Chambers v. State

• Citation: 275 Ark. 177,628 S.W.2d 306
• Decision Date: 22 February 1982
• Docket Number: No. CR81-109,CR81-109
• Parties: Billy J. CHAMBERS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Supreme Court of Arkansas

Page 306

628 S.W.2d 306

275 Ark. 177

Billy J. CHAMBERS, Appellant, v. STATE of Arkansas, Appellee.

No. CR81-109.

Supreme Court of Arkansas.

Feb. 22, 1982.

Robert A. Newcomb, Little Rock, for appellant.

Steve Clark, Atty. Gen. by William C. Mann, III, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

The appellant was convicted of rape by a jury and sentenced to 50 years.

Appellant filed a timely notice of appeal and alleged three points for reversal: (1) that the victim's testimony should have been excluded because of her age; (2) that appellant's statement should have been suppressed due to the lack of a valid waiver of counsel; and, (3) that the remarks of the deputy prosecutor in closing arguments were improper and should have been grounds for a mistrial. We find no merit in any of the contentions of the appellant and affirm the judgment as expressed by the trial court.

The facts of the case reveal that in July 1980 appellant's wife had gone to Texas for her sister's funeral. On July 26, 1980, appellant took the victim, age six, and her brother, age 13, from their home with their mother's permission. The appellant was apparently a family friend. That evening appellant and the 13 year old brother were drinking beer and at one point a game of strip poker was played which resulted in at least the two children stripping completely naked. Later, in the appellant's bedroom, appellant had oral sexual contact with the victim and she was forced to take appellant's penis into her mouth. Afterwards, appellant, the girl and her brother all slept naked in the appellant's bed.

The appellant feels that due to victim's tender age (she was six at the time of the incident, seven at the time of trial) the trial court should have excluded her testimony. In DeVoe v. State, 193 Ark. 3, 97 S.W.2d 75 (1936), this court held, in regard to an 8 year old rape prosecutrix:

As to her competency, it may be said, first, that her competency was peculiarly within the trial court's discretion, and the trial court's ruling on the question will not be disturbed unless there was a gross abuse of discretion.

In the present case, the victim stated that she had learned about telling the truth from Bible stories read to her, and that if she told a lie she would be put in jail. The trial court was apparently convinced of the victim's ability to understand the consequences of not telling the truth. Our guidelines in regard to the common law tests of the competency of a witness in a criminal trial have been set out numerous times, they are:

The ability to understand the obligation of an oath and to comprehend the obligation imposed by it; an understanding of the consequences of false swearing; and the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt or heard.

Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). The question of the competency of witnesses in a criminal trial is a matter lying within the sound discretion of the trial judge and in the absence of clear abuse of discretion, or obvious error, its exercise is not reviewable on appeal. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980).

The appellant was arrested on July 27, 1980, by the Pulaski County...