Griffin v. State, BR-379

Citation526 So.2d 752,13 Fla. L. Weekly 1348
Decision Date03 June 1988
Docket NumberNo. BR-379,BR-379
Parties13 Fla. L. Weekly 1348 Donald W. GRIFFIN, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Hal Castillo of Lewis, Paul, Isaac & Castillo, P.A., Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen. and John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

Appellant seeks review of the trial court's order denying his motion for new trial after a jury found him guilty of one count of lewd, lascivious, or improper assault upon a child. The issues raised in this appeal are (1) whether the trial court erred in determining that the child witness was competent to testify and in admitting her videotaped deposition into evidence, and (2) whether the trial court erred in admitting the child's out-of-court statements pursuant to section 90.803(23), Florida Statutes (1985). We reverse and remand for a new trial.

Under common law, no child under the age of fourteen was considered competent to testify in any controverted matter. Lloyd v. State, 524 So.2d 396 (Fla.1988); Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376 (1941). However, under current Florida law, the primary test "of testimonial competence of an infant witness is his or her intelligence, rather than his or her age, and, in addition, whether the child possesses a sense of obligation to tell the truth." 1 Lloyd, 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 competency is at issue, 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. Lloyd, 524 So.2d at 400, citing Williams v. State, 400 So.2d 471 (Fla. 5th DCA), affirmed, 406 So.2d 1115 (Fla.1981). See also Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 2665, 96 L.Ed.2d 631 (1987), cert. denied, --- U.S. ----, 108 S.Ct. 1234, 99 L.Ed.2d 433 (1988). It is well settled that a trial court is accorded a wide discretion in determining a child's competency as a witness, and that absent an abuse of discretion, the trial court's decision will not be disturbed. Lloyd, 524 So.2d at 400; Rutledge v. State, 374 So.2d 975, 979 (Fla.1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980); Bell v. State, 93 So.2d at 577; Begley v. State, 483 So.2d 70, 72 (Fla. 4th DCA 1986); In the Interest of M.A., 477 So.2d 47, 48 (Fla. 4th DCA 1985); Davis v. State, 348 So.2d 1228, 1229-1230 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 134 (Fla.1978).

In evaluating a child's ability to observe, recollect, and narrate facts, courts are sensitive to the possibility that the child's statements may have been influenced, either by parents or other authority figures. For example, in Davis, after a careful examination of the record, the district court determined that the trial court abused its discretion in allowing the 5-year old child to testify at trial, finding the record permeated with evidence that the parents had "refreshed" the child's memory of the alleged incident a number of times. Citing Bell for the proposition that a competency determination is subject to appellate review, the district court reversed and remanded for a new trial. Davis, 348 So.2d at 1229-1230.

Similarly, the sole issue raised in In the Interest of M.A., was whether the trial court abused its discretion in finding the 3-year old victim competent to testify as a witness against appellant. The district court concluded the trial court erred in its assessment of the victim's competency, because

[a] reading of the transcript of the hearing wherein the state attempted to qualify the victim as a competent witness, together with the testimony finally extracted from the victim after much coaxing and cajoling, demonstrates that the victim's testimony was too unreliable to use as a basis for adjudicating appellant guilty of the charges.

477 So.2d at 48. Accordingly, the cause was reversed and remanded for a new adjudicatory hearing.

Quite often the distinction between a child's competency to be a witness and the child's credibility as a witness becomes blurred. See R. Morey, The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It?, 40 U.Miami L.Rev. 245, 282-283 (1985). The amendment to section 90.605(2), Florida Statutes (1985), contemplates the possibility that a child who is unable to separate fantasy from reality may still understand the obligation not to lie. Ch. 85-53, § 3, Laws of Fla.; Morey, Competency of Child Victim, at 267. Those jurisdictions which, like Florida, admit a child's unsworn testimony, usually employ a series of simple, direct questions to determine the child's competency. For example, "[c]hildren are often asked their names, where they go to school, how old they are, whether they know who the judge is, whether they know what a lie is, and whether they know what happens when one tells a lie." Kentucky v. Stincer, 107 S.Ct. at 2665, citing Morey, Competency of Child Victim, 40 U.Miami L.Rev. 245, 263, and n. 78 (1985).

