Perry v. State

Annotate this Case

Download PDF

Perry v. Sta te No. 86, September Term 2003 CHILD COMPETEN CY D ECISIO N; The s ubstantive d etermination of a child s c ompeten cy to testify is within the sound discretion of the trial judge. CHILD COM PETE NCY PROC EDU RE; Th e procedu re that should be employed to determine a child s c ompe tency is w ithin the trial judg e s discr etion. SUBSTANTIAL QUESTION AS TO CO MPETENCY; If a substantial question as to a child s competency is raised, ordinarily, the trial judge should conduct a voir dire hearing outside the presence of the jury. The reduced risk of unfair prejudice and mistrial makes this the more careful course. AGE OF CHILD; In a case where the objecting party states that a child is seven years old and baldly asserts that the child lacks the ability to understand the difference between truth and fiction, without more, a substantial question as to competency has not been raised. In the Circu it Court for B altimore C ity Case No. 100244015 IN THE COURT OF APPEALS OF MARYLAND No. 86 September Term, 2003 ______________________________________ KENNETH D. PERRY v. STATE OF MARYLAND ____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Greene, J. ______________________________________ Filed: May 7, 2004 On May 4, 2001, Kenneth D. Perry was convicted of first and second degree murder and related charges by a jury in the Circuit Court for Baltimore City. On November 19, 2001, the court sentenced Perry to life without parole for first degree murder, thirty years consecutive for second degree murder, and twenty years consecutive for one of the handgun violations. The other counts were merged. In an unreported opinion dated August 6, 2003, the Court of Special Appeals affirmed the judgmen t. On Decem ber 11, 2003, this Cou rt granted certiorari on the single issue of whether the trial court was required to hold a separate voir dire hearing, ou tside the prese nce of the jury, to determine if a seven-yea r-old child is c ompe tent to tes tify. Perry v . State, 378 M d. 613, 8 37 A.2 d 925 ( 2003) . FACTS On July 11, 19 98, the police discovered the bodies of LaShawn Jordan and her friend Kelly Bunn in a Baltimore apartment. LaShawn Jordan sustained a single fatal gun shot to the top of her head. Kelly Bunn sustained five gunshot wounds. When police arrived, they found the front ga te to the building and the front door of the apartment locked. Th ey had to force their way into the apartment. When they entered, they found the two dead women and two small children, age four and age 18 months. The two children were crying. The four year old child (identified as Jewel) told the rescuers that she knew who had done this. She said, Mommy s boyfriend did it and I know who did this. It was his father, and she pointed to her half-b rother (the 18 month old). The police did not find the murder weapon. Furthermore, they did not find any DNA or fingerprint evidence linking Perry to the crime. The case cam e to trial three years later, when Je wel wa s seven years o ld. The Sta te called her as a witness. Prior to her testimony, defense counsel approached the bench and asked the court to voir dire the child outside the presence of the jury. The exact argument is a follows: Defense: Your Honor, I m going to object to the qualifications of this young lady due to her age and her ability to understand the difference between truth and fiction and ask that the Court conduct voir dire outside the presence of the jury to determine whether she s qualified and competent as a witness. State: Your Honor, absent [a] showing she is not competent I believe I am entit led to qualify he r and in the pre senc e of t he ju ry. Court: I don t think there s any special reason why I have to have a separate voir dire session with he r. I mean the jury can evalu ate her credibility. I don t think it s a two step process where I have to go first simply based on age. So I m going to deny your request. Defense: Well I m reque sting the Court an opportunity to voir dire this child outs ide th e pre senc e of t he ju ry. Court: Well I m going to deny your request. You can cross-examine her. At that point, the State began questioning Jewel. The first number of questions related to competency. The State asked Jewel her age, if she could read and write, if she we nt to school, and if s he wa s a goo d stude nt. After Jewel answered those questions in the affirmative, the State asked, if you know the difference between telling the truth and telling a story? When asked to explain the difference, the child said, the differe nce is if you tell the truth if you tell the truth it s good it s good, but if you tell a story it s not good. She also testified that if you tell a story you get in trouble. She accurately answered questions -2- about knowing where she was and why. She stated that she w as in co urt, Fo r my mom my. She also knew