had in possession stated a Halloween which later evening mask recovered from the scene of the further Camp crime. testified told him that he killed thought had someone night. Halloween
There was also physical substantial evidence which tended to at place defendant the scene of the crime on the night Ms. Wallace’s A murder. bloodstained coat recovered de- search of his during apartment fendant’s bedroom was iden- wearing night. tified the coat Fincher was on Halloween Jane Burton on the that the blood coat blood found on testified Ms. Wallace’s blouse had a similar PGM reaction. She further stated the bloodstains on were inconsistent with defend- the coat ants’ blood types.
Dr. Louis Portis also ob- regarding physical testified evidence from fibers compared tained coat. He testified that he from the coat with those from a pillowcase removed removed It apartment. opinion the victim’s was his fibers found consistent. microscopically were *11 IN THE SUPREME COURT testimony
Finally, the critical of Kath- the introduced Ramseur, expert leen identification and com- fingerprint she of a She testified that the characteristics parison. compared cover on a bloody handprint plastic recovered from a mattress It prints. in the apartment bed victim’s with Michael Fincher’s was in Ms. Wallace’s opinion bloody print her the found bedroom that of Fincher. of the whether defend-
Although question we do not decide into violated the admission ant’s constitutional were rights officers, evidence of statements to we are inculpatory police committed, the if such constitutional error was satisfied even guilt evidence of defendant’s sufficient to render substantial 15A-1443(b). beyond such error harmless reasonable doubt. G.S. Wright of Appeal error, of By assignment Wright contends first admit- denying the trial court erred his motion suppress himby ting given into evidence statements inculpatory officers on and November con- suppress, judge motion to
Upon defendant’s evidentiary voir dire. At the close ducted an extensive found that “none Judge Sitton facts concluded hearing, State, . . . rights, either Federal or constitutional [defendant’s] arrest, detention, or confes- interrogation were violated [his] was therefore denied suppress sions.” Defendant’s motion into evidence. statements were admitted and November testimony regarding following voir revealed the dire interrogation: arrest and surrounding circumstances for a Terry Wright proba- was arrested 5 November On into to this case and booked tion violation unrelated following day, Of- County At 6:00 jail. p.m. about Mecklenburg Enforcement to the Law brought Wright D. Sanders ficer R. his involve- him regarding purpose questioning for the Center murder. ment in Wallace of his was advised that defendant Sanders testified
Officer read opportunity to afforded an Defendant was rights. Miranda Sanders, Wright According form. to Officer rights the waiver form, it with his over “going five minutes read took about finger.” Defendant stated he understood the warnings and the waiver signed form.
Officer Sanders then questioned defendant about Hallow- een inquired incident. as whether Michael Fincher had given a statement After police officers. responded Sanders *12 had, he Wright say said “he would not rather anything regarding that until he had a chance read Michael Fincher’s statement.” Sanders then
Officer retrieved Fincher’s statement and read it aloud to defendant. Defendant asked to read it and he was per- mitted to do so. Sanders testified that defendant took his finger from left right read under line all each through pages. statement,
After he went over he Wright said did not see his name and as to inquired what Fincher he had Of- said done. ficer only Sanders told defendant that he knew that Fincher said he was involved. Following this exchange, agreed and, make an oral Wright’s statement with permission, Officer Sanders wrote it down.
