Com. v. Brusgulis

• Decision Date: 25 August 1986
• Citation: 398 Mass. 325,496 N.E.2d 652
• Parties: COMMONWEALTH v. Richard BRUSGULIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 652

496 N.E.2d 652

398 Mass. 325

COMMONWEALTH v. Richard BRUSGULIS.

Supreme Judicial Court of Massachusetts Middlesex.

Argued May 7, 1986.

Decided Aug. 25, 1986.

Margot Botsford, Asst. Dist. Atty., for Com.

Paul A. D'Agostino, Somerville, for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

ABRAMS, Justice.

Pursuant to G.L. c. 278, § 28E (1984 ed.), ¹ the Commonwealth appeals from an order of a judge in the Superior Court allowing the defendant's motions to dismiss two indictments with prejudice after a jury trial had begun. The indictments charged the defendant with rape of a child under sixteen and indecent assault and battery of a child under fourteen. G.L. c. 265, §§ 23 and 13B (1984 ed.). The indictments arose from an incident alleged to have occurred during a weekend in March, 1985, when the child, who was approximately three and a half years old, ² was visiting the defendant at his home.

At the trial, the judge conducted a competency hearing before the jury was empaneled. In examining the child, he asked some preliminary questions (name and address, age and birthdate, school and play activities) and then interrogated her about truth and lying. ³ He supplemented his original line of inquiry with further questions based on suggestions offered by defense counsel. At the end of the hearing, the judge determined that the child was competent to testify. He based this determination on his conclusion that she could differentiate between telling the truth and lying and could understand that punishment was a consequence of lying. The judge remarked: "I don't know how one can get any further with that, even with a person over the age [of] seven. They may know what the specific punishment is. The concept of punishment seems to be adequate for this child.... I am persuaded she understands that if you tell a lie you get punished."

Subsequently, the jury was empanelled and sworn. The prosecutor made an opening statement. The judge then gave some preliminary instructions to the jurors and called a brief recess. At that point, it was approximately 12:30 P.M. The prosecutor asked the judge to recess the trial until the next morning because the child, who had been in court for five hours, was upset and crying. The judge denied this request, and the child took the stand.

On direct examination, the child stated that it was bad to tell a lie and that "you get punished" if you do so. She testified that the defendant had hurt her. When asked where she had been hurt, she put her hands in the area between her legs. However, when the prosecutor asked the child to demonstrate with anatomical dolls how she was hurt, the child repeatedly said that she did not want to do so. The trial was adjourned until the following morning.

When the child resumed testifying, she again stated that the defendant had hurt her and identified the area between the doll's legs as the area of her body where she had been hurt. When asked to provide further details of the incident, evidently she became quite upset. She would not describe what happened any further, saying repeatedly that she had already told how she got hurt and did not want to talk about it any more.

At the prosecutor's request, the judge called a recess. During the recess, defense counsel moved for a required finding of not guilty or a dismissal with prejudice. He argued that the child was not competent to testify. ⁴ The prosecutor pointed out that defense counsel's arguments related to credibility not competency, but she did not object to the judge's conducting a second competency examination. ⁵

In the course of the second examination, ⁶ the child said that "[t]he truth is the thing you want and a lie you don't." She also said, "You get punished" for telling a lie, but "You don't get punished" for telling the truth. However, she could not define the word "punishment" or associate it with such terms as "spanking," "licking" or "whipping." Defense counsel objected to the prosecutor's suggestion to frame the question in terms of whether it was good or bad to be punished rather than defining the word. ⁷ The judge sustained the objection.