her mother s name. The State the n asked the first s ubstan tive que stion. Where [sic] you with your mommy when she died? The defense did not object at that poin t and ask to voir dire the child further on the question of competency to testify. The child then testified about what happened the night her mother was shot. Her account of the killings was detailed and understandable.1 She also identified Perry as the shooter. She testified that she knew Perry because he was o ften in her house wh en she was there (w hen her mother w as at work or at the store). She also testified that she did not know if Perry and her half-brother had a 1 I was in my room and my mommy was picking out my clothes and I was in my bed laying down and I was asleep and my brother was asleep too. So she was picking out my clothes for school I guess and - - and I got up from the bed because I he ard footsteps - - footsteps coming. And - - and then I heard footsteps coming and - - and I was so afraid. So I told my mom my, I said, mommy I hear footsteps coming and somebody came in the door and they shot - - and they shot my mommy and her frie nd nam ed Ke lly. And - - and - - and - - but first my mommy s friend, she called me over to the closet and she said Jewe l, Jewel, come here. And I said - - and I went to her. And we wa s both in m y closet in my room. And then first Frankie shot my mommy and then he shot her friend. And then I went out the room and he was gone. And I went in mommy s room to see if my brother was okay and he was standing on the bed and I wen t in there and we both - - and we bo th sat do wn on the bed and w e laid do wn. It should be noted that the police found M s. Jordan s b ody on the flo or of the m iddle room and M s. Bun n s bod y in a def ensive position in a clo set in the same ro om. -3- relationship and that she did not know who her half-brother s father was. 2 Jewel testified that she told her grandparents, her au nt, her sister, and the pe ople who came to get her out of the apartm ent abo ut wha t happe ned tha t night. When defense counsel began his cross-examination of Jewel, he asked her additional questions about telling the truth and telling lies. Her answers demonstrated that she knew the difference between the truth and lies and that she kne w you ge t in trouble if you tell lies.3 When asked about her testimony that she had told her aunt and sister about the 2 The State argued to the jury that Perry was the boy s father, without objection from the def ense. 3 Among the questions asked by defense counsel, the following colloquy ensued: Q. Have you ever seen or been told the story of Pinocchio? A. Yes. Q. What happened to Pinocchio when he lied? Do you know? A. No. Q. Do you remem ber his nose got bigger a nd bigger? A. Yes. Q. Have you ever told a lie before? A. Yes. Q. Did your nose get big? A. No. (contin ued...) -4- incident, she said she did not have a sister and that she had made a mistake w hen she sa id that earlier, but had not lied about it. She explained the difference between a mistake and a lie by saying that if you make a mistake you re like you re saying something, but you messed up on that question. Defense counsel then proceeded to ask Jewel questions about the incident itself. She maintained her version of what happened on the day of the killings. Both parties agree that it was Jewe l s testimony alone which linked Perry to the two killings. Perry appealed and the Court o f Spec ial App eals aff irmed th e conv ictions. In an unre ported opinion, th e Co urt discussed the c hild s co mpe tenc y: Turning to the very brief aspect of the trial that deal t with Jew el s c omp eten cy, it is clear that the q uestions pu t to her by the Sta te, as a pream ble to her substantive testimony, adequately addressed the factors that the court must evaluate in determin ing comp etency, name ly: (1) ability to observe the facts in question; (2 ) ability to recall the rele vant facts; (3 ) ability to comm unicate those facts; and (4) willingness to testify truthfully. As we review the precise questions put to Jewel, a s noted , supra, we cann ot imagine what mo re could have bee n asked o f her, by either the court or op posing co unsel. The State s and appellant s examination mirrored what we would expect a trial court judge to ask in order to qualify a child witness as being competent. We see no significant distinction in whether the questions are asked b y the court or by counsel, so long as the questions are suf ficient to ena ble the cou rt to make an informed ruling on the question of the child s competency. As we review the questions, and Jewel s responses, we likewise conclude from the record that she was a competent witness. Had the trial judge not been satisfied that the a ttorn eys questions adequately explored all of the competency factors, 3 (...continued) Q. What happened to you? A. I got a beating. -5- we