Officer Sanders told defendant that he didn’t believe the statement. Defendant had admitted he told the truth and stated that Fincher’s statement also was untrue. Sanders asked for another written statement and he defendant said would give him, face-to-face, “a when written statement Michael Fincher tells about what At happened.” that Officer point, Sanders ceased Terry questioning and took Wright jail. back November, At 11:00 next about morning, Officers Mullís brought police Sanders to the station for further interrogation. again Defendant advised of his constitutional 1, 2, rights. Mullís asked defendant to read Officer aloud blocks and 4 of the waiver form. Mullís testified that defendant read stated he requested paragraphs, warnings understood the the waiver form. signed if give Officer Sanders then asked he would a written Wright only statement. reiterated that would Wright give he a written statement when he heard truth from Michael Fincher. Officer if he ask him more Sanders asked defendant could one question asked, yes. many said Sanders “How Wright people were in- said, volved Halloween “Two.” night?” Wright IN THE SUPREME COURT Fincher to where being interrogated Sanders then went Fincher was only S. had Wright and informed Officer C. Cook that said two were Officer then informed defendant Fincher involved. Cook would tell the truth if he did. He also told Fincher Wright they said were both involved. Fincher then said that Wright well tell the truth and offered confession. might statement, they obtained Fincher’s took him
After pres- In the Wright being interrogated. room where the events as occurred on Wright, ence related room, After Fincher was taken out of the night. Halloween if Fincher the truth. Wright Sanders asked had told written he had and truthful state- agreed give stated that murder. outlining ment his involvement the Wallace [5] first contends 7 November confession was it in violation of his fifth because was obtained inadmissible He takes the to be free self-incrimination. amendment *13 he to remain silent when told right that he invoked his position any give he not wish to further writ officers that did police the Michael he heard the truth from Fincher. He ten statements until honor his scrupulously right Sanders did that Officer argues he the “one more question” because asked questioning to cut off Wright. of Fincher and the confessions ensuing which triggered are for we reject opinion We this contention remain to right invoke his fifth amendment defendant did not give to not want twice stated that did silent. Defendant truth. told the until after Fincher another written statement record, as this statement interpret we would not From the cold to us clear all cease. It seems questioning a desire that indicating statement formal refused to another merely give far different from the crime. This is his involvement indicating any regarding complete questioning for cessation request of the case. aspect concede, however, statement might
We will reasonably it could with uttered such intonation have been of a desire to remain interpreted expression been have is, however, for it any context ambiguous statement The silent. state- written formal merely giving condition to seems ment. IN THE SUPREME COURT v. Fincher (5th Estelle, Cir.), denied,
In Nash v.
The critical factor is a review of the whole whether event the interviewing discloses that has agent impinged the ex- suspect’s ercise of the to cut option off interview. *14 597 F. 2d at also United 517-18. See States 537 F. Riggs, 2d (4th 1976). Cir.
Here, it is abundantly clear that Sanders indicated at Officer all times a willingness to respect constitutional should he privileges have to them. The record chosen exercise that discloses Officer to ascertain whether attempted Sanders by was invoke intending right his fifth amendment as to whether he could ask another Defendant inquiring question. immediately affirmatively, thereby answered unhesitatingly that his clarifying earlier statement was expression not an of an intent all further preclude questioning.
We hold that defendant did invoke fifth not amendment remain silent when he stated that he would give not another written statement until Fincher him confronted with the truth. Defendant’s assertion his right that to cut off questioning was not scrupulously honored is without merit.
[6] Defendant next asserts that his fifth amendment were violated because his 7 November by confession was precipitated confession illegal by Wright Fincher. contends that Fincher’s involuntary statement was it only because was made response to a lie by Officer as to Cook what defendant had said earlier police officers.2 argue Defendant in appears since his Fincher’s, culpatory statement was occasioned il primary legality tainted his statement and rendered it inadmissible at trial. earlier,
As stated the record reveals that a few minutes Fincher, before Officer Cook spoke told Wright police officers that he would tell truth if Fincher would truthfully relate happened. Wright what also of- informed the ficers that two people were involved perpetration of crime.
