State v. Bacon

State v. Bacon  (96-548); 167 Vt. 88; 702 A.2d 116

[Filed 29-Aug-1997]


       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-548


State of Vermont                             Supreme Court

                                             On Appeal from
    v.                                       District Court of Vermont,
                                             Unit No. 1, Windham Circuit

Christopher L. Bacon                         March Term, 1997


Paul F. Hudson, J.

       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.


PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Allen, C.J.
  (Ret.), Specially Assigned


       JOHNSON, J.   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 Nos. 96-180 & 96-191
  (Vt. Aug. 1, 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., slip op. at 6.  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, 8 Vt. L.W. 179, 179
  (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,(FN1) 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 Titemore 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.  Titemore, slip op. at 5-6.  Nonetheless, we implicitly
  acknowledged, as have many other courts, that the confidentiality of PSIs
  is not absolute.  Id., slip op. at 7; 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 (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. 1988), 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., Inc., 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 (FN2) 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.(FN3)  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
  (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 (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 preserving the confidentiality of PSIs and
  disclosing information that is necessary to the defense of an accused.  See
  Ritchie, 480 U.S.  at 59-60 (defendant's right to discover exculpatory
  evidence does not include unsupervised authority to search through state's
  files; interests of both

 

  defendant and state can be protected by requiring submission of
  confidential records to trial court for in camera review).  Such a
  procedure responds to the concerns expressed here by all involved,
  including defendant, the Department of Corrections, and amicus curiae
  Office of Defender General.

       We therefore hold that where a defendant makes a sufficient showing
  that a PSI may contain information necessary to the defense, the district
  court should review the PSI in camera. The standard for disclosure is the
  same as that discussed by the United States Supreme Court in Ritchie: the
  court should disclose information in the PSI if it is "both favorable to
  the accused and material to guilt or punishment."  Ritchie, 480 U.S.  at 57. 
  Applying this standard, any exculpatory material must be disclosed, while
  disclosure of material tending to impeach a government witness must be
  disclosed "only when there is a reasonable likelihood of affecting the
  trier of the fact."  Figurski, 545 F.2d  at 389.  The trial court's decision
  on disclosure will be disturbed on appeal only if it is clearly erroneous. 
  Trevino, 89 F.3d  at 190.

       A remaining question is what showing a defendant must make to trigger
  in camera review of a PSI by the court.  We recognize that, without seeing
  the document, defense counsel will be hard-pressed to show a compelling
  need for access to information in a PSI.  Nor is a particularly high
  showing required to maintain confidentiality, as only the court reviews the
  PSI at this stage.  See id. at 194 (Phillips, J., dissenting) (in camera
  review by court does not trigger concern for confidentiality). 
  Nonetheless, a defendant seeking information from a PSI must establish some
  basis for the claim that the document contains material evidence.  See
  Ritchie, 480 U.S.  at 58 n.15 (defendant may not require trial court to
  search through confidential files without first establishing basis for
  claim that files contain material evidence).  We conclude that a plausible
  showing of materiality is sufficient to support a request for in camera
  review of a PSI.(FN4)

 

                                    III.

       Based on our holding, the court's order requiring disclosure of the
  PSIs must be vacated; at best, defendant is entitled to have the court
  review the PSIs in camera to determine whether some of the information
  should be disclosed.  We must also consider, however, the Department of
  Correction's argument that defendant has no right of access to the PSIs in
  his sentencing proceeding.  We therefore evaluate the merits of defendant's
  specific request for Gundlah's PSI and the PSIs of other individuals
  sentenced to life-without-parole.(FN5)

       As we have noted, most of the cases dealing with third-party requests
  for PSIs involve defendants seeking information about government witnesses
  for use at trial.  We have found only two reported cases in which a
  defendant sought access to another individual's PSI for use at sentencing. 
  The courts in both cases disposed of the issue summarily on the ground that
  PSIs are confidential reports not generally disclosed to third parties. 
  See United States v. Blanco, 884 F.2d 1577, 1577-78 (3d Cir. 1989); United
  States v. Martinello, 556 F.2d 1215, 1216 (5th Cir. 1977).