think that he would have been required, in th e exercise o f his discretion , to supple ment th e inquir y with his own q uestion s. It is apparent from the record that the court was satisfied that competency had been estab lished, and p roperly so. M erely because the question s were pu t to her by counsel, and not by the judge, does not result in an abuse of discretion. DISCUSSION Rules - Competency Md. Rule 5-60 1 notes that [e]xcept a s otherwise pro vided by law , every person is competent to be a witn ess. This ru le is derived from Fed. R. Evid. 601, and, like the federal rule, it places the burden on the oppone nt of a witn ess to show that the witn ess is incom petent. Lynn M cLain, Maryland Rules of Evidence 103 (2d ed. 2002) (citing United States v. Odom, 736 F.2d 104, 112 (4 th Cir. 1984)). As stated by Professor McLain, under this rule, almost no one is per se inco mpe tent t o testify. Lynn M cLain, Maryland Rules of Evidence 103 (2d ed. 2002 ). It is left to the trial co urt in its discretion to determine whether an individual witness has sufficient capacity to observe, recollect, and recount pertinent facts and whether that individual demonstrates an understanding of the duty to tell the truth. Id. Md. Rule 5-104(a) requires the court to determine [p]reliminary questions concerning the qualification of a person to be a witne ss . . . . In addition, Md. Rule 5-104(c) states that [h]earings on prelim inary matt ers shall b e con ducted o ut of the h earin g of the ju ry when required by rule or the interests of justice. We have bee n unable to locate a sing le Maryland case that discusses Md. R ule 5-104(c). We n ote, however, that Md. Rule 5-104(c) is derived -6- from Fed. R. Evid. 104. Therefore, judicial interpretations of the federal rule are persuasive. See Beatty v. Trailmas ter Pro ducts In c., 330 M d. 726, 7 38 n.8, 6 25 A.2 d 1005 , 1011 n .8 (1993) (noting that [b]ecause the Maryland summary judgment rule is derived from the federal rule, judicial interpretations of the federal rule are persuasive as to the meaning and proper applica tion of th e Mar yland rule ). In Odom, defendants challenged the competency of so me of the Go vernment s witnesses (on the bas is of mental incompetence) and argued that the trial court should have held an in camera hearing to determ ine their comp etency. Odom, 736 F.2d at 109 (1 984). During the Governm ent s case-in-chief, the defendants asked permission to voir dire approxim ately thirty witn esses o utside th e prese nce of the jury. Id. The trial court denied the mo tion. Id. The United S tates Court of Appeals for the Fourth Circuit found no abuse of discretion and noted that to grant the motion when made would have required the trial court to interrupt the trial a nd excus e the jury, causing an interfer ence with the orderly process of the case [that] was certainly not required or even prudent. Odom , 736 F.2d at 110.4 4 The Court discussed the timing of the defendants request to voir dire and noted that, [t]hey would excuse their delay in submitting such mo tion with the claim that they had not anticipated that the Government would present these residents of the Home as witnesses. We find this excuse difficult to accept. The heart of the Governme nt s case was whether these residents ha d know ingly (contin ued...) -7- While it is clear that there is a vast difference between thirty witnesses (as in Odom) and one witness (as in the case at bar), the Court s discussion of the rule is instructive. Discussing Fed. R. Evid. 104 and quoting the accompanying A dvisory Committee s Notes, the Court said that [m]uch evidence on preliminary questions, though no t relevant to jury issues, may be h eard by th e jury with no adv erse eff ect . . . . [a] great deal must be left to the discretion of the judge who will act as the interests of justice require. Odom , 736 F.2d at 110. The Co urt also cited c ases decide d before th e adoption of the Federal Rules of Evidence to support its conclusion that holding a hearing outside the p resence of the jury to determine witnes s comp etency is n ot requ ired. Odom , 736 F.2d at 111. Among other cases, 4 (...continued) or intelligently voted absentee in the election. On this issue, it would seem inconceivable that the Government would not have subpoen aed the resid ents at trial. Odom, 736 F.2d at 110. Similarly, in the case at bar, it is inconceivable that the defense would not have know n before trial that the State would call Jewel to testify. Maryland Rule 4-252(d) states in p ertinent part, Any other defense, objection, or request capable of determination before trial without trial of the general issue, shall be raised by motion filed at any time before trial. Because the State s case consiste d primarily of J ewe l s testimony, it appears that this issue was capable of being brought up before trial. The better practice would have bee n to bring this matter to the attention of the court prior to trial, if the defense believed there was a substantial question regarding her competency. As noted in Weeks v. State, 126 Md. 22 3, 94 A. 774 (19 15), the competency of a witness is one to be determined by the court, and should be disposed of as soon as it arises and before the witness is allowed to testify to th e facts in issue. 