Initially, we note that is contradictory record on the point exactly what Officer related to Michael Fincher. Of- Cook ficer Jones testified that Officer related to Fincher precisely Cook Terry actually what Officer Wright stated. Cook testified that told Fincher that said were both involved and that Wright going was to tell the truth. judge The trial not resolve this in the evidence did conflict specific on this making finding point. fact We are of opinion entirely failure to do so was This is reasonable. so we even if because are convinced that Officer Cook did verbatim, repeat Wright’s words he communicated the essence “Terry these . . . Saying going statements to Fincher. issue in his before this also raised this brief Court. disposition appeal grounds, Because of our however, Fincher’s non-constitutional unnecessary question appeal. it to address this *15 Fincher Wright’s
to truth it” is not á deceitful of perversion tell the about that tell truth if Fincher Further- statement he would did. involved, more, were it is obvious Wright when stated that two was of Fincher and Wright speaking from the context that just He had he would tell the truth if Fincher himself. did; stated that of them import being clear of statement that two Also, them point, involved. at that each of were the individuals in the already given participation had statements admitting crime. contextually, opinion we are that Officer
Construed not or untruthful. Of- deceptive statement to was Cook’s essentially what had Wright in fact to Fincher ficer related Cook was confession therefore earlier stated. Fincher’s November it to Officer involuntarily response because was offered given regarding Wright’s Consequently, information statements. Cook’s that his tainted Fincher’s argument confession was defendant’s confession must fail. “induced”
[7] Defendant’s final argument with respect admissibility support his is insufficient evidence to confessions is there knowingly and under judge’s finding rights. primarily waived his Miranda Defendant relies standingly intellectual his youth capacity support his and subnormal upon his understanding position incapable adequately was rights. constitutional in psychological as an qualified expert
Dr. John Wheeler on voir dire as to and testified defendant’s testing evaluation attorney, Dr. At capabilities. request mental observed, on separate and evaluated three Wheeler tested occasions, with him. total and one-half hours of four spending de- concerning his give opinions Dr. permitted Wheeler function, read, understand, write, reason and capacity fendant’s observations, Dr. testing school records. based on tests, very on all poorly that defendant scored Wheeler testified each of them. He percentile in the first second placing I.Q. be estimated defendant’s reading re- evaluate the level Wheeler was asked to
Dr. which form the waiver of to read and understand quired Terry It was Wright. opinion used to advise the officers at comprehend need to able read and one “at least be would *16 19 State v. Fincher minimum, level; the sixth grade, sixth grade absolutely be con- fident, level, more like seventh or eighth grade to understand this document.” It was further Dr. Wheeler’s opinion that defendant could not have read the waiver form and understood it in less than five minutes. the Although easily officers could have read it seconds, to him in less than 30 it was Dr. Wheeler’s opinion that defendant could not have understood the im- consequences and plications of the concepts the form.
Dr. Wheeler testified that during one of his sessions with defendant, he read the Surgeon General’s as to warning the hazards of cigarette smoking to him. It Dr. was Wheeler’s opinion that Wright understood the implications of this warning. test,
Finally, in his analysis of defendant’s personality Dr. Wheeler stated that the test “did not suggest that he has a However, significant serious psychological disorder.” it Dr. was “follower”; Wheeler’s opinion that defendant was a that he would be conscious of avoiding possibility that others would not like him might say therefore that he understood something even though he did not.
As stated earlier in our discussion of defendant Fincher’s ap-
peal, the fact that
youthful
a defendant
mentally
retarded
does not
compel
détermination that he did not knowingly and
intelligently waive his
rights.
Miranda
v.
State
287
Thompson,
303,
(1975),
vacated,
214
N.C.
S.E. 2d 742
death sentence
428 U.S.
908,
3215,
(1976).
cases, however,
96 S.Ct.
The trial judge’s findings fact reflect the following: IN THE SUPREME COURT carefully Miranda advised unhesitatingly responded one occasion and each time
more than
Mullis,
them. At the
of Officer
defend
request
he understood
1, 2,
4 of
3 and
the waiver
paragraphs
numbered
ant read aloud
explanation
point during
one
officers’
rights form. At
by a
that he did
expression
indicated
facial
warnings, defendant
E.
“leniency.”
