# State v. Fincher

> Supreme Court of North Carolina · August 9, 1983 · 309 N.C. 1

URL: https://www.frixlaw.com/law-library/cases/9603364

## Case

- **Full name:** State of North Carolina v. Michael Edward Fincher and Terry Jerome Wright
- **Court:** Supreme Court of North Carolina
- **Decided:** August 9, 1983
- **Citations:** 309 N.C. 1; 305 S.E.2d 685; 1983 N.C. LEXIS 1308
- **Precedential status:** Published
- **Opinion:** Concurring in part by Exum
- **Judges:** Branch, Martin, Exum, Frye
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9603364

## How later opinions describe it (automated extraction)

- stating, for purposes of determining the appropriate prejudice standard, that “[t]he failure to advise [a juvenile] defendant of his right to have a parent, custodian or guardian present during questioning is not an error of constitutional magnitude because this privilege is s…
- holding that in a juvenile proceeding, unlike an ordinary criminal proceeding, the burden upon the State to see that a juvenile's rights are protected is increased rather than decreased
- holding no coercion where officers told the defendant that only he could consent to the search but if he did not consent the officers would get a search warrant and search anyway

## Opinion text

Justice Exum
dissenting in part and concurring in part.
I concur with the majority’s conclusion that Fincher’s confession was inadmissible. In my view, however, Fincher’s blue coat was unlawfully seized from his bedroom on the morning of his arrest and should not have been admitted into evidence against him. The majority assumes, and I agree, that only Fincher could have consented to the search of his bedroom. Applying the totality of circumstances test, I am satisfied that all the evidence demonstrates as a matter of law that Fincher was coerced into signing the consent form. Fincher was surrounded in his home by at least ten police officers. He told the police he did not understand the form they asked him to sign. The form was not explained. Fincher was not advised that he had a right not to consent and to insist that a warrant be obtained. Instead, the officers told him if he refused to sign, a warrant would be obtained and “either way, we are going to search the apartment.” These actions, coupled with the uncontradicted evidence of Fincher’s mental retardation, functional illiteracy, mental illness, and unusual susceptibility to fear and intimidation, compel me to conclude that Fincher was coerced. “Where there is coercion there cannot be consent.” Bumper v. North Carolina, 391 U.S. 543, 550 (1968).
Neither can I conclude that the admission of both the coat and Fincher’s confession were harmless error. Therefore, I think Fincher is entitled to a new trial.
With regard to Wright’s appeal, the questions whether Wright unconditionally asserted his right to remain silent and, if so, whether the officers honored the assertion are close. After careful study, I conclude the majority has dealt with these issues correctly. I likewise concur in the majority’s treatment of the *26 jury instruction question. I concur, therefore, in the majority’s conclusion that no reversible error was committed as to Wright.
Justice Frye joins in this dissenting and concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9603364. Public record. Not legal advice.