1 26 M d. at 228 , 94 A. a t 775-76 (emphasis added). If incompetency is not known when the w itness is called, an objection should be made as soon as the incom petency beco mes app arent. Othe rwise the o bjection is waived. Groshon v. McPherson, 20 Md. 234, 242 (1863 ), overruled in part on other grounds by Perusse R ealty Co. v. L ingo, 249 M d. 33, 23 8 A.2d 100 (1 968). -8- the Court quoted United States v. Gerry, 515 F.2d 130 (2 nd Cir.), cert. denied, 423 U.S. 832 (1975), in which the Court wrote: The competency of a witness to testify before a jury is a threshold question of law which lies exclusively in the trial cou rt s discre tion. When competency is questioned there is no legal requirement that the trial judge conduct a formal hearing. The re must b e suc h an inqu iry as w ill sat isfy the Court that the witness is competent to testify but the form of that inquiry rests in the discretion of the trial court. Odom, 736 F.2d at 111 (quoting Gerry , 515 F.2d at 137 (internal citations omitted)). The Court concluded its discussion of the question by stating, [i]t is plain from these authorities as well as from the relevant Rules that a district judge has great latitude in the procedure he may follow in determining the competency of a witness to testify. Neither the authorities nor the Rules require an in camera hearing. Odom , 736 F .2d at 11 1. Statutes, Case Law - Competency The determination of a child s competence is within the sound discretion of the trial judge. Horsey v. State, 225 M d. 80, 82, 16 9 A.2d 4 57, 458 (1 961); Robert v. State, 220 Md. 159, 165, 151 A.2d 737, 739 (1959 ); Saldiveri v. State, 217 Md. 412, 419, 143 A.2d 70, 74 (1958); Freeny v. Freeny, 80 Md. 406, 409, 31 A . 304, 305 (1 895); Matthews v. State, 106 Md. App. 7 25, 740 , 666 A .2d 912 , 919 (1 995), cert. den ied, 341 Md. 648, 672 A.2d 623 (1996); Jones v . State, 68 Md. App. 162, 165 , 510 A.2d 1091, 10 93 (1986 ); Reckard v. State, 2 Md. App. 312, 318, 234 A.2d 6 30, 633 (1967 ), cert. den ied, 248 Md. 734 (1968). Absent an abuse of discretion , that dete rminatio n will n ot be dis turbed on app eal. Matthews, 106 Md. App. at 740, 666 A.2d at 919. As noted by Professor Wigmo re on the qu estion of ch ild -9- com pete ncy, the trial court mus t be the one to determin e finally, upon a ll the circumstances, whether the child has sufficient intelligence according to the foregoing requirements: Brewer, J., in Wheeler v. United States, 159 U.S. 523, 524 (1895): The decision of this question rests primarily with the trial judge, who sees the proposed w itness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence, as well as his understanding of the obligations of an oath. As many of these m atters cannot be photographed into the record, the decision of the trial judg e will not be disturbed on review, unless from that which is preserved it is clear that it was errone ous. 2 Wigmore, E vidence § 507 (C hadbourn rev. 19 79). The age of a child is not the test used to determine if a child is compe tent t o testify. Matthews, 106 Md. App. at 741, 666 A.2d at 919. Rather, the test is whether the witness has intelligence enough to make it worthwhile to hear him [or her] at all and whether he [or she] feels a d uty to tell the truth. Brandau v. Webster, 39 Md. App. 99, 104, 382 A.2d 1103, 1106 (1978). The trial court must determine the child s capacity to observe, understa nd, recall, and relate h appening s while conscious of a duty to speak the truth. Jones v. State, 68 Md. A pp. 162 , 166-6 7, 510 A .2d 109 1, 1094 (1986). 5 Professor Wigmore states the 5 Similarly, in a case involving the disqualification of a witness on the ground of mental incapacity, we stated: A witness should not be debarred from testifying, on the ground of mental inca paci ty, unless the proof of such disqualification is clear and conclusive. (contin ued...) -10- essential requireme nts as: (1) capacity for observation; (2) capacity for recollection; (3) capacity for comm unication, inc luding ability to u nderstand questions p ut and to frame and express intelligen t answ ers; an d, (4) a se nse of moral r espon sibility to tell th e truth. 