COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton *
Argued at Norfolk, Virginia
JESOVHA OCTAVIOUS SEABORN, S/K/A
JESOVOHA OCTAVIUS SEABORN
MEMORANDUM OPINION** BY
v. Record No. 2504-97-1 JUDGE RICHARD S. BRAY
FEBRUARY 2, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John E. Clarkson, Judge
I. Lionel Hancock, III (Bohannon, Bohannon &
Hancock, P.C., on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
A jury convicted Jesovha Seaborn (defendant) of first-degree
murder and a related firearm offense. On appeal, he complains
that the trial court erroneously ruled a defense witness
incompetent to testify. Finding no error, we affirm the
convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
*
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
**
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Defendant's first trial on the subject indictments ended in
a mistrial when the jury was unable to reach a verdict. The
instant prosecution was commenced several months later and
resulted in the disputed convictions. During both proceedings,
defendant offered the testimony of Christopher Sherrod (witness),
a child allegedly nearby at the time of the offenses. At the
earlier prosecution, the trial court declared the witness
incompetent following a voir dire which included a proffer of his
testimony. A transcript of these proceedings was made a part of
the voir dire at the instant trial, together with a second
proffer of the witness' testimony, and resulted in a similar
ruling. Defendant appeals, arguing only that the court
erroneously declared the child an incompetent witness.
During voir dire at the first trial in March, 1997, the
witness answered "nine" when asked his age, but later provided a
birthdate of January 31, 1986. He testified that he was eight at
the time of the offenses, December 15, 1995, but then admitted
uncertainty. The child was unable to name his teacher from the
immediately preceding school year or particulars of an earlier
meeting with defendant's counsel. Questioned, "What is a lie?,"
he initially answered, "a lie," and, upon further inquiry,
stated, "I don't know." He acknowledged that he did not
"understand the word truth."
When queried relative to the subject offenses, the child
recalled seeing "a gun" in the victim's "pocket" and hearing
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"three shots" shortly thereafter but told "nobody" of the
incident. He testified that he "couldn't see" the color of the
weapon, but remembered previously recounting that he "saw a black
object," described as "metal." Asked if his testimony "about
seeing [the victim] with a gun and . . . hear[ing] shots" was
true, the child answered, "No. I mean yeah."
At the second trial, the witness recalled that the victim
had a "beeper," not a gun, in his pocket, although he "didn't
recognize it [as] a beeper." Asked repeatedly if he remembered
previous statements "that [he] saw a gun in [the] pocket," the
child persistently answered in the negative.
"In Virginia, a child need not have reached a certain age in
order to be competent as a witness." Durant v. Commonwealth, 7
Va. App. 454, 462, 375 S.E.2d 396, 400 (1988). Rather, "[a]
child is competent to testify if [he] possesses the capacity to
observe events, to recollect and communicate them, and has the
ability to understand questions and to frame and make intelligent
answers, with a consciousness of the duty to speak the truth."
Cross v. Commonwealth, 195 Va. 62, 64, 77 S.E.2d 447, 449 (1953)
(citations omitted); Durant, 7 Va. App. at 462, 375 S.E.2d at
400. "Because of the trial court's opportunity to see the child
and to observe his or her demeanor on the stand and manner of
testifying, the determination of competency is left largely to
the discretion of the trial court," and the decision will not be
disturbed "in the absence of manifest error." Durant, 7 Va. App.
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at 462, 375 S.E.2d at 400 (citing Carpenter v. Commonwealth, 186
Va. 851, 864, 44 S.E.2d 419, 425 (1947)); see Cross, 195 Va. at
64, 77 S.E.2d at 449.
Applying these principles to the instant circumstances, we
find no reversible error in the disputed ruling of the trial
court. The child witness was unable to respond appropriately to
voir dire questioning on two occasions, experienced continuing
difficulty in recalling past events with consistency and
reliability, and did not understand the concept of truth
generally or in relation to his testimony. Moreover, his most
recent recollection of the offenses, reflected in the proffer of
his testimony at the subject trial, established that the victim
was unarmed, a circumstance contrary to defendant's theory of the
case. Thus, any error in precluding the evidence manifestly "did
not affect [the] verdict" or impair a "fair trial" and was,
therefore, harmless. Lavinder v. Commonwealth, 12 Va. App. 1003,
1005, 407 S.E.2d 910, 911 (1991) (en banc); see Code § 8.01-678.
Accordingly, we affirm the convictions.
Affirmed.
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