State v. Milbradt

Decision Date17 May 1988
Citation756 P.2d 620,305 Or. 621
PartiesSTATE of Oregon, Respondent on review, v. Donald D. MILBRADT, Petitioner on review. CC 85-1156; CA A42497; SC S34731.
CourtOregon Supreme Court

J. Michael Alexander of Burt, Swanson, Lathen, Alexander & McCann, Salem, argued the cause for petitioner on review. Bernt A. Hansen, McMinnville, filed the petition for review.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

JONES, Justice.

Defendant claims four assignments of error in his petition to this court. The Court of Appeals affirmed without opinion his convictions for attempted rape and attempted sexual abuse. State v. Milbradt, 88 Or.App. 471, 745 P.2d 827 (1987). We reverse the decision of the Court of Appeals and remand the case for a new trial.

Defendant, a school bus driver, drove the two alleged victims, ages 19 and 20, to and from a school for mentally retarded persons. He also invited the alleged victims to Defendant originally was charged with ten counts of rape in the second degree involving instances of sexual conduct with each of the two mentally retarded young women. The trial court sustained demurrers to eight of the ten counts. The jury found defendant guilty of lesser included offenses on the remaining counts.

his home, where they occasionally stayed overnight with the defendant and his wife.


Defendant claims that the trial judge erred in making his determination that the two alleged victims were competent to testify at the trial.

The trial judge conducted a hearing outside the presence of the jury and, after listening to a psychiatrist and a psychologist and questioning the two young women, commented:

"I don't think, however, that it is my function as Judge to determine the quality of the perception * * * or the quality of the recollection, or the quality of the ability to relate. In other words, I think that I have to be able to say I am satisfied completely in my own mind that ability to perceive does not exist here, or the ability to have a good recollection of the perception does not exist here, or any of those things." (Emphasis added.)

The trial judge then concluded that the young women were competent to testify.

In doing so, the trial judge did not err. OEC 601 provides:

"Any person who, having organs of sense can perceive, and perceiving can make known the perception to others, may be a witness."

Whether a witness's ability to perceive and communicate is sufficient to make the witness competent under OEC 601 is an issue for the court to determine under OEC 104(1). 1 The unofficial commentary to OEC 601 reads:

"Whether any person has sufficient ability to perceive, recollect and communicate so it is worthwhile for the person to testify is a question for the trial court to decide in the exercise of sound discretion. This is clearly recognized in the case of mental capacity."

The advisory committee note to FRE 601, upon which the Oregon rule is based, states:

"No mental or moral qualifications for testifying as a witness are specified. Standards of mental capacity have proved elusive in actual application. A leading commentator observes that few witnesses are disqualified on that ground. Weihofen, Testimonial Competence and Credibility, 34 Geo.Wash.L.Rev. 53 (1965). Discretion is regularly exercised in favor of allowing the testimony. A witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence. (2 Wigmore, §§ 501, 509)." Kirkpatrick, Oregon Evidence 209 (1982).

In this case, there is no question but that the two young women were suffering from severe mental retardation and had great difficulty recalling and relating the times of the alleged assaults. Nevertheless, they satisfied the basic four requirements for competency. To be deemed competent a witness must (1) have the capacity to perceive and perceive (OEC 601); (2) have capacity to recall and recollect the impressions of fact perceived (OEC 601); (3) have the capacity to communicate and communicate (OEC 601); and (4) have taken an oath or affirmation to testify truthfully (OEC 603). Although one of the psychotherapists opined that one of the witnesses, Vickie, was not credible at all,--and we will deal with the evidentiary implications of such an opinion later--he could not say that she was not competent to The trial judge correctly ruled that he should not determine the credibility of the witnesses. So long as the witnesses possessed capacity to perceive and communicate factual matters and understand that they were under an obligation to tell the truth, they were sufficiently competent to testify.

testify. He observed that the other victim, Rose, was easily malleable and vulnerable to suggestion, but did not seriously question her competence.


