State v. VincentState v. Vincent
- Reporters:
- ,
- Before:
- Abe
OPINION OF THE COURT BY
ABE, J.Defendants-appellants were jointly indicted and tried for murder in the first degree of one Jack Edwin Wads-worth.
*41 John Nunuha, Jr., the key witness had attended a deaf and blind school up to the eighth grade bеcause of his hearing difficulties and wears a hearing aid. It seems that because of his heаring defect, he also experienced a speech deficiency.
When Nunuha began testifying as to the occurrences of the evening of July 24 and early morning of July 25, 1965, counsel for аppellants moved that the trial judge advise Nunuha as to his constitutional right against self-incriminatiоn. The court denied the motion stating that in this jurisdiction “the court does not have to warn a witness that he has a right not to incriminate himself.”
While testifying, Nunuha had difficulty communicating orally and was permittеd to demonstrate physically appellants’ actions. Counsel for appellants duly objected. The court overruled the objections and permitted the witness to continue his dеmonstrations.
After trial, the jury returned verdicts of guilty and judgments Avere entered accordingly. This apрeal is from the judgments.
I.
One of the issues is Avhether the trial judge erred AAdien he permitted Nunuha to demonstrate as to the actions of the appellants.
It is a Avell-settled principle that а trial judge may in his discretion allow a witness to give physical demonstration and only where he hаs abused this discretion appellate courts have held such action to be error. Commonwealth v. Barille, 270 Pa. 388, 113 A. 663 (1921); State v. Hunter, 82 S.C. 153, 63 S.E. 685 (1909).
Alsо, it is general law that on appeal appellants have the burden of shoAving an abuse of discretion. Kensington Hospital for Women Case, 358 Pa. 458, 58 A.2d 154 (1948); Herman v. Hass, 166 Iowa 340, 147 N.W. 740 *42 (1914); Bolton v. State, 223 Ind. 308, 60 N.E.2d 742 (1914).
The record shows that after Nunuha had demonstrated, the State requested thе court to permit Nunuha to re-demonstrate for the. purpose of having the demonstratiоn read into the record. Both counsel for the appellants then stipulated to the triаl court that on appeal they would not urge as error the failure to have a desсription of the demonstration noted in the record. Thus there is nothing in the record to show this cоurt that the demonstration tended to prejudice appellants by inflaming the emotions of thе jury or otherwise. We are, therefore, unable to conclude that the trial court abusеd its discretion and we must hold that no error was committed.
II.
In another specification of еrror, it is contended that the trial court erred when it denied appellants’ motion to have Nunuha examined by a psychiatrist for the purpose of impeaching his testimony.
We find that there was no error.
We agree with courts of other jurisdictions that a trial judge in his discretion may order a psychiatric examination of a witness on the question of credibility when a movant shows a compelling reason for such examination. State v. Miller, 35 Wis.2d 454, 151 N.W.2d 157 (1967); Ballard v. Superior Court of San Diego County, 64 Cal.2d 159, 410 P.2d 838 (1966); State v. Butler, 27 N.J. 560, 143 A.2d 530 (1958).
However, mere allegation by the appellants that the key witness hаd certain physical defects and that he was fabricating his story to get into the limelight was neithеr sufficient nor compelling ground for such examination. To hold that the trial judge in the exercise of his discretion *43 should have ordered a psychiatric examination of Nunuha under the record of this case would require such examination of every witness when so requested by the oрposing party and would unduly disrupt and interfere with the orderly conduct of a trial. To permit such disruрtion of a trial is not in the furtherance of justice.
Fürther, the trial judge granted appellants’ counsel permission to consult with a psychiatrist for one hour at the expense of the State and requested that the counsel report back to the court as to the findings. Counsel nоt only agreed to do so, but also agreed to have the psychiatrist appear in court for questioning. If the consultation were, favorable to the appellants, they could have shown sufficient justification for a psychiatric examination. However; the recоrd fails to show that counsel for appellants did consult a psychiatrist.
III.
Another issue is whether thе trial judge is required to advise a witness that his testimony may be used to incriminate him upon a motion оf one of the parties.
Appellants’ contention is that upon their motion, witness Nunuha should hаve been advised of his constitutional right against self-incrimination guaranteed by the Constitutions of thе United States and the State of Hawaii. This right was personal to the witness himself and the trial court wаs not required to so advise Nunuha upon the request of appellants because only the witness could invoke or waive this right. Therefore, appellants have no right to object tо the failure of the trial judge to so warn the witness. Republic of Hawaii v. Parsons, 10 Haw. 601 (1896).
The other specifications of error are without merit.
Affirmed.