Simmons v. State

• Decision Date: 26 November 1996
• Docket Number: No. 94-539,94-539
• Citation: 683 So.2d 1101
• Parties: 21 Fla. L. Weekly D2534 Cecil Cameron SIMMONS, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1101

683 So.2d 1101

21 Fla. L. Weekly D2534

Cecil Cameron SIMMONS, Jr., Appellant, v. STATE of Florida, Appellee.

No. 94-539.

District Court of Appeal of Florida,

First District.

Nov. 26, 1996.

Rehearing Denied March 14, 1997.

Robert W. Pope of Pope & Henninger, P.A., St. Petersburg, for appellant.

Robert A. Butterworth, Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for appellee.

PER CURIAM.

This is an appeal from convictions for murder, sexual battery (two counts), and kidnapping. Appellant essentially raises three issues on appeal: (1) Whether the trial court erred in finding the witness James Burney competent to testify; (2) whether the trial court erred in denying appellant's motion for a psychological evaluation of Burney; and (3) whether the trial court erred in preventing appellant from impeaching Burney with a history of retardation and suggestibility. We find no error and affirm.

The victim, a young woman who was apparently driving alone on an interstate highway at night, had summoned a wrecker by using a roadside call box. Her call was received by the Florida Highway Patrol and relayed to a wrecker service between two and four o'clock on the morning of Friday, June 15, 1990. Separate highway patrolmen as well as the wrecker driver reported stopping at the car they say had been abandoned. Around noon on Sunday, June 17, 1990, the young woman's body was found in a shallow creek approximately 100 miles from where her car had been abandoned.

The police were unable to find the persons responsible for the young woman's death for approximately one year after the crime was committed. The police learned about the possible involvement of James Burney on June 27, 1991. After repeated questioning, Burney implicated the appellant and his brother (Simmons brothers) in the kidnapping, rape, and murder of the young woman. Burney testified that he saw the Simmons brothers and the victim in James Simmons' truck. Burney then stated that he joined the parties in the truck and went for a ride that ultimately resulted in Burney witnessing the Simmons brothers raping and killing the victim. The physical evidence presented was consistent with Burney's version of events, but Burney's testimony was the only evidence tying the Simmons brothers to the crime.

Prior to trial, appellant moved (1) to declare Burney incompetent, (2) to authorize a psychological evaluation of Burney, and (3) to allow the defendant to introduce Burney's school records (which included prior psychological testing).

Following a hearing, the trial court ruled that "based upon the evidence before me, it is not possible for this Court to make a finding as a matter of law ... that ... Mr. Burney is not competent to testify." The court also denied the other relief requested in the motion.

At trial, before James Burney testified, the defense renewed its motion to declare him incompetent. The trial court denied the motion with the assurance that the court would, if the question was raised properly, "make a determination as to the competence of the witness ... and ... make findings accordingly."

After direct examination, the defense again renewed its motion to declare Mr. Burney incompetent as a witness. This time the trial court ruled:

I have heard the testimony of the witness [on direct], have heard the witness recite a historical background. I have heard him recite an employment background. I have heard him recite a factual background.

He appears to be oriented in terms of time, place and location. He appears to appreciate the difference between a true factual statement and a nontrue factual statement.

... I would posit those observations are based solely on the presentation of the state's case. I have not as yet received evidence from the defendant. You are always welcome to raise a challenge.

Following Burney's testimony, defense counsel returned to the issues raised in the pretrial motion. Dr. Bedinger testified. He was the senior psychologist for Developmental Services for the local district of the Department of Health and Rehabilitative Services, with particular expertise in the area of mental retardation. Dr. Bedinger asserted that "a person could be overall competent and not be competent to be a witness"; however, Dr. Bedinger was not comfortable offering an opinion on Burney without first doing a complete evaluation. The trial court expressed some skepticism about whether Dr. Bedinger could provide any useful information to supplement the court's own observations concerning Burney's competence, and asked whether "there's something unique and special about retardation that retarded people have a different standard of differentiating between the truth and a lie?" Dr. Bedinger replied that "many people with retardation have a clearly different standard," and noted that he was concerned about Burney's statement during cross-examination where Burney said that he "thought [he] was telling the truth." However, Dr. Bedinger said that such a statement "is indicative, not conclusive, that [Burney] is not competent as a witness." Dr. Bedinger reiterated that he was reluctant to offer an opinion on Burney's competence without a personal evaluation.

