The Compete Testimony of Annie Brown
1/28/85
(Jury entered courtroom at 11:30 A.M.; all present)
(Court. Counsel, and Defendant present in courtroom)
MR. FORD: The next witness, your Honor, is Annie Brown, age three.
ANNIE BROWN, Witness
MR. FORD: Hi, Annie. Remember Mrs. Capeless.
THE CLERK: Hi, Annie.
ANNIE BROWN: Hi.
THE CLERK: Can you put your right hand up?
MR. FORD: Put your right hand up.
(Child puts up right hand)
THE CLERK: Annie, do you promise to tell what happened?
MR. FORD: Do you promise to tell what happened?
THE MOTHER: it’s all right, Annie.
MR. FORD: Annie, listen to Mrs. Capeless.
THE CLERK: Do you promise to tell what happened, Annie?
THE COURT: Give her a minute.
MR. FORD: May I ask her a few questions?
THE COURT: Yes.
MR. FORD: Hello, Annie. Annie, tell these nice people your name. What’s your name?
ANNIE BROWN: (No response).
MR. FORD: They don’t know your name. Tell them.
ANNIE BROWN: (Answer inaudible)
MR. FORD: I don’t think they can hear you. Is it Annie?
ANNIE BROWN: Yes.
MR. FORD: Annie. Well, how old are you.
ANNIE BROWN: Three.
MR. FORD: Three years old. Who’s that lady sitting right next to you?
ANNIE BROWN: My mommy.
MR. FORD: Your mommy. Do you know what my name is?
ANNIE BROWN: No.
MR. FORD: Do you know what it is?
ANNIE BROWN: No.
MR. FORD: It’s Dan.
ANNIE BROWN: Yes, I seen you in the paper and Bernie.
MR. FORD: You did?
ANNIE BROWN: Yes.
MR. FORD: Now, do you know who that lady is over there?
MR. FORD: That’s Debbie. Now, Annie, we’re going to ask you a few questions. Do you promise to tell what really happened?
ANNIE BROWN: No.
MR. FORD: You don’t promise to tell what really happened? Annie, You’re going to tell us what really happened?
ANNIE BROWN: No.
MR. FORD: Why?
ANNIE BROWN: Because I don’t like it.
MR. FORD: Are you scared of –
THE MOTHER: Annie, it’s all right.
MR. FORD: Now that you’re closer to mommy, can you talk a little bit with us? What if I sit down close to you. Is this better?
ANNIE BROWN: No.
MR. FORD: I can’t get any lower than this, Annie.
THE MOTHER: Annie, it’s all right. Don’t be scared.
MR. FORD: Do you want to sit on mommy’s lap?
ANNIE BROWN: Yes.
MR. FORD: Okay. Sit on mommy’s lap. Annie, did you ever go to school? I can’t see you, Annie. I can’t see you.
ANNIE BROWN: No.
MR. FORD: We can’t see your face, we can’t see how pretty you are. These nice people want to see how pretty you are. That’s a good girl. Did you ever go to E.C.D.C., Annie?
ANNIE BROWN: Yes.
MR. FORD: You did? Did you have a teacher down there?
ANNIE BROWN: Yes.
MR. FORD: What were their names?
ANNIE BROWN: I had Eileen and Bernie and Stephanie.
MR. FORD: Eileen and Bernie and Stephanie. Well, that’s very interesting.
THE COURT: At some point we’re going to have to ratify the oath.
MR. FORD: Yes, your Honor.
MR. FORD: Annie, would you tell us what really happened while you were at E.C.D.C.? Can you shake your head yes or no?
ANNIE BROWN: I want to see my mommy.
MR. CONWAY: Your Honor, can we see you at the side bar?
*****
(Following discussion held side bar:
MR. CONWAY: I would suggest, your Honor, that I know you have rules on the competency of the child, but the child hasn’t been able to take the oath yet and he’s getting quite a distance with her in attempting to do — whether or not the Court would consider, your Honor, again, examining this child as to whether she’s going to be able to testify or not. I think the question of competency comes up again.
THE COURT: It certainly does. What I think I’ll do is I’ll permit a series of questions not dealing with the issues of this case so as to make her feel comfortable in the context of the courtroom and so on, and then if you reach a point where you feel she can proceed we’ll have the oath administered again.
MR. FORD: Okay.
THE COURT: If she’s just tired maybe we can just bring her back another time.
Side bar discussion concluded)
*****
MR. FORD: Annie, are you pretty good at coloring? Do you want to hold her?
(Mr. Ford handing Annie a doll)
MR. FORD: What color is the dolly’s dress?
ANNIE BROWN: Red.
MR. FORD: Where are her shoes?
ANNIE BROWN: She hasn’t got any shoes on.
MR. FORD: What color are mommy’s pants?
ANNIE BROWN: Black.
MR. FORD: What color is the teddy?
ANNIE BROWN: Black and white.
MR. FORD: Has he got a ribbon?
ANNIE BROWN: Yes.
MR. FORD: What color is the ribbon?
ANNIE BROWN: Red.