In Lloyd, one of the issues concerned the competency of a 5-year old witness to testify regarding the shooting of his mother. The trial court personally examined the child, and heard testimony and received reports from experts concerning the child's competence to testify. In reviewing the trial court's determination that the child was competent to testify in the proceeding, the supreme court found the trial judge had been careful and thorough in his evaluation of the child. The record reflected that the trial court examined the child extensively, and found him "sufficiently intelligent to be capable of expressing himself concerning [the] matter and also found that [he] understood the duty to tell the truth." 524 So.2d at 400. The court noted that most of the critical facts supplied by the child's testimony were either unrefuted or corroborated by other evidence. On these facts the court found no abuse of discretion in permitting the child to testify in the case.

In a similar vein, in Kentucky v. Stincer, a competency hearing was conducted in the judge's chambers to determine the competency of two children, ages seven and eight respectively, to testify at trial. In Kentucky, as in Florida, when the competency of a child witness is raised as an issue in the case, it is then the duty of the trial court to examine the witness to determine whether he or she has sufficient intelligence to observe, recollect, and narrate the facts and has a sense of the obligation to tell the truth. Stincer, 107 S.Ct. at 2665; Ehrhardt, Florida Evidence § 603.1, at p. 276.

In Stincer, the two children were examined separately by the judge, the prosecutor, and defense counsel. They were not asked about the substance of the testimony they were to give at trial. Instead, each child was asked her age, her date of birth, the name of her school, the names of her teachers, and the name of her Sunday School. Each child was asked if she knew what it meant to tell the truth and whether she could keep a promise to God to tell the truth. 107 S.Ct. at 2660. The trial court found the children competent to testify at trial. The Supreme Court approved the trial court's determination that the defendant's Sixth Amendment confrontation right had not been abridged because he had been denied the right to be present at the competency hearing, since after the competency hearing the girls appeared and testified in open court, where they were subject to full cross examination, and were so examined.

In this case, unlike the competency determination proceedings in Lloyd or Stincer, the trial judge did not examine the child personally, although he was present for what could fairly be termed the competency proceeding. The competency examination was conducted as a preliminary to the child's videotaped deposition. The questions asked of the 4-year-old child to determine her competency to be a witness against the appellant were consistent with those questions employed in other jurisdictions admitting the unsworn testimony of children. Upon being asked her name and the names of her parents and brother, the child gave her first name and after prompting, she furnished her last name, and then gave the first names of her parents and brother. When asked to count to ten, she correctly did so. Her understanding of the duty to tell the truth during the proceeding was elicited with the following questions:

Q ... Now, ______, do you know the difference between telling the truth and telling a lie?

A Yes.

Q Okay. Look at your shoes there. If I told you your shoes were red, is that true or is that a lie?

A A lie.

Q What color are your shoes?

A Black.

Q Good girl. What happens when you tell a lie to your mommy?

A She will put me in my room.

Q She will put you in your room. Do you get punished?

A No, she will just send me in my room.

Q Just send you in your room?

A Yes.

Q Okay. Now, we're here to tell the truth today, okay?

A Okay.

The remainder of the child's videotaped deposition demonstrates that although relatively articulate and intelligent, she was not unequivocally capable of separating fact from fantasy.

The principle is well settled that a child's competency is fixed when he or she is offered as a witness, and not when the facts testified to occurred. See Stincer, 107 S.Ct. at 2666; State v. McIntosh, 475 So.2d 973 (Fla. 4th DCA 1985), decision quashed on other grounds in 496 So.2d 120 (Fla.1986); Morey, Competency of Child Victim, 40 U.Miami L.Rev. at 262. In the instant case, apparently on the basis of the de minimis competency examination...

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