Strickland v. State, 65214
| Decision Date | 22 November 1982 |
| Docket Number | No. 65214,65214 |
| Citation | 164 Ga.App. 845,297 S.E.2d 491 |
| Parties | STRICKLAND v. The STATE. |
| Court | Georgia Court of Appeals |
George C. Floyd, Bainbridge, for appellant.
Gilbert J. Murrah, Dist. Atty., Edward C. Parker, Paul Fryer, Asst. Dist. Attys., Bainbridge, for appellee.
Strickland was tried for murder and convicted of voluntary manslaughter, from which he appeals. We reverse.
1. In his first enumeration of error, appellant asserts that the trial court erred in finding Kit Strickland a/k/a Kit Kramer, a five year old child, competent to testify. We are constrained to agree with appellant that the trial court abused its discretion in allowing the child to testify.
The child actually was examined twice to determine his competency, once during a hearing on a motion in limine, and subsequently at trial. In pertinent part the examination at the motion hearing was as follows:
The child's testimony given at trial was substantially the same as above.
In determining whether a child is competent to testify in the trial of a case, it is not necessary that the child understand the meaning of the word "oath." Lashley v. State, 132 Ga.App. 427, 208 S.E.2d 200 (1974). The determinative factor is whether the child sufficiently understands the nature and obligation of an oath. Pace v. State, 157 Ga.App. 442, 278 S.E.2d 90 (1981); Miller v. State, 109 Ga. 512, 35 S.E. 152 (1899). The child must "appreciate the fact that as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation he is subject to be punished by the court." Smith v. State, 247 Ga. 511(2), 277 S.E.2d 53 (1981). The determination is within the sound discretion of the trial court, and will not be disturbed by this court except for a manifest abuse of that discretion. Pace v. State, supra; Thurmond v. State, 220 Ga. 277, 138 S.E.2d 372 (1964).
In this case, we believe that the often contradictory and unresponsive testimony of the child indicated that the child did not yet possess sufficient intelligence to understand the nature of an oath or the penalty for its violation. See Edwards v. State, 162 Ga. 204, 132 S.E. 892 (1926). The trial court, in ruling that the child was competent, admitted that it was a close question, and we are of the opinion that the trial court abused its discretion in so ruling. Upon retrial, of course, the child may have matured sufficiently as to understand the responsibilities attaching to a witness, and thus become competent to testify at the new trial. Pace v. State, supra; Miller v. State, supra.
2. In his second enumeration or error, appellant contends that the trial court erred in not granting a directed verdict of acquittal on the grounds that the evidence was entirely circumstantial and did not exclude every reasonable hypothesis except appellant's guilt. "A defendant is entitled to a directed verdict only where there is no conflict in the evidence, and the evidence introduced, with all reasonable deductions and inferences therefrom, demands a verdict of not guilty." Benjein v. State, 158 Ga.App. 794, 795, 282 S.E.2d 391 (1981); Causey v. State, 154 Ga.App. 76, 77, 267 S.E.2d 475 (1980). A review of the record indicates that the matter was properly submitted to the jury because of the conflicting evidence of appellant's motive and intent. There was sufficient presentation of evidence regarding the history of appellant's ill treatment of and cruelty towards the victim to counter appellant's innocent intent claimed, so that jury resolution was appropriate.
3. Because of the ruling in division 1, we need not address appellant's assertion that the trial court erred in ruling that the state's witness from the state crime laboratory would be allowed to testify in rebuttal. Upon retrial, the problem will be eliminated because the state will be able timely to provide appellant with a copy of that witness's scientific report.
4. Appellant next asserts that the trial court erred in allowing a state's witness to read to the jury a statement previously made by the child witness. The record shows that upon cross examination, counsel for appellant questioned the state witness about a portion of a conversation between the witness and the child. Over appellant's objection, the state was then allowed to read the remainder of the statement. "Where counsel for one party elicits from a witness part of a conversation, the other side is entitled to have the witness state all that was said at the time and in the same conversation." Jackson v. State, 60 Ga.App. 142(1), 3 S.E.2d 147 (1939); Betts v. State, 66 Ga. 508 (1881). Under this principle, the trial court properly admitted the testimony.
5. Appellant also asserts that the trial court erred in admitting the testimony of the victim's mother, brother, and son, on the grounds that the testimony was irrelevant, and prejudicially placed appellant's character in issue. These witnesses testified about domestic difficulties between appellant and the victim, as well as themselves, which culminated in appellant's violent rage; the incidents recounted by the witnesses dated from about three and one half years to nine months before the victim's death. The witnesses had had little contact with appellant during the nine month period preceding the homicide because of appellant's actions.
Where a husband is on trial for murdering his wife, as in the case sub judice, Wells v. State, 135 Ga.App. 421, 422, 218 S.E.2d 131 (1975); Cobb v. State, 185 Ga. 462, 464, 195 S.E. 758 (1938). "Evidence showing bad feeling between the defendant and the deceased is ordinarily admissible in a homicide trial, even though the evidence relates to an incident which occurred several years before the homicide." Wells v. State, supra 135 Ga.App. at 422, 218 S.E.2d 131.
The testimony of these three witnesses clearly related to a "course of ill treatment and cruelty" of appellant to the victim, although the incidents recounted were not so close in time to the homicide. This time factor alone, however, particularly where the diminished contact between the witnesses and appellant (and the victim) had been insisted upon by appellant, does not make the testimony inadmissible, and the trial court properly allowed the testimony.
6. Appellant next contends that the trial court erred in admitting the results of the breath test...
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