Com. v. Corbett, 88-P-461

• Decision Date: 01 March 1989
• Docket Number: No. 88-P-461,88-P-461
• Citation: 26 Mass.App.Ct. 773,533 N.E.2d 207
• Parties: COMMONWEALTH v. Brian A. CORBETT.
• Court: Appeals Court of Massachusetts

Page 207

533 N.E.2d 207

26 Mass.App.Ct. 773

COMMONWEALTH v. Brian A. CORBETT.

No. 88-P-461.

Appeals Court of Massachusetts,

Essex.

Argued Nov. 17, 1988.

Decided Jan. 19, 1989.

Further Appellate Review Denied March 1, 1989.

Elin H. Graydon, Asst. Dist. Atty., for Com.

William P. Homans, Jr. (John F. Palmer, with him), Boston, for defendant.

Before KASS, CUTTER and FINE, JJ.

FINE, Justice.

A District Court complaint issued against the defendant on July 17, 1987, charging him with indecent assault and battery on a child under fourteen in violation of G.L. c. 265, § 13B. The victim, four and a half years old when the alleged offense occurred on May 27, 1987, was the only percipient witness. On August 4, 1987, when the victim was four years and nine months old, a District Court judge conducted a competency hearing. He asked the child numerous questions about her age, family members, friends, nursery school, and play and other activities, virtually all of which she answered with understanding and awareness. She was then asked a series of questions about the difference between truth and falsity and her obligation to tell the truth. Some of her answers indicated an ability to distinguish between truth and falsehoods; others indicated some confusion. Excerpts from the competency hearing relevant to the duty of truth-telling are reproduced in the appendix.

On September 10, 1987, the judge found the child incompetent to testify on the basis of several findings, the most significant one of which was that she did "not have an appreciation and a consciousness of the duty to tell the truth nor ... a sense of the repercussions ... of telling a lie." On October 26, 1987, the judge denied a request made by the Commonwealth on October 7, 1987, for reconsideration of the competency ruling. The request, supported by the report of an expert, asked the judge to consider testimony from the expert and review the transcript of the competency hearing. ¹ The Commonwealth then requested a continuance for six months, a period during which, according to the prosecutor, the witness might become competent. The defendant objected, however, and the judge continued the case for trial only to November 5, 1987. On that date, the Commonwealth reported that, due to the adjudication of the victim as incompetent, the Commonwealth would not be prepared to try the case. Without amplification, the judge "allowed" a motion filed by the defendant seeking dismissal "with prejudice for want of prosecution."

On appeal taken pursuant to G.L. c. 278, § 28E, the Commonwealth contends that the judge erred, first, in finding the child victim incompetent to testify and, second, in dismissing the case with prejudice if the witness was properly found incompetent. A judge's conclusion that a criminal case should be dismissed with prejudice, thereby barring a subsequent trial on the same charges, is subject to appellate review. See Commonwealth v. Brusgulis, 398 Mass. 325, 332, 496 N.E.2d 652 (1986). We do not view this case as one of those rare ones in which we would overturn a judge's ruling on the competency of a child witness after a hearing in the course of which the judge has had the opportunity to observe at firsthand the child's demeanor. We do agree with the Commonwealth, however, that the dismissal should not have been with prejudice.

1. The finding of incompetency.

According to G.L. c. 233, § 20, as appearing in St.1983, c. 145, any person of "sufficient understanding" is qualified to testify as a witness. ² The judge indicated his familiarity with the applicable two-pronged test for determining whether a particular child of tender years has the requisite understanding to qualify as a witness. Competency, according to that test, depends upon "(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. Brusgulis, 398 Mass. at 329, 496 N.E.2d 652 quoting from Commonwealth v. Tatisos, 238 Mass. 322, 325, 130 N.E. 495 (1921).

Satisfying the first prong of the test presented no problem for this particular witness. The Commonwealth contends that the witness's answers to questions concerning her obligation to tell the truth satisfied the second prong as well. The judge reached a contrary result because, according to the Commonwealth, he used an incorrect legal standard in appraising the child's answers to his questions about the consequences of not telling the truth. It is true that, to qualify as a witness, a child need not be able to understand and explain such abstract concepts as punishment or the likelihood that punishment would follow the giving of false testimony. See Commonwealth v. Tatisos, 238 Mass. at 325-326, 130 N.E. 495; Commonwealth v. Welcome, 348 Mass. 68, 70, 201 N.E.2d 827 (1964); Commonwealth v. Brusgulis, 398 Mass. at 330, 496 N.E.2d 652. The Commonwealth also correctly points out that "[t]he tendency ..., except in quite clear cases of incompetency, is to let the witness testify and have the triers make any proper discount for the quality of her 'understanding'...." Commonwealth v. Whitehead, 379 Mass. 640, 656, 400 N.E.2d 821 (1980). ³

