In re Nash

Annotate this Case

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.

No. 88-484

In re Douglas A. Nash Supreme Court

On Appeal from
Bennington Superior Court

May Term, 1989

Arthur J. O'Dea, J.

Michael Rose, St. Albans, for petitioner-appellee

Deborah A. Barnard, Bennington County Deputy State's Attorney, Bennington,
and Jo-Ann Gross, Office of State's Attorneys and Sheriff's Department,
Montpelier, for respondent-appellant

PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.

GIBSON, J. The State of Vermont appeals from a post-conviction relief
order vacating petitioner's conviction for attempted sexual assault and
granting a new trial, based on the bias of a juror. We reverse.
I.
Following his conviction on October 15, 1982, petitioner moved for
post-conviction relief, contending that a juror at his trial "did withhold
information [during the voir dire proceedings], and the information withheld
was 'capable of producing prejudice.'" At the voir dire the juror in
question, Pamela Corcoran, testified in open court that her knowledge about
the crime was limited: "All I heard, was that it happened. I didn't hear
of any particulars." When she was asked whether it would be "fair to say,
that you really don't know anything about the case, other than a charge was
brought," she answered, "Right." During subsequent voir dire in chambers,
the prospective juror testified that "[a]ll I heard, was that an incident
had happened on Main Street in an apartment. That was it."
After conviction, petitioner learned that Corcoran had heard of the
events in question through a conversation with Donna Bailey, a State's wit-
ness. Depositions were taken of both Corcoran and Bailey at the Bennington
County Courthouse. Asked about any conversation with Bailey, Corcoran
testified:
Okay. As a matter of fact she said to me as I was
walking down the street -- did you hear that somebody
tried to get raped last night and I said no. She said
they did next door and that was the end of the conver-
sation.

Bailey's account of the brief conversation was:
Q: [C]an you just tell us basically what you said and
what she said to you, what you told her and -- ?
A: [Corcoran] just asked me -- she heard a lot of
screams -- and she asked me what went on and I told
her what I saw and that I heard a lot of loud
screams and stuff.

. . . .

Q: Okay. did you tell her that you were a witness to
some of this?
A: Yeah I told her I saw everything.

. . . .

Q: [Corcoran] said that she heard screams?
A: Yes. I said yes it was the tenant right next door
and that I saw everything from my bedroom window,
what went on, the screams and everything. I thought
at first it was screams from the Villager [sic]
because you hear all kinds of noises and I just let
it go and it just kept getting louder hollering and
yelling.

At the conclusion of her deposition, Bailey was asked:
Q: And when you say you saw everything did you tell
[Corcoran] what you saw?
A: No I didn't say anything -- what I just told you --
I didn't say anything.

Q: So you didn't say I saw the man doing this and the
girl doing that?
A: No.

