State v. Williams, 68278

• Decision Date: 14 April 1987
• Docket Number: No. 68278,68278
• Parties: STATE of Missouri, Respondent, v. Jimmy Leon WILLIAMS, Appellant.
• Court: Missouri Supreme Court

Page 197

729 S.W.2d 197

55 USLW 2614

STATE of Missouri, Respondent, v. Jimmy Leon WILLIAMS, Appellant.

No. 68278.

Supreme Court of Missouri,

En Banc.

April 14, 1987.

Janet M. Thompson, Office of State Public Defender, Columbia, for appellant.

William L. Webster, Atty. Gen., Elizabeth A. Levin, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

Appellant, Jimmy Leon Williams, was convicted of first degree sexual abuse and third degree assault in violation of sections 566.100 and 565.070, RSMo 1986. Upon conviction, he was sentenced to concurrent terms of imprisonment of five years and one year. Following rendition of judgment and imposition of sentence, the cause was transferred to this Court to determine the constitutionality of a Missouri statute. Mo. Const. art. V, § 3. We affirm.

The convictions stemmed from alleged incidents of sexual abuse and other assaults involving appellant's eight-year-old stepdaughter. Over appellant's objections, the child was allowed to testify about the incidents of abuse without a prior determination of competency. Appellant urges that section 491.060, RSMo 1986, which allowed the child to testify without any further qualification, denied him equal protection under the law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Mo. Const. art. I, § 2. More specifically, he complains that section 491.060(2) "treats, in a disparate fashion, appellant and all those similarly situated who are alleged to have committed an offense under Chapters 565, 566 or 568, RSMo, and who are alleged to have committed the offense against a person who is under ten years old and who will testify at trial because, in that situation, the child witness is irrebuttably presumed to be competent to testify while in all other situations, the child witness is presumed incompetent to testify."

Insofar as pertinent to this appeal, section 491.060 reads as follows:

The following persons shall be incompetent to testify:

* * *

* * *

(2) A child under ten years of age, who appears incapable of receiving just impressions of the facts respecting which he is examined, or of relating them truly provided, however, that except as provided in subsection (1) of this section, a child under the age of ten who is alleged to be a victim of an offense under chapter 565 [offenses against the person], 566 [sexual offenses], or 568 [offenses against the family], RSMo, shall be considered a competent witness and shall be allowed to testify without qualification in any judicial proceeding involving such alleged offense. The trier of fact shall be permitted to determine the weight and credibility to be given to the testimony; ¹....

This section merely creates rebuttable presumptions that a child over ten years old is competent to testify and that a child less than ten years old is not competent to testify. State v. Young, 477 S.W.2d 114, 116 (Mo.1972); State v. Ball, 529 S.W.2d 901, 904 (Mo.App.1975). Stated another way, it provides that a child under ten years of age is a competent witness only if the child appears to the trial judge to have the capacity both to receive just impressions and to relate them truthfully. The 1984 proviso in question then simply removes the need for a judicial determination of competency in those cases where a child of tender years is a victim of one of the delineated offenses.

Scholars and legislators alike have for many years debated the propriety, or at least the permissible scope, of a child's testimony. The goal has always been to attain a proper balance between the competing interests of the child and those of the accused. The harsh confrontation between those interests arises predominantly in cases where, as here, the child is the only eyewitness to the crime. More often than not in these cases the only direct evidence connecting the accused with the crime is the testimony of the child. Other circumstantial evidence merely shows that the crime occurred. Consequently, offenders, who have chosen a young child as their victim, often avoid conviction when the child's testimony is unavailable. On the other hand, there is the accused's interest in obtaining a fair trial. Proponents of the accused's interest argue that the testimony of a truly incompetent young child increases the danger of sentencing an innocent man.

