Fuller v. State, 94-02773

• Decision Date: 25 January 1996
• Docket Number: No. 94-02773,94-02773
• Citation: 669 So.2d 273
• Parties: 21 Fla. L. Weekly D273 George FULLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 273

669 So.2d 273

21 Fla. L. Weekly D273

George FULLER, Appellant, v. STATE of Florida, Appellee.

No. 94-02773.

District Court of Appeal of Florida Second District.

January 25, 1996.

Rehearing Denied Feb. 22, 1996.

Appeal from the Circuit Court for Manatee County; Stephen L. Dakan, Judge.

Michael E. Sweeting, Sarasota, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Scott A. Browne, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

George Fuller appeals four convictions for capital sexual battery. We agree with his contention that the trial court committed reversible error in determining that the child victim was competent to testify. Accordingly, we reverse and remand for a new trial.

During the trial, a voir dire examination of the victim, C.W., was conducted to determine his competency to testify. Before finding a child competent to testify, "the trial court should consider (1) whether the child is capable of observing and recollecting facts, (2) whether the child is capable of narrating those facts to the court or to a jury, and (3) whether the child has a moral sense of the obligation to tell the truth." Griffin v. State, 526 So.2d 752, 753 (Fla. 1st DCA 1988) (citing Lloyd v. State, 524 So.2d 396 (Fla.1988)). See also §§ 90.603(2) and 90.605(2), Fla.Stat. (1991).

In this case, the voir dire examination failed to establish that C.W. had the "moral sense of the obligation to tell the truth." There were no questions asked of C.W. to elicit this information. Although C.W. stated that he understood the importance of telling the truth, his answer was conclusory. C.W. then stated that he has trouble paying attention. C.W. said that when this happens, he begins to "guess," and that might happen during his trial testimony.

Additionally, although C.W. was capable of narrating information to the court, the examination as to his ability to observe and recollect facts was incomplete. Where the state's case is completely dependent on the child's ability to observe and recollect facts, this element of the competency determination has an increased significance. The voir dire examination here elicited even fewer details in support of a determination of competency than the examination that was found inadequate in Wade v. State, 586 So.2d 1200 (Fla. 1st DCA 1991).

Because we are remanding this matter for a new trial, there is an additional issue which requires discussion. Fuller argues that the trial court erred in denying his pretrial motion for an independent physical examination of the child. Fuller contends that the error was exacerbated when the state objected to the examination, and then at trial, questioned the defense expert's credibility because he had not examined the child. The trial court believed that it lacked the authority to order an independent physical examination based on State v. Diamond, 553 So.2d 1185 (Fla. 1st DCA 1988), and summarily denied the motion. Although the defense expert was available to testify at the motion hearing, Fuller failed to proffer his testimony.

We cannot agree with the trial court that Diamond totally bars an independent physical examination of a victim. Although the trial court's power to order a witness to undergo an examination is limited, the trial court has the authority to order an involuntary examination of a prosecution witness where strong and compelling reasons exist. See State v. Kuntsman, 643 So.2d 1172 (Fla. 3d DCA 1994), and cases cited therein. There may be instances in which an examination is necessary to protect a defendant's rights and the examination can be conducted without unusual harm to a victim. Here, however, Fuller waived any claim of error by failing to proffer the compelling reason for the examination.

In conclusion, based upon the trial court's failure to properly qualify the child witness in this case, we must reverse and remand this matter for a new trial.

Reversed and remanded.

PATTERSON and BLUE, JJ., concur.

SCHOONOVER, A.C.J., dissents with opinion.

SCHOONOVER, Acting Chief Judge, dissenting.

Because it is within the trial court's broad discretion to determine the competency of an infant witness, and I cannot agree that the court abused its discretion in this case, I must respectfully dissent from the majority's finding that the trial court erred.

This is not a case where the witness was not asked questions which would determine his ability to recollect facts and to determine whether he had a moral sense of an obligation to tell the truth. See Wade v. State, 586 So.2d 1200 (Fla. 1st DCA 1991). Counsel for the state and the defendant, as well as the court, asked the witness sufficient questions to determine that at the time he was being offered as a witness he was capable of observing and recollecting facts, able to narrate those facts, and had a moral sense of the obligation to tell the truth. Griffin v. State, 526 So.2d 752 (Fla. 1st DCA 1988).

During the competency determination hearing, the assistant state attorney asked the witness most of the usual questions discussed in Griffin, e.g. name, age, where he went to school, what grade he was in, whether he knew the difference between the truth and a lie, the importance of telling the truth, and if he was going to tell the truth during the...