The trial court denied defendant's renewed motion to either declare Burney incompetent or have him evaluated, finding that "the witness has demonstrated the capacity to differentiate between the truth and a lie and has demonstrated the capacity to relate in an understandable fashion those events about which he chooses to testify." The court also denied defendant's request to introduce Burney's school records (including the psychological testing) and defendant's request to have Dr. Bedinger explain the significance of such records with respect to Burney's suggestibility and his ability to accurately recall the matters about which he testified. The court ruled that the records were too remote to be relevant.

The trial court announced its final ruling that Burney was competent as follows:

This court finds that based upon [Burney's] statement of the historical development that he has undergone, his attendance in school, performance in school, his ability to maintain friendships over a period of years, his ability to be employed, his ability to be able to obtain a driver's license [despite his illiteracy], his ability to operate a motor vehicle, his ability to operate a motor vehicle in the course of his employment, his ability to make decisions and judgments predicated thereon, his ability to understand culpability, to acknowledge culpability in the form of his prior misdeeds ... the fact that [Burney] to some extent is corroborated by some other witnesses in this case in terms of the incidents that he has related, to the extent that he has testified untruthfully [sic] in progressive fashion and has only when challenged given more and more information--he has described his reluctance to do that. He has described his response to intimidation. He has demonstrated the capacity to relate facts, to relate explanations.

The one questionable criteri[on] is as a consequence of a series of questions derived there at the end after some six hours of testimony and, while it is true that there is no certitude in life, I find that the witness has demonstrated the capacity to differentiate between the truth and a lie and has demonstrated the capacity to relate in an understandable fashion those events about which he chooses to testify.

Appellant challenges the ruling relating to Burney's competency.

Unless otherwise provided by statute, every person is presumed competent to testify. § 90.601, Fla.Stat. A person may be disqualified to testify if the court determines that the person is incapable of expressing himself or herself so as to be understood, or is incapable of understanding the duty of a witness to tell the truth. § 90.604, Fla.Stat. It is within the sound discretion of the trial judge to determine the competence of a witness to testify. Rutledge v. State, 374 So.2d 975 (Fla.1979), cert. denied, Rutledge v. Florida, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980); Kaelin v. State, 410 So.2d 1355 (Fla. 4th DCA 1982).

The subject of a mentally challenged individual's competency to testify at trial was discussed in Hammond v. State, 660 So.2d 1152 (Fla. 2d DCA 1995). In Hammond, the second district reversed for a new trial, finding that the trial court erred by failing to make the three specific determinations necessary to determine that the mentally challenged victims were competent to testify. Citing cases dealing with the competency of child witnesses, the Hammond court stated that the trial court had failed to determine whether the witnesses (1) were capable of observing and recollecting facts, (2) were capable of narrating facts to the court or jury, and (3) had the moral sense of the obligation to tell the truth. Id. at 1156. The Hammond court went on to note that the "competency determination is of heightened importance when the witness is mentally retarded, because there might exist a tendency on the part of the jurors to believe that the retarded are not capable of conniving or fabrication." Id. (citing McKinnies v. State, 315 So.2d 211 (Fla. 1st DCA 1975)).

This court addressed a similar situation in McKinnies, where the issue was whether the trial court erred in holding a mentally challenged 16-year-old boy competent to testify. In McKinnies, as in Hammond, the testimony of the witness in question was crucial to sustaining a conviction. McKinnies, 315 So.2d at 212. Although the McKinnies court did not state whether the trial court made the proper findings, it concluded that based on the record the trial court could not have found the witness competent. This court stated that the "test of competency of a witness is his intelligence and ability to understand, not his age." Id. at 213 (citing Hall v. State, 260 So.2d 881 (Fla. 2d DCA 1972)). In McKinnies,...