State v. Brown

• Citation: 425 P.2d 112,102 Ariz. 87
• Decision Date: 15 March 1967
• Docket Number: No. 1729,1729
• Parties: STATE of Arizona, Appellee, v. James BROWN, Appellant.
• Court: Arizona Supreme Court

Page 112

425 P.2d 112

102 Ariz. 87

STATE of Arizona, Appellee, v. James BROWN, Appellant.

No. 1729.

Supreme Court of Arizona, In Banc.

March 15, 1967.

Darrell F. Smith, Atty. Gen., and David S. Ellsworth, County Atty., Yuma County, for appellee.

Darryl A. Adams, Phoenix, for appellant.

UDALL, Justice:

Appellant, James Brown, hereinafter referred to as defendant, was tried and convicted in the Superior Court of Yuma County for the crime of robbery. From the verdict, judgment and sentence defendant has brought this appeal.

The facts connected with the alleged commission of the crime, that are material to the case, are as follows: An accomplice to the crime, one Dennis West, was a witness against the defendant. Prior to the date of the trial, this witness had been committed to the Arizona State Hospital for a mental examination. The examination of the witness had not been completed at the time that he testified.

It appears that witness West, by order of the Superior Court, was committed to the State Hospital in Phoenix on June 10, 1966. He was returned to Yuma County and testified at the trial on June 17th as a witness for the prosecution. After the trial he was returned to the State Hospital where he remained until July 27, 1966.

There was testimony that the witness had been treated by other psychiatrists prior to the time he was brought to trial as an accomplice of defendant in this case. Witness West pled guilty to the crime of robbery and, at the beginning of the trial of defendant in this cause, he was examined by the court on voir dire in the absence of the jury, to determine if he was qualified to testify in accordance with the provisions of A.R.S. § 12--2202, subsec. 1.

At the conclusion of the hearing the court stated:

'Gentlemen, the Court at this time sees no evidence of mental unsoundness such as would exclude this man from the witness stand. * * *

'The Court will find the witness is qualified to testify.'

Thereupon the jury was called and the court proceeded with the trial.

There is one basic question presented to us for review: Was the witness West properly found to be mentally competent to give testimony in this cause, in view of the fact that at that time he had been committed to the mental hospital for observation and examination?

Defendant contends the lower court erred in allowing West to testify at the trial since the order committing him to a mental institution was sufficient proof to overcome the presumption of his sanity; therefore, the court should have required the prosecution to present evidence of his mental compentency to testify before allowing him to do so.

A.R.S. Section 13--1801 reads:

'The laws for determining competency of witnesses in civil actions are also applicable to criminal actions and proceedings * * *.'

A.R.S. Section 12--2202, subsec. 1 states:

'The following shall not be witnesses in a civil action:

'1. Persons who are of unsound mind at the time they are called to testify.'

This is a matter of first impression in this state, although this Court has twice interpreted A.R.S. § 12--2202, subsec. 1 in reference to minor children testifying. Davis v. Weber, 93 Ariz. 312, 380 P.2d 608; and Litzkuhn v. Clark, 85 Ariz. 355, 339 P.2d 389. In Weber we said:

'It is the settled law in this state that the trial court must examine children under ten years of age to determine whether they are capable of receiving just impressions and relating them truly. A.R.S. 12--2202. The trial judge's ruling on the introduction of a child's testimony will not be disturbed except in the case of a clear abuse of discretion. Keefe v. State, 50 Ariz. 293, 72 P.2d 425.'

California Penal Code § 1321 and California Code of Civil Procedure § 1880(1) are identical to A.R.S. §§ 13--1801 and 12--2202, subsec. 1 respectively. The decisions interpreting these statutes in California are therefore very persuasive. Generally speaking, when an objection is made to the soundness of a witness's mind, the question of the competency of said witness is one to be determined by the trial judge.

In the case of People v. McCaughan, 49 Cal.2d 409, 317 P.2d 974, 981, the Supreme Court of California said:

'The question to be determined is whether the proposed witness's mental derangement or defect is such that he was deprived of the ability to perceive the event about which he is to testify or is deprived of the ability to recollect and communicate with reference thereto. (Citing cases) It bears emphasis that the witness's competency depends upon his ability to perceive, recollect, and...