United States v. Spoonhunter, 72-1600.

• Decision Date: 10 April 1973
• Docket Number: No. 72-1600.,72-1600.
• Citation: 476 F.2d 1050
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfred Marion SPOONHUNTER, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

476 F.2d 1050 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Alfred Marion SPOONHUNTER, Sr., Defendant-Appellant.

No. 72-1600.

United States Court of Appeals, Tenth Circuit.

April 10, 1973.

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Richard A. Stacy, Asst. U.S. Atty., Cheyenne, Wyo. (Richard V. Thomas, U. S. Atty., and Tosh Suyematsu, Asst. U. S. Atty., Cheyenne, Wyo., on the brief), for plaintiff-appellee.

Richard F. Pickett, Cheyenne, Wyo., for defendant-appellant.

Before SETH, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Alfred Marion Spoonhunter, Sr., appeals from a jury conviction of guilty and subsequent sentence wherein he was charged with the commission of the crime of forcible rape on the person of Beatrice Mae Potter on July 13, 1971, within the Wind River Indian Reservation, Wyoming. His sentence was entered July 21, 1972, for a term of five years pursuant to 18 U.S.C. § 4208(a) (2).

The defense was that of alibi. Although the appellant did not testify at trial, his wife, his brother, and some five or six additional witnesses testified that on the evening of the alleged rape the appellant was in their presence until about 5:00 a. m. at a beer-drinking get-together at the Felter home. Beatrice Potter testified that she was forcibly raped in her home which is some distance from the Felter residence. She said that the rape occurred between 4:00 a. m. and 4:45 a. m. Spoonhunter's wife testified that she, appellant and his brother, Adam, went directly home from the party, arriving shortly after 5:00 a. m. and that appellant and she went to bed in their home. She further testified that appellant slept until after 10:00 on July 13, 1971.

Beatrice Potter's husband was away from the Potter home at the time of the rape. Beatrice and her five children were in their home located some five to ten minutes walking distance from the Spoonhunter home. The doors and window screens were locked or latched. Beatrice related that she was asleep in her bed with a couple of her children, including Donna, then six years of age, when she was yanked out of bed by a man and dragged into the living room, and then past the open bathroom door where the light was on. She testified that it was then that she definitely identified Spoonhunter as her attacker; that they struggled into the kitchen area, upsetting things during the struggle; that she scratched at Spoonhunter and knocked off his eyeglasses in the kitchen; and that he dragged her into the bathroom entry area again, and it was there that she believed she was "hit" in the stomach and then fainted. She further testified that when she recovered consciousness she was lying on the bed in the south bedroom, and that Spoonhunter was engaged in sexual intercourse with her. Her daughter, Donna, who was age seven at time of trial, testified that it was Spoonhunter who was in their home that night and that she saw Spoonhunter hit her mother in the stomach, in the area of the south bedroom. Spoonhunter had been at the Potter home only once before, and was known by both Beatrice and Donna. There was evidence tending to corroborate the facts that a struggle had occurred, and that Beatrice bore abrasions, swellings, and for some time complained of stomach pains; that intercourse had occurred with Beatrice within a few days of the alleged rape (while admittedly it could have been attributed to voluntary intercourse between Beatrice and her husband); that the right side bow of a pair of eyeglasses was found in the Potter kitchen the morning following the rape; and that when Spoonhunter was arrested later that day he was seen wearing glasses with the right bow removed, and that they fell off when he departed from a police car.

On appeal, Spoonhunter raises five basic contentions of error. We shall consider each.

I.

Appellant alleges prejudicial error in that the trial court did not properly qualify seven-year old Donna Potter as a witness, and in overruling his continuing objection to her testimony on the ground that she was incompetent because of her age.

The first part of the allegation goes to the voir dire conducted by the trial court after Donna was called as a witness by the Government and objection was made by the appellant on the ground of incompetency. The trial court's voir dire was as follows:

THE COURT: I\'ll ask her a few questions. Donna, how old are you?

DONNA: Seven.

THE COURT: You are seven?

DONNA: Uh-huh.

THE COURT: You were six years old then on July 13, 1971?

DONNA: Uh-huh.

THE COURT: What grade are you in school?

DONNA: Second.

THE COURT: Do you think you remember what occurred on the night of July 13, 1971?

DONNA: Yes.

THE COURT: Do you know what it is to tell the truth when you raise your hand and are sworn?

DONNA: Yes.

