Johnson v. State
| Decision Date | 09 February 1977 |
| Docket Number | No. 476S106,476S106 |
| Citation | 359 N.E.2d 525,265 Ind. 689 |
| Parties | Raymond Harold JOHNSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John G. Bunner, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.
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in ruling that the victim's seven year old brother was competent to testify; (2) whether the trial court should have withdrawn submission of the case to the jury and declared a mistrial when the prosecutor asked a psychiatric witness whether appellant, if released, would 'do this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:
(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?
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.'
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 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:
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.
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 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:
Appellant assigns as error both the refusal of the trial court to withdraw submission of the case to the jury and declare a mistrial, and the refusal of his tendered instruction on the statutory procedure. The facts set out above are relevant to each assignment, so we have combined them for consideration.
The prosecutor's original question, 'And if he's permitted to go free, will he do this again?' is not objected to because of the suggestion that appellant's criminal behavior might be repeated. Such a question would be proper when insanity is at issue. Twomey v. State (1971), 256 Ind. 128, 132, 267 N.E.2d 176, 179. Therefore, the State's suggestion that any error here is 'dispelled' because the prosecutor was later allowed, without objection, to elicit Dr. Crudden's opinion that appellant would repeat this behavior, is without merit. Appellant's objection is that the question improperly suggests to the jury that if appellant were acquitted by reason of insanity, he would be 'permitted to go free.'
A defendant seeking to rely on the overruling of his motion for a mistrial must demonstrate that the question or remark complained of placed him in a position of grave peril, to which he should not have been subjected. Deway v. State (1976) Ind., 345 N.E.2d 842, 847; White v. State, (1971) 257 Ind. 64, 78, 272 N.E.2d 312, 320. Appellant attempts to meet this burden by the bare assertion that he does not believe that the trial court's admonition could erase the suggestion from the jurors' minds. The State points out the fact that the admonition was prompt and was accompanied by personal questioning of each juror to ascertain that he or she understood the warning. We also note that the question is ambiguous; it does not assert that appellant would be set free, but merely implies the possibility. This implication could be rebutted by appellant's cross-examination of Dr. Crudden, which revealed the existence of involuntary commitment procedures. Appellant's instruction that the jury should not concern itself with the disposition of appellant, should he be acquitted by reason of insanity, also weakens appellant's position.
Inasmuch as the trial judge is in a superior position to observe the effects of comments and...
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