State v. Ball

• Decision Date: 14 October 1975
• Docket Number: No. 35710,35710
• Citation: 529 S.W.2d 901
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Thomas BALL, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 901

529 S.W.2d 901

STATE of Missouri, Plaintiff-Respondent, v. Thomas BALL, Defendant-Appellant.

No. 35710.

Missouri Court of Appeals, St. Louis District, Division One.

Oct. 14, 1975.

Motion for Rehearing or Transfer Denied Nov. 19, 1975.

Karl F. Lang, Kevin M. O'Keefe, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

DOWD, Judge.

A jury found appellant guilty of murder in the first degree in connection with the death of Percy Thomas. The jury assessed punishment at life imprisonment. He appeals.

While appellant does not deny shooting Percy Thomas on April 7, 1972, he disputes the circumstances surrounding the shooting as attested by the state's witnesses. Essie Bates testified that appellant told her that he was going to kill his estranged wife and Percy Thomas the day before the shooting and that appellant had purchased a .38 pistol with money he obtained from his girlfriend. Testimony by James Dismute and Sabrina Ball, appellant's nine-year-old daughter, established that Dismute's apartment adjoined the apartment occupied by Mrs. Ball and the Ball children by means of a common bathroom. On the day of the shooting, Percy Thomas and the Ball children had gone to the grocery store and bought some wine for Dismute. Dismute testified that appellant had held Dismute at gunpoint until Percy Thomas and the Balls returned and shot Thomas as he approached Dismute's apartment through the bathroom. Dismute stated that Sabrina Ball was in the bathroom at the time of the shooting. Sabrina testified that she and Thomas entered the vacant bathroom and that Thomas knocked on Dismute's door. She said that her father shot Thomas while Thomas was still in the bathroom. Both Dismute and Sabrina stated that no words or blows were exchanged before the shooting, and both stated that Thomas was carrying only a grocery bag and some money at the time of the shooting. Appellant ran from the house after shooting Thomas.

Appellant denied these facts and testified that Thomas had approached him prior to the shooting and had threatened appellant's life. Appellant's version of the events surrounding the shooting was that he had gone to visit Dismute on the day of the shooting. Appellant testified that, while in the bathroom, Thomas had threatened appellant with a knife and appellant shot in self-defense. Appellant stated that he did not see Sabrina in the bathroom at the time of the shooting.

Appellant claims that four errors occurred at his trial. In his first point on appeal, appellant argues that the trial court erred in qualifying Sabrina Ball as a witness since she did not 'possess the attributes required of a witness under the age of ten years.' Section 491.060(2) RSMo 1969 provides that children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly, shall be incompetent to testify. The statute merely creates rebuttable presumptions that a child over ten years old is competent to testify and that a child less than ten years old is not competent to testify. State v. Young, 477 S.W.2d 114, 116 (Mo.1972). Ultimately, the child's competency is determined by the trial court on the basis of his apparent capacity. State v. Starks, 472 S.W.2d 407, 408 (Mo.1971). The trial court's determination that the child is qualified to give testimony will be reversed only for a clear abuse of discretion. State v. Parton, 487 S.W.2d 523, 526 (Mo.1972); State v. Starks, supra; State v. Jones, 360 Mo. 723, 230 S.W.2d 678, 680 (Mo.1950); Burnam v. Chicago Great Western R. Co., 340 Mo. 25, 100 S.W.2d 858, 862 (Mo.1936). Qualification of a child witness is not an abuse of discretion when it appears that the child has: (1) present understanding of or intelligence to understand on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question truly to observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made; and (4) capacity truly to translate into words the memory of such observation. State v. Young, supra; State v. Parton, supra; State v. Jones, supra, at 681; Burnam v. Chicago Great Western R. Co., supra; Hildreth v. Key, 341 S.W.2d 601, 609 (Mo.App.1960). ¹

