Appeal by defendant from Smith, Judge. Judgment entered 9 September 1980 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 13 October 1981.
Martin (Harry C.), Judge. Judges Hedrick and Clark concur.
Defendant submits his first assignment of error as follows: "Did the trial court's denial of the defendant's motion to suppress evidence of flight and the giving of the pattern jury instruction on flight evidence constitute reversible error because the prejudicial impact of the flight evidence in this case outweighed its probative value on the question of the defendant's guilt?"
Underlying defendant's objection to the admission of this evidence is his contention that the inference from flight to consciousness of guilt is a weak one; that is, his flight indicated a fear of being incarcerated rather than an acknowledgment of guilt. According to defendant's testimony, he denied raping Lisa Stinson and asked the police if there was a test that could be performed on Lisa to determine whether she had been raped. An officer responded that there were tests which could be performed at the hospital. Defendant agreed to go to the hospital until the officer informed him that he would be required to ride in a police car. At this point the defendant fled because he had "learned a long time ago that if you get in a police car he's going to lock you up," and because he had house and car payments to make and he could not make a bond or afford a lawyer.
"In North Carolina it has long been held that '[s]ubsequent acts, including flight . . . are competent on the question of guilt. [Citations omitted.] The basis of this rule is that a guilty conscience
influences conduct.'" State v. Jones, 292 N.C. 513, 525, 234 S.E.2d 555, 562 (1977). Evidence of flight is only one circumstance bearing on defendant's guilt and is open to explanation and rebuttal by the defendant. 2 Stansbury's N.C. Evidence § 178 (Brandis rev. 1973). In this case defendant was free to, and did in fact, testify as to his motives for fleeing. We find that evidence of defendant's flight was properly admitted. Moreover, the trial judge was correct in instructing on evidence of flight. "So long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given. The fact that there may be other reasonable explanations for defendant's conduct does not render the instruction improper." State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977). See also State v. Lampkins, 283 N.C. 520, 196 S.E.2d 697 (1973); State v. DeBerry, 38 N.C. App. 538, 248 S.E.2d 356 (1978).
Defendant next contends that the trial court committed reversible error in denying his motion to prohibit the state from cross-examining him about his alleged involvement in a robbery and sexual battery for which charges were pending against him in Florida. Defendant took the stand and testified on his own behalf. In doing so, he surrendered his privilege against self-incrimination. He was subject to impeachment by questions relating to specific acts of criminal and degrading conduct. State v. Foster, 284 N.C. 259, 200 S.E.2d 782 (1973).
Cross-examination for purposes of impeachment is not, however, limited to questions concerning prior convictions, but also extends to questions relating to specific acts of criminal and degrading conduct for which there has been no conviction. . . . The scope of such cross-examination is normally subject to the discretion of the trial judge, and the questions must be asked in good faith.
State v. Ross, 295 N.C. 488, 490-91, 246 S.E.2d 780, 783 (1978) (citations omitted). In Ross, the Court noted that the purpose in permitting such wide scope for impeachment is to aid the jury in assessing and weighing the credibility of a defendant's often self-serving testimony.
The Supreme Court of North Carolina has declined to reverse this rule. Ross, supra (and cases cited therein). Nor does
the rule violate defendant's fifth or fourteenth amendment rights so long as the jury is instructed to limit its consideration of the evidence to the function of impeachment. Ross, supra. Defendant was permitted to and did invoke his fifth amendment privilege in an effort to thwart the state's efforts to question him concerning the charges pending against him in Florida. To invoke the fifth amendment does not, however, serve to bar cross-examination for impeachment purposes. The "likelihood of undue prejudice accruing from the attempted impeachment . . . does not outweigh the court's substantial interest in arriving at the truth." Ross, supra, at 493, 246 S.E.2d at 785. Accord, State v. Allen, 34 N.C. App. 260, 237 S.E.2d 869, ...