State v. Froehlich

635 P.2d 127, 96 Wash. 2d 301, 1981 Wash. LEXIS 1263

• Court: Washington Supreme Court
• Decided: October 22, 1981
• Docket: 47146-1
• Status: Published

Opinions

Stafford, J.

A jury convicted Harvey Froehlich of second degree burglary. Two issues are raised on appeal: (1) whether a prosecution witness was competent to testify; and (2) whether, after he was declared competent to testify, the trial court erred by permitting a psychiatrist to testify about his mental condition.

John Bliss had previously been convicted of participating in the burglary with which appellant (petitioner in this court) had been charged. At trial Bliss, who was called as a State's witness, appeared extremely nervous after taking the stand. Following a series of leading questions, to which objections were sustained, the jury was excused. Thereafter, Bliss was examined and cross-examined to determine the extent to which he had an independent recollection of critical events.

Bliss was able to identify appellant, was able to recall that appellant and he were at the site of the crime at the critical time, and that he "took stuff", that he owned a white Chevrolet pickup which had been used in the crime and that he remembered running. He stated he remembered the incident as opposed to having to rely on others to tell him. The importance of the foregoing testimony was that it placed appellant at the scene of the crime. On cross-examination he was unable to remember whether he and appellant had taken anything.

Also, out of the jury’s presence, Bliss explained he had been injured about eight years previously while on duty with the army. Since that time he had received medical help, had been hospitalized for a nervous condition and had received medication for it. He also acknowledged he had a hard time remembering things and forgot almost everything unless he used repetition or was reminded frequently. His current psychiatrist testified, out of the jury's presence, that Bliss had an "anxiety” problem but had no brain damage, did not fantasize or hallucinate and was not psychotic. He opined that Bliss was "scared to death in court" but that he had the ability to differentiate between truthfulness and untruthfulness.

After hearing the foregoing testimony the trial judge concluded he could not disqualify the witness and ruled Bliss was competent to testify subject to cross-examination by defense counsel. The question of credibility was left to the jury.

Appellant asserts Bliss was not competent to testify because the State had not adequately demonstrated his ability to independently recall the critical events about which he had been called to testify. In support of this proposition appellant cites RCW 5.60.050(1), (2) relying particularly on subsection (2).¹ He appears to concede that witness Bliss was competent to testify under subsection (1) because he was not shown to be of unsound mind. See State v. Hardung, 161 Wash. 379, 297 P. 167 (1931); State v. Thach, 5 Wn. App. 194, 199-200, 486 P.2d 1146 (1971). Nevertheless, he contends even if the witness was of sound mind he was incompetent to testify because his memory was not sufficient to retain an independent recollection of the events, citing RCW 5.60.050(2). We do not agree. RCW 5.60.050(2) applies specifically to children under the age of 10. It is inapplicable to the case at hand, even by analogy. Further, the cases cited by appellant are inapposite. All are concerned with the competency of children within the limitations of RCW 5.60.050(2).

Competency is a matter to be determined by the trial court within the framework of RCW 5.60.050 and CrR 6.12(c). State v. Moorison, 43 Wn.2d 23, 34, 259 P.2d 1105 (1953); McCutcheon v. Brownfield, 2 Wn. App. 348, 355, 467 P.2d 868 (1970). That conclusion will not be disturbed on appeal except for abuse of discretion. There being nothing in the record to establish that Bliss was of unsound mind, we hold the trial court did not abuse its discretion by ruling he was competent to testify, leaving the question of credibility to the jury. CrR 6.12(c); RCW 5.60.050(1).

Once the trial court held Bliss was competent to testify the jury returned to the courtroom and Bliss testified basically as he had outside the jury's presence. He also testified on direct examination concerning his nervous condition, his treatment, medication and the trouble with his memory. He also explained that he never hallucinated. On cross-examination he acknowledged he could remember very little about the crime or its aftermath but stated he did remember appellant being at the apartment. During his presence on the stand the witness' nervous condition was clearly perceivable by the jury.

At the conclusion of Bliss' testimony the prosecution called his psychiatrist as a witness, over the objection of the defense. The doctor testified that Bliss had an "anxiety reaction", that he had not suffered brain damage in the accident, that he was not psychotic and that he could differentiate between truth and untruth. The doctor was not asked about and did not attempt to evaluate the testimony of Bliss or give an opinion as to whether he was actually telling the truth. There was no cross-examination of the doctor. The trial judge held the testimony was admissible stating "it seems to me it is inherent in the Bliss testimony that . . . the question of his capacity to tell truth from untruth, would be . . . open to question".

Appellant contends the psychiatrist should not have been permitted to testify about Bliss' condition. He argues the testimony served to corroborate Bliss' testimony and thus fortified his credibility even though appellant had not challenged it. In this regard he cites the general rule that corroborating evidence is admissible only when a witness' credibility has been attacked by the opposing party and, even then, only on the facet of the witness' character or testimony which has been challenged. State v. Schuman, 89 Wash. 9, 17-18, 153 P. 1084 (1915).

