Appeal by defendants from judgments of Preston, Judge, entered at the 22 September 1980 Criminal Session, Cumberland Superior Court. Defendant Shane appeals as a matter of right from the judgment imposing life imprisonment for his conviction of a first degree sexual offense. His motion to bypass the Court of Appeals on his additional convictions of attempted first degree sexual offense and common law robbery was allowed on 10 March 1981. Defendant Williams was convicted of three counts of second degree sexual offense, attempted second degree rape and common law robbery. His motion to bypass the Court of Appeals and to consolidate his appeal with that of defendant Shane was allowed on 10 March 1981.
Copeland, Justice. Justice Carlton concurs in the result.
Defendants filed a joint brief in this appeal.*fn1 Defendant Shane argues six assignments of error, two of which are also properly raised by defendant Williams. We are persuaded, after a careful review of the applicable law and the circumstances of this case, that both defendants are entitled to a new trial upon the charges of sexual crimes. We shall address defendants' mutual assignments of error first.
Defendants contend that the trial court erred in permitting the State to cross-examine Shane about a prostitute's performance of fellatio upon him, seven months prior to the occurrence of the charged events at the Tahiti Health Club, while he was employed as a police officer in Fayetteville. It is well established that a criminal defendant may be cross-examined about prior acts of misconduct, even if he was not convicted therefor, for the purpose of impeachment, provided the questions are asked in good faith. State v. Lynch, 300 N.C. 534, 268 S.E.2d 161 (1980); State v. Mayhand, 298 N.C. 418, 259 S.E.2d 231 (1979). Indeed, all kinds of facts, which are disparaging to a defendant's character, may be elicited upon cross-examination. See State v. Dawson, 302 N.C. 581, 584-85, 276 S.E.2d 348, 351 (1981); 1 Stansbury's North Carolina Evidence § 111, at 341 (Brandis rev. 1973). Thus, as a general matter, defendant Shane could be properly questioned about his past participation in an act of fellatio with a prostitute because such conduct is not only immoral, it is also legally proscribed in North Carolina as a crime against nature, regardless of its consensual character. See G.S. 14-177; State v. Adams, 299 N.C. 699, 706-07, 264 S.E.2d 46, 50 (1980). In addition, the record plainly shows that the district attorney asked about this prior affair with the prostitute in good faith based upon sufficient knowledge thereof.*fn2 Nevertheless, defendants ardently contend,
as they did at trial, that the district attorney's questions were propounded in an improper form. In this regard, their assignment of error has merit.
From the outset of his inquiry into this subject, the prosecutor focused upon the circumstances surrounding the termination of Shane's previous employment with the Fayetteville Police Department:
Q. You resigned from the intelligence unit because of sexual improprieties, didn't you?
Witness: I resigned from the intelligence police department because a prostitute downtown made allegations against me; and for the betterment of the department and myself, I resigned.
Mr. Rand: In resigning, you told Mr. Bill Johnson, did you not, about this incident?
Mr. Rand: You told Mr. Johnson, did you not, about this matter; that you just weren't thinking; that all you were doing was getting a shot of cock, didn't you?
Mr. Rand: You did not tell him that?
Q. Mr. Johnson is the head of the intelligence unit, isn't he?
A. Yes, sir, Mr. Bill Johnson.
Q. You talked to Mr. Johnson about this alleged incident with the ...