State v. LaBounty

• Decision Date: 01 August 1997
• Docket Number: Nos. 96-180,96-191,s. 96-180
• Citation: 167 Vt. 25,702 A.2d 82
• Court: Vermont Supreme Court
• Parties: , 26 Media L. Rep. 1537 STATE of Vermont v. Aime Bruce LaBOUNTY (96-180), Larry Titemore (96-191), and Caledonian-Record Publishing Co., Inc., Intervenor.

Page 82

702 A.2d 82

167 Vt. 25, 26 Media L. Rep. 1537

STATE of Vermont v. Aime Bruce LaBOUNTY (96-180), Larry Titemore (96-191), and Caledonian-Record Publishing Co., Inc., Intervenor.

Nos. 96-180, 96-191.

Supreme Court of Vermont.

Aug. 1, 1997.

Jeffrey L. Amestoy, Attorney General, Montpelier, Donal F. Hartman, Jr. and John R. Treadwell, Assistant Attorneys General, Waterbury, for plaintiff-appellee.

Philip H. White of Wilson & White, P.C., Montpelier, for intervenor-appellant Caledonian-Record Publishing Co., Inc.

Charles S. Martin of Martin & Associates, Barre, for defendant-appellee LaBounty.

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

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

JOHNSON, Justice.

Before us on appeal are requests by intervenor Caledonian-Record Publishing Co., Inc., a newspaper publisher, for access to presentence investigation reports (PSIs) prepared in connection with two separate criminal proceedings. In both cases, the trial courts denied access on the ground that confidentiality of PSIs is protected by statute. See 28 V.S.A. § 204(d). We are thus required to resolve the question we left open in State v. Densmore, 160 Vt. 131, 624 A.2d 1138 (1993): whether the qualified First Amendment right of access that attaches to documents submitted by parties in sentencing hearings extends to PSIs prepared at the request of, and for the benefit of, the sentencing court. See id. at 135, 137-38, 624 A.2d at 1141-42. We conclude that PSIs are not subject to the qualified right of access recognized in Densmore, and accordingly, affirm the decisions below.

The relevant facts in this matter may be briefly recited. Defendant Titemore pled nolo contendere to several charges of embezzlement, 13 V.S.A. § 2531, and one charge of moving a body without a permit, 18 V.S.A. § 5211, and prior to sentencing, the district court ordered a PSI. See V.R.Cr.P. 32(c)(1). Through a written memorandum filed by counsel, Titemore objected strenuously to portions of the PSI. See id. 32(c)(4). The court continued the sentencing hearing to allow the State and the probation officer who prepared the PSI to respond to Titemore's objections. In the interim, the Caledonian-Record moved to intervene, seeking access to the PSI. Following a hearing, the court issued a written decision denying the request.

Defendant LaBounty was convicted by a jury of two counts of sexual assault on a minor, 13 V.S.A. § 3252(a)(3), and again the court ordered a PSI. Prior to sentencing, the Caledonian-Record moved to intervene and requested access to the PSI. The LaBounty court denied the request without a hearing, adopting the opinion of the district court in Titemore. The Caledonian-Record appealed both rulings.

I.

Before proceeding further, we deem it helpful to review the nature of PSIs and their role in the criminal justice process. By statute and rule, the court is authorized, and generally required, to order the Commissioner of Corrections to prepare a PSI prior to sentencing a defendant. See 28 V.S.A. § 204(a)-(c); V.R.Cr.P. 32(c)(1). These reports, typically compiled by a probation officer, are "intended to furnish a case history of the defendant to the court before it imposes sentence." State v. Rathburn, 140 Vt. 382 388, 442 A.2d 452, 455 (1981); see also In re Shuttle, 131 Vt. 457, 460, 306 A.2d 667, 669 (1973) (presentence report aids sentencing court by furnishing case history of defendant). We have described their purpose as providing " 'the sentencing judge the fullest possible information concerning the defendant's life and characteristics so that [the judge] may be able to impose an appropriate sentence.' " State v. Ramsay, 146 Vt. 70, 78, 499 A.2d 15, 20 (1985) (quoting United States v. Burton, 631 F.2d 280, 282 (4th Cir.1980)); see also State v. Chambers, 144 Vt. 377, 383, 477 A.2d 974, 978-79 (1984) (PSIs provide sentencing court with succinct, precise information upon which to base rational sentencing decision). Specifically, "[t]he report should include any prior criminal record of the defendant and information on his characteristics, financial condition, behavior, or any other factors necessary to enable the court to impose an appropriate sentence." Chambers, 144 Vt. at 383, 477 A.2d at 979; see 28 V.S.A. § 204(a); V.R.Cr.P. 32(c)(2).

