Sizemore v. State

• Decision Date: 21 May 1992
• Docket Number: No. S92G0199,S92G0199
• Citation: 262 Ga. 214,416 S.E.2d 500
• Parties: SIZEMORE v. The STATE.
• Court: Georgia Supreme Court

Page 500

416 S.E.2d 500

262 Ga. 214

SIZEMORE v. The STATE.

No. S92G0199.

Supreme Court of Georgia.

May 21, 1992.

John H. Tarpley, Sr., Office of the Public Defender, Decatur, for Sizemore.

Robert E. Wilson, Dist. Atty., J. Tom Morgan, Asst. Dist. Atty., Stone Mountain Judicial Circuit; Michael McDaniel and Gregory J. Lohmeier, Asst. Dist. Attys., Decatur, for the State.

BELL, Justice.

We granted certiorari in this case, Sizemore v. State, 201 Ga.App. 431, 432, 433(2), 411 S.E.2d 505 (1991), to consider whether the Court of Appeals correctly held that OCGA § 24-9-5(b) precluded a competency challenge to a child witness who the appellant, George Sizemore, contended was incompetent because the child allegedly did not have the use of reason. We conclude that the Court of Appeals erroneously construed § 24-9-5(b), and reverse.

In the first two counts of a three-count indictment, the State charged Sizemore with the aggravated child molestation and child molestation of Danny Simmons. Count Three charged Sizemore with the child molestation of Timothy Baswell. Before trial, Sizemore moved the trial court to hold a hearing to determine the competency of Baswell. Sizemore contended that Baswell was a mentally retarded child who did not have the use of reason, and that therefore, pursuant to OCGA § 24-9-5(a), he should not be permitted to testify. The trial court refused to hold a competency hearing, on the ground that § 24-9-5(b) rendered all children who are the victims of crime competent to testify, even if they otherwise would be incompetent under subsection (a) because they do not have the use of reason. Sizemore was subsequently convicted on all three counts of the indictment.

Sizemore appealed to the Court of Appeals, where he contended that the trial court erred in refusing to hold a competency hearing for both Danny Simmons and Timothy Baswell. The Court of Appeals first noted that Sizemore only filed a competency challenge as to one of the alleged victims. Although the Court of Appeals did not specify the child that Sizemore did challenge, that child was Baswell. ¹ The Court then held the trial court was not required to hold a competency hearing as to Baswell because § 24-9-5(b) rendered Baswell's testimony admissible. Sizemore, supra, 201 Ga.App. at 432-433(2), 411 S.E.2d 505. We then granted Sizemore's petition for certiorari to consider whether the trial court and the Court of Appeals properly construed § 24-9-5(b). We conclude that they did not.

We begin by reviewing the relevant history of § 24-9-5. Before 1989, § 24-9-5 provided that

[p]ersons who do not have the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses.

In 1989 the General Assembly amended § 24-9-5. It designated the existing provision as subsection (a) and added "[e]xcept as provided in subsection (b) of this Code Section" at the beginning of subsection (a). The General Assembly also added subsection (b). Ga.Laws 1989, pp. 1639, 1640 § 1. ² Section 24-9-5 now reads, in relevant part, as follows:

(a) Except as provided in subsection (b) of this Code section, persons who do not have the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses.

(b) Notwithstanding the provisions of subsection (a) of this Code section, ... in criminal cases in which a child was a victim of or a witness to any crime, any such child shall be competent to testify, and his credibility shall be determined as provided in Article 4 of this chapter.

The State argues that the plain language of § 24-9-5(b) excepts children who are victims of crime and who, for any reason, do not have the use of reason from the incompetency provisions of § 24-9-5(a). Sizemore concedes that criminal defendants may no longer challenge the competency of children who are the victims of crime on the ground they do not understand the nature of an oath. However, Sizemore contends that § 24-9-5(a) and (b) should be interpreted to permit a competency challenge to a child on the ground the child is mentally retarded and thus does not have the use of reason.

In construing a statute, we must bear in mind the following rules: If the plain language of the statute is susceptible of only one meaning, courts must follow that meaning unless to do so would produce contradiction or absurdity. Telecom*USA v. Collins, 260 Ga. 362, 363(1), 393 S.E.2d 235 (1990). If a literal reading of the statutory language does produce such contradiction or absurdity,

the appellate court must then seek to make sense out of the statute, while being faithful to the legislative intent. To define the legislative intent, the court considers the purpose of the statute and its impact on the body of law as a whole. The court also considers the law as it existed before the statute was passed and identifies the mischief sought to be corrected. [Id. at 364, 393 S.E.2d 235.] [Cit. omitted.]

In the instant case, as the state argues, the literal wording of § 24-9-5(b) exempts from the incompetency provisions of § 24-9-5(a) children who, for any reason, do not have the use of reason. However, the literal language of the statute produces an absurdity, which is that an adult who does not have the use of reason, such as an "idiot," § 24-9-5(a), is incompetent to testify, but a child who does not have the use of reason because he is an "idiot" is competent. Because the literal language of the statute leads to this absurd result, we must seek to make sense out of the statute. In doing so, we examine § 24-9-5, as it existed before its amendment in 1989, for the evil that the 1989 amendment to § 24-9-5 sought to correct. Telecom*USA, supra, 260 Ga. at 364, 393 S.E.2d 235; Mitchell v. Oliver, 254 Ga. 112, 116(2), 327 S.E.2d 216 (1985); OCGA § 1-3-1(a). The evil of § 24-9-5 before its 1989 amendment was that children were treated differently from adults simply because of their age, in that the competency of children but not adults could be challenged based on the allegation they did not understand the nature of an oath. Before the 1989 amendment, the competency of children was routinely challenged on this ground. E.g., Alvin v. State, 253 Ga. 740, 743(6), 325 S.E.2d 143 (1985); Hill v. State, 251 Ga. 430, 306 S.E.2d 653 (1983). On the other hand, the old § 24-9-5 did not treat children differently from adults when it came to competency challenges based on the ground the child or adult did not have the use of reason because of mental retardation. Both children and adults were subject to challenge on this ground.

Based on the foregoing examination of § 24-9-5, we think the General Assembly amended § 24-9-5 in 1989 only to remedy the evil of having all children subject to a competency challenge on the ground they do not understand the nature of an oath. Accordingly, we construe § 24-9-5(b) as excepting children solely from a competency challenge based on the allegation they do not understand the nature of an oath. We hold that children, like adults, are subject to a competency challenge on the ground they do not have the use of reason because of mental retardation.

For the foregoing reasons, we conclude the trial court erred in refusing to hold a competency hearing concerning Timothy Baswell, and reverse the judgment of the Court of Appeals. Moreover, we conclude the error was harmful as to...