T N THE SIJPREME COURT O F THE S T A T E O F MOI\?TANA
S T A T E O F MONTANA,
Plaint i f f a n d R e s p o n d e n t ,
-vs-
GORDON T H I E L ,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e S e v e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of R i c h l a n d ,
T h e H o n o r a . b l e D a l e C o x , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Ira E a k i n , B i l l i n g s , Montana
For R e s p o n d e n t :
Hon. M a r c R a c i c o t , A t t o r n e v G e n e r a l , H e l e n a , M o n t a n a
K a t h y Seeley, A s s t . A t t y . G e n e r a l , H e l e n a
, V i c t o r G. K o c h , C o u n t y A t t o r n e y ; P h i l l i p N . C a r t e r ,
6,
5 D e p u t y C o u n t y A t t o r n e y , Sidney, M o n t a n a
0
0 & c3
S u b m i t t e d on B r i e f s : November 1 7 , 1988
Decided: February 3, 1 9 8 9
'Clerk
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.
Gordon Thiel appeals from the judgment of the District
Court, Seventh Judicial District, County of Richland. We
affirm in part and reverse in part the District Court's
judgment.
Two issues are presented for our consideration:
1. Whether fundamental fairness requires that we
dismiss Counts I through XXIV;
2. Whether Thiel's constitutional rights were violated
by the District Court's refusal to allow him to examine the
file of the assigned social worker.
We agree with Thiel's position on issue one and reverse
the District Court's judgment with regard to Counts I through
XXIV and dismiss those counts. We affirm the convictions on
Counts XXV and XXVI.
This case commenced in 1983. At that time, Thiel was
charged with two counts of sexual intercourse without consent
against his stepdaughter, J.P. Plea negotiations with the
county attorney ensued. The parties agreed that Thiel's
participation in a sexual offender's treatment program would
be a condition of the plea agreement. Therefore, Thiel,
before entering his plea, was evaluated by a psychologist to
determine whether he was amenable to treatment. During the
evaluation Thiel admitted to additional instances of sexual.
misconduct, including the abuse of J.P. 's sibling, T.P.,
several times from 1980 through 1983. This information was
transmitted to the county attorney and defense counsel durinq
the course of plea negotiations. A seven year suspended
sentence was agreed upon rather than a two or three year
deferred sentence as was initially discussed. The record
shews that the increase in t h e sentence recommendation was a
direct result of the new information. In May, 1984, Thiel
entered into a written plea agreement with the State.
Pursuant to the agreement, Thiel pleaded guilty to two counts
of sexual assault against J . P . and received a seven vear
suspended sentence.
Later in July or August, 1984, Thiel had contact with
T.P. and sexually assaulted her. She did not report the
assault at that time. In February or March, 1985, the Thiel
family reunited but in fall of that year T.P. moved out.
Thiel assaulted J . P . sometime in early 1986. The assault was
not reported until October, 1986. When both J . P . and T.P.
were interviewed by authorities, T.P. reported the 1984
assault and the numerous incidents occurring from 1980 to
1983 to which Thiel had already admitted during his
psychological evaluation.
In November, 1986, Thiel was charged with 26 counts of
sexual intercourse without consent. Counts I through XXIV
were based upon Thiel's numerous assaults against T.P. that
occurred from 1981 through 1983. Count XXV was based on the
1984 assault against T.P. and Count XXVI was based on the
1986 assault against J.P. Before trial and prior to voir
dire Thiel moved to dismiss the first 24 counts, arguing they
had been the subject of the earlier plea bargain agreement.
The District Court denied the motion. After the State rested
its case, Thiel renewed the motion to dismiss. The court
took the motion under advisement. Thiel was convicted on all
counts with his motion unresolved. An evidentiary hearing on
Thiel's motion was then held, after which the court issued
findings of fact, conclusions of law, and an order denying
the motion. The court sentenced Thiel to 20 years with all
but 30 days suspended on each of Counts I through XXIV and,
on Counts X T and XXVI, the court sentenced Thiel to ten
XT
vears each. It is from this conviction Thiel appeals.
Thiel first contends that the State is barred from
prosecuting Counts I through XXIV because these offenses were
included in the scope of the 1 9 8 4 plea agreement. He argues
that it is fundamentally unfair to prosecute him for offenses
that were revealed and considered during plea negotiations
and sentencing for the previous charges. We agree.