2 Wigmore, Evidence § 506 (Chad bourn rev. 197 9). Finally, as stated in Wharton s Criminal Evidence, the test of a child s competency is, intelligence; an understanding of the obligation to tell the truth; knowledge of the nature of an oath; ability at the time of the occurrence to accur ately perceive it; ability to remember the occurrence ; capacity to active ly commu nicate the mem ories; and ab ility to understand and respo nd to simp le questions about the occurrence. It is not necessary that th e child be ab le to define an oath . The child need only understand that, upon taking an oath, the child has prom ised to tell the truth . A child s co mpetenc y is not affected by the fact that the child makes contradictory statements on the witness stand. 2 Barbara E. Bergman, Nancy Hollander, Wharton s Criminal Evidence § 7:16 (15th ed. 1998). The types of questions usually asked to determine if a child is competent to testify are not related to the trial itself and include questio ns like Wher e do you go to sc hool? , How old are you?, . . . Do you know what happens to anyone telling a lie? . Ro bin W . Mo rey, The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It?, 5 (...continued) The test of incompetency is whether the witness has sufficient understanding to appreciate th e nature an d obligation of an oath and suff icient capacity to observe and describe correctly the facts in regard to which [he or] she is called to testify. Johnston v. Frederick, 140 Md. 27 2, 117 A. 768, 77 1 (1922) (citation omitted in origina l). -11- 40 U. Miami L. Rev. 245, 263 (1985) (discussing voir dire of child w itnesses) (foo tnote omitted). The que stions asked should no t be com plicated or trick y and shou ld include questions that ferret ou t if a child und erstands the concept o f truth and falseho od. M orey, 40 U. Miami L. Rev. at 263 n.78. For example, Q. . . . If I were to say that I m wearing a red jacket, wo uld that be a lie or wou ld that be the truth?, A. A lie[, and] Q. And why would it be a lie?, A. Because you re wearing a brown jacket. Id. In Brandau v. Webster, 39 Md. App. 99, 382 A.2d 1103 (1978), the Court of Special Appeals held that the court erred by arbitrarily determining that a five year old child was incompetent to testify in a custody hearing solely because of her young age, without conducting an examination on the matter, either in court or in cham bers. Brandau, 39 Md. App. at 105, 3 82 A.2 d at 110 6. The court described the criteria to be considered by the trial court and conclud ed by stating, [i]t is true that the decision as to the competency of a witness is within the sound discretion of the trial court but the court must at least conduct such an examination as will dis close the fa ctual basis on which h is conclusio n as to competency rests. Brandau, 39 Md. App. at 104-05, 382 A.2d at 1106. Because Brandau was a custody case, it did not address whether an inquiry into competency should be done outside the pres ence o f a jury. In Matthews, the trial judge conducted a voir dire examination of a four-year old child outside the presence of the jury and permitted both counsel to voir dire the child . Matthews, 106 Md. App. at 740-41, 666 A.2d at 919. The child s responses indicated that she knew the -12- difference between the truth and a lie and the trial court determined that she was competent to testify. Matthews, 106 Md. App. at 741, 666 A.2d at 919-20. The Court of Special Appea ls found no error in the court s procedure in that case and noted that, [w]hen the issue is raised, the trial judge should conduct an examination out of the presence of th e jury to develop the factual basis for a competency determination. Matthews, 106 Md. App. at 741, 666 A.2d at 919 (citing Burge ss v. State , 89 M d. App . 522, 598 A.2d 830 (1991), in turn quoting Evans v. State, 304 Md. 487, 508, 499 A.2d 1261 ( 1985) , cert. denied. 478 U.S. 1010 (1986 ), motion for reco nsidera tion den ied, 305 M d. 306, 5 03 A.2 d 1326 (1986 )). In Evans, the Court of Appeals discussed the competency of a witness who had given many different ac counts of an incident before trial, including accoun ts under oath, that were untrue. Evans, 304 M d. at 504, 49 9 A.2d a t 1269-70 . When th e defense objected to the witness s testimo ny, the trial c ourt elec ted to ex amine the witn ess, outside the presence of the jury, to determine if she knew the diff erence betwe en a lie a nd the tr uth. Evans, 304 Md. at 505-06, 49 9 A.2d a t 1270-71 . The trial cou rt also gave b oth couns el an oppo rtunity to examine the witn ess on th e quest ion of c ompe tency. Id. The trial judge completed the inquiry by stating, That is all I wanted to know, if she knows when she is telling the truth and she knows when [she is] not telling the truth. She is a competent witness. Evan s, 304 Md. at 506, 499 A.2d at 1271. In affirming the trial judge s procedure and decision that the witness w as comp etent, Judge Eldridge, fo r this Court, w rote: When a substantial question is presented concerning the competency of a witness, the trial judge should ordinarily conduct a voir dire examination of -13- the witness out of the presence of the jury. Although it is doubtful that any substantial question was presented concerning