Nash, In re

Decision Date21 June 1991
Docket NumberNo. 88-484,88-484
Citation614 A.2d 367,158 Vt. 458
CourtVermont Supreme Court
PartiesIn re Douglas A. NASH.

Deborah A. Barnard, Bennington County Deputy State's Atty., Bennington, and Jo-Ann Gross, Office of State's Attys. and Sheriff's Dept., Montpelier, for respondent-appellant.


GIBSON, Justice.

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.


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 witness. 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 conversation.

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 additional 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.


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, 105 S.Ct. 1504, 84 L.Ed.2d 518 (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, 105 S.Ct. at 1512. 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, 105 S.Ct. at 1512. 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 (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 (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., 154 Vt. 543, 554 n. 10, 580 A.2d 957, 963 n. 10 (1990) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (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...

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