State v. Mills

Brock, C.J.,

dissenting: The criteria for determining whether a witness is competent are: (1) the ability to observe, remember, and narrate; and (2) an understanding of the duty to tell the truth. N.H. R. Ev. 601(b); State v. Keyes, 114 N.H. 487, 490, 322 A.2d 615, 617 (1974). The trial court has great discretion in the manner in which the determination of competency is made, see, e.g., State v. Blum, 132 N.H. 396, 399, 566 A.2d 1131, 1132-33 (1989), but in deciding whether the witness is competent, it must consider the above criteria. In my opinion, the trial court failed to adequately question the youth on his understanding of the duty to tell the truth. Accordingly, I respectfully dissent.

Initially, I must point out that while I agree with the majority on the preservation of the issue of the importance of telling the truth, I also believe that the issue of whether Shane could distinguish between truth and falsehood was adequately preserved. Following the competency hearing, the court ruled that Shane was competent to testify. The defendant immediately objected to the ruling and stated:

“I think my main area for the objection is that when you asked him if he knew what would happen to him if he didn’t tell the truth or it was important for him to tell the truth, I don’t think he showed a clear understanding of the importance between telling the truth and not telling the truth.”

We have previously held that when the court is apprised of the general theory behind the objection such that “it is given an adequate opportunity to reconsider its ruling,” this is sufficient to preserve the issue on appeal. State v. Pinardville Athletic Club, 134 N.H. 462, 465, 594 A.2d 1284,1286 (1991); see also State v. Baird, 133 N.H. 637, 640, 581 A.2d 1313, 1315 (1990); State v. Judkins, 128 N.H. 223, 224-25, 512 A.2d 427, 428 (1986).

The defendant’s objection, although specific in its wording, is sufficient to alert the court to the general nature of the defendant’s theory. It encompasses not only the ability of the witness to tell the truth, but also his concern that the witness know the difference be*53tween truth and falsehood. The trial court was alerted to the defendant’s general theory, i.e., the witness’s ability to understand his duty to tell the truth under Rule 601(b). Accordingly, because the defendant objected at the pretrial hearing, the issues of whether the witness understood both the difference between a truth and a lie and the importance of telling the truth were properly preserved for our review. See State v. Simonds, 135 N.H. 203, 205, 600 A.2d 928, 929 (1991).

I now turn to the issue of whether the trial court erred in ruling that the four-year-old witness was competent. Upon a review of the questions asked and the corresponding responses, we must decide whether the trial court abused its discretion in allowing Shane to testify before the jury. A review of the record shows only one colloquy on the issue of Shane’s “capacity to ... understand [his] duty to tell the truth”:

“THE COURT: ... Do you want to tell the truth when people ask you things?
(Witness nods head affirmatively)
THE COURT: Why do you want to tell the truth?
SHANE KELLEY: I want to.
THE COURT: Hmm?
SHANE KELLEY: I want to.
THE COURT: You want to?
(Witness nods head affirmatively)
THE COURT: Does something happen if you don’t tell the truth? Does anything bad happen or somebody do something to you if you don’t tell the truth? Will your mommy be upset and your daddy be upset?
(Witness nods head affirmatively)
THE COURT: I see you’re saying ‘yes,’ putting your head up and down, ‘yeah.’”

At best, the witness “want[s] to tell the truth,” but this is a far cry from acknowledging a “duty” to tell the truth. More importantly, nowhere in the record does the court even inquire into whether the four-year-old child understands the difference between the truth and ~a lie.

When determining whether a youth “understand^] the duty to tell the truth,” Rule 601(b), the trial court must first ascertain that the *54child understands the difference between the truth and falsehood. Once this initial determination is made, the court must then make sure the witness appreciates the obligation to tell the truth. See generally Myers, The Testimonial Competence of Children, 25 J. Fam. L. 287, 327-35 (1986-87); see also 81 Am. Jur. 2d Witnesses § 89 (1976). The court must not only determine that the youth understands and can express intelligent answers to the questions put forth, but it must also be satisfied that the witness demonstrates “a sense of moral responsibility [and] a consciousness of the duty to speak the truth.” Goy v. Director General, 79 N.H. 512, 514, 111 A. 855, 856 (1920) (citation and quotation omitted); 2 WlGMORE ON Evidence § 506, at 713 (Chadbourn rev. 1979).

Although the witness need not utter any “magic words” indicating that he or she understands the difference between the truth and a lie or the importance of telling the truth, some indication of the witness’s understanding must be apparent on the record. In this case, there were neither hypothetical questions posed to the child nor any other dialogue by which it may be determined that the child understood his “duty to tell the truth.” Further, the court’s determination of whether the child understood the consequences of not telling the truth rested on a three-part compound question to which the witness merely nodded affirmatively. One cannot discern whether the witness understood which question he was answering, let alone the ramifications of his affirmation.

The largely leading questions posed by the trial court, combined with the cryptic answers or physical affirmations given by Shane, do not provide a sufficient foundation to legally qualify him to testify. For the trial court to rest its determination of competency on so barren a record constitutes an abuse of discretion. In view of the fact that Shane’s testimony was the only direct evidence offered to prove that the defendant caused his injuries, the error was not harmless beyond a reasonable doubt. Accordingly, I would remand for a new trial.

Because I would remand this case for a new trial, I need not address the defendant’s second contention that a new trial based on newly discovered evidence is warranted. I note in passing, however, that Shane’s alleged recantation serves to evidence the tension and stress that Shane was subjected to, thus further supporting my position that the trial court should have questioned him in a more thorough fashion.