State v. Murray

559 A.2d 361, 1989 Me. LEXIS 129

• Court: Supreme Judicial Court of Maine
• Decided: June 1, 1989
• Status: Published

Opinions

ROBERTS, Justice.

Harold Murray appeals from his conviction of gross sexual misconduct, 17-A M.R. S.A. § 253 (Supp.1988), after a jury trial in Superior Court, (Cumberland County, Li-pez, /.). Murray asserts that the five year old victim was not competent to testify and that the court should not have permitted the prosecutor’s continued attempts to elicit incriminating testimony from her. He also challenges the court’s refusal to grant a new trial. Because we find no reversible error at trial or in the denial of a new trial, we affirm the judgment.

Harold Murray was accused by a five year old girl of sexually molesting her. Initially, although the child showed signs of sexual abuse, it was not clear which of the several males with whom she had regular contact was the source of the abuse. Murray was named by the child when questioned by a police detective. At trial her testimony was at first halting and contradictory, but she eventually regained composure and stated that Murray was responsible for the abuse.

Because Murray made no objection to the child’s initial testimony, we review the question of her competency for obvious error. M.R.Evid. 103(d). A witness will be found to be incompetent to testify only upon a showing that the witness cannot testify so as to be understood by the court and jury or cannot appreciate the duty of a witness to tell the truth. M.R.Evid. 601; State v. Hussey, 521 A.2d 278 (Me.1987). The court’s finding of competency will be reversed only upon a showing of clear error. Id. at 280; State v. Woodburn, 559 A.2d 343, 346 n. 3 (Me.1989).

The child stated that she knew what lies were and that those who told them were punished. Her answers, although unsure and at times inconsistent, were certainly comprehensible. We cannot say that the court committed obvious error in permitting her to testify.

More troublesome is the child’s “pattern of non-response” and continued refusal to implicate Murray as the perpetrator. Even though the trial court expressed concern about the witness’s behavior, it failed to sustain Murray’s objection to the State’s repetitious questioning. Initially, the child was unwilling to respond to questions about the abuse, indicating that she could not remember what had happened. On occasion she denied that Murray had molested her. Later in her testimony she testified that Murray and one other adult male had abused her. This inconsistency goes not to competency, but to credibility. State v. Emery, 434 A.2d 51, 52 (Me.1981). The responsibility for weighing that testimony resides with the jury. State v. Fischer, 238 A.2d 210, 212 (Me.1968).

We have rejected the theory that uncorroborated testimony of a victim must be subjected to a heightened standard of appellate review. State v. McFarland, 369 A.2d 227, 228-29 (Me.1977). In the case before us, a properly instructed jury found the child’s eventual incriminating testimony credible. We recognize that the trial court has the better opportunity to observe any nuances in the witness’s behavior. On the whole record we cannot say that the court exceeded the bounds of sound judicial discretion in permitting the State to proceed with its reluctant witness.

Murray also argues that the child’s subsequent recantation of her accusations is newly discovered evidence that requires a new trial. The decision to grant a new trial is within the discretion of the trial court. M.R.Crim.P. 33. The burden of persuasion is on the defendant to show that the evidence: 1) will probably change the result if a new trial is granted; 2) has been discovered since the trial; 3) could not have been discovered before the trial by the exercise of due diligence; 4) is material to the issue; 5) is not merely cumulative or impeaching, unless it is clear that such impeachment would have resulted in a different verdict. State v. Grover, 518 A.2d 1039, 1042 (Me.1986). The defendant must prove all five factors to warrant a new trial. Id.

On hearing the child’s recantation, the presiding justice found it “sadly ... unpersuasive” and “not credible.” There was no error in the court’s determination that Murray failed to meet the burden of proving a new trial was warranted under the Grover standard.

The entry is:

Judgment affirmed.

McKUSICK, C.J., and HORNBY and COLLINS, JJ., concur.