Opinion
Court of Appeals No. A-10280.
June 2, 2010.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Ben Esch, Judge.
Sharon B. Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Chester Cleveland was convicted of sexually assaulting a three-year-old boy. In this appeal, Cleveland argues that his indictment should have been thrown out because, at the grand jury hearing, the prosecutor neglected to have the boy sworn as a witness before the boy testified about the assault, and because the boy's father testified while the boy was present in the grand jury room. For the reasons explained here, we conclude that these errors were harmless — that is, there is no reasonable likelihood that these errors affected the grand jury's decision.
Cleveland also contends that his trial judge committed plain error by failing to sua sponte question the boy's competency before allowing the boy to testify at Cleveland's trial. We conclude that the record does not plainly show that the boy was incompetent to be a witness under the test codified in Alaska Evidence Rule 601, and therefore the trial judge did not commit error when, in the absence of any objection, the judge allowed the boy to testify without conducting an inquiry into the boy's competency.
Cleveland's challenge to the grand jury indictment
Of the witnesses who testified before the grand jury, three are important to the resolution of Cleveland's appeal: three-year-old K.B. (the victim of the assault), K.B.'s father, and Alaska State Trooper Sergeant Karl Main.
K.B. and his father took the stand together, with K.B. sitting in his father's lap. The prosecutor had the boy's father take the oath, but the prosecutor neglected to have K.B. take the oath.
K.B.'s father testified first. He told the grand jury that he left his son in the care of Cleveland and Cleveland's brother on the morning of September 6, 2006. After the father returned home from work that day, K.B. told him that he had an "owie" on his penis. The father examined K.B.'s penis and observed what he took to be a sore. K.B.'s father testified that he had showered with K.B. the day before, and that K.B. had not had the sore at that time.
The prosecutor then began questioning K.B. (without placing the child under oath). K.B. stated that Cleveland bit his penis, and that Cleveland showed him pictures of women with their breasts unclothed.
Trooper Main testified that, after the sexual assault was reported, he went to interview Cleveland. This interview took place on September 7th ( i.e., the day after the assault). Main told the grand jurors that, during this interview, Cleveland admitted that he put K.B.'s penis in his mouth and bit it. Cleveland also admitted telling K.B. to touch his ( i.e., Cleveland's) penis.
After Cleveland was indicted, he filed a motion asking the superior court to invalidate the indictment. In this motion, Cleveland argued that it was error to allow the grand jury to hear K.B.'s testimony, because K.B. never took the oath.
Cleveland further argued that K.B.'s father's testimony should also be struck, because the father gave his testimony in the presence of his son. See Alaska Criminal Rule 6(k), which states that, apart from the grand jurors themselves, "[only the] prosecuting attorney, the witness under examination, interpreters when needed, and a deputy clerk [who is] recording the proceedings may be present while the grand jury is in session."
The superior court upheld the indictment in spite of these allegations of error. Applying the test for assessing grand jury errors that this Court enunciated in Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992), the superior court concluded that the indictment remained valid because the alleged errors did not affect the grand jury's decision to indict Cleveland. We agree.
Even assuming that it was error to have K.B.'s father and K.B. both present in the grand jury room at the same time, there is essentially no possibility that K.B.'s presence affected the content of the first four minutes of K.B.'s father's testimony — the testimony that we described above, which the father gave before the prosecutor addressed any questions to K.B.
This opening portion of the father's testimony, coupled with Trooper Main's testimony that Cleveland confessed to sexually assaulting K.B., was sufficient to support the indictment. Moreover, there is no reason to believe that the grand jurors would have reached a different decision even if they had never heard K.B.'s testimony or never heard the latter portion of the father's testimony ( i.e., the additional testimony that the father gave after the prosecutor began to question K.B.).
For these reasons, we uphold the indictment.
Cleveland's challenge to K.B.'s testimony at trial
By the time of Cleveland's trial, K.B. was five years old. The prosecutor called K.B. as the State's first witness. He was sworn, and the defense attorney raised no objection concerning K.B.'s competency to be a witness.
From K.B.'s testimony, it is clear that he did not remember the details of the assault with the same clarity as he did at the grand jury hearing (which took place on September 8, 2006, only two days after the assault). Moreover, some of K.B.'s responses were confusing, and it sometimes appeared that he was not paying attention. However, at other times during his testimony, K.B. gave clear and responsive answers to the questions posed to him.