We think there was a sufficient basis here under the correct legal standard for the judge to exercise his discretion to find, as he did, that the witness was not competent. In answer to several questions the witness indicated that she was aware of the difference between a truthful statement and a lie. At other times, however, she indicated some confusion. For example, at one point during the interrogation by the judge, when asked if she would get in trouble if she told a lie, she answered, "No." At another point the judge asked, "If you don't tell the truth what will happen to you?," and she answered, "Nothing. No one can't get punished for nothing." He then asked, "So nothing would happen to you if you don't tell the truth," and she answered, "No." These answers might indicate something other than mere inability to explain abstract concepts or the meaning of punishment.

As the Commonwealth suggests, the witness may well have thought the questions to which she gave inappropriate answers related to the facts of the alleged assault and not to truth-telling generally. For example, when she stated that if she didn't tell the truth no one would be punished, she could have meant that if she didn't testify about what happened to her during the alleged incident, the defendant would not be convicted and punished. So construed, her answers could be viewed as consistent and generally indicative of an awareness of some obligation to be truthful. Perhaps, by suggesting questions for the judge to ask, the prosecutor could have cleared up any confusion in the child's understanding of the meaning of the questions. Although the judge asked the attorneys if they had any questions they wanted him to ask, the prosecutor suggested none. Instead, she responded that she would leave the matter to the judge's discretion.

It may well be that, on the record before us, a judge reasonably could have found the witness competent. The answers are sufficiently inconsistent, however, to persuade us that we should defer to the conclusions reached by the judge who had the opportunity, which we lack, to observe the manner and appearance of the witness on the stand. Because of the importance of such observations, a judge's discretion in ruling on a child witness's competency is very broad and only rarely faulted on appeal. See Commonwealth v. Tatisos, 238 Mass. at 326, 130 N.E. 495; Commonwealth v. Whitehead, 379 Mass. at 656, 400 N.E.2d 821; Commonwealth v. Widrick, 392 Mass. 884, 888, 467 N.E.2d 1353 (1984); Commonwealth v. Brusgulis, 398 Mass. at 330, 496 N.E.2d 652; Commonwealth v. Reid, 400 Mass. 534, 542, 511 N.E.2d 331 (1987); Commonwealth v. Jimenez, 10 Mass.App.Ct. 441, 443, 409 N.E.2d 204 (1980).

2. Dismissal with prejudice.

Given the youthful witness's intelligence and ability to articulate clearly, there was good reason to believe that, if not competent at the time of the competency hearing, she would become competent relatively soon. In these circumstances, a short continuance would have been in order during which she could have been instructed by some appropriate person on her obligation to tell the truth. See Commonwealth v. Tatisos, 238 Mass. at 324, 326, 130 N.E. 495; Commonwealth v. Brusgulis, 398 Mass. at 330, 496 N.E.2d 652. The Commonwealth made no request that she be so instructed. Instead, the Commonwealth suggested a continuance of about six months to allow the witness to mature. On its face, that request was not unreasonable. The temporary incompetence of a crucial child witness is a compelling justification for a delay in a criminal case. Compare People v. Price, 165 Cal.App.3d 536, 544, 211 Cal.Rptr. 642 (1985); Commonwealth v. Johnson, 16 Mass.App.Ct. 935, 935-936 (1983). Continuance of a criminal case by a District Court judge for a period of more than ten days over a defendant's objection, however, raises a question of a possible violation of G.L. c. 276, § 35. ⁴ If a defendant does not agree to have his case continued for more than ten days, a District Court judge may dismiss the case to avoid a violation of the statute. Consequently, the judge was warranted in dismissing the case. Cf. Commonwealth v. Ludwig, 370 Mass. 31, 33-34 & n. 1, 345 N.E.2d 386 (1976); Commonwealth v. Boyer, 6 Mass.App.Ct. 938, 939, 381 N.E.2d 1125 (1978); Commonwealth v. Conant, 12 Mass.App.Ct. 287, 289-290, 423 N.E.2d 1035 (1981) (a continuance exceeding ten days does not entitle the defendant to dismissal as of right, but,...