Garrard v. State, 75--1340
| Decision Date | 02 June 1976 |
| Docket Number | No. 75--1340,75--1340 |
| Citation | 335 So.2d 603 |
| Parties | Paul Forrest GARRARD, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Engel & Mishkin and Mitchell Aronsen, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
Before PEARSON, HAVERFIELD and NATHAN, JJ.
Paul Forrest Garrard was charged by information with making a lewd, lascivious or indecent assault upon a male minor under the age of 14 years, in violation of § 800.04, Fla.Stat. He was tried by jury, found guilty, convicted and sentenced to 5 years in the state penitentiary with credit for time to be spent in the custody of the Division of Mental Health for treatment and rehabilitation as a mentally disordered sex offender.
Gerrard contends as points on appeal (1) that the alleged victim, an 11-year-old child and the State's sole witness to the act charged in the information, was incompetent to testify, and (2) that the court erred in not suppressing the in-court identification by the alleged victim. A third point raised by the defendant is without merit and will not be discussed.
The record reflects that the young alleged victim in this case was somewhat slow, that he had difficulty in answering some of the questions asked of him and that he had a (Spanish/English) language problem. However, 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; Fernandez v. State, Fla.App.1976, 328 So.2d 508. Furthermore, the prime test of testimonial competency of a young child is intelligence rather than age. Bell v. State, Fla.1957, 93 So.2d 575, 577; Swain v. State, supra; Davis v. State, supra; Fernandez v. State, supra. From the totality of the record, including voir dire examination and the child's answers to the questions of the prosecutor, defense counsel and the court, we find that there was sufficient evidence to warrant the court's judgment that the child was competent to testify. After the child was approved by the trial court to testify, he became more articulate and gave a specific account of the...
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...524 So.2d at 400; Bell v. State, 93 So.2d 575, 577 (Fla.1957); McKinnies v. State, 315 So.2d 211 (Fla. 1st DCA 1975); Garrard v. State, 335 So.2d 603 (Fla. 3d DCA 1976), cert. denied, 342 So.2d 1101 (Fla.1977); Harrold v. Schluep, 264 So.2d 431 (Fla. 4th DCA 1972). Therefore, when a child's......
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State v. Spaniol
...relate and to appreciate the nature and obligations of an oath are not fully portrayed by a bare record." Garrard v. State, 335 So.2d 603, 603–04 (Fla. Dist. Ct. App. 1976), cert. denied , 342 So.2d 1101 (Fla. 1977). For these reasons, the trial court is "vested with wide discretion in dete......
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Lloyd v. State, 65631
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