Based on these depositions, the trial court concluded that Corcoran
"did withhold information [during voir dire], and the information withheld
was 'capable of producing prejudice.'" The court also relied on the addi-
tional factors that "[t]here is even an indication that [Corcoran] heard
the victim's screams during the actual commission of the crime" and that
Corcoran testified in the deposition that Bailey had a way of "stretching
things" and was a "gossip" and "busybody," despite stating at voir dire that
there was nothing that would cause her to give greater or lesser weight to
Bailey's testimony at trial. The court ruled in petitioner's favor on his
motion for post-conviction relief, vacated the conviction, and granted a new
trial. The present appeal ensued.
The State argues on appeal that Corcoran truthfully answered every
question put to her, and that her failure to reveal the identity of the
person who told her of the incident in question was the result of defense
counsel's failure to inquire. Petitioner counters that the reviewing
court's findings are not clearly erroneous and that they reasonably support
the court's conclusions.
II.
Initially, we address whether the reviewing court's findings are
adequately supported by the record. In order to address the issue, we must
ascertain the appropriate standard of review. Normally, the trial court is
the judge of the credibility of the witnesses, and its factual findings
will not be set aside unless clearly erroneous. See In re Fadden, 148 Vt.
116, 119, 530 A.2d 560, 562 (1987) (post-conviction court's findings of fact
will be upheld unless clearly erroneous); State v. Leavitt, 133 Vt. 35, 41,
329 A.2d 627, 631 (1974) (in ruling on claim that juror failed to disclose
information in response to voir dire question, evaluation of credibility is
within the "exclusive province" of the trial court). Further, the trial
court is entitled to draw reasonable inferences from the testimony it
receives.
This standard is appropriate in the typical case because the trial
court sees and hears the witnesses as they testify, and is able to observe
their body language and hear the inflections of their voices. The court's
vantage point enables it to evaluate the nuances that do not appear in the
appellate record.
But this is not a typical case. There was no live testimony before the
trial court in the post-conviction proceeding. By stipulation of the
parties, the entire evidence consisted of transcripts of the depositions of
Pamela Corcoran, Donna Bailey and attorney David Howard, plus a partial
transcript of the voir dire of the jury at petitioner's 1982 trial. The
stipulation provided that "[n]o further evidence shall be submitted by the
parties." Under these circumstances, the trial court is in no better
position than we to evaluate the credibility of the witnesses, and the
question arises as to whether we should defer to its judgment.
There is a divergence of views on this issue. The federal courts were
split on the question for years, to the point where the authorities were
described as being "indescribably confused." 9 C. Wright & A. Miller,
Federal Practice and Procedure : Civil { 2587, at 740 (1971). This confusion
in the federal arena was swept away in 1985 by two nearly concurrent
strokes: the decision of the United States Supreme Court in Anderson v.
City of Bessemer City, 470 U.S. 564 (1985), and an amendment to Federal
Rule of Civil Procedure 52(a).
In Anderson, the Court held that the clearly erroneous standard applied
even when the court's findings did not rest on credibility determinations,
but were based instead on physical or documentary evidence or inferences
from other facts. 470 U.S. at 574-75. The Court, however, did not elevate
documentary evidence to quite the same plane as testimonial evidence,
stating:
When findings are based on determinations regarding
the credibility of witnesses, Rule 52(a) demands even
greater deference to the trial court's findings; for
only the trial judge can be aware of the variations in
demeanor and tone of voice that bear so heavily on the
listener's understanding of and belief in what is said.
Id. at 575. Shortly thereafter, Federal Rule 52(a) was amended to read, in
pertinent part: "Findings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous." (Underlined
portion added.)
State appellate courts remain divided on this issue. Some courts
follow the federal standard, see, e.g., Avondale on Hayden, Inc. v. Hall,
104 Idaho 321, 324-25, 658 P.2d 992, 995-96 (Idaho Ct. App. 1983); Admiral
Builders Savings & Loan Ass'n v. South River Landing, Inc., 66 Md. App. 124,
128-29, 502 A.2d 1096, 1098-99 (1986), while others will not accord
deference to findings that are based solely on documentary evidence. See,
e.g., Mills Acquisition Co. v. Macmillan, Inc., 559 A.2d 1261, 1278 (Del.
1989); Commonwealth v. Woods, 382 Mass. 1, 8, 413 N.E.2d 1099, 1104 (Mass.
1980); In re Rosier, 105 Wash. 2d 606, 616, 717 P.2d 1353, 1359 (1986).
Vermont has not amended V.R.C.P. 52 to follow the amendment to the
federal rule, nor has this Court addressed the question of whether to apply
a different standard to findings dealing with documentary, as opposed to
testimonial, evidence. In considering this matter, we believe the better
policy is to apply the "clearly erroneous" test to all trial court findings
whether based on live testimony or on documentary evidence. This approach is
less likely to encourage appeals designed merely to elicit a second opinion,
and it accords with the plain language of V.R.C.P. 52 that "[f]indings of
fact shall not be set aside unless clearly erroneous." Further, it is
consistent with the roles generally considered appropriate for trial and
appellate courts.
In determining whether a trial court's findings are clearly erroneous,
we noted recently that "[u]nder the classic formulation, a finding is
'"clearly erroneous" when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.'" In re Quechee Lakes Corp.,
___ Vt. ___, ___ n.10, 580 A.2d 957, 963 n.10 (1990) (quoting United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948)) (emphasis in
Quechee). In the instant case, we conclude that the trial court's findings
are clearly erroneous in certain key respects. In its decision, the court
found that Corcoran stated at voir dire that she did not know the witness,
Bailey, but that later during voir dire she admitted she did know her
through their children, who had attended the same school. The transcript
does not corroborate the court's finding. In fact, at the first mention of
Bailey's name during voir dire, Corcoran immediately identified her as an
acquaintance, and she never thereafter denied knowing her. The trial
court's erroneous finding could well have led it to misjudge Corcoran's
credibility.
Of greater concern is the court's finding that Bailey "testified that
she had related to Ms. Corcoran everything she had seen and heard that
night." Corcoran testified in her deposition, however, that Bailey did not
discuss the details of her observations with her, and Bailey later corrobo-
rated this statement in her own deposition. As previously mentioned, at the
conclusion of her deposition, Bailey was asked:
Q: And when you say you saw everything did you tell
[Corcoran] what you saw?
A: No I didn't say anything -- what I just told you --
I didn't say anything.

