Child's testimony was admissible in murder trial

Daily Record, The (Baltimore), May 11, 2004 by Lawrence Hurley

The crucial testimony of a 7-year-old girl who witnessed the murder of her mother was admissible at the trial of the killer, even without prior questioning by the trial judge, the Court of Appeals has held.

The girl, identified as Jewel in last week's opinion, was only 4 at the time of the double murder of her mother, LaShawn Jordan, and Jordan's friend, Kelly Bunn, on July 11, 1998.

Jewel identified Kenneth D. Perry, a boyfriend of Jordan's, as the gunman both at the time and at the May 2001 trial at Baltimore City Circuit Court.

No evidence linked Perry with the murders but, over the objections of the defense, Jewel was allowed to testify without the judge first determining, outside the jury's presence, whether she was a competent witness.

The Court of Appeals concluded that the judge's inquiry (or voir dire) was not necessary in this case and is not required merely because a child is of tender age, which was the only issue raised by defense lawyers.

The decision will be a boon to prosecutors investigating sex offenses, according to Adam C. Rosenberg, who works for the Sex Offense Unit at the Baltimore City State's Attorney's Office.

It gives children a great deal of credibility, he said. I believe we are entitled to qualify [child] witnesses in the presence of the jury.

Kathryn Grill Graeff, chief of the criminal appeals division at the Office of the Attorney General, also praised the court's decision.

Age by itself is not enough to present a substantial question regarding the child's competency, she said. The court properly declined to conduct a separate voir dire.

Judge Clayton Greene Jr. noted in the opinion that Jewel's testimony, in which she identified Perry as the shooter and described events leading up to the murders, was detailed and understandable.

[H]aving read the testimony, it is abundantly clear that this child understood the difference between a lie and the truth, Greene concluded.

Largely on the basis of Jewel's testimony, Perry was convicted of first- and second-degree murder in addition to gun charges and was sentenced to life without parole, plus 30 years to be served consecutively, and 20 years, to be served consecutively, for the gun charge.

The Court of Special Appeals affirmed the conviction in an unreported opinion last August.

On the day of the murders, Jewel told first responders that Mommy's boyfriend did it, according to the opinion.

The weapon was not found and there was no forensic evidence linking Perry with the crime.

At trial, the defense attorney objected to Jewel testifying and requested that Judge Allen L. Schwait voir dire her without the jury present.

Schwait demurred, saying it was up to the jury to evaluate her credibility, according to the trial transcript quoted in the opinion.

He also stated his belief that he was not required conduct a voir dire simply based on age.

The Court of Appeals agreed with the intermediate court that the decision was within Schwait's discretion.

Voir dire is necessary if there is a substantial question as to competency, the court concluded, but that standard is not reached based purely on the young age of the witness, as Schwait maintained at the time.

The judge can also take into account the child's memory, ability to communicate, and observation skills, Greene added.

It is clear that merely pointing out that a witness is seven- years-old does not by itself raise a substantial question about his or her competency to testify, he wrote.

Greene also noted that the child's ability to comprehend the difference between truth and lies is not necessarily dependent on age, either.

Assistant Public Defender Claudia A. Cortese, who represented Perry on appeal, declined to comment yesterday.

WHAT THE COURT HELD

Case:

Kenneth D. Perry v. State, CA No. 86, Sept. Term 2003. Reported. Greene, J.. Filed May 7, 2004.

Issue:

Did the trial court err in ruling that a child was competent to testify?

Holding:

No. Judgment affirmed. Procedure used to determine a child's competency is within the trial judge's discretion.

Counsel:

Claudia A. Cortese, for petitioner; Edward J. Kelley, assistant attorney general, for respondent