Although the foregoing is a correct general statement of the law it is not pertinent here. Three different but related factors in this case make it clear Bliss' credibility was attacked: the cross-examination of Bliss; the obviousness of his disability; and the attack on his capacity to be a witness. It may be that any one of these standing alone would not have been enough to place his credibility in issue, but all three in conjunction clearly opened the door to corroborating testimony.

Appellant attacked the witness' credibility by use of a probing cross-examination designed to demonstrate his poor memory and suggestibility. This was proper. Cross-examination as to a mental state or condition, to impeach a witness, is permissible. Annot., Cross-Examination of Witness as to His Mental State or Condition, To Impeach Competency or Credibility, 44 A.L.R.3d 1203, 1210 (1972) and cases cited therein. Cross-examination is one of several recognized means of attempting to demonstrate that a witness has erred because of his mental state or condition. In addition, in a proper case counsel may produce experimental evidence to indicate a mental infirmity, or he may call an expert witness to testify as to the witness' mental infirmity. Annot., 44 A.L.R.3d at 1208. In each of these methods the purpose is the same, i.e., to impeach the witness and put his credibility in issue by showing his mental condition and how it affects his testimony. See Juviler, Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach, 48 Cal. L. Rev. 648, 651-52 (1960) (hereafter Juviler).

Appellant employed this tool in an effort to destroy the witness' credibility. The entire thrust of the cross-examination was to show that Bliss had virtually no recollection of events, including those that occurred only a few days prior to trial. This was done to cause the jury to infer that since the witness did not remember these other matters he must be mistaken or lying when he said he remembered critical events. In so doing appellant attacked the credibility of the witness, and opened the door for corroborating testimony.

The trial court was correct in noting that the issue of credibility was also inherent in Bliss' testimony. A witness' credibility is always at issue, but it was particularly so in this highly unusual setting. The mental defects of the witness were clearly demonstrated to the trial court and jury by the extreme state of nervousness. A review of the record made by the trial court in expressing its concerns makes it equally obvious to this court on appeal. Where, as here, the mental disability of a witness is clearly apparent and his competency is a central issue in the case, the jury need not be left in ignorance about that condition or its consequences.

Another factor lends weight to our determination that appellant put Bliss' credibility in issue. Appellant argued strenuously at trial and on appeal that the witness was incompetent as a witness due to his claimed inability to recall, a problem which resulted from his mental condition. In a situation such as this competency shades into credibility. Once a trial judge determines a person with mental defects is competent, i.e., that he understands the nature of the oath and is not incapable of giving a correct account of what he has seen or heard, State v. Moorison, supra, the jury must then determine the extent to which the witness has the required capacities to observe, recollect and communicate truthfully because they also affect credibility. Juviler, at 651. As stated in United States v. Benn, 476 F.2d 1127 (D.C. Cir. 1972), Bazelon, C.J., speaking for the court at page 1131:

The dangers which must be considered in determining whether a mentally retarded rape prosecutrix is a competent witness must also be considered by the jury in assessing her credibility, particularly since "the jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence.

(Footnote omitted.) Challenging the competency of a witness, as was done here, necessarily puts his credibility in issue since both are ultimately concerned with the same matter. This is especially true where, as here, appellant submitted the same evidence to both judge and jury for making their respective determinations.

Psychiatric testimony can often be helpful in aiding the jury in its evaluation of the testimony of a mentally defective witness, see United States v. Benn, supra, Juviler, supra, as can lay testimony of persons intimately acquainted with the witness. See United States v. Benn, supra (father of witness); State v. Jensen, 5 Wn. App. 636, 489 P.2d 1136 (1971) (teacher of witness). As with most testimony, the trial court has discretionary control. In this context, it must be determined whether expert testimony will help cast light on the effect the particular mental disorder will have on credibility. State v. Stamm, 16 Wn. App. 603, 559 P.2d 1 (1976).

If admitted, the testimony should be limited by the purpose for which it is introduced as was done here. The jury should be made aware of a witness' mental or emotional condition and the effect of that condition upon his testimony. See Juviler, at 651. This was precisely the subject matter of Dr. Hardy's testimony in the instant case. At trial appellant did not question Dr. Hardy's qualification to give his opinion or the basis for that opinion and he does not do so here. Consequently we express no opinion in that regard.

Under the peculiar facts of this case we feel the expert testimony was properly admitted to enlighten the jury. The questions of competence and credibility were critical, and were put into issue by appellant. Thus, it was necessary for both the trial judge and the jury to hear the psychiatrist's testimony to enable the judge to pass upon the question of competency, and, in view of the finding of competency, for the jury to pass upon the issue of credibility. See State v. Jensen, 5 Wn. App. 636, 489 P.2d 1136 (1971); State v. Wyse, 71 Wn.2d 434, 429 P.2d 121 (1967). We hold the trial court did not abuse its discretion under the facts of this case.

The Court of Appeals is affirmed.

Brachtenbach, C.J., and Utter, Dolliver, Hicks, and Dimmick, JJ., concur.

1 RCW 5.60.050(1), (2).

"The following persons shall not be competent to testify:

"(1) Those who are of unsound mind, or intoxicated at the time of their production for examination, and

"(2) Children under ten years of age, who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.”