the competency of Sparrow to testif y, as opposed to her willingness to lie when it suited her purposes, Judge Cathell charted a careful course and elected to voir dire the witness. Evan s, 304 Md. at 508, 499 A.2d at 1271 -72. (Em phasis a dded.) While the issue in Evans is not precisely the same as the issue be fore us now, the above-quoted language is persuasive. The standard requires that if a substantial question regarding c ompeten cy is raised, the court should ordinarily conduct a voir dire outs ide th e pre senc e of t he ju ry. 6 It is clear that merely pointing out that a witness is seven years old, does not, by itself, raise a substantial question about his or her comp etency to testify or trigg er an autom atic right to any opportunity to voir dire the child (let alone an opportunity to voir dire the child outside the presence of the jury). Section 9-103 of the Courts and Judicial Proceedings Article of the Maryland Code provides that [i]n a criminal trial, the age of a child may not be the reason f or precludin g a child from testifying. Md. Code (1974, 2002 Repl. Vol.), §9103 of the Courts and Judicial Proceedings Article. Brandau states that it wo uld be error to automatica lly refuse to allow a child to testify merely because of her age, without conducting an inquiry int o her co mpete ncy. Brand au, 39 Md. App. at 105, 382 A.2d at 1106. It does 6 We think the better practice is to condu ct voir dire outside the presence of the jury for two reaso ns. First, by doing so, the court lessens the risk of juror speculation or irrelevant or prejudic ial in form ation com ing b efor e the jury, particularly if the co urt decides u ltimately to preclude the testimony because the child is not competent. Second, inasmuch as examination of a ch ild witn ess pos es uniq ue cha llenges for atto rneys, as a matter of trial advocac y, we think it fairer to the parties to permit full inquiry on the issue, without concern as to the im pact upon the jury. -14- not follow, however, tha t the cou rt, in the e xercise of its dis cretion, must conduct such an inquiry before allowing a young child to testify in every case. M d. Code (1 974, 200 2 Repl. Vol.), § 9-103 of the Courts and Judicial Proceedings Article. Rather, the party objecting to the competency of the child witness must present a substantial question regarding competency to trigger the voir dire examination. Evan s, 304 Md. at 508, 499 A.2d at 127172; Md. Rule 5-601 ( Except as otherwise provided by law, every person is competent to be a witness); Pegg v. Warford, 7 Md. 5 82, 603 (1 855) (stating that [t]he leg al presumptio n being in favor of the competency of every witness produced on the stand, no objection to the competency of such witness sh ould be entertained, unless the party making it discloses at the time the ground upon which the objection is based. A mere gen eral, indefinite o bjection w ill not ava il. ); Lynn McL ain, Maryland Rules of Evidence 103 (2d ed. 2002) (noting that the rule places the burden on the opponent of a witness to show tha t the witness is incom petent ). The evidence offered b y the oppone nt to show a substantial q uestion in Evans was that Sparrow had given various inconsisten t versions of the relevant facts, had lied under oath, was a prostitute and a user of drugs, had an unfortunate background, and indicated that she would lie when it suited her purposes. Evans, 304 Md. at 509, 499 A.2d at 1272 . If it is doubtful that such allegations presented a substantial question regarding c ompeten cy ( it is doubtfu l that any substan tial question was presented concerning the competency of Sparrow to testify . . . Evan s, 304 Md. at 508, 499 A.2d at 1272), the n it is at least equa lly -15- doubtful that a bald assertion that a young child may lack the ability to understand the difference between truth and fiction presents a substantial question as to her c omp eten cy. 7 While we did not otherwise define substantial question in Evans, we think it clear that the ordinary mean ing of substan tial sho uld app ly. Substantial means consisting of or relating to substan ce . . . not imaginary or illusory . . . considerable in quantity. Merriam-We bster s Collegiate Dictionary 1170 (10th ed. 2001). B aldly asserting, w ith no factu al proffer to support the assertion, that a seven-year o ld child lacks the ability to understand the difference betwe en truth and fic tion, do es not f it within that def inition. 