R.
meaning
of the word
Officer
not understand
the word to defendant.
meaning
explained
Sanders then
*17
6
to
on
he
first statement
officers
After
the
gave
November,
statement
give
to
another written
defendant declined
truth. Defendant
confronted him with the
Michael Fincher
until
to
a
steadfastly
give
refused
this condition and
repeated
twice
is,
were
This
of
until his conditions
satisfied.
written statement
course,
his
to
that defendant was aware of
indication
some
and
subject
police questioning
matter of
timing
the
control
by the officers.
unduly
he was not
intimidated
prior
had
ex-
trial
also found that defendant
judge
system, having been arrested
justice
criminal
with the
perience
Quick
26
by
on March 1981.
rights
of
Officer R. L.
and advised
in-
determining
whether an
consideration
important
This
voluntarily
understandingly.
was made
statement
culpatory
(1983);
Jackson,
549,
v.
and were reasonable IN THE SUPREME COURT the voir dire testi findings These are amply supported Rook, mony and upon this Court. binding are therefore denied, 201, (1981), 1038, 283 S.E. cert. N.C. 2d 732 455 U.S. 1741, White, (1982); 72 L.Ed. S.Ct. 2d N.C. (1976). facts, turn, 2d 152 S.E. These con support clusion that defendant Wright’s freely, confessions were made voluntarily and understandingly. record,
After a careful review of entire we hold that judge correctly admitted inculpatory statements made on 6 and 7 November 1981. [8] By final assignment error, defendant contends the trial judge prejudicial committed error during his burglary charge jury by making confusing comparison erroneous to the burglary charge previously given as to defendant Fincher.
When the trial judge jury instructed the elements Fincher, burglary first-degree as to Michael seven itemized the beyond elements the State was required prove reasonable doubt. Defendant directs our attention portion charge Judge wherein Sitton on the sixth instructed element.
Sixth, that at the of breaking entering, time the the felony larceny. defendant intended to commit the of rape or you The Court instructs that rape having the [of] by intercourse vaginal tim, force and the will of vic- against the serious, the bodily when inflicts in- perpetrator personal, jury. Larceny.”
Strike The Portion About What I Said “Or At point, jury this had the in order judge informed that to first-degree convict Fincher of burglary, required were to the find that at time of the intended breaking entering he felony to commit the of rape. judge began burglary
When the trial the elements of give as to Wright, he stated:
I previously you have stated to the seven in—as things, Fincher, crime, to the the the defendant Michael as to that prove, beyond State must a reasonable doubt. I will not But, they repeat those seven at this time. here things, apply my as previously given the same instructions.
Obviously, by of the elements reference” “incorporation necessary was er- Wright first-degree burglary convict roneous, by the related to only the evidence State presented since felony larceny. intent commit the Wright’s instruction,
However, immediately following this erroneous in his final mandate to the charge an accurate gave Sitton Judge jury as follows: evidence, find,
So, beyond you from the if charge I that 31, 1981, doubt, the that on or about October reasonable defendant, by or acting either himself Terry Wright, acting Fincher; and, common scheme or with Michael in a together and, Terry burglary; or to commit the purpose —plan purpose another, doorway, open through pushed went into Wallace’s dwell- apartment and ran or walked Henrietta consent, night-time, intending at that her in the ing, without and, he took larceny; felony time to commit therefrom, that he was pocketbook, at time knowing it, at time her of intending deprive not entitled take and, Wallace its use that Henrietta permanently; entered, your duty to it would be house when broke and “Guilty burglary degree” first return a verdict of ours.) defendant, Terry Wright. (Emphasis to the the trial court’s earlier misstate- We are of the opinion any and that by this correct instruction ment was rectified have been caused misunderstanding might confusion complained . . . the inadvertence error was removed. “Where is not called the attention early charge in the but of occurs corrected, time, will the occurrence and is later the court at the from the apparent when it is prejudicial error not be held Wells, been misled.” could have jury record (1976). 498, 325, *19 S.E. 2d 290 N.C. not been misled jury that the could have As further evidence error, form also clarified written verdict this we note by reads: portion The relevant jury instructions. (felonious larceny). Guilty degree burglary of first Guilty
Answer: verdict form clearly This would have indicated to the jurors that they could find Wright guilty first-degree burglary theory on the that at the time of the breaking entering he in- felony tended commit the of larceny. reasons,
For these we find judge’s misstatement wholly lacking prejudicial effect. This assignment of error is overruled.
