State v. Horak
| Decision Date | 14 January 2010 |
| Docket Number | No. 2009-027.,2009-027. |
| Citation | 159 N.H. 576,986 A.2d 596 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Christopher HORAK. |
Orville B. Fitch, II, acting attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Christopher Horak, appeals his conviction of sexual assault for engaging in sexual contact with a person thirteen years of age or older whom he knew to be mentally defective. See RSA 632-A:4, I(a), : 2, I(h) (2007). We reverse and remand.
The Manchester District Court (Champagne, J.) could have found the following facts. At the time of the assault, the defendant lived with the complainant and her mother and had been the boyfriend of the complainant's mother for nine years. The complainant, who was then twenty-two years old, was born with disabilities and required daily care such as changing her diapers and assistance with showering, dressing and brushing her teeth. On weekdays, while her mother worked, the complainant attended the Moore Center, an organization providing services for people with acquired brain disorders and developmental disabilities.
On April 24, 2008, the complainant's mother dropped the complainant off at the Moore Center. The complainant was crying and informed her nurse about an incident that had occurred with the defendant that morning. The police were contacted, and the defendant was charged by complaint with having committed sexual assault, in that:
[The defendant did] [p]urposely engage in sexual conduct with [the complainant] 08/18/85, whom he knows to be mentally defective, to wit: did expose his bare penis to her and then told her to touch his bare penis, to which she complied, which can be reasonably construed as being for the purpose of sexual arousal or gratification.
The defendant was tried in Manchester District Court and convicted. On appeal, he argues that the trial court erred in: (1) finding that the State proved both that the complainant was mentally defective and that the defendant knew she was mentally defective; and (2) ruling that the complainant was competent to testify. We address the second issue first.
"Whether a witness is competent to testify is a question of law for the trial court." State v. Mills, 136 N.H. 46, 49, 611 A.2d 1104 (1992). "Where the record supports the court's determination of competency, we will not disturb that determination absent an [unsustainable exercise] of discretion." State v. Aikens, 135 N.H. 569, 571, 607 A.2d 948 (1992) (quotation omitted); see State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) (). "Because so much depends on the trial court's firsthand observations of the witness, its conclusion that the witness is competent is entitled to great deference." State v. Briere, 138 N.H. 617, 620, 644 A.2d 551 (1994).
Under New Hampshire Rule of Evidence 601, "[w]itnesses are presumed competent to testify, ... [a]lthough this presumption may be overcome by findings that the witness ‘lacks sufficient capacity to observe, remember and narrate as well as understand the duty to tell the truth’...." Id. (quoting N.H. R. Ev. 601(b) ). The defendant challenges the complainant's capacity with respect to an understanding of the duty to tell the truth. Specifically, he contends that the record fails to demonstrate both the complainant's "ability to distinguish the truth from a lie, as well as [her ability] to appreciate her personal obligation to tell the truth."
Implicit in an understanding of the duty to tell the truth is an understanding of the distinction between the truth and a lie. See State v. Brown, 138 N.H. 649, 653, 644 A.2d 1082 (1994) (); State v. St. John, 120 N.H. 61, 63, 410 A.2d 1126 (1980) (). To determine whether a finding that the complainant possessed such an understanding is sustainable, we examine the record in some depth.
On direct examination of the complainant, the prosecutor inquired:
After the complainant testified that it was very cold out that day, the prosecutor asked, "So if I told you it was hot out today, would that be the truth or would that be a lie?" The complainant responded, "The truth." Similarly, after the complainant testified that she, her mother, and her nurse had been at a prior meeting with the prosecutor, the prosecutor asked, "[I]f I said that [the nurse] wasn't there when we met before, is that the truth or is that a lie?" The complainant answered, "The truth." The prosecutor then asked the complainant why she would want to tell the truth and the complainant stated, "Because I have to get it out."
On voir dire, the defense attorney asked her whether it is "okay to sometimes lie?" The following exchange then took place:
Finally, the trial court questioned the complainant. After asking the complainant to identify what the judge held in his hand, to which she replied, "Pen," the judge asked whether, if he told her what he was holding was a glass, "would I be lying or would I be telling the truth?" The complainant responded, "What do you mean?" The judge again asked whether, if someone told the complainant what the judge was holding was a glass, "would that person be lying or telling the truth?" The complainant answered, "A lie."
The court then asked the complainant to explain in her own words what it meant to tell the truth. In response, she appears to have tried to recount the assault, to which defense counsel objected. The prosecutor urged the court to defer making a competency evaluation, allow the complainant to testify and evaluate her competency based upon her testimony "throughout ... the course of the trial." After concluding that it must make a determination of competency before a witness testifies, the court stated that it had one more question for the complainant. The court asked:
The court then ruled that the complainant was competent to testify.
The State asserts that the complainant's answers support the determination of competency. It contends that although she "was unable to define ‘truth;’ or ‘lie,’ ... she was able to tell the court that she wanted to tell the truth, that people got into trouble when they lied, and that it would be a lie to call his pen a glass." The defendant, on the other hand, argues that a single correct answer among a number of incorrect ones cannot establish competency, as a witness giving random answers, would, as a matter of probability, at some point get one answer right. Thus, the defendant asserts:
[A]s a policy matter, if [the complainant's] testimony suffices to establish competency, Rule 601(b) hardly filters the testimony of any witness. Nearly any witness can fail to answer several basic and highly leading questions about the ability to testify truthfully, as [the complainant] did, eventually can get one answer "right," as [the complainant] did, and be deemed competent, as [the complainant] was.
We agree with the defendant that the complainant's single correct answer, considered together with her prior incorrect ones, does not demonstrate that she understood the difference between the truth and a lie. We cannot agree with the State that "[a]fter confusing voir dire from both sides, the trial court was able to cut through the confusion." Rather, the record shows only that the trial court was able to elicit a correct response to the same type of question that both parties had previously posed and to which the complainant had responded incorrectly.
The State cites a number of cases from other jurisdictions for the general proposition that "the failure of a witness to state clearly the difference between a lie and the truth does not render the witness incompetent to testify." State v. Pettis, 488 A.2d 704, 706 (R.I.1985) (). We do not disagree; nevertheless, as Chief Justice Brock stated in his dissent in Mills: "Although the witness need not utter any ‘magic words' indicating that he or she understands the difference between the truth and a lie or the importance of telling the truth, some indication of the witness's understanding must be apparent on the record." Mills, 136 N.H. at 54, 611 A.2d 1104 (Brock, C.J.dissenting).
We also acknowledge, as the State emphasizes, that the trial court had the opportunity to observe the complainant's demeanor firsthand, while ...
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