Martin v. State, 31122
| Decision Date | 31 January 1969 |
| Docket Number | No. 31122,31122 |
| Citation | 251 Ind. 587,244 N.E.2d 100,16 Ind.Dec. 410 |
| Parties | William F. MARTIN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John S. Brumfield, Donald D. Chiappetta, Muncie, for appellant.
John J. Dillon, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.
Appellant was convicted of assault and battery with intent to gratify sexual desires on a four year old girl. The charge was by affidavit and the trial was by the court without a jury. Appellant charges the trial court erred in certain procedural matters, in allowing the five year old victim to testify and finding venue on insufficient evidence.
Appellant's brief alleges error on the first point in two parts: (1) In the absence of the appellant, his counsel made his third motion for continuance of the trial which the trial court granted on the condition that no further request for continuance or any dilatory motion either by way of change of judge or change of venue from the county be made. (2) The trial court granted a motion by appellant's counsel for a jury trial but the trial took place without a jury.
Neither of these two arguments were included in the appellant's motion for a new trial. Errors occurring prior to the filing of such motion must be included in the motion for new trial in order to be reviewable on appeal. Denton v. State (1965), 246 Ind. 155, 203 N.E.2d 539.
As an exception to this rule, appellant cites Ford v. State (1967) Ind., 229 N.E.2d 634, where this Court reversed a conviction for an error by the trial court which was not alleged in the motion for new trial, saying 'In civil cases procedural rules are strictly observed, but in criminal cases it is more important that justice be done than to strictly abide by the rule of procedure.' But in that case the injustice was great, being misconduct by the trial judge himself in depriving the defendant of his constitutional right to a jury trial. In this case there is no hint that there was any misconduct on the part of the trial judge; that appellant was involuntarily absent from the proceedings; that he objected to going to trial without a jury; that a change of venue was needed, sought or refused. Indeed, there is no showing that appellant was harmed in any way. There is nothing in this case that warrants an extension of the rule in the Ford case.
Appellant's second contention is that the trial judge was guilty of a manifest abuse of discretion in qualifying Wilma Jean Haley, age five, as a competent witness to testify in this case.
The pertinent statutes reads:
'Who are incompetent.--The following person shall not be competent witnesses:
'Second: Children under ten (10) years of age, unless it appears that they understand the nature and obligation of an oath.' (Burns' Ind.Stat.Ann. § 2--1714)
Whether or not the statutory presumption against the competency of Wilma Jean Haley was overcome was to be determined by the trial court in light of her answers to questions designed to probe her understanding of the 'nature and obligation of an oath.' Neither the statute nor the cases set out a precise test that must be followed verbatim in determining if such understanding exists. The complete voir dire examination, which was the basis of the trial court's ruling that Wilma Jean Haley was a competent witness, is here set out:
'By Mr. Foust:
Q. This is Judge Osburn sitting up there. I will have questions to ask you. And will you answer them loudly enough for your mother and me to hear you?
A. (Wilma Jean Haley shakes head in the affirmative.)
Q. How old are you, Wilma Jean?
A. 5.
Q. Ordinarily, when people come into court, we ask them to tell the truth, the whole truth and nothing but the truth. Do you understand you have got to tell the truth?
A. Yes.
Q. You understand every word you give to the Court must be the truth?
A. Yes.
Q. Are you willing to tell the truth?
A. Yes.
Q. You understand here is a man whose liberty is at stake. You are willing to tell the truth and, to put it bluntly, you will tell the truth?
A. Yes.
And on cross-examination by Mr. Thomas Wright, attorney for Defendant, the witness Wilma Jean haley testified as follows:
By Mr. Wright:
Q. My name is Tom. Do they call you Wilma or Jean?
By Mrs. Haley, mother of Wilma Jean Haley:
A. Jean.
By Mr. Wright:
