Royal v. Commonwealth

341 S.E.2d 660, 2 Va. App. 59, 1986 Va. App. LEXIS 242
CourtCourt of Appeals of Virginia
DecidedMarch 18, 1986
DocketRecord No. 0012-85
StatusPublished
Cited by12 cases

This text of 341 S.E.2d 660 (Royal v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Royal v. Commonwealth, 341 S.E.2d 660, 2 Va. App. 59, 1986 Va. App. LEXIS 242 (Va. Ct. App. 1986).

Opinions

[61]*61Opinion

BAKER, J.

Cynthia Ann Royal (appellant) appeals from a judgment of the Newport News Circuit Court (trial court) wherein she was convicted by a jury of the first degree murder of Otto Drew (Drew), and sentenced to a forty year prison term.

Appellant asserts that the jury verdict should be set aside and a new trial granted. She alleges that the trial court erred: (1) when it allowed three juveniles to testify at the trial; (2) when it refused a defense instruction regarding an out-of-court statement made by a juvenile witness which was used to refresh the witness’ recollection at trial; (3) when it refused a defense instruction relating to appellant’s intoxication at the time of Drew’s death; (4) when it granted an instruction providing that a person at fault must retreat prior to the use of force in self defense; (5) when it granted an instruction providing that words alone are not sufficient provocation to reduce a homicide to manslaughter; (6) when it did not, at the end of the first day of trial, instruct the jury to avoid media coverage of the trial and subsequently authorized the bailiff to contact each juror at home and give such admonition; and, (7) when it refused a motion to set aside the jury verdict or allow post trial questioning of a juror who allegedly gave a false reply to a pretrial voir dire question.

The matter having been submitted to a jury whose verdict was adverse to the appellant, on appeal the evidence is to be viewed most favorably to the Commonwealth. See Toler v. Commonwealth, 188 Va. 774, 782, 51 S.E.2d 210, 213 (1949). That evidence is as follows:

On May 1, 1984, Otto Drew went to the home of Carol Deloatch (Deloatch) who was a mutual friend of Drew and appellant. Drew was a bilateral amputee who had been fitted with artificial legs. Present in Deloatch’s home when he arrived were Deloatch and her children (Edward Woods, age 13, and Arnita Woods, age 10), James Artis, and appellant and her daughter, La-trice Royal, age 6.

Drew seated himself in a chair at the entrance to the dining area where the four adults proceeded to drink wine for approximately one hour. During this hour, appellant and Drew exchanged “slaps.” They did not appear to be angry but were not laughing.

[62]*62A short while later the group disbanded within the apartment. Appellant went into the bathroom; Deloatch went to her bedroom; Artis and Edward Woods went to the children’s bedrooms; and Drew remained in the living room area with Arnita Woods and Latrice Royal. In the presence of only those two children, Drew produced a pocketknife, displayed it to them and said: “I told you nobody’ll be hitting on me.”

Latrice ran to the bathroom and told appellant words to the effect that, “He’s going to cut me.” Appellant left the bathroom, went into the kitchen, procured a knife and stabbed Drew to death as he sat in the chair.

After the stabbing, James Artis took the knife from appellant and described her as being in a “panic rage.” The police were summoned and found Drew’s knife closed and in his shirt pocket.

Appellant testified and recited facts in conflict with the foregoing. The jury resolved the conflict unfavorably to appellant. “Discarding the evidence of the accused in conflict with that of the Commonwealth, we must regard as true the Commonwealth’s evidence and all fair inferences to be drawn therefrom.” Id.

I.

Before presenting evidence to the jury, the Commonwealth informed the trial court of its intention to call as witnesses Edward Woods, Arnita Woods and Latrice Royal, each of whom are juveniles. The trial court then permitted a voir dire of each child on the issue of competency to testify. No objection was made to the competency of Edward Woods and Latrice Royal. Having made no objection to the competency of Edward and Latrice, appellant may not raise the issue as to those two on this appeal. Rule 5A:18.

At the conclusion of the voir dire of Arnita Woods, appellant objected “for the record” to her competency to testify without stating any reason for this objection. If an objection is to be considered on appeal, the ground therefor must be stated. Rule 5A:18. The words “for the record” do not constitute such ground.

While Arnita was testifying, she failed to recall some of the details of the events which occurred in her presence at the time of [63]*63the homicide. Appellant then made a further objection to her competency. Prior to permitting her to testify, both counsel and the trial court participated in the voir dire of Arnita. At the time of her testimony she was ten years of age.

There is no specific age at which a child must have arrived in order to be competent as a witness. A child is competent to testify if it 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); see also 2 Wigmore, Evidence § 506, at 712 (Chadbourne rev. 1979); 3 S. Gard, Jones on Evidence § 20:10, at 604 (6th ed. 1972).

The voir dire clearly discloses that Arnita possessed the capacity to observe, recollect and communicate what she observed and was well aware of her duty to speak the truth.1 Upon the conclusion of the voir dire, the trial court correctly found her competent to testify. It was not error for the trial court to continue to hold that she was competent notwithstanding that fact that she did not recall every detail of her May 1, 1984, observations. See Kiracofe v. Commonwealth, 198 Va. 833, 840-43, 97 S.E.2d 14, 18-21 (1957).

We observe that when children testify, judicial inquiry into the issue of the capacity of the child to give testimony must be searching in proportion to chronological immaturity. See generally Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). Yet the question of the competency of a child as a witness, to a great extent, rests on the sound discretion of the trial court whose decision will not be disturbed unless the error is manifest. Cross v. Commonwealth, 195 Va. 62, 64, 77 S.E.2d 447, 449 (1953); Rogers v. [64]*64Commonwealth, 132 Va. 771, 773, 111 S.E. 231, 231 (1922); see Mullins v. Commonwealth, 174 Va. 472, 5 S.E.2d 499 (1939). Here, it is manifest that the trial judge’s ruling was correct.

II.

Unexpectedly, Arnita was unable to say whether Drew was seated or standing when he was stabbed. Because she previously had made a clear statement to the police that Drew was “sitting down” when stabbed, the Commonwealth sought to show the statement to Arnita “to try to refresh her memory.” After reviewing the statement out of the presence of the jury, the trial court ruled that the statement could not be used to “question her credibility” but could be used “to refresh her memory.”

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Royal v. Commonwealth
341 S.E.2d 660 (Court of Appeals of Virginia, 1986)

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Bluebook (online)
341 S.E.2d 660, 2 Va. App. 59, 1986 Va. App. LEXIS 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/royal-v-commonwealth-vactapp-1986.