Newsome v. State , 1997 Ind. App. LEXIS 1457 ( 1997 )

HOFFMAN, Judge,

concurring in result.

Although I concur in the result, I respectfully dissent from the majority’s examination of the issue as to the competency of the witness. Ind.Evidenee Rule 601 does presume that all witnesses are competent. Thornton v. State, 653 N.E.2d 493, 497 (Ind.Ct.App.1995). The onus is upon a defendant to establish that a witness is not competent. Id. A determination as to a witness’s competency lies within the sound discretion of the trial court and is reviewable only for a manifest abuse of that discretion. Id.

The majority opinion assumes that Evid.R. 601 cannot be read literally; thus, the analysis under the repealed portion of the witness competency statute is appropriate. Such is not the case.

Under the majority’s study of the issue, the legislature has changed a specific portion of the statute on competency of witnesses and the supreme court has adopted a new rule regarding the competency of witnesses all without altering the law. It does not follow that our legislative body enrolled an act and our highest judicial body adopted a rule all to leave the law static. The statutory modification and the rule adoption a priori changed the law.

IND.CODE § 34-1-14-5 (1993 Ed.) provides that certain “persons shall not be competent witnesses.” In its current form the statute sets out those who have received confidential communications including attorneys, physicians, members of the clergy and husbands and wives, as well as insane persons, as those who are not competent witnesses. As noted by the majority, until its repeal in 1990, the second subdivision of the statute presumed incompetency of: “Children under ten (10) years of age, unless it appears that they understand the nature arid obligation of an oath.”

By its repeal of the section regarding children, the legislature removed the presumption of incompetency. Evid.R. 601, as adopted by our supreme court, would still allow the legislature to retain the presumption of incompetency; however, the legislature has not recodified the section or a similar provision. Thus, the deletion of the presumptive incompetency of children represents a change in the law. See Joe v. Lebow, 670 N.E.2d 9, 19 (Ind.Ct.App.1996). In determining whether the legislature intended courts to retain the interpretations developed through common law once a statute was revised, this Court noted:

When a statute contains language which is deleted by the legislature, we presume that the legislature intended the deletion to represent a change in the law. We cannot simply ‘re-read’ into a statute language which has been deleted. [Citations omitted.]

Id.

Further, the majority’s analysis breaks down under pragmatic scrutiny. The rule’s failure to presumptively exclude children does not prohibit special inquiry into their competency prior to testifying when the issue is raised by a defendant. The rule, read in conjunction with the repeal of the subdivision regarding children in the witness competency statute, abandoned the previous arbitrary lines drawn regarding age, in favor of a rule which assumes competency until otherwise demonstrated by the opponent of the testimony.

The majority’s investigation of the issue is patently incorrect. It concludes that by repealing the former provision presuming incompetency and instituting a rule which presumes competency neither the legislature nor the supreme court signaled an intent to alter the need for a proponent of the witness to lay a very specific foundation establishing competency. First, the majority engrafts upon Evid.R. 601 the abandoned burden requiring the proponent of a witness to establish a level of that witness’s competency, then the majority concludes that only the very specific inquiry which evolved under the now repealed portion of the statute will satisfy that burden. The majority opinion wholly fails to recognize any change after repeal of the provision and adoption of the rules of evidence.

The old rule, statutory provision and analysis have been abolished. The new rule explicitly presumes competency. Once the new rule was adopted, it unquestionably superseded the old rule and the inquiry which the old rule spawned. The majority’s steadfast refusal to recognize the rule change results in a faulty analysis of the competency issue in the present case.

The end result underscores the problem. After determining that a foundation must be laid and was not precisely met here, the majority concludes that the witness’s further testimony revealed that she, in fact, understood the difference between telling the truth and telling a lie, so the initial error in allowing the testimony is harmless. Adherence to the old analysis, which clearly has been abandoned, will cause confusion to the bench and bar in Indiana. Under the new rule, a child is a competent witness unless the opponent of the testimony raises the issue and demonstrates incompeteney.

Here, the colloquy between the prosecutor and the witness revealed that the witness understood a distinction between truth and falsehood. The witness was able to articulate an unpleasant consequence for telling a lie. When properly reviewed for a manifest abuse of discretion, see Thornton, 653 N.E.2d at 497, it is apparent that Newsome did not establish the witness’s incompeteney, and the trial court’s finding as to competency must be affirmed on that basis.