THE COURT: And if I administer the oath to you, you will swear to tell the truth and you know that you can be punished if you don\'t tell the truth? You understand that?

DONNA: Yes.

THE COURT: I think she is qualified. You raise your right hand then (Sworn).

THE COURT: Do you so swear, do you?

DONNA: Yes.

THE COURT: Very well.

The continuing objection of the appellant to Donna's testimony was based upon the fact that she was under the age of ten years and that § 1-138, Wyoming Statutes, 1957, provides that children under the age of ten years are incompetent to testify if they "... appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly."

The above cited Wyoming statute does not apply in this case because the crime charged is a federal offense. In federal prosecutions the admissibility of evidence and the determination of competency of witnesses is dictated by federal law, as reason and experience may dictate, and not by state law. Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933); Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); Rogers v. United States, 369 F.2d 944 (10th Cir. 1966), cert. denied 388 U.S. 922, 87 S.Ct. 2125, 18 L.Ed.2d 1371 (1967); Rule 26, Fed.R.Crim.P., 18 U.S.C.A. In any event, we find no inconsistency in the cited statute and our rule: the capacity of a person offered as a witness is presumed, and in order to exclude a witness on the ground of mental incapacity, the existence of the incapacity must be made to appear. Sinclair v. Turner, 447 F.2d 1158 (10th Cir. 1971), cert. denied 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972). Whether an infant is competent is largely in the discretion of the trial judge. The test, even as applied to an infant five and one-half years of age, is whether it was shown on examination of the infant that he was intelligent, and whether he understood the difference between truth and falsehood, and the consequences of falsehood, and what was required by the oath. Wheeler v. United States, 159 U.S. 523, 16 S.Ct. 93, 40 L. Ed. 244 (1895).

In Antelope v. United States, 185 F.2d 174 (10th Cir. 1950) the appellant contended that in his prosecution for statutory rape, the thirteen-year old prosecutrix was without sufficient capacity to testify because of her age. The appellate court looked to the record in testing the contentions of incompetency. While noting that the prosecutrix was a "young, timid Indian girl" who was embarrassed and who testified in a halting manner, she was nevertheless held to be competent. There the Court allowed the District Attorney to ask her leading questions.

Wigmore sets forth some essential requirements to test the competency of infants: Capacity to observe, capacity to recollect, capacity to communicate, capacity to understand questions put and to frame and express intelligent answers and a sense of moral responsibility. II Wigmore on Evidence § 506 (3rd ed. 1940). The trial court did not err in admitting Donna Potter's testimony, finding, as it did, that she met each of these tests, even though there was some discrepancy in her recollection of facts developed on cross-examination. Donna's testimony corroborated her mother's testimony. She positively identified Spoonhunter as the man who was in the Potter home at an early morning hour on July 13, 1971, and stated that she saw him dragging her mother and striking her in the stomach while in the home. Donna's competency was tested on cross-examination. The record reflects that the cross-examination failed to establish her incompetency. Cross-examination is often used to test competency. 98 C.J.S. Witnesses § 378 (1957).

Finally, we note that the methods of ascertaining a child's testimonial capacity are the same as those employed for the oath. II Wigmore on Evidence § 508 (3rd ed. 1940). The voir dire examination of a child is generally conducted by the judge under Rule 26, Fed.R.Crim. P. to determine competency. If counsel believes that the voir dire is inadequate he has an obligation to propose certain voir dire questions to the court, to request the right to conduct independent examination relating thereto, or to object to the adequacy of the Court's examination, just as counsel is required to act in challenging the qualification and competency of jurors. VI Wigmore on Evidence § 1820 (3rd ed. 1940); Lowther v. United States, 455 F.2d 657 (10th Cir. 1972), cert. denied 409 U.S. 857, 93 S.Ct. 139, 34 L.Ed.2d 102 (1972); Kreuter v. United States, 376 F.2d 654 (10th Cir. 1967), cert. denied 390 U.S. 1015, 88 S. Ct. 1267, 20 L.Ed.2d 165 (1968). The record evidences no error in the admission in evidence of the testimony of Donna Potter.

II.

Appellant alleges error by the trial court in refusing to grant his motion for a continuance immediately prior to trial for the reason that all of his witnesses could not be located for the purpose of being subpoenaed.

The prosecution had been granted two prior continuances because the prosecutrix had become ill and was unable to appear for trial. Appellant alleges that the trial court's refusal to...