7 In the case at bar, the defense counsel stated, Your Honor, I m going to object to the q ualifications o f this young lady due to her age and her ability to understand the difference between truth and fiction and ask that the cou rt conduct voir dire outside the presence of the jury to determine whether she s qualified and competent as a witness. As pointed out in oral argument, there is no evidence in the record that anyone had any reason to believe that Jewel lacked the a bility to understand the difference between truth and fiction. For example, there is no evidence or proffer that Jewel suffered from learning disabilities, some kind of communication problem, a mental disability or disorder, or poor academ ic perfor manc e. There is also no evidence in the record that the defense was denied an opportun ity to question Jew el, before the trial, to determine if there was any evidence of an inab ility to unde rstand th e diffe rence b etwee n lying an d telling the truth . It appears quite clear that defense cou nsel s conc ern abou t Jewel s ab ility to understand the difference between truth and fiction was based solely on a false assumption that a child s young age automa tically calls into question her ability to understand the difference between truth and lies. T hat kind of assumptio n in no way presents a substantial question regarding one s competency as a wit ness. Evan s, 304 Md. at 508, 499 A.2d at 1271-72 ; see Pegg v. Warford, 7 Md. at 603. -16- Perry argues that th e court abu sed its discretion by refusing to hold a separate voir dire hearing, outside the presence of the jury, to inquire into the child s competenc y. Perry appears to be urging this Court to declare a n ew rule that conducting a separate voir dire is not only the better practice but also the required practice if the child witness is young and his or her inability to understand the difference between truth and fiction is alleged, regardless of whether there is any evidence or proffer offered to support that allegation. While it may be a more c areful cou rse, there is no directive stated in Evans (or fixed by statute or other case law) that the trial judge must conduct the voir dire of the witness outside the presence of the jury. Because the determination of the competency of a child witness is within the sound discretion of the trial court, we see no reason to mandate such a procedure now. The defendant also argues that the court abused its discretion by failing to make a determination with regard to Jewel s c ompeten cy before she was allow ed to testify. It appears clear to us, however, that, even though the judge did not conduct a voir dire outside the presence of the jury, the record reflects that the State conducted an examination of the child regarding competency. The court permitted the State to ask the competency questions and then, hearing no objection from the defense, did not interfere with the continued examination. It is clear that the c ourt implicitly made a competency determination because the court allo wed the c hild to remain on th e stand and te stify s ubstantively about the -17- murders.8 We note that in Reckard, the defendant argued that the trial court erred by allowing the testim ony of a child witness because she was not, in his opinion, a qualified witness. Reckard, 2 Md. App. at 317, 234 A.2d at 633. He argued that the court erred by not allowing him the eleme ntary right of questioning the capacity of that child on voir dire. Id. The record in that case indicated that the State s Attorney questioned the child about telling the truth and the consequences for no t doing so. Id. When the State offered the witness as qualified, defense counsel objected and asked permission to question the witness. Id. The trial court refused to allow additional questioning, noting, A s I understand it, it s a prima facie case, it s in the discretion of the court. When you cross-examine you may ask questions which may reach to the weight that is given it. On the voir dire by the State s A ttorn ey it appears su fficient to justify the Court in permitting the witness to testify. Recka rd, 2 Md. App. a t 317-1 8, 234 A .2d at 63 3. 8 As noted previously, the competency of a witness is one to be determined by the court, and should be disposed of as soon as it arises and before the witness is allowed to testify to the facts in issue. Weeks v. State, 126 Md. at 228, 94 A. at 775-76. If the judge had stopped after the competency questions to announce to the litigants (and the jury) that he found the child competent to testify, the defendant could have argued that such an announcement was prejudicial. The court is presu med to know the law . State v. Chaney, 375 Md. 168, 181, 825 A .2d 452, 459 (200 3); Davis v. State, 344 Md. 331, 339, 686 A.2d 1083, 1086 (1996) (noting that because trial judges are presumed to know, and properly to have applied, the law," trial court's determination that a witness s pre-trial silence and his or her trial testimony are inconsistent, may be implicit). We have no reason to believe that the trial judge s comment (that he did not have to hold a hearing outside the p rese nce o f the jury) indicates a failure to understand his duty to determine the child s competency after the approp riate que stions w ere ask ed. -18- The Court of Special Appeals found no abuse