PAUL FORREST GARRARD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Garrard was convicted of lewd and lascivious assault on an 11-year-old male minor and sentenced to 5 years imprisonment. The appellate court affirmed the conviction, rejecting challenges to the child victim's competency to testify and to the admission of in-court identification evidence.
The trial court properly exercised its discretion in determining the child competent to testify based on evidence of his intelligence and ability to recall and relate events, regardless of his developmental and language challenges. The in-court identification was properly admitted because the victim had made an independent identification of Garrard at a shopping center days before the prosecutor showed him the photograph.
[1] A trial court's determination of a child's competency to testify is a matter within its discretion, considering the child's intelligence, ability to recall and relate eve…
[2] The primary test for a child's testimonial competency is intelligence, not age.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
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 of review for child competency decisions and the trial judge's discretion in assessing competency.
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Join FLexlaw to unlock all legal intelligenceGarrard was charged with making a lewd, lascivious or indecent assault upon an 11-year-old male child. The victim, the State's sole witness, had some …
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PER CURIAM.
Paul Forrest Garrard was charged by information with making a lewd, lascivious or indecent assault upon a male minor under the age of 14 years, in violation of § 800.04, Fla.Stat. He was tried by jury, found guilty, convicted and sentenced to 5 years in the state penitentiary with credit for time to be spent in the custody of the Division of Mental Health for treatment and rehabilitation as a mentally disordered sex offender. Gerrard contends as points on appeal (1) that the alleged victim, an 11-year-old child and the State’s sole witness to the act charged in the information, was incompetent to testify, and (2) that the court erred in not suppressing the in-court identification by the alleged victim. A third point raised by the defendant is without merit and will not be discussed.
The record reflects that the young alleged victim in this case was somewhat slow, that he had difficulty in answering some of the questions asked of him and that he had a (Spanish/English) language problem.
However, 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 appre- 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; Fernandez v. State, supra. From the totality of the record, including voir dire examination and the child’s answers to the questions of the prosecutor, defense counsel and the court, we find that there was sufficient evidence to warrant the court’s judgment that the child was competent to testify. After the child was approved by the trial court to testify, he became more articulate and gave a specific account of the incident in question.
Garrard bases his second point of appeal, that the court erred in not suppressing the in-court identification, on the fact that when the prosecutor showed the alleged victim a single picture of the defendant just prior to trial for identification purposes, this was tantamount to a show-up, and was impermissibly suggestive.
The record reflects that the victim first identified Garrard as the person who assaulted him, at a shopping center a few days after the incident, when he pointed Garrard out to his mother. Based on this identification, the mother called the police, which resulted in the arrest of the defendant.
Thus, the child had made an independent identification of Garrard as the perpetrator of the crime long before he was shown the photograph by the prosecutor. Where the in-court identification had a source completely independent of the questioned lineup or other identification confrontation, as in this case, a show-up, the admission of the identification testimony was proper. Anderson v. State, Fla.App.1968, 215 So. 2d 618.
Affirmed.
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Citator
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Lloyd v. State, 524 So. 2d 396 (Fla. 1988)…ather than his or her age, and, in addition, whether the child possesses a sense of obligation to tell the truth. Bell v. State, 93 So. 2d 575 (Fla.1957). The test has been reiterated in multiple district court of appeal decisions. Garrard v. State, 335 So. 2d 603 (Fla. 3d DCA 1976), cert. denied, 342 So. 2d 1101 (Fla.1977); Fernandez v. State, 328 So. 2d 508 (Fla. 3d DCA), cert. denied, 341 So. 2d 1081 (Fla.1976); McKinnies v. State, 315 So. 2d 211 (Fla. 1st DCA 1975); Harrold v. Schluep, 264 So. 2d 431 (Fla…
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Griffin v. State, 526 So. 2d 752 (Fla. 1st DCA 1988)…is or her age, and, in addition, whether the child possesses a sense of obligation to tell the truth.”1 Lloyd, 524 So. 2d at 400; Bell v. State, 93 So. 2d 575, 577 (Fla.1957); McKinnies v. State, 315 So. 2d 211 (Fla. 1st DCA 1975); Garrard v. State, 335 So. 2d 603 (Fla. 3d DCA 1976), cert. denied, 342 So. 2d 1101 (Fla.1977); Harrold v. Schluep, 264 So. 2d 431 (Fla. 4th DCA 1972). Therefore, when a child’s competency is at issue, the trial court should consider (1) whether the child is capable of observing and…
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Eliceo Rodriguez v. State, 413 So. 2d 1303 (Fla. 3d DCA 1982)…rmine to what extent this may have affected his perception. Moreover, the record reveals that the trial judge questioned the child, and based on his intelligence and ability to understand, found him competent to testify. See, e.g., Garrard v. State, 335 So. 2d 603 (Fla. 3d DCA 1976), cert. denied, 342 So. 2d 1101 (Fla.1977). Rodriguez also argues that exclusion of the expert testimony precluded effective cross-examination of Armando Jr. with respect to susceptibility to suggestive influences during the ident…
Previewing 3 of 6 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)
- Anderson v. State, 215 So. 2d 618 (Fla. 4th DCA 1968)
- Fernandez v. State, 328 So. 2d 508 (Fla. 3d DCA 1976)
- Virgal E. Swain v. State, 172 So. 2d 3 (Fla. 3d DCA 1965)
- Davis v. State, 264 So. 2d 31 (Fla. 3d DCA 1972)