Q: So you didn't say I saw the man doing this and the
girl doing that?
A: No.

It is readily apparent that Bailey was clarifying an answer given
earlier by her regarding her discussion with Corcoran. The trial court,
however, ignored or overlooked this more precise explanation, and read into
the brief encounter between the two women more than the evidence warranted.
Thus, although there is some evidence to support the court's finding that
"Corcoran received a detailed account of the attempted rape before she was
selected as a juror," the entire evidence leaves us with the "definite
conviction" that the court's finding was clearly erroneous. This finding,
therefore, cannot serve as the underlying basis for the court's ultimate
conclusion.
Although we conclude that several of the trial court's findings are
clearly erroneous, we must still determine whether there is reversible
error, in light of the evidence and remaining findings. The controlling
issue is whether the evidence establishes a bias on the part of Corcoran or
whether she could decide the case solely on the evidence presented at trial.
See State v. Hohman, 138 Vt. 502, 510, 420 A.2d 852, 857 (1980), overruled
on other grounds, Jones v. Shea, 148 Vt. 307, 308-09, 532 A.2d 571, 572
(1987). If bias is established, Corcoran must be disqualified, and the case
retried. Id. at 511, 420 A.2d at 858. But the case law recognizes that
there is a difference between knowledge and bias; "the mere fact that a
juror has knowledge of a prior verdict or other fact relating to the
defendant does not disqualify her as a matter of law." Id. at 511-12, 420 A.2d at 858; see also Irvin v. Dowd, 366 U.S. 717, 722 (1961) ("It is not
required, however, that the jurors be totally ignorant of the facts and
issues involved."); State v. Doleszny, 146 Vt. 621, 622, 508 A.2d 693, 694
(1986) (per curiam) ("Knowing a witness does not automatically require
removal of a prospective juror, particularly where there is no reason for
the court to doubt the juror's belief that [s]he will be impartial.").
"There must be a demonstrable showing of prejudice or of the existence of
circumstances capable of producing prejudice and not mere speculation."
State v. Dragon, 135 Vt. 168, 170, 376 A.2d 12, 13-14 (1977) (citations
omitted). To warrant a new trial, "a party must first demonstrate that a
juror failed to answer honestly a material question on voir dire, and then
further show that a correct response would have provided a valid basis for a
challenge for cause." McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984).
In the instant case, the evidence does not demonstrate that Corcoran
failed to answer honestly any of the questions that were put to her, nor
does it show bias on her part. Corcoran stated during voir dire that she
could treat Bailey's trial testimony the same as that of other witnesses
without giving it more credibility than the others', that she had formed no
opinion about the case, and that she could come to an impartial verdict
based on the evidence. If there were any predisposition by Corcoran with
respect to Bailey's testimony, it could only have been to view it with some
skepticism because of Bailey's tendency, in Corcoran's words, "to tell
people everybody's business" and to be a "busybody." (FN1) This is a far cry
from being prejudiced against petitioner, and does not warrant the retrial
of an eight-year-old case where the evidence for conviction "was strong on
all three [subdivisions of the statute]." State v. Nash, 144 Vt. 427, 434,
479 A.2d 757, 761 (1984). (FN2) There was no valid basis for a challenge for
cause. Accordingly, we are unable to hold that petitioner met his burden of
showing that the jury (and Corcoran, in particular) was unable to decide the
case solely on the evidence presented at trial, or that there were circum-
stances capable of prejudicing the deliberative function of the jury. See
State v. Onorato, 142 Vt. 99, 106-07, 453 A.2d 393, 396-97 (1982).
III.
In any event, the record discloses that petitioner waived any objection
he had to Corcoran as a juror. It is the obligation of counsel to examine
jurors on voir dire in order to ascertain their qualifications and bias, if
any, and then seasonably raise any objection to any member of the panel.
State v. Percy, 1 Vt. L.W. 371, 375 (Oct. 5, 1990); V.R.Cr.P. 24(a),(b).
The right to challenge a juror is waived by a failure to object before the
jury is impaneled if the basis for the objection is known or might, with
reasonable diligence, have been discovered during voir dire. See Robinson
v. Monsanto Co., 758 F.2d 331, 335 (8th Cir. (1985); Commonwealth v. Fudge,
20 Mass. App. 382, 389, 481 N.E.2d 199, 204, rev. denied, 396 Mass. 1102,
484 N.E.2d 102 (1985); Commonwealth v. Shirey, 333 Pa. Super. 85, 105, 481 A.2d 1314, 1325 (1984), overruled on other grounds, 379 Pa. Super. 589, 594-
98, 550 A.2d 807, 810-11 (1988); see also McKinstry v. Collins, 74 Vt. 147,
162, 52 A. 438, 442 (1902) (new trial denied on ground attorney waived right
to object to possible juror bias by going ahead with trial without objection
after learning about association of juror with opposing party); Bellows v.
Weeks, 41 Vt. 590, 606 (1869) (verdict will not be set aside on ground that
one of jurors had a cause of his own pending for trial by jury at the same
term, where counsel made no motion to discharge him).
In the instant case, petitioner was put on notice at the voir dire that
Corcoran had talked with "someone" about the alleged rape the day following
the incident. In response to inquiries from the state's attorney as to
whether any of the jurors had heard anything about the incident, Corcoran
said that "someone" had mentioned it to her, but all she had heard was that
it had happened and she didn't hear any of the particulars. She further
answered, "No," when questioned whether she was told anything that sup-
posedly factually occurred, a position she has consistently maintained.
While it might have been better had Corcoran volunteered that Bailey was the
"someone" who had talked with her on the street, nevertheless, counsel for
petitioner made no effort to follow up on the details of the encounter.
Reasonable inquiry would have disclosed the name of the person and the
extent of the conversation. The record, including her deposition testimony,
does not justify a supposition that Corcoran would not have answered such
questions honestly and truthfully. She answered truthfully and readily
enough when asked whether she knew Bailey. By failing to pursue this line
of inquiry and learn what could readily have been discovered, petitioner
waived his right to object to the seating of Corcoran as a juror.
Reversed.

