Fernandez v. State, 75--796
| Decision Date | 17 February 1976 |
| Docket Number | No. 75--796,75--796 |
| Citation | 328 So.2d 508 |
| Parties | George Hernando FERNANDEZ, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Gerald Kogan and Robert H. Newman, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
Before PEARSON, HENDRY and NATHAN, JJ.
George Hernando Fernandez, defendant in the trial court, was charged by a two-count indictment with involuntary sexual battery in the first count, and with lewd, lascivious or indecent assault upon a female minor under the age of fourteen years without intent to commit rape in the second count. He was tried by the court without a jury and found guilty of lewd, lascivious or indecent assault upon a female minor under the age of fourteen years without intent to commit rape, as a lesser degree of Count I of the indictment, and guilty of Count II as charged. From an adjudication of guilt and sentence of 5 years in the state penitentiary, Fernandez appeals.
Fernandez contends (1) that the alleged victim, a 6-year-old child, the state's sole witness to the acts charged in the indictment, was incompetent to testify, and (2) that the evidence was insufficient to support a conviction.
The record reflects that both counsel participated in a voir dire examination of the 6-year-old witness. The prosecutor made inquiry as follows:
'Q . . . do you know what it means to tell the truth?
A Yes.
Q Do you know what it means to tell a lie?
A Yes.
Q What happens if you tell a lie?
A Get a licking.
Q Who gives you a licking?
A My dad and in part, my mother.
Q Who, your daddy and your mother?
A Yeah.
Q Are you going to tell us the truth today?
A Yes.'
Counsel for the defendant objected 'to the witness testifying on the grounds that I do not honestly feel that the state has established that this particular witness is competent to testify,' and on the grounds 'that the child obviously does not know what the definition or know what a lie is, merely to say she gets spanked for telling a lie doesn't help . . .' The judge overruled the objections and stated:
A decision upon the competency of a child to testify is one peculiarly within the discretion of the trial judge because the evidence of intelligence, ability to recall, relate and to appreciate the nature and obligations of an oath are not fully portrayed by a bare record. Clinton v. State, 1907, 53 Fla. 98, 43 So. 312; Swain v. State, Fla.App.1965, 172 So.2d 3; Davis v. State, Fla.App.1972, 264 So.2d 31. Furthermore, the prime test of testimonial competency of...
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