Love v. State

• Decision Date: 28 June 1974
• Docket Number: No. S,S
• Citation: 64 Wis.2d 432,219 N.W.2d 294
• Parties: Charlie Dee LOVE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 183.
• Court: Wisconsin Supreme Court

Page 294

219 N.W.2d 294

64 Wis.2d 432

Charlie Dee LOVE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 183.

Supreme Court of Wisconsin.

June 28, 1974.

Patrick J. Devitt, Legal Aid Society of Milwaukee, Criminal Appellate Div., Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Christine M. Wiseman, Asst. Atty. Gen., Madison, for defendant in error.

BEILFUSS, Justice.

The defendant argues that the victim, a three and one-half-year-old child, was incompetent to testify and that the trial court should have, sua sponte, stricken her testimony; (2) that the court erred in allowing the mother to testify as to the hearsay statements made by the victim the morning after the incident upon the grounds the statements were hearsay and not a res gestae exception; and (3) that the evidence is insufficient to sustain the conviction beyond a reasonable doubt.

Before S_ _, the three and one-half-year-old victim, was permitted to take an oath and testify, a voir dire was conducted to determine her competency. ³ S_ _ was born on May 23, 1969; the events in question took place on November 18, 1972, and the trial was conducted on February 15 and 16, 1973.

In response to the voir dire questions propounded by the district attorney, S_ _ answered or affirmatively nodded her head giving her name and age, that she attended a nursery school, that she knew what it meant to tell the truth and that it was good to tell the truth, that she knew what it meant to tell a lie and that it was good to tell a lie (nodded affirmatively) and that if questions were asked she would tell the truth and would not tell a lie.

In response to questions by the trial judge, Mrs. Folks, S_ _'s mother, answered that S_ _ was truthful in all matters, and that she would tell the truth at the trial.

The trial judge inquired of defense counsel if he wanted to question the witness. The following appears in the record:

'COURT: Do you want to ask her anything?

(Defense Counsel) 'MR. MARGOLIS: You are talking about the mother?

'COURT: Yes.

'MR. MARGOLIS: Has the little girl ever told you any lies?

'MRS. FOLKS: Just when she is playing, yea.

'COURT: When she is playing?

'MRS. FOLKS: Right.

'MR. MARGOLIS: I have no questions.

'COURT: All right. The Court will at this time give the child the oath. The Court will determine after hearing the said testimony of the child and her mother concerning this crime what weight ought to be given thereto.

'Is that acceptable, Mr. Margolis?

'MR. MARGOLIS: That is acceptable.

'COURT: S_ _, can you raise your right hand like this?

'A. Yea.

'COURT: Will you?

'A. Yea.

'COURT: Do you solemnly swear to tell the truth, the whole truth and nothing but the truth, so help you God?

'A. Yea.'

S_ _ then testified sometimes by verbal response and sometimes by nodding her head, that she knew Charlie Love; when asked to point to Charlie she pointed at the court reporter, but when she was asked to touch Charlie she walked over to the defendant and put her hand on his arm. She further testified she remembered being in bed with the defendant and that he put his hand between her legs, put his finger in her and hurt her.

It should be pointed out that all of S_ _'s answers were not responsive and many were inconsistent.

At no time did the defendant's counsel object to the competency of the witness nor was the question raised in motions after trial.

In Collier v. State (1966), 30 Wis.2d 101, 140 N.W.2d 252, we stated that when a voir dire is held to determine the competency of a witness the objection to the competency must be made before the witness takes the oath and gives testimony. We further stated at page 105, 140 N.W.2d at page 254:

"The rule that objection to the competency of a witness must be properly taken at the trial or it cannot be reviewed by this court is applicable where the alleged incompetency is due to infancy."

Collier also holds at page 106, 140 N.W.2d at page 254:

'. . . This court has pointed out that a tender age is no bar to a determination of testimonial competency. All that this jurisdiction requires is evidence of 'his ability to receive accurate impressions of the facts to which his testimony relates and to relate truly the impressions received. If he has this understanding and intelligence and appreciates the obligation to speak the truth, he is competent.' Musil v. Barron Electrical Co-operative (1961), 13 Wis.2d 342, 358, 108 N.W.2d 652, 661. See Model Code of Evidence, p. 91, Rule 101, for similar tests.

"The question of competency rests largely in the sound discretion of the trial court, whose decision will not be disturbed in the absence of clear abuse.' 97 C.J.S. Witnesses § 58, p. 450.'

In this case the defendant did not object to the competency of the witness until after sentencing. We have consistently held that unless an objection to the competency of a witness is raised during the trial the objection is waived. The objection to the competency of a witness should be raised before the testimony is given. ⁴

Even though the defendant does not have standing to raise the issue of competency because of a failure to properly object, we will comment upon the matter.

Whether a witness is competent to testify is within the sound discretion of the trial court. The exercise of that discretion will not be disturbed upon appeal without a clear showing of an abuse of that discretion.

The testimony of S_ _ standing alone would not, in our opinion, be sufficient to sustain a conviction because of some inconsistencies, some unresponsiveness and the general lack of appreciation of the consequences of the testimony by a child three and one-half-years old. However, this case was tried by an experienced trial judge without a jury. He, we are sure, well knows of the inaccuracies and false impressions that can permeate the testimony of such a witness because of the inability to make meaningful observations or comprehend the consequences of those observations, and that such a witness may be subject to suggestion and prompting of others. Here, the trial judge made it amply clear before S_ _ testified that he would reserve his evaluation of the weight to be given the child's testimony until after he had heard it and the testimony of her mother. A careful reading of the child's testimony leads us to a belief that S_ _'s testimony was credible and probative of the ultimate facts necessary to a conviction. The weight to be given this testimony, of course, did have to stand the challenge of the other credible evidence in the case.

We are of the opinion that the trial court did not abuse its discretion in receiving the testimony of S_ _ and that there was no duty to sua sponte strike it from the record.

The defendant next argues that the mother's testimony as to what S_ _ told her the next morning was hearsay and the objection to it should have been sustained.

In Bertrang v. State (1971), 50 Wis.2d 702, 184 N.W.2d 867, we considered this same issue. The defendant would have us distinguish Bertrang on its facts but we believe there is no meaningful distinction in the facts of both cases.

In Bertrang we stated at pages 706, 707, 708, 184 N.W.2d at pages 869--870:

'. . . the statement was clearly admissible under the well-recognized exception which admits the statement made to a witness which is part of the res gestae. The key elements of this exception are contemporaneity and spontaneity.

'In this case we have statements made by the victim on the second day following the alleged criminal acts, and made in response to questions from her mother, the witness testifying. In addition, the victim was nine years old and the victim of...