State v. Hussey
| Decision Date | 06 January 1987 |
| Citation | 521 A.2d 278 |
| Parties | STATE of Maine v. Stephen HUSSEY. |
| Court | Maine Supreme Court |
R. Christopher Almy, Dist. Atty., Philip Worden (orally), Asst. Dist. Atty., Michael P. Roberts, Deputy Dist. Atty., Bangor, for plaintiff.
Vafiades, Brountas & Kominsky, Marvin H. Glazier, Bangor, Daniel G. Lilley Law Offices, P.A., Daniel Bates (orally), Portland, for defendant.
Before McKUSICK, C.J., and NICHOLS, WATHEN, GLASSMAN and CLIFFORD, JJ.
The defendant appeals an order of the Superior Court, Penobscot County, denying his motions for a judgment of acquittal and a new trial following his jury conviction for unlawful sexual contact, 17-A M.R.S.A. § 255 (Supp.1986) (Class C). See M.R.Crim.P. 29(b) and 33. The defendant assigns several points of error, but contends mainly that the court erred in finding that the three-year-old prosecutrix was competent to testify. Finding no error, we affirm.
The defendant was convicted of unlawful sexual contact with his young daughter, Kristen, while she was spending Christmas Eve with him in 1984. Kristen's parents were divorced and lived apart, and Kristen lived most of the time with her mother. Kristen returned to her mother's home on Christmas Day and that evening when her mother was putting her to bed, Kristen complained of soreness in the area of her vagina. Kristen's mother examined her and discovered inflammation and dilatation. The following day she took Kristen to her pediatrician, Dr. Robert Holmberg. Dr. Holmberg examined Kristen and concluded that Kristen's injuries were probably caused by trauma.
At trial the court conducted the voir dire of Kristen and ruled that she was competent to testify. The defendant declined to participate in the voir dire and requested no findings of fact on the issue of Kristen's competence. Kristen's testimony as to the events of Christmas Eve was sufficient, if believed, to support a finding of guilty for the offense charged.
After trial the jury returned a verdict of guilty of unlawful sexual contact. Pursuant to M.R.Crim.P. 29(b) and 33, the defendant moved for a judgment of acquittal or a new trial. The court denied the motions, and this appeal followed.
At the time of trial in December, 1985, Kristen was three years old. The defendant's main contention on appeal is that the court erred in finding that Kristen was competent to testify. Specifically, the defendant contends that the court's voir dire of Kristen showed that Kristen was incapable of understanding her duty as a witness to tell the truth.
Under the common law, all persons fourteen years of age and older were presumed competent to testify, unless the contrary appeared. State v. Pomerleau, 363 A.2d 692, 695 (Me.1976); State v. Ranger, 149 Me. 52, 55, 98 A.2d 652, 653-54 (1953). As to a child under fourteen, there was no presumption either way regarding competency. Pomerleau, 363 A.2d at 695. Evaluation of a testimonial capacity of a child under fourteen was confined to the sound discretion of the presiding justice, who based his determination on the totality of circumstances in any given case. Id. This court set aside a ruling on competency only on a finding that the trial court had abused its discretion. Id.; State v. Brewer, 325 A.2d 26, 27 (Me.1974).
With the advent of the Maine Rules of Evidence, Rule 601 became the controlling authority for determining competency. It reads in relevant part:
(a) General Rule of Competency. Every person is competent to be a witness except as otherwise provided in these rules.
(b) Disqualification of Witness; .... A person is disqualified to be a witness if the court finds that (a) the proposed witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth.
Rule 601 effected significant changes in pre-existing law regarding the competency of child witnesses.
In contrast to pre-existing law, a child of any age is competent to be a witness unless disqualified under rule 601(b). To disqualify a child witness from testifying the presiding justice must make a specific finding that either the proposed witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury, or the proposed witness is incapable of understanding the duty of a witness to tell the truth. M.R.Evid. 601(b).
Whereas determinations of child competency were previously committed to the sound discretion of the trial court whose determination was based on an analysis of the totality of the circumstances in a given case, the focus of the presiding justice must now be exclusively on these two factual issues. When appellate review of a trial court's disqualification of a witness is required, this court will accordingly review the trial court proceedings under a clearly erroneous standard as it does other factual findings.
The defendant does not seriously contend, nor does the record demonstrate, that Kristen was incapable of expressing herself concerning her experience so as to be understood by the judge and jury. Rather, the defendant contends that Kristen was incapable of understanding her duty to tell the truth.
A child must have "sufficient capacity to understand, in some measure, the obligation of an oath." Ranger, 149 Me. at 56, 98 A.2d at 654. The requirement that a child witness understand the duty to tell the truth may be satisfied if the child manifests an understanding that it is wrong to falsify, and that he or she may be punished for not telling the truth. See State v. Vigue, 420 A.2d 242, 246 (Me.1980); State v. Pinkham, 411 A.2d 1021, 1023 (Me.1980); Ranger, 149 Me. at 56, 98 A.2d at 654. The defendant declined the court's invitation to participate in the voir dire of Kristen and failed as well to request findings of fact on the two issues in Rule 601(b). Since the defendant adduced no evidence to disqualify Kristen, we will not disturb the court's ruling.
The defendant points to numerous inconsistencies and errors in Kristen's testimony regarding details about what happened on Christmas Eve and Day. These inconsistencies and errors, nevertheless, affect weight and credibility and are therefore properly questions for the jury and do not affect the court's preliminary ruling on Kristen's...
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