FOR THE COURT:

_______________________________________
Associate Justice

FN1. The dissent theorizes that Bailey's testimony was "not entirely pro-
State" because in Corcoran's deposition she stated that Bailey told her
"somebody tried to get raped last night." The dissent interprets this
statement as suggesting that Bailey believed the victim was partially
responsible for the attempted rape, influencing Corcoran to discount that
viewpoint to the prejudice of petitioner. Yet, the dissent makes no
mention of the colloquy immediately following between petitioner's attorney
and Corcoran:
Q: Do you remember [Bailey's] exact words? If you
can't remember the exact words then give your
best recollection.
A: A girl almost got raped last night, and that was it.
Q: This is what she said to you on the sidewalk?
A: yes.
By ignoring or overlooking the entire testimony of Corcoran, the dissent
imports a meaning to it that clearly is not there.

FN2. This is petitioner's third petition for post-conviction relief. See
In re Nash, 149 Vt. 63, 539 A.2d 989 (1987); In re Nash, 146 Vt. 259, 499 A.2d 785 (1985). Following the trial court's decision herein, the court
granted petitioner's motion for release pending appeal, conditioned on his
reporting regularly to the Bennington Police Department and his residing and
remaining in Bennington County. Petitioner never reported to the Bennington
Police Department after his release, however, but instead took up residence
in the State of New Hampshire. These actions, of course, have no bearing on
the issues raised in this appeal, but they do reveal an attitude of contempt
for the law of this State that is difficult to ignore. The record further
shows that in December of 1988 the trial court granted the State's motion
for stay of judgment, and in February of 1989, an arrest warrant was issued.

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Dissenting

No. 88-484

In re Douglas A. Nash Supreme Court

On Appeal From
Bennington Superior Court

May Term, 1989

Arthur J. O'Dea, J.

Michael Rose, St. Albans, for petitioner-appellee

Deborah A. Barnard, Bennington County Deputy State's Attorney, Bennington,
and JoAnn Gross, Office of State's Attorneys and Sheriff's Department,
Montpelier, for respondent-appellant

PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.

