Stincer v. Com.

• Decision Date: 12 June 1986
• Docket Number: No. 84-SC-496-MR,84-SC-496-MR
• Parties: Sergio STINCER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 939

712 S.W.2d 939

Sergio STINCER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 84-SC-496-MR

Supreme Court of Kentucky.

June 12, 1986.

Rehearing Denied Aug. 7, 1986.

Mark A. Posnansky, Asst. Public Advocate, Louisville, for appellant.

David L. Armstrong, Robert W. Hensley, Atty. General's Office, Frankfort, for appellee.

STEPHENS, Chief Justice.

Appellant was convicted by a jury in the Christian Circuit Court of sodomy in the first degree. He was sentenced to twenty (20) years imprisonment.

Of primary thrust on this appeal is appellant's contention that he was denied his right to confrontation, under the Sixth Amendment of the United States Constitution and Section Eleven of the Kentucky Constitution, when the trial court excluded him personally from a pre-trial hearing to determine whether the child prosecuting witnesses were competent to testify. We agree with appellant's argument and reverse on that ground.

Appellant was indicted in the Christian Circuit Court and charged with the first degree sodomy of an eight year old girl, a seven year old girl, and a five year old boy. During an in chambers hearing held prior to trial the Commonwealth sought dismissal of the charge in regards to the five year old on the grounds that the child was incompetent to testify. After granting that motion, the trial court prepared to conduct a hearing to determine if the two remaining prosecuting witnesses were competent to testify. At that time appellant specifically voiced his desire to be present personally during the competency hearing. Over defense counsel's objection, the trial court overruled his request and excluded appellant from the hearing.

Kentucky courts have continually recognized the right of the defendant to be present at every phase of the trial. Powell v. Commonwealth, Ky., 346 S.W.2d 731 (1961). In addition to the right of confrontation provided by the Sixth Amendment to the United States Constitution, the Eleventh Section of the Bill of Rights of the Kentucky Constitution guarantees the accused in a criminal prosecution the right to be heard by himself and counsel and to meet the witnesses (against him) face to face. The main purpose of the confrontation rule, under both the Sixth Amendment and Kentucky's Bill of Rights, is to ensure the defendant's right to cross-examine the witnesses against him at trial.

In this case there is no question that the competency hearing was a crucial phase of the trial and that appellant had the absolute right to be present and be represented by counsel. The determination of whether the child witnesses could testify was critical to the prosecution's case, as their testimony comprised the gravamen of the charges against appellant Stincer.

Unlike the situation presented in Harris v. Commonwealth, Ky., 285 S.W.2d 489 (1956), where the accused waived his right to be present during the preliminary examination of proposed witnesses by his failure to assert the privilege, appellant Stincer vociferously requested to be present at the hearing to assist his counsel with cross-examination of the prosecuting witnesses. Appellant clearly asserted and was denied his constitutional right to meet the witnesses face to face.

The Commonwealth maintains that it was not error for the prosecuting witnesses to be examined for their competency outside appellant's presence when appellant's counsel was present on his behalf. We are urged to adopt the proposition that the criminal defendant himself does not have the right to attend in chambers examinations held to determine the competency of child witnesses, Moll v. State, 351 N.W.2d 639 (Minn.App.1984). This we decline to do.

Previously this court held in Thomas v. Commonwealth, Ky., 437 S.W.2d 512 (1969) and Harris, supra, that a criminal defendant's right to be present in person did not extend to the reception of "legal arguments." However, a preliminary hearing to determine the competency of a prosecuting witness to testify certainly can not be termed the reception of purely legal argument as discussed in Thomas and Harris, supra, and therefore we find those cases distinguishable and that general proposition inapplicable in this case.

A criminal defendant has the right to attend hearings to determine the competency of witnesses. The trial court's determination of whether the prosecuting witnesses could testify was pivotal. Because the children's testimony was sine qua non to the prosecution's case, appellant's trial might not have taken place had the trial court determined that the children were not competent to testify.

Although this court recognizes the problems and pressures encountered when dealing with child witnesses, when a defendant is placed on trial by the state for criminal conduct he is entitled to be present and to assist his counsel at hearings to determine the competency of witnesses against him.

Appellant also contends that the trial court erred in refusing to direct a verdict of acquittal, in ruling that a four year old child witness was competent to testify and in allowing state social workers to care for the prosecuting witnesses during a trial recess. While none of these issues constitute reversible error, we shall briefly address each for purposes of retrial.

After carefully reviewing the testimony at trial, we determine that the trial court correctly found the evidence in the case to be sufficient to withstand a motion for a directed verdict of acquittal. At trial the child witnesses identified appellant and the acts perpetrated against them. Appellant was then accorded his right to cross-examine the witnesses. The evidence presented was clearly sufficient to withstand appellant's motion for a directed verdict of acquittal and it was not unreasonable for the trial court to do so. Trowel v. Commonwealth, Ky., 550 S.W.2d 530 at 533 (1977).

Likewise, we find no merit in appellant's contention that the trial court erred in ruling that a four year old witness, Eric Tandy, was competent to testify. The trial judge is in the unique position to observe witnesses and to determine their competency. "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." CR 52.01. The trial court questioned Eric Tandy in depth and the record on appeal does not substantiate appellant's claim that the trial court's ruling was clearly erroneous.

Finally, appellant contends the trial judge abused his discretion by allowing state social workers to care for the child witnesses during a trial recess. Prior to placing the children in the care of the social workers, the trial judge properly admonished the social workers to refrain from discussing the case during lunch with the children. Although this court does not condone or encourage this practice, as the record is silent on this issue, this court declines to speculate as to the effect of the social workers brief supervision of the children. We cannot hold the trial judge abused his discretion in permitting social workers to care for child witnesses during a luncheon recess.

We therefore reverse the judgment of the trial court on the ground that appellant was denied his right to confrontation by the trial court's ruling that he be excluded from a pre-trial competency hearing.

STEPHENS, C.J., and GANT and VANCE, JJ., concur.

STEPHENSON, J., concurs in a separate opinion and is joined by LEIBSON, J.

WINTERSHEIMER, J., dissents in a separate opinion and is joined by WHITE, J.

STEPHENSON, Justice, concurring.

I agree with the majority opinion. However, it should be extended so as to mandate that the competency-to-testify proceeding by the trial court be held in open court and before the jury. It is the province of the trial court to ascertain whether the child is sufficiently intelligent to observe, recollect, and narrate the facts and has a moral obligation to speak the truth. Moore v. Commonwealth, Ky., 384 S.W.2d 498 (1964). However, this inquiry is important to the jury in evaluating the credibility of the child's testimony.

Further, I believe it highly improper in a hearing to determine competency to testify to inquire into substantive testimony, as was done here with one of the child witnesses. Conducting this hearing before the jury would eliminate the temptation to hear substantive testimony about the case.

LEIBSON, J., joins in this concurring opinion.

WINTERSHEIMER, Justice, dissenting.

I must respectfully dissent from the majority opinion because the right of confrontation was not violated when the defendant was excluded from the competency hearing prior to trial. The majority decision misapplies and over extends the right to confrontation.

There never was at common law any recognized right to an indispensable thing called "confrontat...