Appellant first charges that Sabrina Ball was incompetent to testify because she neither understood nor had the capacity to understand an obligation to testify truly. Appellant bases this contention on Sabrina's testimony that she did not know what the term 'oath' meant. While Sabrina could not define 'oath,' she did understand her obligation to tell the truth in her testimony. She testified that she knew that a lie is an untrue story, that she had promised God to tell the truth when she raised her hand during administration of the oath, and that God would punish her if she broke her promise and did not tell the truth in court. A child need not understand the term 'oath' in order to give testimony, provided the child exhibits some present understanding of the obligation to give true testimony. State v. Starks, supra, at 409. If the child evidences some belief in God and punishment for false testimony, this is sufficient. State v. Robertson, supra, at 846--847; State v. Greer, 313 S.W.2d 711, 713 (Mo.1958); Burnam v. Chicago Great Western R. Co., supra, at 861--62. Although dicta in State v. Jones, supra, mentions the child's failure to understand the oath, the court's decision to disqualify the witness was based on other grounds. The child was disqualified because her testimony was totally inconsistent with all other evidence before the court. State v. Jones, supra, at 681. Since Sabrina did indicate an understanding of her obligation to speak truly, and since Sabrina's testimony was not impossible, but on the contrary was consistent in the main with the testimony of the other eye-witness, the trial court did not abuse its discretion by finding that Sabrina understood her obligation to give true testimony.

Appellant next charges that Sabrina Ball was incompetent to testify because she lacked capacity to observe, register, and remember the occurrence in question or lacked capacity to truly translate her memory into words at the time of the trial. Appellant bases this contention on the inconsistencies present in Sabrina's testimony. Portions of Sabrina's testimony lack clarity or contain inconsistencies. These unclear or inconsistent statements usually relate to collateral matters. While Sabrina evidenced confusion when questioned about times, dates, measurements, and places, this inability to comprehend abstractions does not negate Sabrina's ability to observe and remember the shooting she witnessed. When the nature of the occurrence or the child's relation to the occurrence is such as to create a stronger impression, the courts will consider that in passing on the child's competence. State v. Parton, supra, at 525--526; Burnam v. Chicago Great Western R. Co., supra, at 862. Here, Sabrina witnessed a violent crime. Such an occurrence is likely to make a strong impact upon a child's mind and is likely to create a more lasting memory than the recollection of time, place and names. Indeed, Sabrina's testimony concerning the events of the day of the shooting is clear in large part.

Appellant relies heavily upon Hildreth v. Key, supra, and State v. Jones, supra, and argues that inconsistencies in Sabrina's testimony disqualify her as a witness. Hildreth v. Key is inapplicable to this argument. That case did not involve a child's capacity to observe, remember, and relate facts; the case dealt only with a child's understanding of the obligation to speak truly. In dicta the court noted (at 609--12) that the trial court should be sure testimony given by the child arises from independent recollection, but the court also noted that children have been held competent when they have witnessed brutal crimes. State v. Jones can also be distinguished from the instant case. In that case, testimony given by the child relating to the crime charged was totally inconsistent with testimony given by others and the physical facts shown. The child's testimony was impossible. Unlike the testimony in State v. Jones, Sabrina's testimony concerning the events surrounding Percy Thomas's death is corroborated on all major points by the testimony of the other eye-witness.

The inconsistencies present in Sabrina's testimony are not such to require reversal of the trial court. As noted above, most of these inconsistencies relate only to collateral matters. Sabrina's testimony is inconsistent in relation to non-collateral matters in only two respects. Sabrina was confused as to whether she could or could not see Dismute in his apartment and as to who opened doors in the bathroom. The confusion is quite possibly due to Sabrina's misunderstanding of the questions asked by counsel. The record indicates several other instances in which Sabrina and defense counsel had difficulty in understanding each other. However, Sabrina's testimony concerning the basic facts was relatively clear and confirmed by Dismute's testimony. Sabrina and Thomas returned from the grocery store and entered the bathroom leading to Dismute's apartment. Appellant shot Thomas before Thomas entered Dismute's apartment while carrying only groceries and money and before any words or blows were exchanged. The trial court must disqualify a child witness when the child's testimony is so inconsistent with the record that the testimony is impossible. State v. Jones, supra. However, if the inconsistencies do not vitiate the child's testimony, such inconsistencies merely affect the credibility of the witness and do not incapacitate the child from giving testimony. State v. Obie, ...