Hamblin v. State
| Decision Date | 28 April 1980 |
| Docket Number | No. CR,CR |
| Citation | 268 Ark. 497,597 S.W.2d 589 |
| Parties | Gary HAMBLIN, Appellant, v. STATE of Arkansas, Appellee. 80-33. |
| Court | Arkansas Supreme Court |
Barry J. Watkins, Springdale, for appellant.
Dennis R. Molock, Asst. Atty. Gen., Little Rock, for appellee.
Appellant Gary Hamblin was found guilty of carnal abuse in the first degree, sentenced to five years' imprisonment and fined $1,000. His appeal is based upon three grounds: (I) The alleged victim, Rosanna Marie Richardson (sometimes called Rosie and sometimes Marie) was incompetent to testify; (II) The trial court erred in admitting a record of a motel registration into evidence; and (III) The court erred in denying appellant's motion to strike the testimony of Gordon Ostberg, the owner of the motel at which the offense allegedly occurred. We find no reversible error and affirm.
The alleged victim was Marie Richardson, who was 13 years of age at the time of the trial, which was about three months after the alleged offense. She had only completed the sixth grade in school.
Appellant's argument that this little girl was incompetent to testify is not based upon her capacity to understand the solemnity of an oath or to comprehend the obligation it imposes. Her qualifications in this respect were well established. Appellant does contend, however, that the trial judge abused his discretion in holding that Marie was qualified in the sense that she was able to receive and retain accurate impressions to the extent that, when testifying, she had the capacity to transmit to the jury a reasonable statement of what she had seen, felt or heard. Appellant bases his argument upon these facts: In response to a question by the trial judge, after having said that she lived with her mother in Springdale, she said that she did not know the address and later, on cross-examination, her admission that she was not living with her mother conflicted with her earlier answer. She answered that she did not know how long she had lived in Springdale. Although she testified that she knew what sexual intercourse was, she was unable to tell the court what it was until the key phrase, "penis in your vagina," was implanted in her mind by a question asked by a deputy prosecuting attorney during an in camera hearing on the question of the competency of the witness; but, even though she was able to give the trial judge a statement about the alleged offense using the prosecutor's words, when she returned to the courtroom, she failed to respond to a question about the event in the same words, having said, "Well-uh, he stuck his penis in my gavina, or whatever." There were 57 instances in which she failed to answer questions propounded to her, most of which concerned questions pertaining to what allegedly happened between her and appellant in a motel room and some of them were asked after the trial judge had questioned the witness in camera in the absence of the attorneys for both sides.
If the facts relied upon by appellant were all the record disclosed, we might well agree with appellant that the trial judge had abused his discretion in holding that the witness was competent.
After Marie had failed to answer questions by a deputy prosecuting attorney, most of which called upon her to identify appellant or to tell what had happened after she had gone to a motel room with appellant, the trial judge questioned her. After she had failed to respond to inquiries by the trial judge about the meaning of the words sexual intercourse and about her being nervous or scared, the judge held the hearing in camera. At first, Marie either nodded her head affirmatively or failed to respond to questions by the trial judge, but she gave affirmative answers to questions by a deputy prosecuting attorney whether she knew what a penis was and what a vagina was and stated that "guys" had the former and "women" the latter. Thereafter, she again failed to give any response to the judge's questions as to what had happened, told the judge she could not answer the questions, and acknowledged that she remembered talking to the deputy prosecuting attorney and telling him the whole story and all details. She would not respond when asked why she could not again tell the details and whether she was afraid of appellant. She finally answered leading questions by saying that she was not answering questions because she was afraid of appellant, but that this was not the only reason; she was also embarrassed and shy. She then said that she could and would go back into the courtroom and answer the questions from the stand, but when she was asked by the trial judge to tell what happened in the motel room, after saying that she and appellant took off their clothes and got in bed, she hesitated until the judge persisted with the question and received the response that they had had intercourse, but she would not be more specific. After persistent questioning by a deputy prosecuting attorney, she gave an affirmative answer to the leading question, "Did he place his penis in your vagina?" Upon further inquiry by the trial judge, she again answered that she was afraid and that she did not want to testify. When the judge asked if she was bothered by too many people and she responded by nodding her head affirmatively, she agreed to tell the judge what happened, if everyone else except the court reporter left the room. When they did, she promptly told the judge that "he" stuck his penis in her vagina. When the judge inquired whether anyone had threatened her, she first failed to respond, but answered when the judge asked whether it was appellant or any of his friends, saying that appellant and two others had told her on the night "this all happened" that they were going to kill her if she told anyone. She then promised that she would answer questions truthfully when they returned to the courtroom. The judge then called the attorneys back into his chambers, advised them what had occurred during their absence, ruled that the witness was competent and advised the attorneys that he felt that the witness was in fear but that she freely loosened up when not crowded by too many people. Thereafter, the witness responded rather readily to questions, although the trial court permitted several leading questions on direct examination. On cross-examination, Marie answered that she was living in a foster home in Alma and not really living with her mother in Springdale.
The trial court has broad discretionary powers in determining the competency of a witness and we do not reverse its ruling in the exercise of that discretion unless there is manifest error or a clear abuse has been demonstrated. Williams v. State, 257 Ark. 8, 513 S.W.2d 793; Allen v. State, 253 Ark. 732, 488 S.W.2d 712; Ray v. State, 251 Ark. 508, 473 S.W.2d 161. We find no manifest error. In view of the immaturity of the witness, her shyness, the natural embarrassment of a young female to discuss an event of this nature in the presence of a number of people, most of whom were male, and her testimony about her fear because of threats she said had been made, we are unable to say that there was any abuse of discretion. In view of the seriousness of the crime and the necessity for testimony of the victim in order to avoid the possibility that an accused might escape punishment for a serious offense simply because of the victim's having been put in fear, the trial judge is to be commended for his patience and searching inquiry in making his...
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