Credibility of young witness takes center stage in Osborne trial

By By Suzanne Monk / managing editor
April 7, 2004
The credibility of the prosecution's most important witness was center stage Tuesday as the second day of Joseph Osborne's trial for the murder of 5-year-old Charlie Hopkins began.
On Monday, the jury had heard the testimony of Sam Hopkins, Charlie's little brother. Sam was 3 years old when his brother died and is only 5 years old now.
What he said on the stand was a little patchy and inconsistent, but he slept in the same room as his brother, and is an apparent eyewitness to Charlie's death.
And, he says his mother's live-in boyfriend, "Joey," killed Charlie. His testimony Monday included this exchange between him and Assistant District Attorney Lisa Howell:
Sam: (Joey) took Charlie's breath away.
Howell: How did he do that?
Sam: Like this.
With that, Sam put his hand over his own nose and mouth. It was powerful stuff, but it requires some explanation. It's not that anyone questions Sam's veracity, necessarily, it's his age that is so startling.
Videotaped interview
To put Sam's testimony in perspective, the district attorney's office called Dr. Catherine Dixon to testify.
Dixon is a child psychologist and interviewed Sam in April 2003. He was 4 then. The interview was videotaped, and played for the jury over the objections of defense attorney Gary Jones who said the child had already testified and the prosecution shouldn't get a second chance to present his statement.
In the tape, Sam told Dixon about the night his brother died: "Well, we had a bad guy in our house and he killed Charlie." The "bad guy" was Joseph Osborne.
Sam said Charlie wouldn't go to bed, and that "Joey" spanked him. Sam was supposed to be asleep, but said he was peeking at what was going on in the room. Sam said Charlie was Spiderman, climbing up the walls and on the ceiling. In the tape, Sam said Charlie and Osborne chased each other out of the room and he followed.
Later on the tape, he said Osborne took Charlie's breath away and demonstrated how, just as he had during his testimony. He repeated the gesture with a doll.
Translating for Sam
Dixon said that, Spiderman and climbing trees aside, she believes Sam was recounting events from his actual memory, and listed some reasons why:
Developmentally appropriate statements Dixon said 4-year-olds sometimes don't have the language skills to describe what happened. Where an adult might say, "They were fighting" or "Joey and Charlie were involved in a physical altercation," a young child is more likely to use the words and grammar he has at his disposal. Idiosyncratic statements like, "They were doing the fight," indicate truth.
Motive to fabricate Dixon said her interview technique screens for coaching and for lying. She said a teenager might lie to incriminate someone else, but a 4-year-old is unlikely to. He might lie, she said, to cover up something he did. "But, it would be developmentally unusual for a child that young to have an agenda to get someone else in trouble."
Contextual details Dixon said it's easy to coach a child to say something. But, once a child who has been rehearsed has said his piece, he is unable to answer follow-up questions because his coach didn't tell him that part. Sam, on the other hand, was able to give detailed responses to additional questions.
Dixon also said it was significant that Sam was able to demonstrate how Charlie's breath was taken away both on himself and on a doll.
Kimble Frazier
The defense was unable to sway Dixon's opinion much during cross-examination, but Jones did pitch out for consideration the idea that maybe Sam's memory is fine he just identified the wrong man.
And, Jones had someone in mind. Kimble Frazier, an upcoming witness.
Alert to the allusions Jones made Monday about the fact Frazier, a friend of Osborne's, slept over the night Charlie died, Assistant District Attorney Dan Angero asked some blunt questions:
Angero: Did you, at any time, go into the bedroom and put your hands on either one of those children?
Frazier: Not until the 911 operator told me to take his pulse.
Angero: Did you have anything to do with Charlie's death?
Frazier: No, sir.
In his cross-examination, Jones asked Frazier about a conversation he had with Amy and Joey Williams about Charlie's death. The three were looking at a newspaper story about Osborne's arrest. It included a photograph of Charlie.
Jones: Did you say, "They put that picture in there for the killer … they put that in there for me"?
Frazier: No, I don't remember saying that.
Based on these exchanges, it seems safe to say that the jury has not heard the last from the defense on the subject of Kimble Frazier and "reasonable doubt."
The Basics
Joseph Osborne was indicted for murder in the death of 5-year-old Charlie Hopkins and is standing trial this week in Lauderdale County Circuit Court. Charlie died sometime during the night of Nov. 6, 2002. His mother, Cindy Hopkins, discovered his body in his bed the next morning. Zyrtec pills were strewn around, leading the family to believe he had died of an overdose. An autopsy, however, showed no pills in Charlie's stomach. He had been suffocated, but nobody was arrested right away. Weeks passed before anyone realized that Charlie's brother, 3-year-old Sam, was an apparent eyewitness to his brother's death and he said "Joey" did it. basics