       Despite the lack of precedent, we cannot exclude the possibility that
  a defendant could make a plausible showing that information in another
  individual's PSI would be material to sentencing.  See Ritchie, 480 U.S.  at
  57 (government has obligation to turn over evidence in its possession that
  is both favorable to accused and material to guilt or punishment).  For
  example, a defendant might seek review of an accomplice's PSI to support an
  argument that the accomplice was more responsible for the offense.  Or
  another individual's PSI might reveal inaccuracies within a defendant's own
  PSI.

       In this case, however, defendant has made no such showing.  Defendant
  does not claim that the requested PSIs contain information concerning his
  culpability or the aggravating and

 

  mitigating factors that are relevant to sentencing.  See 13 V.S.A. §
  2303(d), (e).  Defendant seeks only to compare himself with other
  individuals who have been sentenced to life-without-parole.(FN6) Even if we
  assume that the PSIs would show that these other individuals were more
  culpable and dangerous than defendant, that information would not be
  material to defendant's sentence.  Sentencing in Vermont is individualized,
  with broad discretion afforded the trial court in fashioning an appropriate
  sentence.  See, e.g., State v. Bushey, 147 Vt. 140, 148, 513 A.2d 1177,
  1182 (1986); State v. Neale, 145 Vt. 423, 435, 491 A.2d 1025, 1033 (1985). 
  The sentencing process may involve a wide-ranging inquiry into a
  defendant's life, background, family relations, financial status, and the
  nature of the offense committed.  See V.R.Cr.P. 32(c) (sentencing
  information); In re Morrill, 129 Vt. 460, 465, 282 A.2d 811, 815 (1971)
  (knowledge defendant's life, background, family, past conduct, record, and
  inclinations is only proper basis for determination of sentence).  The
  focus is properly on the defendant and the offense committed, not on the
  characteristics and behavior of unrelated offenders.

       We do not agree with defendant that concerns for proportionality
  support his request for other individuals' PSIs.  Both the federal and
  state constitutions require that punishments be proportioned to offenses. 
  U.S. Const. amend. VIII; Vt. Const. ch. II, § 39; Solem v. Helm, 463 U.S. 277, 284 (1989); State v. Venman, 151 Vt. 561, 572, 564 A.2d 574, 581
  (1989).(FN7)

 

  A penalty does not violate this constitutional requirement, however, unless
  it is "`clearly out of all just proportion to the offense.'"  Venman, 151
  Vt. at 572, 563 A.2d at ___ (quoting State v. Constantino, 76 Vt. 192, 196,
  56 A. 1101, 1101 (1904)).  Given the seriousness of the offense for which
  defendant was convicted, no sentence of imprisonment could be
  disproportionate.  See Solem, 463 U.S.  at 290 n.15 (no sentence of
  imprisonment disproportionate for crime of felony murder); cf. Harmelin v.
  Michigan, 501 U.S. 957, 1004 (1991) (plurality opinion) (mandatory sentence
  of life imprisonment without possibility of parole not disproportionate to
  offense of possession of over 650 grams of cocaine).  Regardless of the
  results of a comparison with other offenders, defendant would have no
  grounds for a proportionality claim.

       Our decision in Venman does not suggest otherwise.  In Venman, we held
  that a potential ten-year sentence was not disproportionate to the offense
  of Medicaid fraud.  For purposes of both the federal and state
  constitutional claims, we considered the three relevant criteria outlined
  by the United States Supreme Court in Solem: "`(i) the gravity of the
  offense and the harshness of the penalty; (ii) the sentences imposed on
  other [similarly situated] criminals in the same jurisdiction; and (iii)
  the sentences imposed for commission of the same crime in other
  jurisdictions.'"  Venman, 151 Vt. at 572, 564 A.2d  at 581 (quoting Solem,
  463 U.S. at 292).

 


       The second of these criteria, which looks to sentences imposed on
  other criminals in the same jurisdiction, properly refers to sentences
  authorized for other crimes, not the actual sentences imposed on other
  defendants convicted of the same crime.  See Solem, 463 U.S.  at 291 (signal
  that punishment might be excessive is that more serious crimes are subject
  to same or lesser penalty); cf. State v. Saari, 152 Vt. 510, 515-16, 568 A.2d 344, 348 (1989) (mandatory minimum sentences for driving with license
  suspended and simple assault on police officer not disproportionate,
  although other more heinous crimes have no required jail sentence). The
  Solem Court held that a life sentence without possibility of parole was
  disproportionate punishment for a seventh nonviolent felony; in so holding,
  the Court exhaustively reviewed the other crimes for which the state of
  South Dakota authorized life sentences.  Solem, 463 U.S.  at 298-99.  The
  Court noted that the defendant had been treated similarly or more severely
  than other criminals convicted of far more serious crimes.  Id. at 299.  As
  defendant cannot make such a claim, whatever sentence is imposed, he cannot
  support his request for the PSIs on these grounds.