Q. Have you ever told a lie?
A. I don't know.
Q. You don't know?
A. No.
Q. Have you ever been spanked for telling a fib?
A. No.
Q. Never been spanked?
A. Sometimes.
Q. You tell a fib once in a while?
A. Yes.
Q. Do you have many little friends you play with? Do you have many little friends you play with?
A. No.
Q. Do you have many little friends you play with?
A. Yes.
Q. You do?
A. Yes.
Q. Do you have? What are their names?
A. Mason.
Q. You have--You play games?
A. Yes.
Q. What kind of games do you play?
A. I don't know.
Q. You don't know?
A. No.
Q. You play with--You have dolls you play with?
A. Yes.
Q. What is your dolly's name?
A. heidi.
Q. Heidi?
A. Yes.
Q. Do you have any other little friends you play with?
A. Same ones.
Q. Do you have an imaginary friend?
A. No.
Q. Do you all the time tell the truth?
A. Yes.
Q. You never tell a fib?
A. No.
Q. Yes or no?
A. No.
By Mr. Wright:
Your Honor, I am going to object. I don't think the answers elicited from Wilma Jean show completely that she knows to tell the truth.
I am going to permit her to testify, but to within the scope of the crime. She will have the liberty to tell what happened. If she can't, the Court will strike it.'
The voir dire included questions put by counsel as well as those by the court. There is no reason in law or logic why the trial court should consider only the answers to its own questions. The nature of the question is determinative, not the author of the question. As long as the question seeks to determine to what extent the child understands 'the nature and obligation of an oath' and it occurs as an integral part of the court's inquiry prior to a ruling on the competency of the child, it is a proper part of the voir dire.
On the other hand, questions put after the trial court's ruling, especially questions on the merits, cannot be used to undermine the ruling of competency. They go to the credibility of the witness and influence the weight to be given to what testimony by the trier of fact. The qualification of the child as competent does not imply she will be a model witness, nor does it imply that her testimony will be supported by the other evidence, nor does it imply she will be able to faithfully recall the events which occurred when she was four years old. None of those issues bears on her 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.
On the basis of the above voir dire examination the trial court ruled Wilma Jean Haley to be a competent witness. This ruling will not be reversed by this Court unless it is shown that the ruling is a manifest abuse of discretion. Martin v. State (1958), 239 Ind. 174, 154 N.E.2d 714; Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d 823. If there is some evidence in the record of the voir dire examination from which the trial court could have inferred that Wilma Jean Haley understood 'the nature and obligation of an oath' then this Court must affirm the ruling. There is a presumption in favor of the trial court's ruling and the burden of overcoming that presumption rests on the appellant.
It has been argued that in order to show that the child understood 'the nature and obligation of an oath' it must be shown that: (1) the child understood the difference between telling the truth and telling a lie; and, (2) the child had knowledge that she would be punished if she told a lie.
(1) There is some evidence that Wilma Jean understood the contract between 'telling the truth' and 'telling a fib.' Consider the last three questions by appellant's counsel:
'Q. Do you all the time tell the truth?
A. Yes.
Q. You never tell a fib?
A. No.
Q. Yes or no?
A. No.'
Note also that the court's questions were all concerned with her telling the truth and counsel's questions all emphasized lying.
(2) There is some evidence that Wilma Jean knew she was under some compulsion to tell the truth. Requiring that she have 'knowledge she would be punished if she lied' is phrasing the test in too narrow a way. Is it a fact she would be punished if she lied? By whom? Is a guilty conscience a punishment? By whom? Consider the second and third question by the trial court:
'Q. * * * Do you understand you have got to tell the truth?
A. Yes.
Q. You understand every word you give to the Court must be the truth.
A. Yes.'
The voir dire examination in Shipman v. State, supra, is very similar to the one in this case. This Court found the following voir dire examination sufficient to qualify the seven year old girl:
"Q. Do you tell lies?
A. No.
Q. Why don't you tell lies? Don't get scared. We are just talking to you. No one is going to hurt you. Do you know why you don't tell lies?
A. No.
Q. Do you know you are supposed to tell the truth?
A. Yes.
Q. And you are not supposed to tell lies?
A. No.
Q. Would you ever tell a lie?
A. No.
Q. Do you know that when you are asked to tell something in court that you are asked to tell just the truth and not lie a bit, you know that?
A. Yes.
Q. Do you ever promise to do anything? Do you know what a promise is?
A. Yes.
Q. * * * Do you know what it means to keep your promise? Don't make a promise and not keep it, do you know that? Do you always keep your promises?
A. Uhuh.
Q. Would you promise me something?
A. Uhuh.
Q. Would you promise me to tell the truth today?
A. Yes.
Q. And you would not tell a lie?
A. No.
Q. And...
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