For the reasons forth in set we hold opinion, that defend- ants Michael Edward Fincher Terry Jerome received a fair trial free of prejudicial error.
No error. concurring
Justice
result.
MARTIN
I
Although
by
concur in the
majority,
result
reached
I
7A-595(a)(3) (1981)
from the
dissent
holding
N.C.G.S.
is ap-
to defendant Fincher.
plicable
This
statute
applies only to
I
juvenile delinquency proceedings.
case in
find no
which this
Horne,
has been
to criminal
applied
statute
In re
proceedings.
(1980),
App.
In majority seeks to engraft additional require- upon ment officers before under interrogating persons age they eighteen requiring that be advised that have a right a parent during to have or guardian present This questioning. is reached result the statute reasoning juvenile defines a who has not eighteenth birthday; as one reached his old, years so only he is entitled to the seventeen benefit of the statute. statute juvenile
While it is true that the defines a as one who birthday, has reached his the same subsection eighteenth a juvenile juvenile defines purposes delinquent being birthday. one being who has not reached his sixteenth N.C.G.S. 7A-595(a)(3)only subject to a applies persons juveniles who are 7A-517, the definitional juvenile delinquency proceeding. N.C.G.S. Code, states that section of the North the de- Carolina Juvenile clearly terms have the the context meanings “[ujnless fined listed otherwise”; “juvenile” the word in N.C.G.S. 7A-595 clear- requires *20 IN THE SUPREME 24 COURT falls under Arti- juvenile, as N.C.G.S. 7A-595 ly means delinquent 48, Proceedings. in Delinquency Law-Enforcement Procedures cle subject juvenile pro- be the of a delinquency A cannot person person of occurred after the reached complained if the act ceeding (1981). a birthday. Gen. Stat. 7A-524 Where his sixteenth N.C. § a delinquent a and commits adjudged juvenile has been person sixteen, of he must be after the reaching age criminal offense offense, is though even still as an adult on that prosecuted Likewise, if any Id. jurisdiction the of the district court. under the under the of person age age eight- other over sixteen and offense, a he must be tried as an adult for een commits criminal that offense. defendant, sixteen, short, could
In over being age this a subjected juvenile proceeding. not be N.C.G.S. delinquency 48, 7A-595, in of Article “Law-Enforcement Procedures part a only juvenile is delin Delinquency Proceedings,” applicable A pro 517, not criminal prosecutions. delinquency quency proceedings, Burrus, In re 275 N.C. criminal ceeding prosecution. is a (1971). (1969), 528, aff’d, 29 L.Ed. 647 S.E. 403 U.S. 2d 2d a at bar is criminal prosecution. case a parent if a is entitled have may person It seem in he should be so entitled proceeding, in a delinquency present of a But there are prosecution. situation criminal the more serious parent present delinquency pro- have a a reasons to cogent involved, juvenile may be taken from family is ceeding: home, to be is to rehabilitate the principal interest served must him a life of crime. The court con- save juvenile and as as well the best interests juvenile welfare of the sider the (1979). 610, 251 S.E. Hardy, App. 2d the state. In re N.C. duty protect respondent a a The state has greater re in a In juvenile prosecution. than criminal proceeding (1975). reason, For 2d 268 Meyers, 25 N.C. S.E. App. present appropriate. have a parent however, person contrary, prosecutions To the in criminal is treated eighteen the age of sixteen and under age over the or impor- not so relevant Family considerations are an adult. tant, society must be general of the victim and the interests Here, be the same are to accorded all defendants considered. under that persons had intended the legislature If rights. *21 age eighteen given should be in additional criminal pros- ecutions, it would expressed have intent in 15A Chapter Statutes. General This the can still legislature do. reasons,
For these I dissent I respectfully what perceive to be an unwarranted juvenile extension of the delin- statute I quency prosecutions. criminal concur in the well- majority reasoned remainder of the opinion.
