State v. Martineau, s. 19271

• Court: Court of Appeal of Missouri (US)
• Citation: 932 S.W.2d 829
• Docket Number: 20546,Nos. 19271,s. 19271
• Parties: STATE of Missouri, Respondent, v. Lou R. MARTINEAU, Appellant. Lou R. MARTINEAU, Appellant, v. STATE of Missouri, Respondent.
• Decision Date: 08 October 1996

Page 829

932 S.W.2d 829 STATE of Missouri, Respondent,
v.
Lou R. MARTINEAU, Appellant.
Lou R. MARTINEAU, Appellant,
v.
STATE of Missouri, Respondent. Nos. 19271, 20546. Missouri Court of Appeals,
Southern District,
Division Two. Oct. 8, 1996.

Page 830

Emmett D. Queener, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Becky Owenson Kilpatrick, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Presiding Judge.

A jury found Appellant, Lou R. Martineau, guilty of sodomy, § 566.060.3, RSMo Cum.Supp.1992, and assessed punishment at fifteen years' imprisonment. The trial court

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entered judgment per the verdict. Appellant brings appeal 19271 from that judgment.

While that appeal was pending, Appellant filed a motion to vacate the judgment and sentence per Rule 29.15. ¹ The motion court denied relief after an evidentiary hearing. Appellant brings appeal 20546 from that order.

We consolidated the appeals, Rule 29.15(l), but address them separately in this opinion.

Appeal 19271

The first of Appellant's two points relied on pertains to this appeal. It avers the trial court erred in allowing the victim to testify in that the victim "lacked the ability to accurately observe events and to retain an independent recollection of events."

The victim was thirteen years of age at time of trial. ² The information alleged the crime occurred during "the spring of 1993." The victim's testimony included this:

"Q Has Lou Martineau ... ever touched your penis?

A Yeah.

Q Did that happen while he was babysitting you?

A Yeah.

....

Q ... have you ever seen Lou Martineau's penis?

A Yeah.

....

Q When you saw Lou's penis, did he have his pants all the way down, or were they partially down?

A They were up.

Q Were his pants unzipped?

A Yeah.

Q Tell this jury, when you saw Lou's penis, was it hanging there, or was it stuck straight out?

A Struck straight out.

Q What did Lou do when you saw his penis?

A He grabbed my hand.

....

Q What did he do with your hand?

A Made me touch it.

Q Okay. Did you want to?

A No.

....

Q What did you do after he was done?

A He went into the other room.

....

Q Did he make you touch his penis more than once?

A Yeah.

Q Did he touch your penis more than once?

A Yeah."

Before the victim testified, the trial court conducted a hearing on the competency issue. Eileen Johnson, called as a witness by Appellant, testified she coordinates special education services for the school system attended by the victim. A "diagnostic summary" showed the victim "qualifies as mildly mentally retarded, but he's at the upper range, the borderline range." He has a "full scale IQ" of 72. In his "daily living skills, socialization, and communication," the victim's "adaptive level" is "[s]omewhere around two or three years below his chronological age." However, Ms. Johnson's testimony also included this:

"Q Is [the victim] particularly subject to being influenced by other people?

A No. He's fairly independent."

The victim also testified at the competency hearing. He recounted he was in the sixth grade, knew his place of residence and his teacher's name, knew the difference between right and wrong, and knew a lie is "[s]omething you say that's not true." He promised that everything he would tell the jury would be true and he would not lie. He understood

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the trial was about "[s]exual abuse" that occurred at the trailer park where he lived. He recalled he got a basketball goal the past Christmas (1992) and the abuse occurred after he got the goal.

On cross-examination at the competency hearing, the victim testified he recalled talking to Patrick Knapp (an investigator for Appellant's lawyer) and a college student accompanying Knapp. Asked whether he told them the truth about what happened, the victim responded, "Not really." Asked why, the victim replied, "Because I was confused ... [by] ... [t]he way they talked to me about it." The victim further testified that after the Knapp interview, his parents told him he was confused and did not remember everything. The victim did not know he failed to remember everything until his parents told him.

At the conclusion of the competency hearing, the trial court ruled:

"[T]he evidence I heard was that he's maybe two or three years below mentally, and he's 13 now. And if a ten year old alleged sexual abuse, and they met the other requirements, I would allow them to testify. So I'm going to overrule [the] request [to exclude the victim's testimony]."

The victim's trial testimony containing his account of Appellant's crime is quoted supra. In addition to that, the victim also told the jury he met Appellant when Appellant, a friend of the victim's parents, "came to our house." Appellant gave the victim money, bought him a pair of tennis shoes, and gave him a Batman doll. The victim learned from "Channel One" at school that if someone touches his penis, he should "[g]et away from them." The victim further recalled his parents were not home when the crime occurred.

Concerning the Knapp interview, the victim, under cross-examination at trial, testified he told Knapp about an incident in which Appellant tried to get the victim to touch Appellant's "privates." The incident occurred "at the lake" in Oklahoma. The victim also recalled telling Knapp about Appellant touching the victim's "privacy" while Appellant, the victim, and one of the victim's brothers were "wrestling." The victim did not tell Knapp about the incident upon which the prosecution was based.

A witness is competent to testify if the witness shows: (1) a present understanding of, or the ability to understand upon instruction, the obligation to speak the truth; (2) the capacity to observe the occurrence about which testimony is sought; (3) the capacity to remember the occurrence about which testimony is sought; and (4) the capacity to translate the occurrence into words. State v. Robinson, 835 S.W.2d 303, 307 (Mo. banc 1992). Determination of competency of a witness to give testimony is for the discretion of the trial court, and its decision will not be reversed except for clear abuse. Id. at .

As reported earlier, Appellant's point relied on avers the victim "lacked the ability to accurately observe events and to retain an independent recollection of events." That appears to be a claim that the victim did not satisfy requirements 2 and 3 of the Robinson test in the preceding paragraph.

However, the argument following the point develops no support for the contention that the victim was deficient under requirement 2. Instead, the argument asserts: "It was clear from [the] evidence that [the victim] lacked the capacity to accurately recall and relate the events for which he was being called to testify." That appears to be a claim that the victim did not satisfy requirements 3 and 4.

We first consider requirement 3.

Citing State v. Johnson, 851 S.W.2d 547, 549 (Mo.App. W.D.1993), Appellant asserts that in determining whether the trial court's decision to allow the victim to testify was an abuse of discretion, we must review both the evidence at the competency hearing and the victim's trial testimony. Appellant maintains that because the victim told Knapp about the incident at the lake and the wrestling episode, but failed to tell Knapp about the incident on which the prosecution was based, and because the victim did not realize he had omitted the latter incident until his...