State v. Taylor

CROCKETT, Chief Justice

(dissenting).

I dissent.

From my review of this record it is my judgment: (1) that there is ample credible evidence to support the finding of defendant’s guilt beyond a reasonable doubt; (2) the defendant’s rights were properly and adequately safeguarded; (3) that there was no error which by itself or cumulatively should be regarded as sufficiently substantial and prejudicial to warrant a reversal; and (4) that therefore the conviction should be affirmed.

Questions relating to the sexual abuse of small children are so offensive to normal sensibilities that it is difficult to deal with them with objectivity. It is undoubtedly true that we as human beings are in varying degrees unaware of the prior conditioning and the emotional motivations which influence our thinking. I suppose that the best any of us can do is to examine such a situation as dispassionately as possible. It may *430well be that the foregoing has something to do with the fact that the judges of this court do not view this record in the same way; and that I do not see in it any proper basis for the criticisms made of the trial court and the proceedings, and particularly not for imputing fault to the trial judge based upon statements made by the prosecutor in discussing the case.

Proceedings against one accused of this type of crime often necessarily rest largely upon the testimony of very young victims, as is true in this case. A two-faceted problem is presented: accepting the testimony of a young child with the natural limitations of intelligence, memory and maturity, or rejecting it, which may result in allowing one guilty of such a crime to escape from being properly dealt with. For this reason it is incumbent upon the courts to exercise great caution with respect to the testimony of these little girls, both in the eliciting of their testimony and the judging of its credibility. It is my definite impression that the trial judge was fully aware of this and that he exerted commendable efforts to comply with that requirement; and this is also true of each of the attorneys.

In the very nature of things the question of the competency of a child to testify must be left largely to the discretion of the trial court. Therefore, the universally accepted rulé is that if the trial judge is satisfied, the reviewing court will not overrule unless it is patent and clear that there was an abuse of discretion. See State v. MacMillan, 46 Utah 19, 145 P. 833.

Each of the girls, Shana seven, and Christine six, in preliminary questioning showed plainly an understanding of the difference between telling a lie and the truth, of the importance of telling the truth, and gave assurance that she would tell only the truth of what happened and not what anyone had told her to say. They thus met the generally accepted test for being permitted to testify if demonstrated to the satisfaction of the trial judge. See footnote one of main opinion.

It is true that the little girls were not glib; that they had inadequate vocabulary about such matters; that they nodded heads and had to be told to answer audibly: yes or no. This all impressed me as not unnatural, and in fact, as enhancing credibility because it indicates they had not been coached with any fixed story. Moreover, in spite of the fact that the exclusion of witnesses was ordered, and each of the little girls was required to testify alone, each told about occurrences with the defendant from which I can see no other reasonable conclusion than that the offense had been committed. The facts that they related about being required to put their mouths to defendant’s privates and the things that resulted therefrom, impel me to share the *431view of the mother (called as a witness for the defendant) who testified:

* * * I don’t know how children that age could dream up that stuff. I’ve never told them things like that.

There is also the evidence of Mrs. Taylor that after this matter came to light through the grandmother in what impresses me as a not unnatural turn of events, the defendant made threats against Mrs. Taylor (the mother) on several occasions to dissuade her from bringing the matter to court, telling her that:

When all of this came out in court that my kids would be taken away from me before I left the court * * *

and that after threats failed, he offered her money to go away until after the time for the trial had passed.

I have referred to the record only lightly. It is indeed a sordid affair; and what should finally be done about it I would willingly leave to the juvenile court whose duty it is. But such distressing, even sickening, troubles will not vanish either by hoping they will go away, or by brushing them under the rug. Nor can I see how either the instant situation, or the cause of law and order generally, will be benefited by a reversal of this conviction, which I believe under established rules should be affirmed.

ELLETT, J., concurs in the dissenting opinion of Mr. Chief Justice CROCKETT.