Johnson v. State, No. 476S106

Docket NºNo. 476S106
Citation359 N.E.2d 525, 265 Ind. 689
Case DateFebruary 09, 1977
CourtSupreme Court of Indiana

Page 525

359 N.E.2d 525
265 Ind. 689
Raymond Harold JOHNSON, Appellant,
v.
STATE of Indiana, Appellee.
No. 476S106.
Supreme Court of Indiana.
Feb. 9, 1977.

[265 Ind. 690]

Page 527

John G. Bunner, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was charged by indictment with kidnapping, Ind.Code § 35--1--55--1 (Burns 1975) and rape, ind.Code § 35--13--4--3 (Burns 1975) in an assault upon a ten year old girl. Appellant filed a special plea of insanity and the trial court appointed two psychiatrists to examine him. After a trial by jury, appellant was convicted of both counts and sentenced to life imprisonment on each.

On appeal, appellant raises four issues: (1) whether the trial court erred in ruling that the victim's seven year old brother was competent to testify; (2) whether the trial court should have withdrawn submission of the case to the jury and declared a mistrial when the prosecutor asked a psychiatric witness whether appellant, if released, would 'do this again'; (3) whether the trial court should have given appellant's tendered final instruction on the statute providing for a commitment proceeding following an acquittal by reason of insanity; (4) whether in-court identification of appellant by the victim, her brother, and a friend should have been suppressed because impermissibly suggestive pre-trial photographic displays tainted the witnesses' in-court identification.

I

Appellant objected to the testimony of the victim's brother, who was seven years old, on the ground that he was incompetent to testify. The trial court and parties conducted a voir dire examination of the child, the relevant portions of which follow:

[265 Ind. 691] (Direct examination)

'Q. Do you know what it means to tell the truth?

A. Yes.

Q. And do you know what it means to tell a lie?

A. Yes.

Q. What happens to you if you tell a lie?

A. You have to start all over.

Q. Will you get in trouble?

A. Yes.

Q. Do you know that today when we ask you some questions later on, that you have to tell us the truth?

A. Yes.

Q. And that you cannot tell us any lies at all?

A. Yes.

Q. Alright, will you do that? Will you tell us only the truth?

A. Yes.

Q. And you can't make anything up. Do you know what that means?

A. Uh huh.

Q. And you won't do that?

A. No.

(Cross-examination)

Q. You said that when you tell a lie, you have start all over, what did you mean by that?

A. You have to start all over and do it again.

Q. Why is that?

A. Because I told a lie, if I did.

Q. So, if you tell a lie, you have to start all over again, is that right?

A. Yes.

Q. And you're in what grade?

A. Second.

PRELIMINARY QUESTIONS BY THE COURT:

Q. You say if you tell a lie you have to start over again, and do what?

Page 528

A. You have to go back, all the way back.

Q. And do what?

A. Start all over and tell it again.

Q. And tell what?

A. The truth.'

[265 Ind. 692] The court overruled the objection and permitted the child to testify.

A statute, Ind.Code § 34--1--14--5 (Burns 1973), renders children less than ten years old incompetent, 'unless it appears that they understand the nature and obligation of an oath.' Appellant contends that the witness' answer that 'you have to start all over' if you tell a lie indicates that he does not understand the nature and obligation of the oath.

This Court has construed the above statute on numerous occasions, and has never held that it requires the child to be able to define the term 'oath.' See Lewis v. State (1976) Ind., 342 N.E.2d 859, 862; Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d 823. Rather in Martin v. State (1969), 251 Ind. 587, 244 N.E.2d 100, we held that the statute is satisfied if the trial court can find: (1) that the child knows the difference between telling the truth and telling a lie, and (2) that the child realizes that he or she is under some compulsion to tell the truth. 1 The compulsion to tell the truth need not be fear of punishment.

In reviewing such a determination, we recognize that our examination of the transcribed record of the questioning cannot compare with the trial court's personal presence at the hearing as a basis for resolution of the issue. We, therefore, entrust this determination to the discretion of the trial court and will reverse only where we find clear error, where there is no evidence from which the trial court could have found that the child understood the nature and obligation of the oath. Lewis v. State, supra; Martin v. State, supra; Shipman v. State, supra. Here, the witness' answers consistently profess the ability to distinguish the truth from lies. His answer 'you have to start over' is not [265 Ind. 693] indicative of the fact that he did not feel a compulsion to tell the truth. Properly paraphrased, the witness testified that if one lies, one should go all the way back, start over again, and tell the truth. As such, it indicates that the witness felt a compulsion to take back or recant the entire untruthful statement and to supplant it with the whole truth. Considered in context with statements surrounding it, the statemnent supports the trial court's determination.

Appellant also argues that the witness testified in a confused manner. This argument is not relevant to the issue of competency. As we said in Martin v. State, supra:

'The qualification of the child as competent does not imply (he) will be a model witness, nor does it imply that (his) testimony will be supported by the other evidence . . .. None of those issues bears on (his) competency as a witness. An adult witness is not rendered incompetent because he makes inconsistent statements or has a suspected faulty memory. The statutory presumption of incompetence is overcome when the child demonstrates an understanding of 'the nature and obligation of an oath' and there is no further test.' 244 N.E.2d at 103.