of discretion and noted that the trial court found the witness to be qualified and competent based on her answers given in response to the questio ns of the S tate s Attorne y. The capac ity of children to te stify is within the discretion of the trial court. Reckard , 2 Md. App. at 318, 234 A.2d at 633 (citations omitted). Similarly, in the case at bar, the trial court made a determination of competency after hearing the child s answers to the State s competency questions. If the court was satisfie d with those answers that the child was compete nt to testify, it was w ithin the court s discretion to determine that she was compe tent and to permit the State, thereafter, to ask sub stantive q uestions with out f urther inquiry about co mpe tenc y. As previously mentioned, defense counsel did not object and ask for an opportun ity to voir dire the child on ce the State m oved fro m comp etency questio ns to substan tive questions.9 Neither did the defense argue, after hearing the child s answers to the 9 We see no reason why the onus should have been on the trial judge to jump in and ask defense counsel if he would like to ask additional competency questions of the child. As stated by Judge Moylan in Nelson v. State, 137 Md. A pp. 402, 768 A .2d 738 (2001): It is not fo r trial judg es, sua sponte, to second-guess trial tactics, howev er illadvised they might see m to the judge. Madiso n v. State, 200 Md. 1, 8-9, 87 A.2d 593 (1 952) ( We ar e . . . without authority to review errors in trial tactics of defense counsel or to speculate as to possibilities that different tactics might have produced a different result. ). Even the notion of plain error requires, as a rock-bottom minimum, a legal error by the judge, not a tactical miscalculation by defense counsel; the judge does not sit as co-counsel for the defense. N either does th e appellate c ourt. Nelson, 137 Md. App. at 424, n.5, 768 A.2d at 750, n.5. It is true that when the child was (contin ued...) -19- competency questions, that she was not competent and should not be permitted to tes tify. Furthermore, the defense made no argument that the child s substantive testimony showed that she w as inco mpete nt to testif y. Perry makes no argument now that the child was shown to be incompetent. In fact, ha ving read th e testimony, it is abu ndantly clear tha t this child understood the difference between a lie and the truth, kne w that she was requ ired to tell the truth, an d was able to re port clea rly what s he witn essed. In conclusion, we hold that the substantive determination of a child s competency is within the sound discretion of the trial judge. Furthermore, we hold that the procedure that should be emplo yed to determ ine a child s c ompeten cy is, in the first instan ce, also with in the trial court s discretio n. Odom , 736 F.2d at 111; Reckard, 2 Md. App. at 318, 234 A.2d at 633; 2 Barbara E. Bergman, Nancy Hollander, Wharton s Criminal Evidence § 7:16 (15th ed. 1998) (stating that [t]he question of a child s competency as a witness may be determined either from a preliminary examination or from his testimony before the jury, or from both. Usually the child s competency is determined preliminarily by the court, and the 9 (...continued) first called to testify, defense counsel asked for a separate voir dire hearing. That request was denied. Thereafter, once the voir dire hearing was being conducted in the presence of the jury, it was incum bent upon the defen se to raise a timely objection if he wanted to inqu ire further as to the child s competency. Md. Rule 5-103(a)(1) ( Error may not be predicated upon a ruling that admits or excludes evidence unless the party is prejudiced by the ruling, and . . . . In case the ruling is one admitting evidence , a timely objection or motion to strike appears of record . . . ). Even then, it would have b een within the trial judge s discretion to determine if he ne eded to hear m ore to m ake a d ecision on com petenc y. See Re ckard, 2 Md. App. at 318, 234 A.2d at 633. -20- method of con ducting the examin ation is within the court s discretion. ). In addition, as a mea ns of guid ance for th e trial courts, w e hold that if a substantial question as to a child s compete ncy is raised, ordin arily, the trial judge sh ould cond uct a voir dire hear ing o utsid e the pres ence of th e jury. See Ev ans, 304 Md. at 508, 499 A.2d at 127172. The reduced risk of unfair prejudice and mistrial makes this the m ore ca reful co urse. Fina lly, we hold that in a case where the objecting p arty states that a child is seven years o ld and baldly asserts that the child lacks the ability to understand the differen ce betwe en truth and fic tion, wi thout m ore, a su bstantia l questio n as to c ompe tency has not bee n raised . JUDGMENT AFF IRM ED, COSTS IN T HIS COURT TO BE PAID BY PETITIONER -21-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.