State v. Mash

287 S.E.2d 824 (1982)

STATE of North Carolina v. Archie Ray MASH.

No. 65A81.

Supreme Court of North Carolina.

March 3, 1982.

*825 Rufus L. Edmisten, Atty. Gen. by Donald W. Stephens, Asst. Atty. Gen., Raleigh, for the State.

Malcolm R. Hunter, Jr., Asst. Appellate Defender, Raleigh, for defendant.

BRANCH, Chief Justice.

Defendant contends that the trial court erred by instructing the jury on "flight." He argues that he was not under arrest or in custody at the time he left the Sheriff's Department and that his actions could not be considered an "admission or show of consciousness of guilt" but rather were "insolubly ambiguous."

*826 The well-settled rule in North Carolina is that evidence of flight of an accused may be admitted as some evidence of guilt. In State v. Lampkins, 283 N.C. 520, 196 S.E.2d 697 (1973), we find the following:

The rule in North Carolina is that flight of an accused may be admitted as some evidence of guilt. However, such evidence does not create a presumption of guilt, but may be considered with other facts and circumstances in determining whether all the circumstances amount to an admission of guilt or reflect a consciousness of guilt. Proof of flight, standing alone, is not sufficient to amount to an admission of guilt. An accused may explain admitted evidence of flight by showing other reasons for his departure or that there, in fact, had been no departure.

Id. at 523, 196 S.E.2d at 698.

We have also held:

An accused's flight is "universally conceded" to be admissible as evidence of consciousness of guilt and thus of guilt itself....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." [Citations omitted.]

State v. Jones, 292 N.C. 513, 525, 234 S.E.2d 555, 562 (1977).

Defendant's argument that the evidence of flight was incompetent because he had not been taken into custody or formally arrested before his hasty departure is without merit. The cases in which evidence of flight has been declared competent when the flight occurred before arrest or before the accused was in custody are legion. State v. Jones, supra; State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 (1976); State v. Self, 280 N.C. 665, 187 S.E.2d 93 (1972); State v. Downey, 253 N.C. 348, 117 S.E.2d 39 (1960); State v. Payne, 213 N.C. 719, 197 S.E. 573 (1938); State v. Bittings, 206 N.C. 798, 175 S.E. 299 (1934); State v. Parker, 45 N.C.App. 276, 262 S.E.2d 686 (1980); State v. Wilson, 23 N.C.App. 225, 208 S.E.2d 393 (1974); State v. McKinney, 19 N.C.App. 177, 198 S.E.2d 241 (1973); State v. Kirby, 7 N.C.App. 366, 172 S.E.2d 93 (1970). See also 2 Stansbury's N.C. Evidence § 178 (Brandis rev. 1973) and the cases there cited.

Further, the fact that a defendant does not flee for several days after the commission of the crime charged affects the weight and not the admissibility of such evidence. State v. Murvin, 304 N.C. 523, 284 S.E.2d 289 (1981).

Here after having been given his Miranda warnings, defendant's flight from law enforcement officers, by way of a speeding motor vehicle with officers in close pursuit followed by a seven hour trek across mountainous terrain with police officers and a bloodhound on his trail, presents a classic example of acts motivated by a "consciousness of guilt."

By his next assignment of error, defendant argues that this Court should adopt the "merger doctrine" to bar application of the felony-murder rule to homicides committed during the perpetration of the felony of discharging a firearm into occupied property. For the reasons stated in State v. Wall, ___ N.C. ___, 286 S.E.2d 68 (1982), we decline to change the existing law.

We have carefully examined the entire record and find no error warranting that the verdict returned or the judgment imposed be disturbed.

NO ERROR.