In particular, when the prosecutor asked K.B. if he remembered when his penis got hurt, K.B. answered that he did remember this. And when the prosecutor asked K.B. how his penis got hurt, K.B. responded, "Chester bite it."
On appeal, Cleveland argues that the content of K.B.'s trial testimony so obviously cast doubt on K.B.'s competency that it was plain error for the trial judge to fail to conduct an inquiry into the boy's competency to testify, even though Cleveland's attorney never requested such an inquiry.
Alaska law does not establish a minimum age for witnesses. Even very young children are competent to testify if they meet the requirements of Alaska Evidence Rule 601 — that is, if they are capable of communicating in an understandable way concerning the subject matter(s) of their testimony, and if they are capable of understanding their duty to testify truthfully. Indeed, Evidence Rule 601 establishes a presumption of competency; the rule declares that "[any] person is competent to be a witness unless the court [affirmatively] finds" that the person is incapable of communicating in an understandable w ay and/or is incapable of understanding their duty to tell the truth. (Emphasis added)
See Blume v. State, 797 P.2d 664, 668 (Alaska App. 1990).
In his briefs to this Court, Cleveland does not suggest that K.B. was unable to understand his duty to testify truthfully. However, Cleveland argues that the content of K.B.'s testimony, and K.B.'s demeanor on the stand ( i.e., the fact that K.B.'s attention was apparently wandering during portions of his testimony), should have prompted the trial judge to conduct an inquiry into K.B.'s competency, even in the absence of an objection.
Specifically, Cleveland points out that K.B. was unable to spell his name, that K.B. stated that he did not know what a policeman or a state trooper was, and that the prosecutor had to lead K.B. when asking him preliminary questions about who looked after him when his father went to work, and when asking K.B. to identify Cleveland in the courtroom.
Moreover, Cleveland points out that K.B.'s testimony concerning various details of the incident was inconsistent with the testimony given by other witnesses, and sometimes inconsistent with his own prior statements to the grand jury. In addition, Cleveland notes that, at times during his testimony, K.B. apparently lost focus on the prosecutor's questions and wanted to rest his head on his arm.
"[Given all] these circumstances," Cleveland argues, "[K.B.'s] lack of attention [and] the inconsistency of his responses, [added to] the fact that he was five [years old] and was testifying about events that occurred when he was three, throws into question the truthfulness of his testimony." For this reason, Cleveland contends that the trial judge should have initiated an inquiry into K.B.'s competency to testify.
Cleveland's argument misapprehends the nature of the requirement of competency. The "truthfulness" of K.B.'s testimony is not relevant to the determination of K.B.'s competence to give that testimony.
The fact that there may be good reason to think that a witness's testimony is inaccurate, incomplete, wholly unreliable, or even willfully false does not mean that the witness lacks competency to testify. As we explained above, the test for competency is the witness's ability to communicate so as to be understood by the trier of fact, and the witness's ability to understand the duty to testify truthfully (even if the witness decides to violate that duty). The test for competency does not include any inquiry into the truthfulness, accuracy, or reliability of the witness's testimony. As the Commentary to Alaska Evidence Rule 601 states, "[t]he policy of the rule is that matters [concerning] the witness's . . . perception, knowledge, memory, experience[,] and the like go to the weight to be given [the witness's] testimony rather than to [their] right to testify."
Commentary to Alaska Evidence Rule 601, second paragraph (internal quotation marks omitted).
The test for competency excludes these matters because, under our system of law, it is the jurors, and not the judge presiding over the trial, who should be making assessments of witness credibility. If judges were allowed to declare witnesses "incompetent" based on the judge's assessment of the likely inaccuracy, untruthfulness, or unreliability of their testimony, judges would have the power to effectively determine the outcome of litigation by deciding which witnesses were worthy of belief, and then declaring the remaining witnesses incompetent to testify because their testimony was apparently "untruthful" or "unreliable".
The reliability or credibility of K.B.'s trial testimony may have been suspect for all the reasons that Cleveland recites in his brief. But these were matters for cross-examination and final argument. The record gives little or no reason to doubt that K.B. was capable of communicating in an understandable way, even if he did not give accurate answers to every question posed to him, and even if his attention wandered from time to time while he was on the stand.
Accordingly, the trial judge was under no duty to raise the issue of K.B.'s competency sua sponte.
Conclusion
The judgement of the superior court is AFFIRMED.