MR. FORD: You’re a smart girl. Do you know how old you are?
ANNIE BROWN: Three.
MR. FORD: What are you doing, Annie? Are you showing us something?
(Child inspecting the doll)
ANNIE BROWN: No.
MR. FORD: Annie, do you promise to tell what really happened down there at E.C.D.C.?
ANNIE BROWN: (No response).
MR. FORD: Annie, you’ve got to say yes or no.
ANNIE BROWN: No.
MR. FORD: Why?
ANNIE BROWN: Because I don’t want to.
MR. FORD: You don’t want to tell us about what happened?
ANNIE BROWN: No.
MR. FORD: Why?
ANNIE BROWN: Because I don’t like it.
MR. FORD: Is it scary?
ANNIE BROWN: Yes.
MR. CONWAY: Mr. Conway, I object.
THE COURT: Well, I’m going to permit a certain amount of this to see if she can feel more comfortable in this context but anything she’s saying now is obviously not evidence. I’ll point that out to you. I don’t think it’s necessary for me to do it. So since I’m sure you understand this is all threshold questioning to see if the child can feel comfortable enough to go forward with the questioning and nothing more.
MR. FORD: Annie, we’ve talked about this before, haven’t we?
ANNIE BROWN: No.
MR. FORD: We’ve never talked about it?
ANNIE BROWN: No.
MR. FORD: You’ve talked to me before, haven’t you?
ANNIE BROWN: (No response).
MR. FORD: Do you remember what we talked about before?
ANNIE BROWN: No.
THE MOTHER: Annie, come sit down.
ANNIE BROWN: No.
MR. FORD: Annie, all we want you to do is tell these nice people what happened. Can you do that for us?
ANNIE BROWN: No.
MR. FORD: Will you try?
ANNIE BROWN: No.
MR. FORD: Please.
ANNIE BROWN: No.
MR. FORD: It will help if you do.
ANNIE BROWN: No, I don’t want to.
MR. FORD: Are you hungry?
ANNIE BROWN: Yes.
MR. FORD: Do you want to get something to eat?
ANNIE BROWN: Yes.
MR. FORD: Do you want to eat and then come back?
ANNIE BROWN: (No response).
MR. FORD: All right. Why don’t we try that. Why don’t you get something to eat and then come back and talk to us later.
ANNIE BROWN: Can I have something to eat here?
MR. FORD: What do you want to eat?
ANNIE BROWN: I want something.
MR. FORD: You want a hamburger?
ANNIE BROWN: Yes.
MR. FORD: A hamburger. Do you like hamburgers?
ANNIE BROWN: Yes.
MR. FORD: If you have a hamburger you’ll come back and talk to us then?
ANNIE BROWN: Are you going to stay here?
MR. FORD: I think I have to. Why? Do you want me to go with you?
ANNIE BROWN: Yes.
MR. FORD: Why?
ANNIE BROWN: Because I like you.
MR. FORD: Thank you. I like you too.
MR. FORD: Your Honor, perhaps it might be –
THE COURT: We’ll suspend with this witness.
MR. FORD: Okay. Annie, why don’t you go get a hamburger and then come back and we’ll talk some more. Let’s go get a hamburger at MacDonald’s?
ANNIE BROWN: Come on mommy. Come on mommy.
MR. FORD: Your Honor, may I go with her?
THE COURT: Do you have another witness that you can go forward with?
MR. FORD: I believe so. I just want to go to the hallway and find out.
THE COURT: Sure.
(Pause in proceedings)
1/28/85
(Court recessed at 12:30 P.M; Court reconvened at 2:05 P.M.; all jury present)
(Court, counsel and Defendant present in courtroom)
MR. FORD: Your Honor, we’d like to try with Annie Brown once more.
THE COURT: Do you want to try talking to her before we administer the oath?
MR. FORD: Okay.
(Annie Brown enters the courtroom)
MR. FORD: Come here, Annie.
THE MOTHER: Why don’t you sit on the chair.
ANNIE BROWN, Witness:
MR. FORD: Did you have some lunch?
ANNIE BROWN: Yes.
MR. FORD: What did you have for lunch?
ANNIE BROWN: I had a hamburger. I didn’t eat it all.
MR. FORD: where did you go to have lunch?
ANNIE BROWN: I went to grandma’s and had it.
MR. FORD: Grandma’s house. Is grandma a good cook?
ANNIE BROWN: Yes.
MR. FORD: Are you ready to talk to us now?
ANNIE BROWN: Yes.
MR. FORD: Mrs. Capeless.
THE CLERK: Hi, Annie.
ANNIE BROWN: Hi.
THE CLERK: Can you put your right hand up?
(Child raises her right hand)
THE CLERK: Do you promise to tell what happened?
ANNIE BROWN: (Nods head up and down)
*****
DIRECT EXAMINATION BY MR. FORD:
MR. FORD: Annie, did you ever go to school at E.C.D.C.?
ANNIE BROWN: Yes.
MR. FORD: Did you have some teachers down there?