       In fact, the United States Supreme Court has squarely rejected the
  type of argument defendant seeks to make.  In Pulley v. Harris, 465 U.S. 37
  (1984), the petitioner argued that the sentence of death imposed on him was
  disproportionate to the punishment imposed on others for the same crime. 
  The Court held that the Eighth Amendment does not require this type of
  comparative proportionality review of death sentences.  Id. at 50-51.  The
  Court noted that proportionality review traditionally refers to "an
  abstract evaluation of the appropriateness of a sentence for a particular
  crime," not to a comparison with punishment imposed on others for the same
  crime.  Id. at 42-43.

       The United States Supreme Court's holding in Pulley does not close the
  door on defendant's comparative proportionality argument, as this Court is
  free to reach a different result under the Vermont Constitution.  We
  considered such a claim in State v. Dove, 163 Vt. 429, 658 A.2d 936 (1995),
  where the defendant had received an eight-to-fifteen-year sentence for
  careless and negligent driving with serious injury resulting.  He argued
  that his sentence was

 

  disproportionate to the sentences typically imposed on other individuals
  convicted of the same offense or the more serious offense of careless and
  negligent driving with death resulting.  We rejected his statistical
  evidence on this point, noting that the sample was "too small and fail[ed]
  to take into account enough variables to compare sentences imposed for the
  two crimes, let alone to interpret our constitution."  Id. at 432, 658 A.2d 
  at 938-39.

       This is not the proper case in which to decide the full reach of our
  proportionality clause, § 39 of Chapter II.  Whether or not this Court
  would recognize some right to comparative proportionality in sentencing,
  however, we see no basis for defendant's request for the PSIs of three
  unrelated individuals who happened to be sentenced to life-without-parole. 
  In light of the seriousness of defendant's offense and the small number of
  comparable offenders, defendant's proposed comparison would prove little. 
  See id. (sample of twenty-one other offenders too small for comparison). 
  In any event, the information that defendant would need to make such a
  comparison is a matter of public record.  Where a defendant is convicted of
  first-or second-degree murder, the sentencing court must make specific
  findings summarizing the offense and the defendant's participation in it,
  and must also make specific findings concerning aggravating and mitigating
  factors.  13 V.S.A. § 2303(c).

       Defendant also requests access to the PSI of his accomplice, Charles
  Gundlah.  As a general matter, there is a much stronger basis for a request
  for in camera review of the PSI of an accomplice.  Defense counsel may have
  good reason to believe that an accomplice's PSI contains information about
  a defendant, such as information about motives or relative responsibility
  for the crime.  We conclude that the court should review Gundlah's PSI in
  camera and disclose any information material to defendant's sentence.

 

       Order requiring Department of Corrections to distribute the PSIs
  requested by defendant is vacated; on remand, court shall obtain and review
  Charles Gundlah's PSI in camera and disclose any information material to
  defendant's sentence.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice


  ----------------------------------------------------------------------------
                                  Footnotes



FN1.  The court did not allow defendant to review the PSIs. The Office
  of Defender General, in its amicus brief, argues that defendant should be
  permitted access to any PSIs disclosed by the court for use at sentencing. 
  Defendant did not request such access, nor does he contest this portion of
  the court's order on appeal.

FN2.  The Department of Corrections does not argue that 28 V.S.A. §
  204(d) creates an evidentiary privilege.  See State v. Roy, 151 Vt. 17, 32,
  557 A.2d 884, 893 (1989) (statutory provision that deems "confidential"
  certain internal files of Department of Public Safety creates form of
  evidentiary privilege in court proceeding).