II and III

During cross-examination by the State of Dr. Charles Crudden, a court-appointed psychiatrist, the prosecutor asked the witness, referring to appellant, 'And if he's permitted to go free, will he do this again?' Appellant objected and moved for a mistrial. The trial court sustained the objection, overruled the motion, admonished the jury to disregard the question, and asked each juror whether he or she would heed the admonition.

Page 529

Appellant, on cross-examination of Dr. Crudden, asked whether there were procedures available in Indiana to commit persons of unsound mind to mental institutions; the doctor replied that there were. The prosecutor inquired whether appellant had ever been committed before, and Dr. Crudden said that this offense had been committed while appellant was on 'leave of absence' from the Evansville State Hospital. Appellant[265 Ind. 694] asked the witness whether he was familiar with a maximum security hospital in Westville, Indiana. The prosecutor objected to 'the form of the question' and his objection was sustained. Appellant made no further attempt to elicit the information.

After all the evidence, appellant tendered a final instruction which set out verbatim the statute prescribing the procedure to be followed after an acquittal by reason of mental disease or defect, Ind.Code § 35--5--3.2--1 (Burns 1975). 2 The trial court refused this instruction.

Appellant tendered another final instruction, which was given, reading as follows:

'You are instructed that in your deliberations on whether or not the defendant was of unsound mind at the time of the alleged commission of the acts, you may not consider, discuss, or speculate as to what disposition would be made of the defendant, should you find him not guilty by reason of unsoundness of mind. This is not a proper...

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41 practice notes
  • People v. Hebein, No. 79-1536
    • United States
    • United States Appellate Court of Illinois
    • December 30, 1982
    ...other jurisdiction which has adopted this rule. 2 The same question was previously raised, but not decided, in Johnson v. State (1977), 265 Ind. 689, 359 N.E.2d 3 At a pretrial suppression hearing, Officer Hyland testified that defendant acknowledged understanding his rights when they were ......
  • Carter v. State, No. 2-178A5
    • United States
    • Indiana Court of Appeals of Indiana
    • August 11, 1980
    ...truth and falsehood and to understand that he or she, by testifying, is under a compulsion to tell the truth. Johnson v. State, (1977) 265 Ind. 689, 359 N.E.2d A review of the record in this cause shows the trial judge thoroughly questioned the prosecutrix. This examination revealed the wit......
  • Bryan v. State, No. 1181S327
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1983
    ...he is under some compulsion to tell the truth. Buttram v. State, (1978) 269 Ind. 598, 382 Page 58 N.E.2d 166; Johnson v. State, (1977) 265 Ind. 689, 359 N.E.2d 525. The determination made is subject to review only for abuse of discretion. We find no abuse of discretion in the case at bar. J......
  • York v. State, No. 2-1277A475
    • United States
    • Indiana Court of Appeals of Indiana
    • September 26, 1978
    ...answer by the witness is not ground for reversal unless the answer placed the defendants in grave peril. Johnson v. State (1977), Ind., 359 N.E.2d 525, 529; Lewis v. State (1976), 264 Ind. 288, 342 N.E.2d 859, 863-64; Whitten v. State (1975), 263 Ind. 407, 333 N.E.2d 86, 90; White v. State ......
  • Request a trial to view additional results
41 cases
  • People v. Hebein, No. 79-1536
    • United States
    • United States Appellate Court of Illinois
    • December 30, 1982
    ...other jurisdiction which has adopted this rule. 2 The same question was previously raised, but not decided, in Johnson v. State (1977), 265 Ind. 689, 359 N.E.2d 3 At a pretrial suppression hearing, Officer Hyland testified that defendant acknowledged understanding his rights when they were ......
  • Carter v. State, No. 2-178A5
    • United States
    • Indiana Court of Appeals of Indiana
    • August 11, 1980
    ...truth and falsehood and to understand that he or she, by testifying, is under a compulsion to tell the truth. Johnson v. State, (1977) 265 Ind. 689, 359 N.E.2d A review of the record in this cause shows the trial judge thoroughly questioned the prosecutrix. This examination revealed the wit......
  • Bryan v. State, No. 1181S327
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1983
    ...he is under some compulsion to tell the truth. Buttram v. State, (1978) 269 Ind. 598, 382 Page 58 N.E.2d 166; Johnson v. State, (1977) 265 Ind. 689, 359 N.E.2d 525. The determination made is subject to review only for abuse of discretion. We find no abuse of discretion in the case at bar. J......
  • York v. State, No. 2-1277A475
    • United States
    • Indiana Court of Appeals of Indiana
    • September 26, 1978
    ...answer by the witness is not ground for reversal unless the answer placed the defendants in grave peril. Johnson v. State (1977), Ind., 359 N.E.2d 525, 529; Lewis v. State (1976), 264 Ind. 288, 342 N.E.2d 859, 863-64; Whitten v. State (1975), 263 Ind. 407, 333 N.E.2d 86, 90; White v. State ......
  • Request a trial to view additional results

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