On Appeal from the District Court of the Virgin Islands, Division of St. Croix; D.C. Crim. No. 89-79.
Higginbotham, Chief Judge, and Greenberg and Cowen, Circuit Judges.
Appellant Leonard A. appeals from a judgment of conviction and sentence entered on May 14, 1990, on a superseding information, sentencing him to concurrent custodial terms of seven years for convictions on two counts of aggravated rape and to additional custodial terms of seven years for convictions on two other counts of aggravated rape, concurrent with each other but consecutive to the first two terms. V.I. Code Ann. tit. 14, § 1700(a)(1) (Supp. 1989). Effectively, therefore, the sentence was for 14 years. The victims of the offenses, appellant's 13 and ten year old daughters, testified in support of the information and it is obvious that the jury accepted their testimony, for which we note there was corroboration.*fn1
Appellant raises several issues which we will identify as we address them. Appellant filed a pretrial motion seeking "an order requiring the [daughters to] submit to a psychiatric examination to determine their respective competency to testify at trial." In his supporting affidavit he asserted that his older daughter was an habitual liar who sought to manipulate other persons and obtain sympathy for herself and he set forth specific incidents of her lying. He indicated that his younger daughter always imitated her older sister. He also supplied an affidavit of a woman, who described herself as his girlfriend, in which she asserted that the girls were liars. In a third affidavit, appellant's mother, the girls' grandmother, asserted that the older daughter "has lied to me" and that the younger one "strongly mimics and imitates" her sister.
On November 8, 1989, a magistrate entered an order denying the motion. In the order he recited that while there were affidavits setting forth that the older daughter lies and the younger one imitates her sister, there was "no contention by defendant that either minor suffers from mental illness or impairment other than the averments as to lying." He further pointed out that Fed. R. Evid. 601 "presumes competency to testify" and that the allegations in the affidavits "do not justify the requested intrusion" but that appellant "may through cross-examination and impeachment try the issue of credibility before a jury."
Appellant, while acknowledging that the magistrate had discretion in deciding the motion, see Government of the Virgin Islands v. Scuito, 623 F.2d 869, 875 (3d Cir. 1980), asserts that the order "involved no discretionary fact finding, it was basically a decision made as a matter of law." Brief at 12. Thus, he urges that we exercise plenary review and, on the merits, reverse.
We disagree with his approach. While the magistrate did not make findings of fact that does not mean that he did not exercise his discretion. Fact finding involves a determination of the accurate historical record. On the other hand the exercise of discretion concerns the determination of what should be done once the facts are ascertained. Here the magistrate accepted the facts proffered by appellant but concluded that they did not justify an order for the examinations. That determination was an exercise of discretion which we cannot disturb unless we find the discretion was abused, which we do not. See United States v. Provenzano, 688 F.2d 194, 203 (3d Cir.), cert. denied, 459 U.S. 1071, 103 S. Ct. 492, 74 L. Ed. 2d 634 (1982).
Certainly the general approach is not to allow the examinations appellant sought. As the Supreme Court of New Jersey has explained:
In order to satisfy the 'substantial need' criterion for a psychiatric examination, there must be a showing of some deviation from acceptable norms, such as an identifiable or clinical psychiatric or similar disorder, beyond the realm of those human conditions that ordinary experience would confirm as normal. For example, in Butler, cited by the Appellate Division in this case, a psychiatric/psychological evaluation was ordered because there was evidence presented of the proposed witness's mental derangement, denominated as 'chronic brain syndrome associated with convulsive disorder, with behavior reaction,' as well as state psychiatric reports. State v. Butler, supra, 27 N.J.  at 572, 143 A.2d 530 . These proofs raised the requisite doubt as to the appropriate mental capacity of the proposed witness. In State v. Franklin, 49 N.J. 286, 229 A.2d 657 (1967), also cited by the Appellate Division, the court required that the principal state witness undergo a mental examination so that the defense could challenge her competency because the witness had once been committed to a mental institution and the lower court had earlier appointed a psychiatrist, reflecting previous doubt on the issue of competency. Id. at 288, 229 A.2d 657.
There is no reason to deviate from this general approach when the witness is youthful. Psychiatric testing on the issue of witness competency is an extraordinary measure. Trial courts, in the exercise of their discretion, should determine whether there is a 'substantial need' for psychiatric testing in order to aid in the assessment of witness reliability. Consequently, there must be some persuasive evidential showing to establish such a need. Toward this end, the party requesting the testing must present evidence reasonably indicating something peculiar, unique, or abnormal about the young witness that would influence the witness's competence or the court's ability to assess that competence, or raise unusual difficulties in assessing the witness's credibility. The person's age as such is not 'peculiar,' 'unique,' or 'abnormal;' rather age is simply a dimension, a constituent aspect of human personality, and its bearing on individual conduct is part of our common experience. In light of our proscription of the use of age to disqualify a witness and our caution that psychiatric examinations be based on a substantial need, age per se cannot serve as a basis for ordering psychiatric testing for purposes of determining witness competency.
There was nothing special in appellant's affidavits to justify the examination. His daughters were not of such tender years that their ability to perceive the events and recount them was doubtful. Furthermore, neither was shown to suffer from mental illness. While their veracity was challenged, that was not unusual as the integrity of any witness may be questioned. Thus, we conclude that ...