ANNIE BROWN: Bernie and Stephanie and Eileen.
MR. FORD: Bernie and Stephanie and Eileen?
ANNIE BROWN: Yes.
MR. FORD: Did you like it down there?
ANNIE BROWN: (Nods head up and down)
MR. FORD: Did Bernie ever touch you while you were down there, Annie?
ANNIE BROWN: No.
MR. FORD: He never touched you?
ANNIE BROWN: I didn’t see him touch you.
MR. FORD: You didn’t see him touch you?
ANNIE BROWN: He was just pretending.
MR. FORD: He was what?
ANNIE BROWN: He was just pretending.
MR. FORD: Oh, he was pretending to touch you? Oh, let me take this dolly right here. Can you show us where Bernie pretended to touch you?
ANNIE BROWN: Okay. Right in here, all the way in.
MR. FORD: All the way in there?
ANNIE BROWN: Yes.
MR. FORD: May the record show the witness put her finger in the doll’s opening.
MR. FORD: Is that the way Bernie touched you?
ANNIE BROWN: Yes.
MR. FORD: Were your pants up or down?
ANNIE BROWN: Up.
MR. FORD: How did he do it?
ANNIE BROWN: Like that, with his hand.
MR. FORD: Did he put his hand inside your pants?
ANNIE BROWN: Yes.
MR. FORD: He did. What room were you in, Annie?
ANNIE BROWN: I was in room #4.
MR. FORD: Room #4. What part of room #4?
ANNIE BROWN: (No response).
MR. FORD: Do you know what part? Was this the classroom or the bathroom or the nap room?
ANNIE BROWN: The classroom.
MR. FORD: How did that make you feel, Annie, when Bernie –
ANNIE BROWN: That made me feel sad.
MR. FORD: Now, Annie, see this man right here?
ANNIE BROWN: (Nods head up and down)
MR. FORD: His name is Mr. Conway. He’s a very nice man and he’s going to ask you a few questions too, and I want you to answer him just the way you answered me. Okay?
ANNIE BROWN: Yes.
MR. FORD: Thanks, Annie.
*****
CROSS-EXAMINATION BY MR. CONWAY:
MR. CONWAY: Hi, Annie.
ANNIE BROWN: Hi.
MR. CONWAY: You’re a lot happier since lunch?
ANNIE BROWN: Yes.
MR. CONWAY: Did Bernie play a lot of pretend games?
ANNIE BROWN: No, he touched my tookoo (Phonetic).
MR. CONWAY: Did he tickle you?
ANNIE BROWN: He tickled me.
MR. FORD: Did you like it when he tickled you?
ANNIE BROWN: (Nods head up and down)
MR. CONWAY: Did you play other games too?
ANNIE BROWN: (Nods head up and down)
MR. CONWAY: What kind of other games did you play?
ANNIE BROWN: (No response).
MR. CONWAY: Did you play hide and seek?
ANNIE BROWN: Yes.
MR. CONWAY: Did you play ring around the rosy?
ANNIE BROWN: (Nods head up and down)
MR. CONWAY: You told all these nice people that Bernie pretended to touch me. What do you mean “pretend”? How do you mean pretend to touch you?
ANNIE BROWN: He just pretended if I did talk.
MR. CONWAY: Did you talk? Is this when you were supposed to be sleeping? Were you supposed to be taking a nap?
ANNIE BROWN: (No response).
MR. CONWAY: Do you like Bernie?
ANNIE BROWN: Yes.
MR. CONWAY: Do you still like Bernie?
ANNIE BROWN: (Nods head up and down)
MR. CONWAY: He’s a good boy isn’t he?
ANNIE BROWN: Yes. I want the teddy.
MR. CONWAY: When Bernie touched you where was Stephanie and Eileen?
ANNIE BROWN: They were gone.
MR. CONWAY: : They were gone. Where were the other kids?
ANNIE BROWN: They were there too.
MR. CONWAY: Do you have a lot of kids in your room?
ANNIE BROWN: Yes.
MR. CONWAY: I’ll bet you played ring around the rosy too?
ANNIE BROWN: Yes.
MR. CONWAY: Did you play that game with Bernie?
ANNIE BROWN: No, with Eileen.
MR. CONWAY: Was Bernie there?
ANNIE BROWN: No. Bernie was gone.
MR. CONWAY: Did anybody else touch you?
ANNIE BROWN: No.
MR. CONWAY: Okay. Do you go to school anymore?
ANNIE BROWN: No.
MR. CONWAY: But you like Bernie?
ANNIE BROWN: No, I don’t.
MR. CONWAY: Now you don’t like him?
ANNIE BROWN: (Shakes head from side to side)
MR. CONWAY: Are you sure?
ANNIE BROWN: (Shakes head from side to side)
MR. CONWAY: Okay. I have no further questions your honor.
MR. FORD: I have no questions, your Honor. You’re all done, Annie.
ANNIE BROWN: Now I can go play, right?
MR. FORD: You can go play, right. You come on.
ANNIE BROWN: I’m going to take teddy, right?
(Child leaves the room)