DOOLEY, J., dissenting. I concur in the Court's use of a clearly
erroneous test to evaluate the findings of the trial court. Use of this
standard of review, even in the absence of testimonial evidence, is most
consistent with the wording of V.R.C.P. 52 and the policy behind it. I do
not concur, however, in the Court's conclusion that essential findings of
the trial court are clearly erroneous or that the trial court misapplied our
precedents in granting post-conviction relief. Once we accept a deferential
standard of review in this case, the trial court's judgment must be
affirmed.
The Court concludes that two findings of fact are clearly erroneous.
The first of these forms no part of the Court's decision to reverse since
its effect, according to the Court, was a possible misjudgment of
credibility. The remedy for this error would be a new trial for a correct
assessment of credibility. However, the Court has chosen to reverse without
a remand, making credibility irrelevant.
Even if there is error in the finding, it is harmless. The juror
clearly down-played her knowledge of Bailey. She stated, "I just see her
and wave to her, and that's it." I agree with the trial court that the
juror was not candid about her relationship with the witness.
The second finding -- actually a group of findings -- that the Court
finds clearly erroneous goes to the heart of this case. The Court relies on
part of Bailey's deposition testimony to the effect "I didn't say anything"
to conclude that the court erred in finding that Bailey told the juror
everything she had seen and heard the night of the attempted rape. Earlier
in the deposition, Bailey testified that the juror approached her, told her
that she heard a lot of screams and asked what happened. Bailey then told
her "what I saw and that I heard a lot of loud screams and stuff," and told
her "I saw everything." When asked whether it was fair to say that she told
the juror "basically what [she] . . . told the jury or the court during the
trial," she responded affirmatively.
There is a clear conflict in Bailey's testimony, and the Court has
adopted one method of resolving the conflict. It is equally proper to
resolve the conflict by crediting the detailed testimony earlier in the
deposition and refusing to credit the generalization "I didn't say
anything." (FN1) In any event, the resolution of the conflict was for the trial
court, not for this Court. The findings involved here are directly
supported by Bailey's earlier deposition testimony. We can not find them
clearly erroneous.
The Court's importation of the "classic formulation" of the clearly
erroneous test is an unfortunate red herring. While it may be mentioned in
In re Quechee Lakes Corp., ___ Vt. ___, ___, 580 A.2d 957, 963 n.10 (1990),
it is not used in our cases. Rather, when we review a trial court's
findings, we conduct the following inquiry:
When reviewing the sufficiency of the evidence to
support a trial court's findings, this Court must review
the evidence in a light most favorable to the prevailing
party and exclude the effect of any modifying evidence.
When evidence conflicts, the credibility of witnesses,
the weight and sufficiency of evidence, and its
persuasive effect are matters accorded to the exclusive
determination of the trier of fact. If the record
contains any credible evidence that fairly and
reasonably supports the findings, the trial court's
ruling must stand even though inconsistencies or
substantial evidence to the contrary may exist.

