In re A.H.B.
| Decision Date | 10 April 1985 |
| Docket Number | No. 84-538.,84-538. |
| Citation | 491 A.2d 490 |
| Parties | In re A.H.B., Appellant. |
| Court | D.C. Court of Appeals |
Kenneth H. Rosenau, Washington, D.C., appointed by this court, was on brief, for appellant.
Inez Smith Reid, Corp. Counsel, John H. Suda, Principal Deputy Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Michele Giuliani, Asst. Corp. Counsel, Washington, D.C., were on brief, for appellee.
Before PRYOR, Chief Judge, and TERRY and ROGERS, Associate Judges.
Appellant, a juvenile, was adjudicated delinquent on a charge of robbery, in violation of D.C. Code § 22-2901 (1981).1 The government's case in chief consisted entirely of the testimony of two children, Anton and Crystal Wormley, who were eleven and eight years old, respectively, at the time of trial. Appellant challenges the trial court's determination that these children were competent witnesses. We find no merit in his challenge and affirm the adjudication of delinquency.
One afternoon in February 1984, Anton and Crystal Wormley were sent by their mother to the grocery store to buy a few small items. As they approached the store, they encountered two teenaged boys, J.M.H. and A.H.B. Although Anton knew only J.M.H. by name, he recognized A.H.B. from having seen him in the neighborhood. A.H.B. confronted Anton outside the store and said, "Give me some money." Anton refused, and he and his sister went inside to make their purchases. A.H.B. followed him into the store, and at the checkout counter he again asked Anton for money. Again Anton refused. After paying for the groceries, Anton put his change, which included about $9.00 worth of food stamps, into his back pocket. As he and his sister left the store, A.H.B. demanded money a third time, but Anton still refused to give him any.
When Anton and his sister started walking home, J.M.H. stepped in front of them and asked if Anton knew him. Just at that moment Anton felt a hand in his back pocket grab the remaining food stamps. According to Anton, A.H.B. was the one who took the stamps,2 but he quickly handed them to J.M.H. Then J.M.H. yelled "run," and the two boys ran away.
Anton immediately called his mother from a nearby pay phone and told her what had happened. Then, after sending Crystal home, he decided to pursue the boys himself. As he ran after them, A.H.B. threw a brick at him. At another point, when Anton caught sight of his quarry on the opposite side of a small creek, he and the two boys threw a few rocks at each other, and J.M.H. threatened to throw him into the creek. Finally Anton found a police officer, and together they continued the search in the officer's scout car. Eventually they found A.H.B. hiding behind a car, and he surrendered to the officer.
Crystal Wormley testified that, while she did not actually see A.H.B.'s hand reach into her brother's back pocket, she did see A.H.B. hand the food stamps over to J.M.H. "about five seconds" later. Her testimony generally corroborated that of Anton, except as to who yelled "run" and some other inconsistencies which we shall discuss in part IV of this opinion.
A.H.B. testified that J.M.H. was the one who took the food stamps. He admitted, however, that he had asked Anton for money and had followed him into the store.
A child witness must satisfy two requirements in order to be found competent. First, the child must be able to recall the events about which he or she is to testify. See Edmondson v. United States, 346 A.2d 515, 516 (D.C. 1975) (). Second, the child must have the "intellectual capacity to understand the difference between truth and falsehood, coupled with appreciation of the duty to tell the truth. . . ." Smith v. United States, 414 A.2d 1189, 1197 (D.C. 1980) (citations omitted) (eight-year-old girl found competent to testify about a murder that occurred when she was only three and a half). The trial court may examine the child in several ways to see if he or she meets these requirements. For example, it may conduct a voir dire of the child with or without the participation of counsel, either in the presence or in the absence of the jury (if there is one), during or before trial. Even if the trial court finds the child competent without a voir dire, that finding will not be reversed on appeal if "[t]he transcript reveals intelligible comprehension in terms of answering the questions that were asked." United States v. Schoefield, 150 U.S.App.D.C. 380, 382, 465 F.2d 560, 562, cert. denied, 409 U.S. 881, 93 S.Ct. 210, 34 L.Ed.2d 136 (1972) (). The determination of a child's competency to testify is committed to the sound discretion of the trial court. Only when the record demonstrates clear error will its ruling be overturned. Wheeler v. United States, 159 U.S. 523, 524-25, 16 S.Ct. 93, 93-94, 40 L.Ed. 244 (1895); Smith v. United States, supra, 414 A.2d at 1197-1198.
