Byndom v State

• Decision Date: 05 April 2001
• Docket Number: 00-59
• Citation: 39 S.W.3d 781
• Parties: Gregory Charles BYNDOM v. STATE of Arkansas CR 00-59 Supreme Court of Arkansas
• Court: Arkansas Supreme Court

Gregory Charles BYNDOM v STATE of Arkansas

CR 00-59

Supreme Court of Arkansas

April 5, 2001

Appeal from Pulaski Circuit Court; John Bertran Plegge, Judge; affirmed on direct appeal and dismissed on cross-appeal.

1. Witnesses -- competency determination within discretion of trial court -- standard of review. -- The question of the competency of a witness is a matter lying within the sound discretion of the trial court and in the absence of clear abuse, the supreme court will not reverse on appeal.

2. Witnesses -- presumption of competency -- burden of persuasion. -- The trial court must begin with the presumption that every person is competent to be a witness; the party alleging a witness is incompetent has the burden of persuasion.

3. Witnesses -- competency -- trial judge's evaluation of particular importance. -- The issue of competency of a witness is one in which the trial judge's evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony.

4. Witnesses -- competency -- record needed to prevent finding of manifest error or abuse of discretion in allowing testimony. -- As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts, the supreme court will not hold that there has been a manifest error or abuse of discretion in allowing the testimony.

5. Witnesses -- competency -- criteria for determining. -- Competency, as referred to in Ark. R. Evid. 601, is not to be confused with reliability; testimony by competent witnesses may be presented to the finder of fact; the jury then evaluates the evidence, considers credibility of the witness, and arrives at its conclusion; the criteria for determining whether a witness is competent to testify are: (1) the ability to understand the obligation of an oath; (2) an understanding of consequences of false swearing; (3) the ability to receive and retain accurate impressions; and (4) the extent that the capacity exists to transmit to the fact-finder a reasonable statement of what was seen, felt, or heard.

6. Witnesses -- competency -- when inability to speak does not render witness incompetent to testify or violate defendant's right to cross-examine witnesses. -- A witness's inability to speak does not render her incompetent to testify or violate the defendant's right to cross-examine witnesses so long as she is able to communicate the facts by other methods and otherwise meets the tests of legal competency; i.e., that she can observe, recollect, and appreciate the moral duty to tell the truth; where a witness is able to communicate by other means and is otherwise competent, a defendant's contention that his constitutional right to confront witnesses was violated will be rejected.

7. Witnesses -- competency -- when mental impairment will not render witness incompetent to testify. -- A witness suffering from mental impairment such as retardation is legally competent to testify so long as she has the capacity to observe, recollect, and communicate; the defendant cannot rely merely on the fact that the witness is retarded to challenge her competency.

8. Witnesses -- competency -- limitations on ability to communicate may be considered by jury when determining weight given to testimony. -- It is permissible for a witness who has a limited ability to speak and/or hear to testify as against objection that the party against whom such testimony is given will be put to great disadvantage in cross-examination to test the witness's credibility; though a deaf-mute may not be educated in the use of signs and can only express assent or dissent by a nod or shake of the head, thus rendering cross-examination difficult, he may nevertheless be permitted to testify, but his disability may be considered by the jury, as bearing upon the weight of his testimony; that difficulty attends the examination of a deaf-mute is no reason why his testimony should be excluded.

9. Witnesses -- victim's inability to speak did not render her incompetent -- defense had opportunity to elicit more detailed responses from witness through use of computer than did prosecution. -- The victim's inability to speak did not render her incompetent where she was able to communicate by virtue of her gestures, facial expressions, ability to sign "yes" and "no," and by limited use of the yes/no function key on her Dynavox computer; furthermore, the trial court, in allowing the witness to return to using the Dynavox computer during cross-examination as long as the icons did not appear on the projection screen set up behind her for the jury to see, properly recognized that the computer did not constitute hearsay evidence where the user could directly answer a question with an answer only she could choose from thousands of words and phrases programmed into the computer; as such, the defendant's assertion that the witness could not communicate effectively suffered a devastating blow because it was apparent that the defense had the opportunity to elicit more detailed responses from her through the Dynavox computer.