Lawrence v. Pelletier, 154 Vt. 29, 33, 572 A.2d 936, 939 (1990) (citations
omitted). In addition, "where the evidence is in conflict, such findings
will stand even if the evidence predominates against them; only where the
contrary proof is so overwhelming that there is no reasonable basis upon
which findings can stand will they be set aside." Cliche v. Cliche, 143 Vt.
301, 306, 466 A.2d 314, 316 (1983). Nowhere does the Court explain that it
has viewed the evidence in the light most favorable to petitioner, that the
effect of modifying evidence has been excluded, that the persuasive effect
of evidence is to be determined by the trial court, that the evidence it
has disregarded was simply not credible, or that the evidence it finds
persuasive is overwhelming. We would do better to admit that we do not
give deference to trial judge fact-finding than to invoke one standard of
review when we affirm and another when we reverse.
Once we properly accept the trial court's findings, we are left with
the following conflicts between the juror's voir dire statements and the
facts:
1. The juror stated during voir dire that she heard that the incident
happened because "someone . . . mentioned it to me," but she didn't "hear
of any particulars." When asked whether she was "told anything that
supposedly factually occurred," she stated, "No." In fact, she was given a
detailed account of the attempted rape by an eyewitness who testified at
trial.
2. The juror stated at the voir dire that she knew of Bailey because
their children played together and "I just see her and wave to her, and
that's it." She failed to answer the trial judge's question inquiring
whether she had learned anything about the case from a witness. In fact, it
was Bailey who provided her the detailed information about the attempted
rape, after the juror sought it out.
3. The juror indicated on voir dire that her knowledge of Bailey
would not affect her ability to judge Bailey's credibility at trial. In
fact, the juror had a fixed view of Bailey's credibility. She thought that
Bailey "had a way of stretching things" and that she was a "gossip" and a
"busybody."
If I apply these facts to the tests adopted by the Court as found in
our case law, I think it clear that the judgment must be affirmed. These
facts show the presence of circumstances capable of prejudicing the
deliberative function of the jury. State v. Onorato, 142 Vt. 99, 106-07,
453 A.2d 393, 396 (1982). They further show that the juror failed to
answer honestly a material question and that grounds exist to challenge the
juror for cause. Although it is not clear that the Court would disagree
with this conclusion if it accepted all the facts as found by the trial
court, I want to emphasize some additional considerations not mentioned in
the Court's opinion.
This is a post-conviction relief proceeding. The scope of review in
such a proceeding is broad "and its concerns include the exercise of
discretionary powers by courts." In re Provencher, 127 Vt. 558, 560, 255 A.2d 180, 182 (1969). It is the functional equivalent of a consideration of
a new trial motion where the time limit for such a motion has run before the
new evidence justifying juror disqualification is available. See State v.
Sheppard, ___ Vt. ___, ___, 582 A.2d 116, 118 (1990). The State has not
challenged the new evidence as discovered in an untimely fashion. I believe
we must accord the post-conviction court the same discretion in ruling on
this petition as we would accord the district court if the issues had arisen
in a new trial motion. See State v. Dragon, 135 Vt. 168, 170, 376 A.2d 12,
13 (1977). Thus, just as the district court does not have to accept a
juror's claim of impartiality and can find bias despite such claims, the
post-conviction court can find that claims of impartiality are insincere.
Here the court had no opportunity to explore whether the juror's
knowledge and opinions prejudiced the deliberative functions of the jury.
The juror's failure to disclose information at voir dire could not have been
inadvertent and unknowing. Cf. State v. Bevins, 146 Vt. 129, 134, 498 A.2d 1035, 1038 (1985) (failure of juror to disclose acquaintance with co-
perpetrator of the crime was inadvertent where juror had no memory of
dealings with co-perpetrator some eight years earlier). Thus, in choosing
to believe the witness rather than the juror, the court necessarily
concluded that the juror was aware that she had not answered truthfully. A
finding of lack of honesty in response to voir dire questions is itself an
indication of lack of partiality. See United States v. Perkins, 748 F.2d 1519, 1532 (11th Cir. 1984).
It is also clear that the information disclosed at the post-conviction
relief hearing would have been very relevant to a decision to challenge the
juror, either for cause or peremptorily. Other courts have been sensitive
to the effect on the trial process of a defendant's inability to exercise
challenges because of prospective jurors' failure to disclose critical
information. See, e.g., Ex parte O'Leary, 417 So. 2d 232, 240 (Ala. 1982)
(parties have a right to have questions answered truthfully to enable them
to exercise their challenges wisely), cert. denied, 463 U.S. 1206 (1983). I
concur in the recent observation of the Georgia Court of Appeals in Martin
v. State, 168 Ga. App. 623, 625, 309 S.E.2d 899, 901 (1983):
The state seeks this court to find harmless error in
the juror's false silence . . . . We cannot view the
error so lightly. While we agree that if one ignores
the valuable right of voir dire to effect the selection
of an impartial jury, the developed facts show that the
juror probably was ultimately fair in her decisions.
However, we express more dedication to the concept of a
trial by peers and of a defendant's right to have
jurors selected after exposure and explanation of all
apparent defects developed by voir dire. Were we to
accept the position advanced by the state, we would for
all intents and purposes emasculate the concept of voir
dire. The trial court or this court could determine the
propriety or acceptability of a juror by weighing the
possible prejudice inherent in a juror's defect. This
would thus deprive the counsel of the right fully to
explore a defect, waive it, challenge the juror for
cause, or simply peremptorily challenge the suspect
juror.