The modern trend favors enactment of legislation similar to the Missouri competency statute. To date, three other states ² have enacted similar statutes which presume the competency of certain child victims. Comment, The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It?, 40 U.Miami L.Rev. 245, 273 n. 136 (1985). The position taken in this type of legislation is statutorily, though not conceptually, innovative. It was said long ago that:

A rational view of the peculiarities of child nature, and of the daily course of justice in our courts, must lead to the conclusion that the effort to measure a priori the degrees of trustworthiness in children's statements, and to distinguish the point at which they cease to be totally incredible and acquire suddenly some degree of credibility, is futile and unprofitable. The desirability of abandoning this attempt and abolishing all grounds of mental or moral incapacity has already been noted in dealing with mental derangement. The reasons apply with equal or greater force to the testimony of children. Recognizing on the one hand the childish disposition to weave romances and to treat imagination for verity, and on the other the rooted ingeniousness of children and their tendency to speak straight forwardly what is in their minds, it must be concluded that the sensible way is to put the child upon the stand to give testimony for what it may seem to be worth. To this result legislation must come. To be genuinely strict in applying the existing requirement is either impossible or unjust; for our demands are contrary to the facts of child nature; ....

2 Wigmore, Evidence § 509 (Chadbourn Revision 1979). Similarly in Cleary, McCormick on Evidence, § 62 (1984), the proposition was stated as follows:

The major reason for disqualification of the persons mentioned in this section to take the stand is the judges' distrust of a jury's ability to assay the words of a small child.... Conceding the jury's deficiencies, the remedy of excluding such a witness, who may be the only person available who knows the facts, seems inept and primitive. Though the tribunal as unskilled, and the testimony difficult to weigh, it is still better to let the evidence come in for what it is worth,....

Since the policy choice was made by the General Assembly when it enacted the 1984 proviso, we need only decide whether the statute is constitutional. In doing so, we must first ascertain the proper standard of review. As was recently stated in Belton v. Board of Police Commissioners, 708 S.W.2d 131, 139 (Mo. banc 1986),

In equal protection claims the first step is to ascertain whether the statutory scheme "operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution.... San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 17 [93 S.Ct. 1278, 1288, 36 L.Ed.2d 16] (1973)"; State Board of Registration v. Giffen, 651 S.W.2d 475, 479 (Mo. banc 1983). If so, the statutory scheme receives strict judicial scrutiny to ascertain whether the classification is necessary to a compelling state interest. Id. If the classification neither burdens a suspect class, nor impinges upon a fundamental right, the only issue is whether the classification is rationally related to a legitimate state interest. Friedman v. Rogers, 440 U.S. 1, 17, 99 S.Ct. 887, 898, 59 L.Ed.2d 100 (1979); Giffen, supra, 651 S.W.2d at 479. In such a situation the burden is on the person attacking the classification to show that it does not rest upon any reasonable basis, and is purely arbitrary. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911); City of St. Louis v. Liberman, 547 S.W.2d 452, 458 (Mo. banc 1977). Under this analysis a classification will be upheld if any state of facts can be reasonably conceived which would justify it. McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961); Liberman, supra, 547 S.W.2d at 458.

Appellant attempts to invoke strict scrutiny by maintaining that section 491.060(2) infringes on a fundamental right, namely, his due process right to a fair trial. The group of rights expressly held to be "fundamental" is not large. The list includes: (1) the right to vote, Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); (2) the right to exercise first amendment freedoms, San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); (3) the right to privacy, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); and (4) the right to travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

The above list may not be all inclusive. Arguably, other rights have been implicitly recognized as fundamental rights. As one commentator stated:

The Court has implicitly recognized a right to fairness in the criminal process as a fundamental right although its "fundamental" nature has not been the subject of a specific decision ... [and] the Supreme Court has recognized that there is a right to fairness in procedures concerning individual claims against governmental deprivations of life, liberty, or property. Again, this right is not reflected in a specific decision but is, rather, an implied recognition of the fundamental nature of the due process clause in those decisions dealing with "procedural due process" rights.

2 R. Rotunda, J. Nowak and J. Young, Treatise on Constitutional Law Substance and Procedure, § 15.7 (1986) [footnotes...