Warner v. State
| Decision Date | 30 November 2005 |
| Citation | 218 S.W.3d 330,93 Ark. App. 233 |
| Court | Arkansas Court of Appeals |
Robert Scott Parks, Deputy Public Defender, for appellant.
Mike Beebe, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.
WENDELL L. GRIFFEN, Judge. Clifton Robert Warner appeals from his conviction for rape. He argues that the trial court erred in allowing testimony regarding a hearsay statement that the victim made and erred in determining that the victim, who was seven years old at the time of the trial, was competent to testify. We disagree and affirm.
Appellant is not related to the victim but was living with the victim's family at the time the alleged abuse occurred. The victim, K.P., who was then five years old, alleged that appellant touched her on the inside of her "pee pee" with his finger. K.P. initially confided in her uncle, Billy Powell, while visiting Powell and his family in Oklahoma. She later disclosed the events to the Children's Advocacy Center in Little Rock, Arkansas.
Based on K.P.'s allegations, appellant was charged with rape as a habitual offender. During pre-trial proceedings, appellant made an oral motion in limine to exclude the hearsay testimony of K.P.'s second cousin, Debbie Pulliam, regarding an incriminating statement made by K.P. after the alleged event. The trial court held a hearing and denied appellant's motion on the ground that K.P.'s statement qualified as an excited-utterance exception to hearsay pursuant to Ark. R. Evid. 803(2). At the subsequent jury trial, Pulliam testified that when K.P. saw her sister getting into a truck in which the defendant was a passenger, K.P. shouted, "Robert, don't you hurt my sister like you hurt me."
The issue of K.P.'s competency arose during the trial. When the State attempted to call her as a witness, she initially indicated in the jury's presence that she did not know the difference between the truth and a lie. The court then conducted a sua spontehearing outside of the jury's presence. After subsequent questioning of K.P., the court was ultimately convinced that she was competent. K.P. thereafter testified that appellant touched her on the inside of her "pee pee" with his finger and that it made her feel "scared" and "all shaky." She also identified appellant in court as the offender. The jury found appellant guilty and sentenced him to serve twenty years in the Arkansas Department of Correction. This appealed followed.
Although appellant challenges the trial court's determination that K.P. was competent to testify in his second point on appeal, we address this issue first before considering any evidentiary errors. The question of the competency of a witness is a matter lying within the sound discretion of the trial court and in the absence of clear abuse, we will not reverse on appeal. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). Any witness is presumed to be competent unless proven otherwise. Id.; Ark. R. Evid. 601. The party alleging that a witness is incompetent has the burden of persuasion. Clem, supra. The issue of the competency of a witness is one in which the trial judge's evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. Clem, supra.
A witness's competency may be established by the following criteria: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the fact finder a reasonable statement of what was seen, felt, or heard. Clem, supra. As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts, we will not hold there has been a manifest error or abuse of discretion in allowing the testimony. Clem, supra.
Further, in a case involving the rape of a child, the trial court is in the best position to determine the child's intelligence and understanding of the need to tell the truth. Conley v. State, 20 Ark. App. 56, 723 S.W.2d 841 (1987). In determining the competency of a child witness, the trial court will examine the child's testimony in its entirety and will not solely rely on the preliminary questioning. Id.
The competency hearing proceeded as follows:
COURT:
Would you tell me what your name is?
And what is your last name?
And how old are you [K.P.]?
Seven, okay and [K.P.] do you know what the truth is?
Do you know what a lie is?
You don't, you don't know the difference? What do you think the truth is?
I'm sorry?
A:
- what Robert did. The truth is what Robert did.
COURT:
Well, what's a lie?
A:
I don't know the lie.
COURT:
I'm sorry?
A:
I don't know the lie.
I don't know it.
COURT:
You don't know it, you didn't do it.
A:
I don't know the lie.. . .
Prosecution Examination:
Q:
Hey [K.P.], when we talked about this today do you know the difference between the truth and a lie?
Are you going to tell the truth today?
Okay, are you - you know, we talked about raising your right hand and having to tell the truth?
Hey, [K.P.], do you know what a lie is, do you know that a lie is not telling the truth?
And do you know that the truth means to tell what really happened?
And that you just have to answer us truthfully?
[Bench conference held outside of the hearing of the jury.]
COURT:
Counsel, approach. She doesn't know.
PROSECUTOR:
Judge, she does.
COURT:
Well, she's not saying she does.
PROSECUTOR:
She knows, we talked to her about telling the truth and you know, that she can't lie on the witness stand. She says that we're asking her if she's going to lie.
COURT:
Well, she doesn't understand, I …
. . .
Prosecution Examination:
Q:
Hey, [K.P.], that nice man up there you were just talking to?
A:
Um hum.
Q:
Do you see he has a robe on, what color is that robe?
It's black, if I told you that the robe that the Judge has on was green, would that be the truth or a lie?
A:
I don't know.
Q:
Would I be telling the truth if I said that robe was black?
A:
You'd be telling the truth.
Hey, [K.P.], do you have any pets?
You do, what kind of pets do you have?
A:
I've got one that's a Pomeranian.
Is a Pomeranian a dog or a cat?
A:
It's a dog.
Q:
If you told me that your Pomeranian was a cat would that be the truth or would that be a lie?
A:
A lie.
Q:
And if you told me your Pomeranian was a dog, would that be the truth or would that be a lie?
A:
The truth.
If you told me [K.P.] that the Judge's robe was black, would that be the truth or a lie?
If you told me [K.P.] that the Judge's robe was green, would that be the truth or a lie?
A:
A lie.
Q:
What about my suit, [K.P.], what color is this?
If you told me that this suit was yellow, would that be the truth or a lie?
A:
A lie.
Q:
Okay, and if you told me it was black, would that be the truth or a lie?
. . .
Defense Examination:
Q:
And we talk about the truth and lies sometimes too, okay, if I told you that it was the truth that the Judge's robe was green, would that be the truth?
Okay, sometimes Jackson [his son] and I play a game, I'll tell you something, I hate to tell on Jackson, one time Jackson said that his Daddy was a dummy, now, what did Jackson say?
A:
He said his daddy was a dummy.
What did you say.
He said his name was a dummy.
Q:
Do you know that's the truth?
But I told you it was the truth didn't I?
Just because I say it, does that make it the truth?
PROSECUTOR:
Thanks.
COURT:
And also she was able to distinguish between fact and fiction and I find her to be competent. …
Appellant asserts that K.P. was incompetent to testify because she stated several times that she did not know what a lie is and because there was no evidence indicating that she understood the consequences of false swearing or that she had a moral awareness of the obligation to tell the truth. His argument does not persuade.
K.P. originally testified that the truth is what appellant did, and that she did not "know the lie." She also stated that she did not know the difference between the truth and a lie. However, upon...
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