In Vermont as well as other jurisdictions, disclosure of PSIs has traditionally been narrowly limited. See 28 V.S.A. § 204(d) (designating PSIs as "privileged" and restricting disclosure); Densmore, 160 Vt. at 135, 624 A.2d at 1141 (rules of criminal procedure designed to assure confidentiality of presentence reports); United States v. Corbitt, 879 F.2d 224, 229 (7th Cir.1989) (in federal system, presentence reports have traditionally been confidential). Until 1973, the effective date for V.R.Cr.P. 32, the court was not obligated to disclose the PSI to defendant, defense counsel, or the state's attorney. See 28 V.S.A. § 204(d); Reporter's Notes, V.R.Cr.P. 32; cf. Corbitt, 879 F.2d at 229 (in federal system, for many years defendant had no right of access to PSI). We have loosened these restrictions somewhat to grant defendants, as well as defense counsel and state's attorneys, access to PSIs. See V.R.Cr.P. 32(c)(3). The change was "justified by the demands of fundamental fairness." Reporter's Notes, V.R.Cr.P. 32. A defendant has a constitutional right not to be sentenced on the basis of materially untrue information, Ramsay, 146 Vt. at 78, 499 A.2d at 20, and therefore "must have the opportunity to ascertain that the sentence is based on accurate and adequate information and to respond to any accusation against him." Reporter's Notes, V.R.Cr.P. 32; see V.R.Cr.P. 32(c)(4) (outlining defendant's right to comment on PSI; procedure for offering evidence on contested facts). Although requiring some disclosure of PSIs, we have nonetheless continued to recognize, in our rules and our decisions, that PSIs are confidential and should not be made public. See V.R.C.P. 32(c)(5) (copies of PSI made available to defendant, defense counsel, or state's attorney must be returned to probation officer immediately following imposition of sentence; no additional copies of PSI may be made); Densmore, 160 Vt. at 135, 624 A.2d at 1141 (discussing confidentiality of presentence reports).

II.

It is against this background that we must consider the Caledonian-Record's request for access to the Titemore and LaBounty PSIs. Recognizing that 28 V.S.A. § 204(d) appears to bar public access to PSIs, ¹ the Caledonian-Record argues that a qualified First Amendment right of access attaches to PSIs, and overrides the statutory privilege. ² In support of its argument, the Caledonian-Record relies on Densmore, 160 Vt. at 136, 624 A.2d at 1141, where we held that "documents submitted by the parties in sentencing hearings are subject to a qualified right of inspection by the public." As PSIs are prepared at the request of and for the benefit of the court, our holding in Densmore did not apply to those documents. Id. at 135-36, 624 A.2d at 1141.

The United States Supreme Court has recognized a qualified First Amendment right of access to criminal proceedings, and has developed a two-part test for determining whether the right attaches to a particular proceeding. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1 (1986) (Press-Enterprise II ). The qualified right attaches if, first, "the place and process have historically been open to the press and general public," and second, "public access plays a significant positive role in the functioning of the particular process in question." Id. at 8, 106 S.Ct. at 2740. Although the Supreme Court has not extended this right to include documents submitted in connection with criminal proceedings, the federal courts of appeal have generally applied the same analysis to documents. See, e.g., Corbitt, 879 F.2d at 228; In re Washington Post Co., 807 F.2d 383, 389-90 (4th Cir.1986). Accordingly, we adopted the Press-Enterprise II test in Densmore to evaluate the public's right of access to a psychosexual evaluation submitted by a defendant at sentencing. Densmore, 160 Vt. at 134, 624 A.2d at 1140.

We do not agree, however, that our holding in Densmore should simply be extended to require full disclosure of PSIs. PSIs are not court documents in the usual sense; they are not prepared or filed by the parties, see id. at 135-36, 624 A.2d at 1141, and they do not become part of the public record of a case. In light of these unique characteristics, any right of access to PSIs must be evaluated separately from the public's right to attend sentencing proceedings and inspect documents filed by the parties in those proceedings. See Corbitt, 879 F.2d at 228-29 (public's right to disclosure of presentence reports must be considered independently of public's right of access to sentencing hearings).

Considering the Caledonian-Record's request in light of the Press-Enterprise II test, the first prong of that test is not met. Both federal and state courts have repeatedly recognized the confidential nature of PSIs, and have refused to disclose them to third parties. See, e.g., United States v. Julian, 486 U.S. 1, 12, 108 S.Ct. 1606, 1613, 100 L.Ed.2d 1 (1988) (recognizing need to protect confidentiality of information contained in PSIs and noting that courts have been very reluctant to disclose them to third parties); Corbitt, 879 F.2d at 229-30 (discussing factors supporting confidentiality of PSIs); Halacy v. Steen, 670 A.2d 1371, 1374 (Me.1996) (noting that both Maine courts and federal courts have historically treated PSIs as confidential). More importantly, as we have already discussed, in Vermont PSIs are privileged by statute and their disclosure has traditionally been restricted. As PSIs historically have not been open to the press and public,...