Appellant does not contend that Crystal failed to meet the first requirement of demonstrating an ability to remember the events of the robbery. But he does argue that Anton's "capacity for remembering and relating the facts . . . must be questioned." Appellant refers in particular to the apparently contradictory statements made by Anton with regard to who actually "took" the food stamps. At the probable cause hearing, Officer Gledhill testified that Anton identified J.M.H. as the one who took the food stamps; at trial, however, Anton testified that A.H.B. grabbed the food stamps from his back pocket. These statements do not necessarily reflect a contradiction, but only an elastic use of the word "took." A.H.B. was the only one behind Anton, and thus he must have been the one who removed the food stamps from Anton's pocket. But Anton saw A.H.B. hand them to J.M.H. almost immediately, just before A.H.B. and J.M.H. ran off together. Thus each of them "took" the food stamps: A.H.B. took them from Anton, and J.M.H. took them from A.H.B. We find no inconsistency here; at worst, there was an ambiguity which the trial court was at liberty to resolve in the government's favor.3 Read in its entirety, Anton's rather lengthy testimony demonstrates that he could adequately recall the events surrounding the robbery.
Appellant argues next that neither Anton nor Crystal showed that they appreciated the difference between truth and falsehood or understood their duty to tell the truth. The record refutes appellant's argument.
Crystal and Anton had to undergo a fairly intense voir dire in which both counsel and the trial judge participated.4 As a result of the latitude that appellant's counsel was afforded on the voir dire of Anton (for which counsel even thanked the court), some of Anton's responses do seem to suggest that he did not fully understand the difference between a lie and the truth. For example, after Anton said that he knew the difference, he explained that "[a] lie is when you get in trouble and the truth is when—sometimes you get in trouble." Anton also believed that if he "stretched" the truth, he would not be violating his oath. The record as a whole, however, makes clear that he understood the difference between truth and falsehood well enough to testify. When Anton was given examples of a lie and a truth, he could easily differentiate between the two:
Q. . . . If I were to say that I'm wearing a red jacket, would that be a lie or would that be the truth?
A. A lie.
Q. And why would it be a lie?
A. Because you're wearing a brown jacket.
Q. Okay. If I were to say that I'm wearing a tan shirt, would that be a lie or would that be the truth?
A. The truth.
Q. And why?
A. Because you're wearing a tan shirt.
In addition, Anton later told the court that he would not stretch the truth, and that he would describe the events just as they occurred.
Appellant also contends that Anton felt no duty to tell the truth because his parents were not in the courtroom; if they did not find out he had told a lie, he said, he would not "get in trouble." But Anton later acknowledged that he could be punished by the judge for lying:
Q. So you can say pretty much anything and not really worry about being punished, right?
A. Hm-hm. Yes.
Q. You're not going to be punished by your mother, and you're not going to be punished by your father, you're not going to be punished by me. Did you ever meet me before? You're not going to be punished by her [the prosecutor], you're not going to be punished by him, the Judge?
A. Hm-hm, I might.
Q. You might? Why?
A. If I lie, I will.
Q. How is he going to know if you're lying? What can the Judge do to you? A. Hm-hm.
Q. When did you find out the Judge might punish you?
A. She [the prosecutor] told me. Q. When did she tell you that? A. When I was in her office.
Q. And what do you think the Judge can do to you?
A. Put me in a home. . . .
Q. And why would he do that?
A. If I lie, he will.
Courts have recognized that a child's fear of punishment satisfies the "duty" requirement. E.g., Posey v. United States, 41 A.2d 300, 301 (D.C. 1945). In this case Anton was afraid of being put in "a home.5 This stated fear was sufficient to support the trial judge's finding that Anton felt a duty to tell the truth.
Similarly, Crystal demonstrated that she understood the difference between truth and falsehood, and her duty to tell the truth. Admittedly, Crystal said at one point that the exaggeration "I told you a thousand times" was still the truth. But she later demonstrated that she would not distort the truth to the point of "making up a story":
Q. So if somebody was three feet away and you said he was ten feet away, that's still the truth, right?
A. No, that's a lie.
Q. Why is that a lie?
A. Because he was not three feet away, he's ten feet away.
Q. Suppose he was three feet away and...
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