FN3.  Defendant does not argue that V.R.Cr.P. 16 requires the state's
  attorney to produce the PSIs at issue, presumably because the PSIs are in
  the possession of the Department of Corrections.  Cf. State v. Roy, 151 Vt.
  17, 34, 557 A.2d 884, 894-95 (1989) (where defendant sought access to
  records of Department of Public Safety, proper procedure was to attempt to
  subpoena records, rather than ask prosecution to produce file that it did
  not have and could not obtain); but cf. In re F.E.F., 156 Vt. 503, 511-12,
  594 A.2d 897, 903 (1991) (as SRS regularly provides information to state's
  attorney on alleged child abuse, and works closely with state's attorney in
  criminal and juvenile matters, SRS files are discoverable from prosecution
  pursuant to V.R.Cr.P. 16(c)).

FN4.  We do not agree with the Trevino court that a defendant seeking
  information from a PSI must make a higher showing of materiality than
  required by Ritchie.  See United States v. Trevino, 89 F.3d 187, 192 (4th
  Cir. 1996).  We are not convinced that defense counsel would be able to
  "plainly articulate how the information contained in [the PSI] will be both
  material and favorable," id. at 192-93, without actually seeing the
  document.

FN5.  Now that we have established a procedure for handling requests
  such as these, we expect that this type of review will be atypical.  In
  general, the decision whether to grant or deny a request for review of a
  PSI is committed to the sound discretion of the trial court, and will not
  be reversed absent a showing that the court abused or withheld its
  discretion.  See United States v. Trevino, 89 F.3d 187, 193 (4th Cir.
  1996).

FN6.  Much of the information that defense counsel seeks should be
  available through other sources.  As sentencing proceedings and documents
  filed by the parties in connection with those proceedings are generally
  public, see State v. Densmore, 160 Vt. 131, 136, 624 A.2d 1138, 1141
  (1993), counsel should be able to review the arguments made by the parties
  in the other proceedings.  See 13 V.S.A. § 2303(c) (before sentencing
  defendant for first- or second-degree murder, court shall allow parties to
  present arguments concerning aggravating and mitigating factors and
  sentence recommendations).  In addition, sentencing courts in such cases
  are required to make written findings summarizing the offense and the
  defendant's participation in it, as well as specific findings concerning
  aggravating and mitigating factors.  Id.

FN7.  We recognize that the United States Supreme Court's fractured
  decision in Harmelin v. Michigan, 501 U.S. 957 (1991), casts doubt on the
  continuing validity of Solem v. Helm, 463 U.S. 277, 284 (1983).  Two of the
  justices concurring in the judgment in Harmelin argued that Solem was
  decided incorrectly, and concluded that the Eighth Amendment contains no
  proportionality guarantee.  Harmelin, 501 U.S.  at 965 (Scalia, J.,
  concurring in judgment, joined by Rehnquist, C.J.).  Three of the justices
  concurring in the judgment appeared to narrow the Solem analysis,
  emphasizing that the overriding consideration in proportionality claims is
  the comparison of the crime committed and the sentence imposed.  Id. at
  1005 (plurality opinion). According to the plurality, only where this
  threshold comparison "leads to an inference of gross disproportionality"
  should a court engage in interjurisdictional and intrajurisdictional
  comparisons.  Id.  For several reasons, for purposes of this opinion we
  adhere to the analysis set out in Solem and adopted by this Court in State
  v. Venman, 151 Vt. 561, 572, 564 A.2d 574, 581 (1989).  First, even if we
  assume that the Harmelin plurality opinion is controlling federal
  precedent, the result in this case does not change.  Comparing the crime
  committed by defendant, felony-murder, to the harshest possible sentence of
  life-without-parole, does not lead to an inference of gross
  disproportionality.  Defendant thus has no claim under Harmelin that a
  sentence of life-without-parole would violate his Eighth Amendment rights. 
  Second, in Venman we adopted the Solem factors for purposes of analysis
  under the Vermont Constitution. Id.  We have not reconsidered that holding
  in light of Harmelin, so our decision in Venman continues to control any
  claim by defendant under the Vermont Constitution.  Finally, Solem has not
  been explicitly overruled.  The Supreme Court recently reaffirmed that
  other courts should leave to the high Court "`the prerogative of overruling
  its own decisions.'"  Agostini v. Felton, 65 U.S.L.W. 4524, 4533 (U.S. June
  24, 1997) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc.,
  490 U.S. 477, 484 (1989)).  The Court emphasized that other courts should
  not conclude that its more recent cases overrule by implication earlier
  precedent. Id.