Herron v. State
| Decision Date | 22 September 1980 |
| Docket Number | No. 60159,60159 |
| Citation | 155 Ga.App. 791,272 S.E.2d 756 |
| Parties | HERRON v. The STATE. |
| Court | Georgia Court of Appeals |
O. L. Collins, Augusta, for appellant.
Richard E. Allen, Dist. Atty., James W. Purcell, Asst. Dist. Atty., for appellee.
Vicel Alexander Herron, Jr. was convicted of child molestation and sentenced to serve seven years. He brings this appeal both through counsel and pro se. Herron enumerates several alleged errors but the major contention relates to identification.
As relevant the facts disclose that on June 15, 1977, a girl aged 8 and her little brother, aged 5, were walking on the sidewalk toward the third house down the street from their own to a neighbor's house where they had been invited to swim in a wading pool. As they were walking, a car stopped, the male driver got out and asked directions to the "Johnson's house." As the girl later reported, the car was green and had "chrome" on the back. The man was about 30, white, wearing a green suit, a green striped shirt, had short black hair and was wearing sun glasses that darkened with exposure to light. The automobile had a license plate which included the letters and first number of LOE 1. The man suddenly pulled down the bottom of the girl's two-piece bathing suit and placed his hand on her genitalia and asked her if she "liked it." The girl became frightened and said "no." The man then left. The police were notified to look for a green car with a male occupant fitting the above description. Shortly thereafter, a green car was stopped which bore the license plate LOE 189, with a "Continental Kit" on the back, whose occupant (Herron) was wearing a green leisure suit with a green striped shirt, and was a white male about 30 years of age with short black hair. On the front seat of his car was recovered a pair of sun glasses that darkened when exposed to light. When questioned, Herron admitted that he had been in the area where the children lived. Pictures were taken of Herron and a spread of seven pictures were shown to the two children within several hours of the incident. The girl was able to pick out two which reminded her of the perpetrator but she could not positively identify either as being the man. One of these two pictures was of the appellant. Because the children could not positively identify any of the pictures, the family (mother and two children) was released, and Herron also was to be released. As the investigating officer was bringing Herron down the steps to the police desk so that Herron could retrieve some documents, they passed the mother and two children who had not yet left the building. The observation of appellant in what was tantamount to a one-on-one confrontation was asserted by the officer to be solely by chance. No word was spoken and Herron left. However, each child thereafter identified Herron as the person who had touched the girl's genitalia. The day before trial (but two years later), the two children were taken to the courtroom by the prosecutor and shown where each person would sit including the appellant. At the time of trial, the victim was ten and the boy was seven. On cross examination, the boy admitted that he identified appellant in court because appellant was sitting in the particular chair where the appellant was supposed to be sitting. The girl also admitted being told the same thing but was more positive in her identification. Held :
1. In his first enumeration of error, appellant complains that the trial court erred in qualifying the seven-year old boy, because he was unsure of the sanctity of an oath. The child testified that he knew the difference between right and wrong and that it was wrong to tell an untruth. He was not sure what would happen if he did not tell the truth.
While it is true that a child who does not understand the nature of an oath is not a competent witness (Code Ann. § 38-1607), the trial court is the arbiter of competency. Code Ann. § 38-1610. The decision of the trial court regarding capacity will not be reversed except for a manifest abuse of discretion. Edwards v. State, 226 Ga. 811, 812, 177 S.E.2d 668; Lashley v. State, 132 Ga.App. 427, 429, 208 S.E.2d 200. While on the cold record the testimony of the boy does not inspire confidence, we are unable to see the child as did the trial court and we are unable to evaluate the child's demeanor or candor. We will not substitute our judgment for that of the trial court nor do we find a manifest abuse of discretion. This enumeration is without merit.
2. The second enumeration is of greater moment. The boy did not testify clearly as to how long or how well he had seen the man when the molestation of his sister occurred. He did not really give any predicate for an identification based upon observation at the scene. But he did clearly testify that he identified the appellant as the perpetrator because he was the person seated in the chair that had been pointed out to him the day before by the prosecutor. We conclude that such testimony was tainted. The identification was infected by an irreparable likelihood of misidentification. The trial court therefore erred in refusing to strike his testimony relating to the in-court identification of the appellant as the perpetrator.
However, having found error, we still must weigh it for prejudice. The boy's testimony as to the occurrence and the general description of the perpetrator and his car were completely corroborative of his sister's. Her testimony was unshaken that Herron was the man. The physical description of the man, his dress, his car and the glasses he was wearing, standing alone was sufficient to point unerringly to the identity of Herron as the perpetrator without the testimony of either child. The boy's testimony was at best cumulative of his sister's and was certainly unnecessary to a conviction. Under these circumstances we have no hesitancy in concluding that within the context of this case we can apply the "highly probable test" that is, that it is "highly probable that the error did not contribute to the judgment." Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869. This enumeration does not require reversal.
3. In his third enumeration, Herron urges that the trial court should have stricken the evidence of the one-on-one show-up at the police station on the day of the occurrence. We reject this contention. There is no showing that this confrontation was staged by the police. Rather the evidence shows that it was by chance. The children were not asked by the police if Herron was the individual. They volunteered the information of identification after seeing Herron descending the stairs only a short time after the molestation occurred.
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