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Perry v. Sta te No. 86, September Term 2003

CHILD COMPETEN CY D ECISIO N; The s ubstantive d etermination of a child's c ompeten cy to testify is within the sound discretion of the trial judge. CHILD COM PETE NCY PROC EDU RE; Th e procedu re that should be employed to determine a child's c ompe tency is w ithin the trial judg e's discr etion. SUBSTANTIAL QUESTION AS TO CO MPETENCY; If a substantial question as to a child's competency is raised, ordinarily, the trial judge should conduct a voir dire hearing outside the presence of the jury. The reduced risk of unfair prejudice and mistrial makes this the more careful course. AGE OF CHILD; In a case where the objecting party states that a child is seven years old and baldly asserts that the child lacks the ability to understand the difference between truth and fiction, without more, a substantial question as to competency has not been raised.

In the Circu it Court for B altimore C ity Case No. 100244015 IN THE COURT OF APPEALS OF MARYLAND No. 86 September Term, 2003 ______________________________________ KENNETH D. PERRY

v.

STATE OF MARYLAND ____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Greene, J. ______________________________________ Filed: May 7, 2004

On May 4, 2001, Kenneth D. Perry was convicted of first and second degree murder and related charges by a jury in the Circuit Court for Baltimore City. On November 19, 2001, the court sentenced Perry to life without parole for first degree murder, thirty years consecutive for second degree murder, and twenty years consecutive for one of the handgun violations. The other counts were merged. In an unreported opinion dated August 6, 2003, the Court of Special Appeals affirmed the judgmen t. On Decem ber 11, 2003, this Cou rt granted certiorari on the single issue of whether the trial court was required to hold a separate voir dire hearing, ou tside the prese nce of the jury, to determine if a seven-yea r-old child is c ompe tent to tes tify. Perry v . State, 378 M d. 613, 8 37 A.2 d 925 ( 2003) . FACTS On July 11, 19 98, the police discovered the bodies of LaShawn Jordan and her friend Kelly Bunn in a Baltimore apartment. LaShawn Jordan sustained a single fatal gun shot to the top of her head. Kelly Bunn sustained five gunshot wounds. When police arrived, they found the front ga te to the building and the front door of the apartment locked. Th ey had to force their way into the apartment. When they entered, they found the two dead women and two small children, age four and age 18 months. The two children were crying. The four year old child (identified as Jewel) told the rescuers that she knew who had done this. She said, "Mommy's boyfriend did it" and "I know who did this. It was his father," and she pointed to her half-b rother (the 18 month old). The police did not find the murder weapon. Furthermore, they did not find any DNA or fingerprint evidence linking Perry to the crime. The case cam e to trial three years later, when Je wel wa s seven years o ld. The Sta te

called her as a witness. Prior to her testimony, defense counsel approached the bench and asked the court to voir dire the child outside the presence of the jury. The exact argument is a follows: Defense: Your Honor, I'm going to object to the qualifications of this young lady due to her age and her ability to understand the difference between truth and fiction and ask that the Court conduct voir dire outside the presence of the jury to determine whether she's qualified and competent as a witness. Your Honor, absent [a] showing she is not competent I believe I am entit led to qualify he r and in the pre senc e of t he ju ry. I don't think there's any special reason why I have to have a separate voir dire session with he r. I mean the jury can evalu ate her credibility. I don't think it's a two step process where I have to go first simply based on age. So I'm going to deny your request. Well I'm reque sting the Court an opportunity to voir dire this child outs ide th e pre senc e of t he ju ry. Well I'm going to deny your request. You can cross-examine her.

State:

Court:

Defense:

Court:

At that point, the State began questioning Jewel. The first number of questions related to competency. The State asked Jewel her age, if she could read and write, if she we nt to school, and if s he wa s a goo d stude nt. After Jewel answered those questions in the affirmative, the State asked, "if you know the difference between telling the truth and telling a story?" When asked to explain the difference, the child said, "the differe nce is if you tell the truth

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