Hilson v. State, A92A0110
| Decision Date | 07 May 1992 |
| Docket Number | No. A92A0110,A92A0110 |
| Citation | 418 S.E.2d 784,204 Ga.App. 200 |
| Parties | HILSON v. The STATE. |
| Court | Georgia Court of Appeals |
Cowen & Cowen, Martin L. Cowen III, Jonesboro, for appellant.
Robert E. Keller, Dist. Atty., Deborah C. Benefield, Asst. Dist. Atty., for appellee.
Hilson was convicted of aggravated assault, OCGA § 16-5-21(a)(2), upon his wife.
His enumerations relate to the testimony of their eight-year-old son and to the basis for the court's ruling on the motion for new trial. The latter involves a consideration of the evidence, which is viewed favorably to the verdict. Adams v. State, 255 Ga. 356, 357, 338 S.E.2d 860 (1986).
Late one night, after defendant had been in the bathroom, he burst into their bedroom and accused his wife of having an affair. He began to choke her and knock her around. She began yelling and screaming. He obtained a wooden baseball bat and beat her legs with it. He later got furious, grabbed her, threw her on the floor, again accused her of having an affair and hit her legs and thighs with the bat. He told her to put her clothes on and accompany him to the car, where he hit her in the face and eyes with his hands. They returned to the house and he hit her with the bat again, breaking the bone in her little finger. She lost consciousness. When she regained it, defendant was again hitting her with the bat. During this time, he was drinking.
After daylight, the victim asked defendant to take her to the hospital. Instead, he began cleaning up the blood from the two rooms. He later called his friend Godfrey to help him take her to the hospital. Appellant instructed the victim to say that she had been accosted at a gas station by three men who abducted her and beat her up. She initially complied, but the police did not believe her, and she subsequently related the above. Although defendant told the same story to Godfrey, he later admitted to Godfrey that he and his wife had had an argument and he had hit her.
Emergency medical personnel who took the victim to the hospital testified that they could tell by her appearance that they needed to get her to the hospital quickly. She was semi-conscious but not ambulatory. She had sustained extreme contusions to her head and other areas, as well as lacerations to her lower extremities. The swelling of her arms was so bad that they could not take her blood pressure. Appellant said he had discovered her in her car in that condition, but these witnesses testified that as they were leaving, appellant leaned over the victim furtively and stated, "Remember what [I] had told you and what we talked about."
The couple's eight-year-old child testified that on the night in question, defendant had come into his room, retrieved a baseball bat, and told him that he was going outside. He later heard the sound of the bat hitting on something, and he heard his mother screaming to stop. He heard his father say, "Were you with another man?"
1. Appellant contends that the court erred in permitting the child to testify without taking an oath.
After the prosecution called the child, appellant asked the court to briefly examine him "to determine whether or not he's capable to tell the truth and knows the difference between the truth and right and wrong and so on and so forth, that the Court examine him and satisfy itself that he is, in fact, competent to testify."
The prosecutor referred the court to OCGA § 24-9-5(b). Subsection (a) states: "Except as provided in subsection (b) ..., persons who do not have the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses." Subsection (b) provides: "Notwithstanding the provisions of subsection (a) ... in all ... criminal cases in which a child was ... a victim of or a witness to any crime, any such child shall be competent to testify, and his credibility shall be determined as provided in Article 4 of this chapter."
The State argued that the child was presumed competent and could testify without taking an oath or understanding the concept of an oath. Appellant nonetheless requested a brief examination of the child, stating that OCGA § 24-9-5 does not specify the age at which a child is deemed competent to testify, as do statutes in other states, and "I believe the trial probably hinges on his testimony." The court responded: Defendant excepted to that ruling.
The child was then called as a witness. In response to questioning by the State, the child stated that he knew what it meant to tell a lie; telling a lie was a bad thing and not a good thing; he could get in trouble for telling a lie; when you get in trouble you get a spanking and go to jail; he knew what it was to tell the truth; telling the truth was a good thing and not a bad thing; and he knew the difference between telling the truth and not telling the truth. He responded "yes" to the question: "When you promise this judge sitting up there in that black robe in that big black chair, and these members of the jury seated over there, do you promise to tell them the truth?" He then testified as to the incident on trial.
Appellant argues that notwithstanding the provisions of OCGA § 24-9-5(b), a child witness must still be administered an oath pursuant to OCGA § 24-9-60, which provides: "The sanction of an oath or affirmation equivalent thereto shall be necessary to the reception of any oral evidence...." OCGA § 17-8-52 sets forth the oath administered to witnesses in criminal cases.
Belcher v. State, 173 Ga.App. 509(1), 326 S.E.2d 857 (1985). OCGA § 24-9-5(b) creates a rule of necessity authorizing the admission of the testimony of children who do not understand the nature of an oath in those cases specified in the Code section. Bright v. State, 197 Ga.App. 784(3), 400 S.E.2d 18 (1990). But the necessity must first be established. When a party seeks to admit the testimony of a child, the court must examine the child in order to determine whether the child in fact possesses the requisite degree of intelligence so as to qualify the child as a competent witness capable of being administered an oath. See Smith v. State, 247 Ga. 511, 512, 277 S.E.2d 53 (1981): If so, the child...
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