ROBERT LEE DAVIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Robert Lee Davis was convicted of manslaughter and sentenced to fifteen years. He appealed primarily on the ground that the trial court improperly allowed his seven-year-old daughter to testify against him. The appellate court affirmed, holding that the trial judge properly exercised discretion in finding the child competent to testify based on her intelligence and ability to recall and relate facts.
The trial court properly exercised its discretion in finding Esther competent to testify. The court's decision on a child's competency to testify rests within the trial judge's discretion and depends on the child's intelligence, ability to recall and relate facts, and understanding of the nature and obligations of an oath—not merely on age.
[1] A trial judge has discretion to determine the competency of a child witness.
[2] A child's intelligence, not their age, is the primary test for competency to testify.
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Join FLexlaw to unlock all legal intelligence“A decision upon the competency of a child to testify is one peculiarly within the discretion of the trial judge because the evidence of intelligence, ability to recall, relate and to appreciate the nature and obligations of an oath are not fully portrayed by a bare record.”
Establishes the standard that child witness competency determinations rest within trial judge discretion, not solely on age or the appellate record.
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Join FLexlaw to unlock all legal intelligenceRobert Lee Davis shot and killed the mother of his seven-year-old daughter, Esther, and himself. The shooting occurred during an argument between the …
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Defendant, Robert Lee Davis, seeks reversal of his conviction of manslaughter and sentence of fifteen years. The principal point on appeal is the competency of defendant’s seven year old daughter, Esther, to testify for the state at trial.
Esther, the daughter of both the defendant and the victim, was six years old on the date of the fatal shooting. At trial,1 following an examination by the judge as to her competency and over defense counsel’s objection, she was allowed to testify. *32On direct examination Esther was too timid to fully respond to the state attorney’s questions. Following the court’s refusal to grant defense counsel’s motion to exclude the witness and her testimony, the judge called Esther to the bench where she sat on his lap and was able to finish testifying. Esther stated that an argument began between her parents and she heard her father, the defendant, say to her mother, the victim, “I will blow your brains out.” The mother then responded, "Get that gun out of my face”. Whereupon, defendant shot both the victim and himself. Defendant voluntarily testified in his behalf and said the shooting was an accident.
A review of the record on appeal reveals that there was a conscientious examination by the court of the three prospective infant witnesses as to their competency to testify. The first two witnesses offered by the state, Esther’s younger brothers, were found not to be competent to testify by the trial judge. Esther was carefully examined and the judge in his discretion found her competent. Although she was timid and shy at first, the judge was able to put the child at ease which allowed her to testify.
A decision upon the competency of a child to testify is one peculiarly within the discretion of the trial judge because the evidence of intelligence, ability to recall, relate and to appreciate the nature and obligations of an oath are not fully portrayed by a bare record. Clinton v. State, 53 Fla. 98, 43 So. 312 (1907); Swain v. State, Fla.App.1965, 172 So.2d 3. Furthermore, the intelligence, not the age of a child is the test of its competency to be a witness. Bell v. State, Fla.1957, 93 So.2d 575; Swain v. State, supra.
Defendant’s other point on appeal is found to be without substantial merit. Accordingly, the judgment appealed is affirmed.
Affirmed.
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Fernandez v. State, 328 So. 2d 508 (Fla. 3d DCA 1976)…ability to recall, relate and to appreciate the nature and obligations of an oath are not fully portrayed by a bare record. Clinton v. State, 1907, S3 Fla. 98, 43 So. 312; Swain v. State, Fla.App.1965, 172 So. 2d 3; Davis v. State, Fla.App.1972, 264 So. 2d 31. Furthermore, the prime test of testimonial competency of a young child is intelligence rather than age. Bell v. State, Fla,1957, 93 So. 2d S75, 577; Swain v. State, supra; Davis v. State, supra. From the totality of the record, including voir…
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Fuller v. State, 669 So. 2d 273 (Fla. 2d DCA 1996)…and, therefore, a decision upon the competency of a child to testify is one that must be peculiarly within the discretion of the trial judge. Fernandez v. State, 328 So. 2d 508 (Fla. 3d DCA), cert. denied, 341 So. 2d 1081 (Fla.1976); Davis v. State, 264 So. 2d 31 (Fla. 3d DCA 1972); Swain v. State, 172 So. 2d 3 (Fla. 3d DCA 1965). In upholding a trial court’s decision concerning the competency of a seven year old witness in Ferrer v. State, 117 So. 2d 529 (Fla. 3d DCA 1960), the court said: “The able and lo…
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Garrard v. State, 335 So. 2d 603 (Fla. 3d DCA 1976)…ity to recall, relate and to appre- [*604] date the nature and obligations of an oath are not fully portrayed by a bare record. Clinton v. State, 1907, 53 Fla. 98, 43 So. 312; Swain v. State, Fla.App.1965, 172 So. 2d 3; Davis v. State, Fla.App.1972, 264 So. 2d 31; Fernandez v. State, Fla.App. 1976, 328 So. 2d 508. Furthermore, the prime test of testimonial competency of a young child is intelligence rather than age. Bell v. State, Fla. 1957, 93 So. 2d 575, 577; Swain v. State, supra; Davis v. State, supra; F…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Buck Clinton and Edward Clinton v. State, 53 Fla. 98 (Fla. 1907)
- Leas v. Leas, 93 So. 2d 575 (Fla. 1957)
- Virgal E. Swain v. State, 172 So. 2d 3 (Fla. 3d DCA 1965)