Lewisohn v. State

• Decision Date: 03 August 1981
• Citation: 433 A.2d 351
• Parties: James E. LEWISOHN v. STATE of Maine et al.
• Court: Maine Supreme Court

Page 351

433 A.2d 351

James E. LEWISOHN v. STATE of Maine et al.

Supreme Judicial Court of Maine.

Argued June 17, 1981.

Decided Aug. 3, 1981.

Bernstein, Shur, Sawyer & Nelson, Peter J. Rubin (orally), Portland, for plaintiff.

William R. Stokes (orally), Charles K. Leadbetter, Asst. Attys. Gen., Augusta, for defendant.

Before McKUSICK, C. J., WERNICK and ROBERTS, JJ., and DUFRESNE, A. R. J.

McKUSICK, Chief Justice.

In this appeal by the State from the Superior Court's granting of petitioner Lewisohn's application for a writ of habeas corpus, the function of the Law Court is a narrow one. First, if the single justice of the Supreme Judicial Court, who sat by assignment in the Superior Court, ¹ was correct in finding as a fact that a woman who sat on the jury that tried and convicted petitioner for murder ² failed to reveal on voir dire that she had already made up her mind he was guilty, the State concedes as it obviously must that he did not get a fair trial. Second, that critical finding of fact made by the habeas justice on the basis of extensive testimony heard by him is reviewed by the Law Court only on a "clearly erroneous" standard. Only if we sitting in the appellate court conclude that the habeas justice, despite his superior opportunity for assessing the credibility of witnesses, was clearly wrong in his factual determination, can we reverse that factfinding and the judgment based upon it. Within that doubly restricted function of the Law Court, we affirm the Superior Court's order that the murder indictment against petitioner be dismissed with prejudice and that petitioner be released from custody "unless the State shall cause petitioner to be retried ... within ninety (90) days." ³

Twenty-two witnesses testified before the habeas justice in February, 1981. They included all but two of those who served as jurors at petitioner's trial in July, 1975. Of the two jurors not testifying, one had died in the intervening period and the other was apparently out of the jurisdiction at the time of the hearing. Several of the witnesses in the post-conviction proceeding recalled having heard in the jury room, while they were awaiting voir dire, disparaging comments concerning petitioner to the effect that he was unable to control his emotions, smoked marijuana, and used profanity in his classes at the University of Maine. In addition, several witnesses remembered contrasting comments to the effect that Mrs. Lewisohn was "a nice lady" and "a good guidance counsellor."

One of the witnesses at the habeas hearing was Arthur Rowe III. Mr. Rowe was a member of the jury pool but was not selected to sit on the trial jury. He recounted hearing comments in the jury room about petitioner made by a woman who ultimately served on petitioner's petit jury. Of her, he said:

I do remember there was a lady, I'm not sure who she was, but I do remember she was picked for the Lewisohn jury and she knew all there was to know about it. She knew when it happened and the whole thing. She seemed to have preconceived notions about it. Mainly that he was guilty. I was really surprised that she was picked.

Additionally, Mr. Rowe testified that the same woman failed to respond during voir dire when the court asked members of the jury pool to stand if they knew anything about the case from pretrial publicity. Also, Mr. Rowe recalled that that woman failed to stand when the court asked if any of the potential jurors had formed an opinion in advance as to petitioner's guilt or innocence.

On the basis of Mr. Rowe's testimony, the habeas justice found that the information known to the woman juror and her opinion as to petitioner's guilt were "ineradicably prejudicial" to him and "without more destroyed the impartiality of the jury." ⁴ Thus, by Mr. Rowe's account, that woman juror served on the Lewisohn jury with a preconceived notion of his guilt, and neither the presiding justice nor the parties ever had an opportunity to probe the extent of her established views or their effect upon her ability to reach a verdict exclusively upon the basis of the evidence presented at trial. The habeas justice held that, without more, the presence of that one woman on the jury prevented the Lewisohn trial from comporting with elementary principles of fairness. On appeal, we need to address only the justice's finding as to that juror.

Under the "clearly erroneous" test, M.R.Civ.P. 52(a), a lower court's findings of fact will stand "unless they clearly cannot be correct because there is no competent evidence to support them." Brooks Bros., Inc. v. Harris, Me., 432 A.2d 750, 751 (1981), citing and quoting Harmon v. Emerson, Me., 425 A.2d 978, 982 (1981) (emphasis in original). Thus, the function of an appellate court is not to review a cold transcript and draw its own factual inferences; rather, appellate review of factual findings is limited to investigation of the record before it to determine whether competent evidence exists to support the lower tribunal's factual conclusions. It is only when no competent evidence exists to support those findings that reversal is appropriate. See Harmon v. Emerson, supra at 982.

In urging this appellate court to declare that the findings of fact made by the habeas justice were clearly erroneous, the State makes much of the fact that Mr. Rowe could not identify by name the juror he described. ⁵ Her identity has only the indirect significance of explaining why the unnamed woman never testified before the habeas justice concerning the circumstances surrounding her statements in the jury room before voir dire. The matter of prime importance is whether the woman described by Mr. Rowe as having expressed her opinion of Lewisohn's guilt was later selected for jury service. That she was is plainly supported by Mr. Rowe's uncontroverted testimony.

The specific identity of the woman juror described by Mr. Rowe is rendered even less important by the fact that shortly after overhearing her views as to petitioner's guilt, Mr. Rowe was specifically surprised as he testified in the habeas hearing to see her accepted to serve on the Lewisohn jury. His contemporaneous surprise at the woman juror's failure to reveal her preexisting opinion and at her consequent selection for the Lewisohn jury is the kind of specific dramatic fact that was understandably recalled by Mr. Rowe after a lapse of more than five years. That testimony had a ring of authenticity to it. It showed that Mr. Rowe had contemporaneously "connected up" the woman's expression of her opinion of Lewisohn's guilt, his own understanding from the voir dire questioning of what were and were not disqualifying circumstances, and the specific identity of the woman juror who was, despite her biased opinion, being picked for jury service. Mr. Rowe's testimony was sufficiently detailed to support findings that a prospective juror held a preconception that Lewisohn was guilty, that nonetheless she stayed mute when specifically asked on voir dire whether she had formed any advance opinion as to Lewisohn's guilt or innocence, and that she sat on the jury that tried him.

The State also attacks Mr. Rowe's testimony as vague and impressionistic, on the basis that despite the fact that he remembered the woman juror expressed a definite view that petitioner was guilty, he could not recall the specifics of her remarks. That argument does not, however, persuade us that the habeas justice's finding that the woman juror had already decided Lewisohn was guilty was clearly erroneous. Mr. Rowe testified to that fact as a conclusory inference drawn by him from what he overheard the woman say in the jury room. At the discretion of the habeas...