Justice Exum in dissenting part concurring part. I concur with the majority’s conclusion that Fincher’s confes- view, however, my sion was inadmissible. In Fincher’s blue coat unlawfully seized from his on the morning bedroom of his arrest and should been into against not have admitted evidence assumes, majority only him. The and I agree, Fincher could have consented to the of his bedroom. Applying search totali- test, ty of circumstances I am satisfied that all the evidence demonstrates a matter of law that Fincher was coerced into the consent form. Fincher was surrounded his home signing He police at least ten officers. told did not un- him sign. derstand the form asked The form was not advised that he right Fincher was not had a not to con- explained. Instead, sent and to insist that a warrant be obtained. officers be sign, told him if he refused to a warrant would obtained and way, we are to search the These ac- going apartment.” “either tions, of Fincher’s men- with the uncontradicted evidence coupled illness, retardation, illiteracy, tal functional mental unusual intimidation, to fear me conclude that susceptibility compel is coercion there cannot be Fincher was coerced. “Where there (1968). Carolina, v. North 391 U.S. Bumper consent.” of both the can I the admission coat Neither conclude Therefore, error. I think were harmless and Fincher’s confession entitled to a new trial. Fincher is questions whether regard Wright’s appeal,
With and, if to remain silent unconditionally asserted so, assertion are close. After the officers honored the whether has dealt with these issues study, majority I conclude the careful treatment majority’s I in the correctly. likewise concur COURT IN THE SUPREME Jackson concur, therefore, majority’s I in the jury instruction question. to Wright. was committed as conclusion no reversible error Frye concurring opinion. joins dissenting Justice STATE v. HENRY OF NORTH CAROLINA LOUIS JACKSON
No. 598A82 *22 (Filed 1983) August sequestration prior —discretionary § Law 1. Criminal 98.2— of witnesses to trial matter judge show Defendant failed to abused his discretion in denying sequester motion to two who were in defendant’s witnesses housed jail the same cell. multiple charges against § 2. Criminal Law 92.4— consolidation of proper to show the trial court abused its discretion in con- failed robbery solidating charges kidnapping, dangerous for with a weapon, degree first where all in the the evidence showed that murder part single plan of a to take the defendant’s acts were money scheme victim’s 15A-926(a). force. G.S. 62; 135.3; Jury qualifica- § § § Criminal Law 7.11— “death 3. Constitutional Law prospective jurors penalty tion” of denial of constitutional —no —death punishment not cruel and unusual arguments qualification” There merit to that “death was no defendant’s trial; jurors penalty prospective him his denied to a fair that the death denying punishment; the court cruel and unusual and that erred motion juries empanel guilt phase different determination sentenc- phase ing trial. 6; Discovery § § Law 30— of State’s evidence 4. Bills Constitutional disclosure gave pretrial prosecution statements of Where the defense counsel the stand, trial, witnesses at before the witnesses took two State’s 15A-904(a).Further, requirements process and State satisfied the of due G.S. incorporated were the witnesses’ affidavits the substance of statements support application State’s for search warrants of defendant’s used to part public record. residence and were a —sequestration Jury capital § voir 6— case —denial of individual dire its to establish that the trial court abused discretion Defendant failed potential jurors denying sequestration of motion for individual jurors. 15A-1214(j). prospective voir dire of G.S.