10. Appeal & error -- appellant cannot complain of error he invited. -- Where the trial court granted appellant's request to limit the witness's use of the Dynavox computer, on appeal he could not complain of error he invited.

11. Appeal & error -- conviction affirmed. -- Because appellant's objections to the use of the Dynavox computer caused its exclusion at trial, and because even without the use of the computer the witness was still competent to testify, the conviction was affirmed.

12. Criminal procedure -- right to file criminal appeal -- Ark. R. App. P.--Crim. 3 applicable. -- The State's right to file a criminal appeal arises under Ark. R. App. P.--Crim. 3; this rule is applicable to all appeals, whether direct or cross, and is the only authority under which the State can cross-appeal in a criminal case; while our Rules of Appellate Procedure--Criminal do not specifically mention cross-appeal, as such, our Rules of Appellate Procedure--Civil clearly do, and these civil appellate rules have commonly been referred to and applied when necessary in criminal appeals.

13. Criminal procedure -- cross-appeal -- not timely filed -- Where the State did not file its notice of cross-appeal within thirty days after the entry of the judgment and commitment order as required by either Rule 3(b) for appeals by the State or by Ark. R. App. P.--Crim. 2(a)(2), which applies to appeals by all other parties besides the State in criminal cases, the cross-appeal was not timely filed.

14. Criminal procedure -- time for filing cross-appeal -- Rules of Appellate Procedure- Civil applicable when necessary in criminal appeals. -- Although the rules do not specifically set out a time for the State to file a cross-appeal, the supreme court has referred to and applied the Rules of Appellate Procedure- Civil when necessary in criminal appeals; under Ark. R. App. P.--Civ. 4(a), a party cross-appealing must file within ten days after receipt of the other party's direct appeal.

15. Criminal procedure -- cross-appeal not timely filed -- supreme court would not consider it. -- Where, even under Ark. R. App. P.--Civ. 4(a), the State did not comply because it filed its cross-appeal twenty-seven days after appellant filed his appeal, and made no showing that it did not receive appellant's notice of appeal within ten days of filing its cross-appeal, the State's cross-appeal was untimely, and the supreme court would not consider it. [cme]

William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

Mark Pryor, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen., for appellee.

Jim Hannah, Justice.

Appellant Gregory Charles Byndom appeals his rape conviction, arguing that the trial court erred in finding the victim, Shaneani Mason, competent to testify at trial. The State cross-appeals, asking this court to hold that the trial court erred in disallowing Mason to use a computerized augmentative communication device while she testified and further arguing that the trial court erred by concluding that Byndom's prior Illinois voluntary manslaughter conviction did not subject him to second-strike status under Arkansas law. We affirm on direct appeal and dismiss on cross-appeal.

Facts

Mason is a twenty-five-year-old woman with cerebral palsy and mental retardation caused by suffering strokes as a child due to Sickle Cell disease. Mason lived with Byndom's girlfriend, Rita Bealer, who was paid a stipend by the State to help care for Mason because Mason cannot care for herself, stand or move without assistance, or speak without the assistance of a Dynavox computer, an augmented speaking device.

On the night of July 20, 1998, Bealer and her children left the house to go to the store sometime in the evening after Mason had gone to bed. While they were gone, Byndom entered Mason's room, removed his and her clothes, and had sexual intercourse with Mason while he was wearing a condom. According to Mason, she did not report this incident to Bealer because Mason feared Byndom, but two days later reported the attack to Tracy Ross, a registered nurse who met with Mason approximately once every two weeks to perform home health assessments. Ross, who had cared for Mason for approximately two years, testified that Mason became distraught at the end of their visit on July 22, 1998, and Ross finally persuaded Mason to tell her what the problem was. Because Mason is unable to speak, Ross obtained the information from Mason through a series of yes/no questions, interpretation of Mason's body language, and use of the Dynavox computer, which synthesizes speech for its users. Mason indicated that she knew her attacker and identified him that day by typing "Charles" on her Dynavox screen. Later it became clear to Ross that Mason meant the...