The observation is particularly relevant where the facts as found below
indicate that the defendant had grounds to challenge the juror for cause.
See McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984);
Perkins, 748 F.2d at 1532-33.
The Court has two additional responses to the trial court's conclusion
in this case: (a) the juror's testimony showed that she found Bailey not to
be credible, and since Bailey was a prosecution witness, any error is
harmless; (b) any failure to evaluate properly the juror's ability to serve
fairly and impartially was caused by defense counsel's failure to ask the
proper questions during voir dire.
The first ground might be more plausible if, as suggested by the Court,
all of Bailey's statements supported the State, and the juror always
discounted Bailey's statements. The juror's deposition statement was,
however, that Bailey told her "somebody tried to get raped last night." The
phrasing of the statement suggests that Bailey believed that the victim was
partially responsible for the attempted rape. Thus, Bailey's statements
were not entirely pro-State, and we do not know what portion of the
statements the juror might have disbelieved pursuant to her view of Bailey's
credibility. (FN2) It is possible that the juror's opinion of the witness helped
the State.
Even if the juror's expressed view of Bailey's character and
credibility helped only the defense, I do not think it warrants reversal of
the trial court's decision. The juror sought out Bailey's observations,
apparently considering them credible at the time. More importantly, the
real basis for the court's decision was the juror's discussions with the
witness and her failure to disclose them during voir dire. The credibility
assessment, while relevant, is not determinative.
The second ground is the failure of the defense counsel to question the
juror more fully. Certainly, 20/20 hindsight shows that a more complete
interrogation was needed. For two reasons, I do not believe the failure to
inquire more fully warrants reversal. First, the critical information
warranting disqualification of the juror came from Bailey, not the juror.
In essence, the trial court found that the juror failed to tell the truth
when asked about her knowledge of the incident. No amount of questioning of
the juror alone would have shown the true facts.
Second, the juror's answers clearly stated that further inquiry would
be unavailing. All potential jurors were asked by the trial judge whether
they had "heard anything about the case?" and whether they "heard any of the
witnesses say anything about it?" The juror answered that she had heard
that the incident happened, without any particulars, from "someone . . . on
the street." In view of the direct question about witnesses, one could
conclude only that the "someone" was not a witness. At best, the response
was misleading, and defense counsel can not be faulted for failing to follow
up.
I would affirm.
FOR THE COURT:

Associate Justice

FN1. While it is not determinative under our standard of review, the way
Bailey testified supports the trial court's method of reconciling her
testimony. At trial, she testified as follows:

Q. I believe you said [he was] pulling pants back up or
pulling them back on?
A. Pulling up. He had them down to his ankles.
Q. You saw that?
A. Yes.
Q. Is there any doubt about that?
A. Yes.
Q. Is there any doubt in your mind that that happened?
A. I know he did it.

Her answer to the first question about her doubt appears confused and may be
inconsistent with her answer to the second question about her doubt. As in
the testimony in the deposition, her answer to the general question (here
about her doubt) appears to undercut her specific statement about what she
saw.

FN2. As with Bailey's own testimony, the majority acknowledges a
conflict in the juror's characterization of Bailey's statements, yet
chooses to believe a later rendition. I do not believe that the point here
is undercut by the Court's appellate fact-finding.

------------------------------------------------------------------------------
ON MOTION FOR REARGUMENT

In re Nash (88-484)

ENTRY ORDER

SUPREME COURT DOCKET NO. 88-484

MAY TERM, 1989

In re Douglas A. Nash } APPEALED FROM:
}
}
} Bennington Superior Court
}
}
}
} DOCKET NO. S178-87Bc

In the above entitled cause the Clerk will enter:

Appellee's motion to reargue asserts that this Court applied an
improper clearly erroneous standard to key trial court findings. The test
used was that articulated in United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948), that a judicial finding is clearly erroneous when
"although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake
has been committed." (Emphasis added.) Appellee contends that Gypsum is
not and never has been the law of this state. Specifically, he points to
several of our cases requiring that the reviewing court look at the evidence
in the light most favorable to the prevailing party, excluding the effect of
modifying evidence, see, e.g., Highgate Assoc. v. Merryfield, ___ Vt. ___,
___, 597 A.2d 1280, 1281 (1991); Semprebon v. Semprebon, ___ Vt. ___, ___,
596 A.2d 361, 363 (1991), and asserts he should have received the benefit of
this rule.

