Opinion
No. 15–P–825.
10-24-2016
COMMONWEALTH v. Selvin JUAREZ–MONTERROSO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Selvin Juarez–Monterroso, appeals from his conviction by a Superior Court jury on September 12, 2014, of indecent assault and battery on a child under fourteen in violation of G.L. c. 265, § 13B. The defendant argues that the judge abused his discretion in determining that the victim's five year old brother was incompetent to testify at trial. The defendant contends that the brother should have been the Commonwealth's first complaint witness, and if not, the defendant should have been able to call the brother as a witness. He also argues that the judge's erroneous competency determination deprived him of his due process right to present a defense. Because the defendant preserved the issue on appeal with a timely objection, we review error, if any, for prejudice. Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
“The courts of this Commonwealth have long applied a two-prong test to determine competency: (1) whether the witness has the general ability or capacity to ‘observe, remember, and give expression to that which she ha[s] seen, heard, or experienced’; and (2) whether she has ‘understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment.’ “ Commonwealth v. Brusgulis, 398 Mass. 325, 329 (1986), quoting from Commonwealth v. Tatisos, 238 Mass. 322, 325 (1921). See Mass. G. Evid. § 601 (2016). “The question of a witness's competency to testify ‘is peculiarly for the trial judge and his determination will be rarely faulted on appellate review.’ “ Commonwealth v. Adkinson, 442 Mass. 410, (2004), quoting from Commonwealth v. Whitehead, 379 Mass. 640, 656, (1980). A question of competency is almost always one of fact and is not set aside unless clearly erroneous. Commonwealth v. Gamache, 35 Mass.App.Ct. 805, 806–807 (1994).
Here, the trial judge had the opportunity, which we lack, to observe the manner and appearance of the brother as he responded to numerous questions from both parties during the voir dire hearing. See Commonwealth v. Corbett, 26 Mass.App.Ct. 773, 777 (1989). The judge found that it was difficult for the brother to answer simple questions about his life, such as where he lived and his daily routine in kindergarten. The brother also did not know the ages of his siblings or his own birthday. In addition, the brother said that he did not know a person named Selvin Juarez–Monterroso, and when defense counsel identified the defendant by his clothing, the brother did not recognize him. Correctly applying the two-prong witness competency test established in Tatisos, supra, the judge determined that although the brother could tell the difference between lying and telling the truth, he did not have the ability to observe, remember, and recount some past events. The judge concluded that although age is not the deciding factor in determining competency, see Tatisos, supra, the child in this case was too young to testify meaningfully about the assault on his sister as the first complaint witness and as a witness in general. Based on the brother's testimony during the voir dire hearing, there were sufficient facts for the judge to find that the brother was not competent to testify. There was no abuse of discretion.
“[W]here the first person told of the alleged assault is ... too young to testify meaningfully, the judge may exercise discretion in allowing one other complaint witness to testify.” Commonwealth v. King, 445 Mass. 217, 243–244 (2005).
Even if there were error, however, the defendant was not deprived of his right to present a defense. The brother did not have a percipient observation of the assault itself; therefore the defendant could only use the brother's testimony to impeach the victim's credibility. The defendant had the opportunity to cross-examine the victim and her mother, the first complaint witness, about the assault, what transpired in the bathroom after the assault, and the events that led to the mother calling the police. Additionally, the defendant presented two witnesses, the initial responding police officer and an interviewer from the Department of Children and Families, to impeach the victim's credibility regarding the scope of her initial disclosure. In view of the defendant's ability to challenge the victim's credibility, and the absence of any percipient observations of the assault by the brother, the lack of testimony from the five year old brother was not prejudicial.
The victim testified that after the assault, she took her brother and ran to the bathroom and locked the door. While in the bathroom, she told her brother about the assault and heard her uncle grab a knife in an attempt to pick the lock on the door. During the voir dire hearing, the brother said that he did not talk to his sister in the bathroom.
That evening, the victim, her siblings, and their parents went to the movies. The defendant argued that the child's behavior was not indicative of a child who had just experienced a traumatic event. The victim did not tell her mother about the assault until the next day.