Defense counsel renewed his motions for a required finding of not guilty or, alternatively, dismissal with prejudice. The prosecutor objected, suggesting that a mistrial would be the appropriate remedy if the judge found the child incompetent. The judge expressed misgivings about the child's competency based on her inability to define the word "punished" or "certain of the more common phrases for the more common method of punishing a child." He equated this inarticulation with an inability to understand the consequences of lying. He decided to permit the prosecutor to complete her examination of the child in order to ascertain if the child understood the consequences of lying. The child, however, refused to testify. Defense counsel renewed his motions; the judge ruled that the child was incompetent as a matter of law because she "cannot tell me or would not tell me, what punishment meant." The judge added that his ruling was "fortified" by the fact that the child refused to testify. ⁸ 1. Competency of child witness. The Commonwealth argues that the judge's dismissal of the indictments was improper because it was based on an erroneous ruling of law. See Commonwealth v. Babb, 389 Mass. 275, 283-284, 450 N.E.2d 155 (1983). The Commonwealth challenges the judge's determination that the child witness was incompetent to testify as a matter of law. Alternatively, the Commonwealth argues that the judge abused his discretion by reopening the subject of the witness's competency after having earlier ruled her competent.

⁸ Over the prosecutor's objection, the [398 Mass. 329] judge then granted the defendant's motions to dismiss with prejudice for want of prosecution. ⁹

General Laws c. 233, § 20 (1984 ed.), provides in part: "Any person of sufficient understanding, although a party, may testify in any proceeding, civil or criminal...." The courts of this Commonwealth have long applied a two-prong test to determine competency: (1) whether the witness has the general ability or capacity to "observe, remember, and give expression to that which she ha[s] seen, heard, or experienced"; and (2) whether she has "understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment." Commonwealth v. Tatisos, 238 Mass. 322, 325, 130 N.E.2d 495 (1921). See also Commonwealth v. Widrick, 392 Mass. 884, 888, 467 N.E.2d 1353 (1984); Commonwealth v. Gibbons, 378 Mass. 766, 770, 393 N.E.2d 400 (1979); Commonwealth v. Welcome, 348 Mass. 68, 70, 201 N.E.2d 827 (1964). The same test applies to all witnesses, whether adult, child, or subject to some disability. See Commonwealth v. Whitehead, 379 Mass. 640, 656, 400 N.E.2d 821 (1980), and cases cited. "The determination of competency is peculiarly within the province of the judge." Widrick, supra at 888, 467 N.E.2d 1353. The judge is afforded wide discretion--indeed, is obliged--to tailor the competency inquiry to the particular circumstances and intellect of the witness. Although the judge's determination will seldom be faulted on appellate review, Whitehead, supra, as with other discretionary rulings it will be reversed where the judge applies an incorrect legal standard. Commonwealth v. Mullins, 2 Allen 295, 296 (1861). See Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 477 N.E.2d 116 (1985); Southwick v. Massachusetts Turnpike Auth., 339 Mass. 666, 669, 162 N.E.2d 271 (1959).

In this case, both the defendant and the judge focused their competency concerns on the witness's awareness of the obligation to tell the truth. On the first day of trial, the judge conducted a competency hearing and concluded "that the child does know the difference between telling the truth and telling a lie" and therefore ruled her competent. The next day, the judge conducted another competency hearing and ruled her incompetent because she was unable to explain to him the meaning of "punishment."

There is no requirement that a witness be able to explain "punishment"; it is particularly inappropriate to expect a three and a half year old to define that abstract concept. ¹⁰ As we stated in Tatisos, the The judge's ruling need not be set aside, however, if, applying the correct legal standard, it would have been an abuse of discretion to find the witness competent. We cannot so say. The witness was three and a half years old. She clearly knew the difference between telling the truth and telling a lie; that "[t]he truth is the thing you want and a lie you don't"; that "you don't get punished for telling the truth"; but "you get punished" for telling a lie. The witness knew she was supposed to tell the truth and understood that undesirable consequences flowed from telling a lie. Beyond that, it would have been for the jury to decide if the witness testified truthfully. We cannot say that the judge abused his discretion in his earlier ruling that the witness was competent. Nor would a ruling that the witness continued to be competent have been an abuse of discretion.

witness must at least "in a general way, [express a] belief that failure to perform the obligation [to tell the truth] will result in punishment"; but a "child need not and probably will not understand this in all its fulness; it is unnecessary for her to do so." Id. at 325-326. If the witness does not possess "the necessary understanding to comprehend the nature of the obligation imposed by the oath of a witness, he may be instructed in open court, or his testimony deferred until such instruction has been given." Id. We therefore conclude that the judge applied an incorrect and too stringent legal standard in determining the witness's competency. ¹¹

The judge's...