State v. Bacon

• Decision Date: 29 August 1997
• Docket Number: No. 96-548,96-548
• Citation: 167 Vt. 88,702 A.2d 116
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Christopher L. BACON.

Page 116

702 A.2d 116

167 Vt. 88

STATE of Vermont v. Christopher L. BACON.

No. 96-548.

Supreme Court of Vermont.

Aug. 29, 1997.

Jeffrey L. Amestoy, Attorney General, Montpelier, John Treadwell, Special Assistant Attorney General, and Joseph L. Winn, Assistant Attorney General, Waterbury, for plaintiff-appellant.

Jesse M. Corum IV of Gale, Corum & Stern, Brattleboro, for defendant-appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for amicus curiae Office of Defender General.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

JOHNSON, Justice.

We consider for the second time the circumstances under which a presentence investigation report (PSI) should be disclosed to persons other than the defendant, defense counsel, and the attorney for the state. See V.R.Cr.P. 32(c)(3). In State v. LaBounty, 167 Vt. 25, 702 A.2d 82 (1997), we held that PSIs are not subject to a qualified First Amendment right of access, and should not be routinely disclosed to the press and public. Id. at ---, 702 A.2d at 83. We left open the question posed in this case: whether, and upon what showing, a third party should be granted access to a PSI. The district court in this matter granted defense counsel's request for disclosure of the PSI of defendant's accomplice, Charles Gundlah, and of the PSIs of other individuals in Vermont who received sentences of life-without-parole in recent years. The State, through the Department of Corrections, opposes disclosure and appeals the court's order. We hold that a defendant seeking access to another individual's PSI must support the request with a plausible showing of materiality; upon such a showing, the district court should review the PSI and disclose only that information, if any, that is material to guilt or punishment. Accordingly, we vacate the court's order requiring the Department to distribute the requested PSIs to counsel. We conclude, however, that the court should review Gundlah's PSI in camera and disclose any information material to defendant's sentence.

I.

In April 1991, defendant and Charles Gundlah escaped together from a prison work crew and embarked on a brief but violent period of criminal activity, culminating in the murder of Robin Colson. Following a jury trial, Gundlah was convicted of felony murder, see 13 V.S.A. § 2301, as well as a number of other charges related to the murder, and received a cumulative sentence of seventy-two years to life. We recently affirmed Gundlah's felony-murder conviction. State v. Gundlah, 166 Vt. 518, ----, 702 A.2d 52, 53 (1997). Defendant was initially convicted as accessory to the murder and was sentenced to life-without-parole; we reversed that conviction because of an error in the jury charge. See State v. Bacon, 163 Vt. 279, 283, 658 A.2d 54, 58 (1995). After a second trial, defendant was convicted of felony murder for his role in the death of Robin Colson.

Prior to sentencing, defense counsel sought access to the PSIs of other individuals in Vermont who have received a sentence of life-without-parole. In support of the motion, counsel argued that he should be able to review the circumstances surrounding crimes in which such a sentence has been imposed. Counsel also requested disclosure of Gundlah's PSI.

The Department of Corrections opposed disclosure of the PSIs. The Department emphasized the need to preserve confidentiality of the information contained in PSIs. The Office of Defender General also opposed disclosure, at least with respect to two specific PSIs, because the subjects of those PSIs did not consent to disclosure.

The court granted defense counsel's request and ordered the Department of Corrections to distribute copies of four specific PSIs, including Gundlah's, to defense counsel, the state's attorney, and the court. Recognizing the need to maintain confidentiality, the court restricted access to the PSIs to the attorneys involved in the case, ¹ and ordered that the documents be returned to the Department of Corrections after sentencing. The Department sought and received permission to appeal the court's order as a collateral final order. See V.R.A.P. 5.1. The sentencing proceedings have been stayed pending resolution of this appeal.

II.

In LaBounty we declined to recognize a qualified First Amendment right of access to PSIs, and refused to disclose two specific PSIs as requested by a newspaper. LaBounty, 167 Vt. 25, 702 A.2d at 85. Nonetheless, we implicitly acknowledged, as have many other courts, that the confidentiality of PSIs is not absolute. Id., at ---, 702 A.2d at 86; see, e.g., United States v. Huckaby, 43 F.3d 135, 138 (5th Cir.1995) (no court has held that confidentiality of information contained in PSI must be maintained under all circumstances); United States v. Corbitt, 879 F.2d 224, 239-40 (7th Cir.1989) (in some situations, PSI may be disclosed to meet particularized need arising out of pending or contemplated litigation); Halacy v. Steen, 670 A.2d 1371, 1372 (Me.1996) (confidentiality of PSIs not absolute). We now address more fully the circumstances under which third parties may obtain access to PSIs.

