Jesovha Octavious Seaborn, s/k/a v. CW

• Court: Court of Appeals of Virginia
• Decided: February 2, 1999
• Docket: 2504971
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Bray and Senior Judge Overton * Argued at Norfolk, Virginia

JESOVHA OCTAVIOUS SEABORN, S/K/A JESOVOHA OCTAVIUS SEABORN MEMORANDUM OPINION** BY v. Record No. 2504-97-1 JUDGE RICHARD S. BRAY FEBRUARY 2, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John E. Clarkson, Judge

I. Lionel Hancock, III (Bohannon, Bohannon & Hancock, P.C., on brief), for appellant.

Richard B. Smith, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

A jury convicted Jesovha Seaborn (defendant) of first-degree

murder and a related firearm offense. On appeal, he complains

that the trial court erroneously ruled a defense witness

incompetent to testify. Finding no error, we affirm the

convictions.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

* Judge Overton participated in the hearing and decision of this case prior to the effective date of his retirement on January 31, 1999 and thereafter by his designation as a senior judge pursuant to Code § 17.1-401, recodifying Code § 17-116.01:1. ** Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Defendant's first trial on the subject indictments ended in

a mistrial when the jury was unable to reach a verdict. The

instant prosecution was commenced several months later and

resulted in the disputed convictions. During both proceedings,

defendant offered the testimony of Christopher Sherrod (witness),

a child allegedly nearby at the time of the offenses. At the

earlier prosecution, the trial court declared the witness

incompetent following a voir dire which included a proffer of his

testimony. A transcript of these proceedings was made a part of

the voir dire at the instant trial, together with a second proffer of the witness' testimony, and resulted in a similar

ruling. Defendant appeals, arguing only that the court

erroneously declared the child an incompetent witness.

During voir dire at the first trial in March, 1997, the

witness answered "nine" when asked his age, but later provided a

birthdate of January 31, 1986. He testified that he was eight at

the time of the offenses, December 15, 1995, but then admitted

uncertainty. The child was unable to name his teacher from the

immediately preceding school year or particulars of an earlier

meeting with defendant's counsel. Questioned, "What is a lie?,"

he initially answered, "a lie," and, upon further inquiry,

stated, "I don't know." He acknowledged that he did not

"understand the word truth."

When queried relative to the subject offenses, the child

recalled seeing "a gun" in the victim's "pocket" and hearing

- 2 - "three shots" shortly thereafter but told "nobody" of the

incident. He testified that he "couldn't see" the color of the

weapon, but remembered previously recounting that he "saw a black

object," described as "metal." Asked if his testimony "about

seeing [the victim] with a gun and . . . hear[ing] shots" was

true, the child answered, "No. I mean yeah."

At the second trial, the witness recalled that the victim

had a "beeper," not a gun, in his pocket, although he "didn't

recognize it [as] a beeper." Asked repeatedly if he remembered

previous statements "that [he] saw a gun in [the] pocket," the

child persistently answered in the negative. "In Virginia, a child need not have reached a certain age in

order to be competent as a witness." Durant v. Commonwealth, 7

Va. App. 454, 462, 375 S.E.2d 396, 400 (1988). Rather, "[a]

child is competent to testify if [he] possesses the capacity to

observe events, to recollect and communicate them, and has the

ability to understand questions and to frame and make intelligent

answers, with a consciousness of the duty to speak the truth." Cross v. Commonwealth, 195 Va. 62, 64, 77 S.E.2d 447, 449 (1953)

(citations omitted); Durant, 7 Va. App. at 462, 375 S.E.2d at

400. "Because of the trial court's opportunity to see the child

and to observe his or her demeanor on the stand and manner of

testifying, the determination of competency is left largely to

the discretion of the trial court," and the decision will not be

disturbed "in the absence of manifest error." Durant, 7 Va. App.

- 3 - at 462, 375 S.E.2d at 400 (citing Carpenter v. Commonwealth, 186

Va. 851, 864, 44 S.E.2d 419, 425 (1947)); see Cross, 195 Va. at

64, 77 S.E.2d at 449.

Applying these principles to the instant circumstances, we

find no reversible error in the disputed ruling of the trial

court. The child witness was unable to respond appropriately to

voir dire questioning on two occasions, experienced continuing

difficulty in recalling past events with consistency and

reliability, and did not understand the concept of truth

generally or in relation to his testimony. Moreover, his most

recent recollection of the offenses, reflected in the proffer of

his testimony at the subject trial, established that the victim

was unarmed, a circumstance contrary to defendant's theory of the

case. Thus, any error in precluding the evidence manifestly "did

not affect [the] verdict" or impair a "fair trial" and was,

therefore, harmless. Lavinder v. Commonwealth, 12 Va. App. 1003,

1005, 407 S.E.2d 910, 911 (1991) (en banc); see Code § 8.01-678.

Accordingly, we affirm the convictions. Affirmed.

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