This Court previously addressed this issue in Seaway Shopping Center
Corp. v. Grand Union Stores, Inc., 132 Vt. 111, 315 A.2d 483 (1974). While
holding that the adoption of V.R.C.P. 52(a) had not changed Vermont's
clearly erroneous standard, id. at 116, 315 A.2d at 486-87, the Court
maintained that, under the pre-Rule 52 standard, a reviewing court was
required to consider the evidence "'as a whole,'" just as Gypsum requires
the court to look at the "entire evidence," and consequently found "very
little difference in result between the Federal rule and our case law as
applied to our Vermont rule." Id. at 117, 315 A.2d at 487 (quoting Little
v. Little, 124 Vt. 178, 182, 200 A.2d 276, 279 (1964)).
Recent United States Supreme Court cases attest to the continued
vitality of the Gypsum test and affirm its compatibility (FN1) with the defer-
ential clearly erroneous standard. See Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985) ("If the [trial] court's account of the evidence is
plausible in light of the record viewed in its entirety, the [appellate
court] may not reverse it even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently"); Amadeo
v. Zant, 486 U.S. 214, 223 (1988) (following Anderson). Rather, a finding
supported by evidence is clearly erroneous only if the trial court misappre-
hends key evidence in a way that renders its finding implausible.

With regard to two key trial court findings in this case, the Court
held that (1) the "transcript does not corroborate the court's finding" on
whether the juror ever stated that she did not know the witness, i.e., there
was no competent, reasonable evidence to support this finding, and (2) the
trial court "ignored or overlooked" evidence that the juror and witness had
not discussed the details of the case, i.e., there were not two plausible
explanations both supported by the evidence between which the trial court
was entitled to choose. Rather, the trial court simply misapprehended the
key evidence -- its explanation was not plausible. Both are correct appli-
cations of our clearly erroneous standard.

Appellee's remaining arguments are without merit.

Motion for reargument denied.

FN1. Contrary to the dissent's insistence that we view Gypsum and Rule
52(a) as "the same tests," we stress their compatibility.
---------------------------------------------------------------------------
Dissenting

DOOLEY, J., dissenting. My dissent to the Court's opinion expresses
my view that the United States Gypsum Co. test is inconsistent with our
standard for appellate review of fact-finding. Ordinarily, I would accept
that the issue has been fully aired, even though my view did not prevail,
and vote to deny reargument. In this case, I would grant reargument, how-
ever, because our explanations for basic inconsistencies in our position
are only making the matter worse.

While I think the Court was in error, I accept that it adopted the
Gypsum test for evaluating findings of fact. What I cannot accept is that
there was no change in our law. No person who put the Gypsum test next to
the tests we have adopted to determine whether facts found by the trial
court are clearly erroneous could seriously claim that these are the same
tests. While Seaway Shopping Center Corp. v. Grand Union Stores, Inc., 132
Vt. 111, 315 A.2d 483 (1974), narrowed the differences between our test and
the Gypsum test, it does not say they are the same test. In fact, the issue
in Seaway Shopping Center Corp. was whether we would adopt the Gypsum test
as appellants urged. We declined to do so, stating, "We are not inclined
to give a different meaning to V.R.C.P. 52(a) than has been previously
enunciated by this Court in our case law." Id. at 117, 315 A.2d at 487.
We would not have said that if we thought the tests were the same.

Ironically, we recently addressed this precise question in In re Town
of Sherburne, 154 Vt. 596, 581 A.2d 274 (1990). We said:

Quechee Lakes contrasted the "substantial evidence"
standard of review with what is called (following
Professor Koch) the "classic formulation" of the
"clearly erroneous" test, as set forth in United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948):
"A finding is 'clearly erroneous' when although there is
evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm
conviction that a mistake has been committed." The
Gypsum formulation differs, however, from the "clearly
erroneous" test under V.R.C.P. 52(a) as typically
defined in our decisions. . . . It also differs from
the formulation used since by the United States Supreme
Court . . . .

Id. at 606 n.9, 581 A.2d at 279 n.9 (citations omitted). The ink is barely
dry on that explanation, and we are today stating the opposite without
admitting the conflict. We have now spoken so inconsistently on the
standard of review for fact-finding that we should grant reargument and face
openly whether we should change that standard as the majority opinion in
this case clearly did.

BY THE COURT:

Frederic W. Allen, Chief Justice

Dissenting:
Louis P. Peck, Associate Justice

_________________________________
John A. Dooley, Associate Justice Ernest W. Gibson III, Associate Justice

[ ] Publish James L. Morse, Associate Justice

[ ] Do Not Publish

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