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MARCH 16, 1988




This is an appeal from Jeffrey Ivy's conviction in the Circuit Court of Oktibbeha County of aggravated assault of his four year old stepdaughter, who stated that he zipped her in a suitcase and threw her down a flight of stairs. Because of a violation of Rule 609 (a) of the Mississippi Rules of Evidence, this Court must reverse the conviction and remand for a new trial.

Trial was held with the new Mississippi Rules of Evidence in effect. Ivy received an eight-year suspended sentence in the Department of Corrections, with four years of probation, and one year to be served in the county jail. On appeal from his conviction, Ivy assigns as error the following:

 1. The five year old child who was allegedly assaulted was neither competent nor qualified to be sworn as a witness in the case at bar.

 2. The continued leading of the five year old an infant on direct examination by the District Attorney, as to cogent points, was reversible error.

 3. The trial judge erred by not granting defense instruction which read as follows:" The court instructs the jury that the weight of evidence to be given each and all of the witnesses in this case is up to the jury, but that the testimony of a five year old, in this case, should be considered with precaution. "

 4. The testimony of Doctor Ray Lyle was objectionable as his testimony was not within his field of specialty.

 5. The trial judge erred by not sustaining defense counsel's objection to the following question: Q: Mr. Ivy, have you been convicted of any crime?

 6. The verdict of the jury is against the overwhelming weight of the evidence and is not sufficient to sustain the conviction.



 Jennifer Kinney, the victim of the assault, was five

 years old at the time of the trial, but did not know when her birthday was. She testified that she knew the difference between telling the truth and telling a lie. She further testified that she believes in God; that a promise means that you will do what you say you are going to do; that she understood that she was going to be asked to make a promise to God to tell the truth and that she must tell the truth and not put something off on somebody else.

 On cross-examination, Jennifer could not say what Christmas is about, but agreed that it is about getting toys from Santa Claus. She did not know what July 1, 1985 (the date of her injury) means to her or what day or month her birthday was or when she will be six. She did not know what Easter means, did not go to church anywhere and did not know where she got her belief in God. Counsel for Ivy then asked:" You don't go to church and you don't know what Easter means. If you just told a little something about somebody that wasn't right it wouldn't be too bad, Would it? "She answered," No. "

 On redirect, Jennifer testified that she did remember the day that she got hurt in the suitcase, including that day and everything that happened to her, and that she could tell everybody in the courtroom what happened to her that evening.

 Finally, she responded positively to the following question from the prosecutor:" And, Jennifer, you were asked if - if you would just tell a little bitty something wouldn't be too bad; you understand now if you promise to tell God the truth about the whole matter that even telling just a little something wrong would be bad, do you understand that? "

 Mississippi Rule of Evidence 601 provides that" [e]very person is competent to be a witness except as restricted by Mississippi Code Sections 13-1-5 (competency of spouses) and 13-1-11 (persons convicted of perjury or subornation of per jury), or by these rules. "Mississippi Rule of Evidence 601, like Federal Rule of Evidence 601, abolishes all grounds for disqualifying a witness, except for those listed in the Mississippi Rule. This is not to say that a trial judge may not still have power to keep a witness from testifying. The trial judge simply must shift his attention from the proposed witness to the proffered testimony and from competency to relevancy, looking to Mississippi Rules of Evidence 401 and 403. See 3 Weinstein's Evidence para. 601[04] (1987). Note too that Jennifer testified to personal knowledge and declared by oath that she would testify truthfully, and thus both Rule 602 and Rule 603 have been met, as well as our pre-rule standards.

 The only argument or authority set forth by Ivy relates to the competency of Jennifer Kinney. While emphasizing the importance of a trial judge's relevancy determination under Rule 403 in the case of child witnesses, this Court holds that Jennifer Kinney was competent under ...

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