STATE OF NORTH CAROLINA
v. Caldwell County
No. 95 CRS 7853-54
LARRY EUGENE ROBINSON
Attorney General Roy Cooper, by Assistant Attorney General
Judith Tillman, for the State.
David Childers for defendant-appellant.
EAGLES, Chief Judge.
Larry Eugene Robinson (“defendant”) appeals from the trial
court's judgments entered on jury verdicts finding him guilty of
first-degree burglary, first-degree kidnapping, assault inflicting
serious injury and two counts of assault on a female. On appeal,
defendant asserts two errors: that the trial court erred in (1)
allowing the State to question defendant's father as a hostile
witness and (2) denying defendant's motion to dismiss. After
review of the record and briefs, we find no error.
The State's evidence tended to show that defendant's wife,
Angela Bare Robinson, had been staying with Patty Ward (Ward) for
two days. On the night of 12 November 1995, defendant's wife, Ward
and two men, Shannon Church and Derrick Riley Gilliland, returnedto Ward's residence after eating dinner. Upon their return, the
group found Ward's car windows broken and clothes strewn about the
yard. Inside the house, a fish aquarium, microwave, glass table
and VCR were broken. Ward called the police and, because she
suspected defendant was responsible for the damage, called
defendant. Defendant and his father arrived at Ward's house thirty
minutes later in a station wagon.
After telling defendant's father to take defendant and leave
the premises, Ward walked back to her house. Shannon Church, who
observed defendant approach the house with a knife, closed the back
door behind Ward and she locked the door. Defendant forced in the
door and began searching for his wife. Defendant pointed the knife
at Ward's neck and lunged at Shannon Church.
Defendant found his wife underneath a bed with Ward's
daughter. Defendant picked up the bed, grabbed his wife and
dragged her through the house. Defendant then punched Ward in the
face, knocking her unconscious. When Ward regained consciousness,
she saw defendant beating his wife in the back of the station
wagon. Defendant's father then drove defendant and defendant's
wife to their trailer. Defendant's father testified that he told
his wife, “[y]ou better call [the police] or [defendant's] going to
beat her to death right there in the yard[.]” The Caldwell County
Sheriff's Department responded to the “911” call. Upon entering
the trailer, Deputy Scott Brown observed “obvious injuries to the
face” of defendant's wife. Defendant was arrested and taken into
custody. Defendant did not present any evidence. A jury found
defendant guilty as charged. The trial court sentenced defendant
to consecutive terms of 96 months to 125 months imprisonment and
70 to 93 months imprisonment. Defendant's timely appeal was not
perfected. This Court granted defendant's petition for writ of
certiorari to review the trial court's judgments.
Defendant's first assignment of error deals with the State's
direct examination of his father, William Robinson. When the State
called Mr. Robinson as a witness, the State asked to be able to
examine him as a hostile witness because Mr. Robinson was
defendant's father, he accompanied defendant to court, and his
alignment with his son would be adverse to the State. Defense
counsel pointed out that Mr. Robinson had not resisted coming to
court and that he had always responded to subpoenas. The trial
court noted that the witness was the father of the defendant; that
the witness operated the motor vehicle transporting defendant that
night; and the witness took the victim and defendant to his
residence, but deferred its ruling. Defense counsel then stated
that Mr. Robinson would be testifying under oath “against his
interest, possible criminal interest.” At which point, the trial
court replied, “Sir, you made out the case for me, him being a
hostile witness.” The State subsequently examined defendant's
father. Toward the end of the State's direct examination, the
State asked defendant's father leading questions about statements
he made to Patrolman Tracy Rich regarding defendant's actions on 12
November 1995. Defendant first argues the trial court erred by allowing the
State to examine its own witness as a hostile witness without
making findings of fact. “The better practice in cases such as this
would be for the trial court to make findings and conclusions and
declare formally that the witness is friendly to the party cross-
examining him or adverse to the party calling him as a witness.”
State v. Hosey, 318 N.C. 330, 340, 348 S.E.2d 805, 811 (1986).
Where the record shows that a witness has reason to be adverse to
the calling party, no formal declaration of the witness's hostility
is required. Here, the trial court noted the reasons why it
considered defendant's father a hostile witness. Accordingly, the
trial court did not err by failing to make findings of fact when
determining defendant's father to be a hostile witness.
Defendant also argues the State should not have been allowed
to pose leading questions to defendant's father. We disagree.
North Carolina Rule of Evidence 607 allows a party to impeach
its own witness, and Rule 611 allows the use of leading questions
on direct examination of a hostile witness. N.C. Gen. Stat. §8C-1,
Rules 607 & 611 (2001). In interpreting Rule 611(c), our Court has
held that leading questions on direct examination should be
permitted if the witness is hostile, has difficulty understanding
the question, discusses a subject of a delicate nature,
contradicts the testimony of prior witnesses, is being aided to
refresh his memory, is giving preliminary or introductory
testimony, or where "the mode of questioning is best calculated to
elicit the truth." State v. Wiggins, 136 N.C. App. 735, 739, 526S.E.2d 207, 210, disc. rev. denied, 352 N.C. 156, 544 S.E.2d 243
(2000) (citations omitted). The decision of whether to permit
leading questions is within the sound discretion of the trial court
and should not be disturbed absent an abuse of discretion. State v.
Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986). Here, the
State's witness was defendant's father, who observed defendant's
actions and assisted defendant by driving him to and from Ward's
residence. The State's questions focused on the witness's
observations of the events. Additionally, the questions were asked
for clarification and to further explain matters. It is apparent
from the record that it was necessary for the State to ask these
leading questions to develop the testimony of the witness. Thus,
the trial court did not abuse its discretion in allowing the
State's questioning of William Robinson.
Defendant also contends the trial court erred by denying his
motion to dismiss based on insufficiency of the evidence. In his
brief, defendant argues that the State failed to prove that the
offense occurred at night. We note that defendant did not make
this argument at trial. Rather, defendant argued that the trial
court should dismiss the charge of first-degree burglary because
the State failed to prove defendant broke and entered into the
house with the intent to kidnap someone. Rule of Appellate
Procedure 10(b)(1) requires that in order to preserve a question
for appellate review, the party must state “the specific grounds
for the ruling the party desired the court to make.” N.C.R. App. P.10(b)(1). Thus, defendant did not preserve his argument for
appellate review.
Nevertheless, this Court has reviewed the record and conclude
the State presented sufficient evidence to show that defendant went
to Ward's house between 9:00 p.m. and 9:30 p.m. on 12 November 1995
as he was charged in his indictment. Ward testified that she and
her friends returned to her house “a little after” 9:00 p.m.
Furthermore, Deputy Scott Brown testified that his office received
a 911 call concerning the domestic dispute at approximately 9:30
p.m. Accordingly, the trial court properly denied defendant's
motion to dismiss.
No error.
Judges McCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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