Russell v. State
| Decision Date | 13 July 1989 |
| Docket Number | No. 49S04-8907-CR-528,49S04-8907-CR-528 |
| Citation | 540 N.E.2d 1222 |
| Court | Indiana Supreme Court |
| Parties | Charles G. RUSSELL, Appellant, v. STATE of Indiana, Appellee. |
Frank Hanley II, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from a judgment on a court finding of guilty of child molesting, a Class C felony. Appellant was sentenced to prison for a term of three years. The conviction was affirmed on appeal to the Fourth District of the Court of Appeals. The opinion of that court was not published. Appellant's petition to transfer to this Court is granted and the opinion of the Court of Appeals is vacated.
There are two appellate claims. In the first, the trial court's ruling that the child victim was competent to testify as a witness for the prosecution is questioned; and in the second, the sufficiency of the evidence to convict is questioned.
The general provision of the statutes in reference to the competency of witnesses is found in I.C. 34-1-14-5. The part of that provision relevant to the first claim before us provides that children under ten years of age shall not be competent witnesses "unless it appears that they understand the nature and obligation of an oath."
Construing this provision, it was decided in Martin v. State (1969), 251 Ind. 587, 244 N.E.2d 100, that a statutory presumption of incompetence is created which is overcome if the child demonstrates an understanding of "the nature and obligation of an oath" and that there is no further test. That test is whether the child understands the difference between telling a lie and telling the truth, that is to say, the nature of an oath; and whether the child knew that she was under some compulsion to tell the truth, that is to say, the obligation of an oath. Staton v. State (1981), Ind., 428 N.E.2d 1203. A voir dire examination by the trial court is required, and a resulting determination that the presumption of incompetency is overcome is itself subject to a presumption of validity on appeal and will not be reversed unless the ruling is a manifest abuse of discretion.
The claim on appeal here relates to the first part of the test and challenges the sufficiency of the basis for the court's determination that this child appreciated the difference between telling a lie and telling the truth. The child was called as a witness by the prosecution and the following dialogue was recorded:
QUESTIONS BY THE COURT:
Q How old are you?
A Six (6).
Q Six (6)? You can lower your hand. Do you go to Sunday School?
A First (1st) grade.
Q Your [sic] in the first (1st) grade at school. What school do you go to?
A School Fourteen (14).
A Yeah.
Q And where do you live? Where do you--do you know where you live, the house address.
A On Walcott.
Q On Walcott Street? And how long have you lived there?
A About (unintelligible)
Q You don't know? Do you have any brothers and sisters?
A Two (2) brothers.
Q Two brothers? What are their names?
A Mikie and Robert.
A Yeah.
Q Do you know what is, the difference between a, to tell the truth and to tell a lie?
A Yeah.
Q Can you tell me what the difference is?
A (No audible response).
Q What? Can you tell me?
A A lie is the same (unintelligible), um, uh, ...
Q You have to speak up a little bit louder.
A Lying is the same as stealing and sneaking.
Q Lying is the same as stealing? And what's--is that good or bad?
A Bad.
Q And if you tell the truth, is that good or bad?
A Good.
Q Good? And if you promise to tell me the truth, will you tell me the truth?
A Yeah.
Q What happens if you don't tell the truth?
A I'd go back there to jail.
Q You could go to--you know that something bad could happen to you.
MS. McCONAHA: No, Your Honor.
(And thereupon, Mr. Solomon approached the witness stand, but did or said nothing else.)
THE COURT: Well, just ask questions about her, whether she understands the nature of the oath, if you have something like that.
QUESTIONS BY MR. SOLOMON, Defense Counsel
Q Dorothy, do you know the, uh, difference between telling the truth and telling a lie?
A (No audible response)
Q You do?
A (No audible response)
Q What is the difference?
MS. McCONAHA: Your Honor, these questions have been asked by the Court.
Appellant argues that the trial court never did get a definitive response to his question "Can you tell me what the difference (between to tell the truth and to tell a lie) is?" and in the absence of that or its equivalent, the first component of the test, namely that there is an understanding of the "nature" of an oath, is not satisfied.
The State argues that the judge would have observed the witness's physical motions and demeanor at the time the record indicates that the witness made "no audible response." We do not find this to reflect a tenable view of the record.
In Johnson v. State (1977), 265 Ind. 689, 359 N.E.2d 525, the prospective child witness testified that he knew what it meant to tell the truth and to tell a lie; and that if one lies, he must go back and start all over and tell it again. When then asked what must then be told, he responded that the truth must be told. Within these answers the Court found a sufficient basis for the inference that he knew the meaning of truth and falsehood. In LeMaster v. State (1986), Ind., 498 N.E.2d 1185, this Court considered the sufficiency of a court inquiry into the competency of a seven-year-old much like the one conducted in the case at bar. However, it was there pointed out that such inquiry was supplemented by questioning by the prosecutor which showed that the witness had an understanding in greater depth of the meaning of truth and that the child did discern the difference between truth and falsehood.
In this case, the trial court based its finding that the child understood the difference between truth and falsehood upon this:
Q Do you know what is, the difference between a, to tell the truth and to tell a lie?
A Yeah.
Q Can you tell me what the difference is?
A (No audible response).
Q What? Can you tell me?
A A lie is the same (unintelligible), um, uh,...
Q You have to speak up a little bit louder.
A Lying is the same a[s] stealing and sneaking.
In this instance, the court correctly sought to find out whether the child knew that a true statement conforms to fact or reality and a false one does not. The court correctly perceived a child, in order to know the nature of an oath, must, in addition to appreciating the moral content of true and false statements, know what a true statement actually is. The court further correctly perceived that, for this additional requirement to be satisfied, more than making a flat statement like "I know what the truth is" would be required of a small child. For in the case of a small child, the term "truth" may have many connotations, including simply what parents or other persons in authority may say. However, the trial court's effort in this regard fell short. Head v. State (1988), Ind., 519 N.E.2d 151, notes one proper technique for determining that a prospective child...
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