With one possible exception, courts that have considered third-party requests for access to PSIs have refused disclosure absent a significant, particularized need on the part of the requester. See, e.g., United States v. Julian, 486 U.S. 1, 12, 108 S.Ct. 1606, 1613, 100 L.Ed.2d 1 (1988) (courts have typically required showing of special need before disclosing PSI to third party); Huckaby, 43 F.3d at 138 (with respect to disclosure of PSIs, standard has evolved that permits limited disclosure where compelling, particularized need is shown). But see United States v. Schlette, 842 F.2d 1574, 1581 (9th Cir.), modified, 854 F.2d 359 (9th Cir.1988) (in given case, if reasons for maintaining confidentiality of PSI do not apply, party seeking disclosure should not be required to demonstrate large compelling need). In support of the strong presumption against disclosure, courts typically rely upon the same reasons advanced by the Department for preserving the confidentiality of PSIs. These policy concerns include encouraging and protecting potential sources of information who are chary of publicity; protecting the privacy of victims and other individuals that provide information; protecting the privacy of defendants; and preventing the release of unsupported, irrelevant information. See, e.g., United States v. Trevino, 89 F.3d 187, 191 (4th Cir.1996); Halacy, 670 A.2d at 1374.

Some disclosure has been permitted, however. Courts have generally recognized the validity of requests by criminal defendants seeking possible exculpatory or impeaching information in PSIs prepared about government witnesses. See, e.g., United States v. DeVore, 839 F.2d 1330, 1332 (8th Cir.1988) (no abuse of discretion where district court reviewed PSI of defendant's accomplice and disclosed that portion of report containing accomplice's version of crime). Rarely, courts have approved disclosure for other purposes, such as use in a related civil proceeding. See Dowd v. Calabrese, 101 F.R.D. 427, 441 (D.D.C.1984) (permitting release of PSIs for use in related libel action against newspaper); cf. United States v. Huckaby, 43 F.3d at 139 (not abuse of discretion where district court sua sponte publicly disclosed PSI to counter widespread perception that federal prosecution of state judge was racially motivated). But see United States v. Charmer Indus., 711 F.2d 1164, 1178 (2d Cir.1983) (district court erred in approving release of PSI to state attorney general for use in license-revocation proceeding).

In the criminal context, courts have faced the delicate task of preserving confidentiality of PSIs while protecting defendants' rights to obtain exculpatory or impeaching information. Thus, courts have been sympathetic to requests for PSIs prepared about government witnesses, but unwilling to release the documents outright. Instead, upon receiving such a request, courts have typically examined the PSI in camera to determine whether any of the information is exculpatory or impeaching and should be disclosed. See Trevino, 89 F.3d at 190, 192; United States v. Moore, 949 F.2d 68, 72 (2d Cir.1991); United States v. Anderson, 724 F.2d 596, 598 (7th Cir.1984); United States v. Figurski, 545 F.2d 389, 391-92 (4th Cir.1976). A dissatisfied defendant is not entitled to examine the entire report, but on appeal may challenge the court's ruling, which is reviewed for abuse of discretion. See, e.g., Moore, 949 F.2d at 72 (reviewing district court's order for abuse of discretion).

Although in Vermont PSIs are deemed privileged ² by statute, see 28 V.S.A. § 204(d), we agree with these courts that in some narrow circumstances, the confidentiality of PSIs must yield to a defendant's due process rights. ³ See Trevino, 89 F.3d at 190 (in criminal context, PSIs represent special subcategory of potentially discoverable confidential information); Figurski, 545 F.2d at 391 (concern for rights of defendants and integrity of judicial process in some cases requires overriding confidentiality of PSIs); cf. Pennsylvania v. Ritchie, 480 U.S. 39, 56, 58, 107 S.Ct. 989, 1000-1001, 1002, 94 L.Ed.2d 40 (1987) (due process requires disclosure to defendant of any information material to defense that is in state's confidential investigative file concerning alleged child abuse); In re F.E.F., 156 Vt. 503, 514-15, 594 A.2d 897, 904-05 (1991) (confidential SRS records relating to child abuse investigations are discoverable from prosecution pursuant to V.R.Cr.P. 16); State v. Roy, 151 Vt. 17, 35, 557 A.2d 884, 895 (1989) (leaving open possibility that, in proper case, defendant could have access to confidential internal investigation files of Department of Public Safety). We also agree that requiring in camera examination by the trial court of a requested PSI serves the dual goals of...