Defendant's second assignment of error complains that the trial judge erroneously admitted the testimony of Dr. Farrenkopf, a psychologist called by the state. This witness testified that when interviewing the young women regarding their accusations he found no evidence of deception and that what they were reporting represented their experience. Dr. Farrenkopf testified:

"Q. [BY PROSECUTOR] To summarize then, Doctor, these tests allowed you to arrive at an I.Q. score of what?

"A. With Vickie, I categorized her in the severely retarded range of mental deficiency of about, I.Q. of about 25.

" * * *

"Q. In your contact with Vickie Fernleaf to what extent did you see evidence of deception?

"[DEFENSE ATTORNEY]: I am going to object to this line of evidence. I think it gets to impermissible areas of comment by the psychologist.

"THE COURT: You got to come again. I am not sure that I understand your objection.

"[DEFENSE ATTORNEY]: His question was to what extent did you see signs of deception. I think the question of whether the witness showed signs of deception is beyond the function and scope of an expert witness in this area.

"THE COURT: Well, I don't know, because there hasn't been any foundation on that particular point as yet. So, I would sustain an objection to that question because of a lack of foundation.

"[DEFENSE ATTORNEY]: I would change then the basis of my objection.

"Q. (By Prosecutor) Doctor, you have indicated that part of your training as a psychologist is to be a trained observer, is that correct?

"A. That is correct.

"Q. Have you in your training and education as a psychologist found there to be certain indicators of deception?

"A. Certainly in my experience with criminal justice clients over the past five, six years, that is one of the things I look for.

"Q. Were you able to arrive at opinions or observations in that regard with respect to Vickie Fernleaf?

"A. Yes, I was.

"Q. And what was that based on?

"A. Based on her demeanor, on how she answered questions, the content of her answers. I could go into her spontaneity, among other things. She was spontaneous with freshness in answering the questions.

"Q. I would ask the question again. To what extent, in your evaluation of her, did you see evidence of deception?

"[DEFENSE ATTORNEY]: And I object again, Your Honor.

"THE COURT: No, I am going to overrule the objection. You can test all of this on cross examination, [defense counsel].

"Q. (By Prosecutor) To what extent did you see evidence, or indicators of deception?

"A. I did not. She seemed to take every question and answer it as she was, answer spontaneously on the moment with no indication of hesitation, or figuring out what the best answer might be. You know, she would just blurt things out, which is unpremeditated response. So, kind of a very fresh and spontaneous approach to me.

"Q. Were there any other observations that you made regarding the presence or absence of deception?

"A. By deception, we mean purposefully deceiving, or changing things?

"Q. Yes.

"A. I did not see any evidence of that. That is not to say everything she said must be accurate. But it seemed to me to be no attempt on her part to change things around, say things differently than the way she felt. And she said things with an exuberance, and emphasis, like, you know, she wanted to do well, and say the answer, and do the right thing, and here it is, you know. None of the mannerisms of somebody that is cagey and guarded and careful.

" * * *

"Q. To what extent would Vickie's limited mental capacity impair her ability to be deceptive?

"A. Again, I find her condition of her mental defect as directly related to rendering her unsophisticated to either plan a systematic or motivated deception, or carry it through. She was so spontaneous if she, this is my opinion, if she lied, that she would trip herself up five minutes later, you know.

" * * *

"Q. Does her limited mental capacity impair her ability to betray someone she perceives to be a friend?

"A. I would not think she would have the motivation to betray somebody. She seemed to me to be very disarming, very trusting, in fact more so than Rose. Vickie is so open and so vulnerable, I almost felt bad being a psychologist, and subjecting her to the evaluation because with her, even more I had the feeling she was--she was just putty in anybody's hands, and so totally trusting."

(As an indication that such testimony was improper and misleading, we note the clash of "experts" on this matter which was not presented to the jury. Dr. Farrenkopf was describing the same witness whom Dr. Colbach, during the competency hearing and without objection, had described as being not at all credible.)

After allowing Dr. Farrenkopf's testimony, the trial judge instructed the jury as follows:

"Ladies and gentlemen, just before you were sent to the juryroom, an objection was made to a question, and an answer actually was given by a witness. I'm going to do this my way [defense couns...

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