The facts of this case demonstrate that Thiel's
admission to a treatment program was a prerequisite to the
1 9 8 4 plea bargain with the State. In order to be accepted
into such a program, Thiel was required to undergo an
evaluation of his amenability to treatment. An indication of
his amenability was his willingness to admit his past
behavior. Unless the evaluator believed that he had admitted
all of his offenses, Thiel would not be accepted to the
program. If rejected by the program, plea negotiations would
cease, and Thiel would face a prison sentence or fine.
Hence, in order to ensure the continuance of negotiations,
Thiel waived his right to remain silent and. underwent the
evaluation.
During the evaluation, Thiel revealed several additional
sexual offenses, including the assaults on T.P. This
information was communicated to the county attorney as well
as counsel for the defense. As a result, the sentence agreed
upon by Thiel and the county attorney was set at seven years
suspended rather than two or three deferred as orginallj7
discussed. At the sentencing hearing, the State introduced
copies of the psychological evaluation and a letter from the
psychologist to the social worker in charge of the Thiel
family case. These two documents contained references to
offenses to which Thiel admitted during the evaluation.
Thiel had few options other than to sacrifice his right
to remain silent and reveal his entire past. His revelations
were used to increase his sentence. Fundamental fairness
forbids the State from now prosecuting him for offenses for
which he has essentially already been punished. We therefore
reverse the District Court's judgment with regard to Counts I
through XXIV and dismiss those counts.
Next, Thiel attacks the validity of his conviction on
Counts XXV and XXVI, claiming he was denied a fair trial
because he was not allowed to review the contents of the
assigned social v~orker' file.
s Thiel argues that the
District Court violated his constitutional right to confront
the witnesses against him when it refused to allow him to
examine the entire file.
Section 41-3-205, MCA, governs this issue and reads in
pertinent part as follows:
(1) The case records of the department of social
and rehabilitation services, the department of
family services and its local affiliate, the county
welfare department, the county attorney, and the
court concerning actions taken under this chapter
and all records concerning reports of child abuse
and neglect shall be kept confidential except as
provided by this section. Any person who permits
or encourages the unauthorized dissemination of
their contents is guilty of a misdemeanor.
(2) Records may be disclosed to a court for in
camera inspection if relevant to an issue before
it. The court may permit public disclosure if it
finds such disclosure to be necessary for the fair
resolution of an issue before it.
The constitutionality of 41-3-205, MCA, has not
directly been determined by this Court. The United States
Supreme Court, however, examined a similar statute in
pennsylvania v. Ritchie (1987), 480 U.S. 39, 107 S.Ct. 989,
94 L.Ed.2d 40. The Court concluded that the defendant's
right to confront his accusers - - violated by a
was not
Pennsylvania statute requiring that child abuse investigative
files be kept confidential. The Court stated that as long as
the defendant was not. prevented from cross-examining the
victim, his right to confront witnesses was not violated.
Ritchie, 480 U.S. at 54, 107 S.Ct. at 1000.
Thiel was given wide latitude at trial to cross-examine
all witnesses against him. We agree with the position of the
Court in Ritchie and hold that Montana's child abuse
confidentiality statute as it applies to file review does not
violate a defendant's right to confront his accusers.
Thiel also hints that disclosure of the full file is
compulsory according to law because it may contain exculpa-
tory evidence. This, too, was considered by the United
States Supreme Court in - -
Ritchie. The Court concluded that as
long as the statute allowed the trial court to review the
case worker's files in camera and to release material
information from the file to the accused, the defendant's
interest in ensuring a fair trial was fully protected.
Ritchie, 480 U.S. at 60, 107 S.Ct. at 1003.
The Court expressed the policy underlying this
procedure:
To all-ow full disclosure to defense counsel in this
type of case would sacrifice unnecessarily the
Commonwealth's compelling interest in protecting
its child abuse information. If the CYS records
were made available to defendants, even through
counsel, it could have a seriously adverse effect
on Pennsylvania's efforts to uncover and treat
abuse. Child abuse is one of the most difficult
crimes to detect and prosecute, in large part
because there often are no witnesses except the
victim. A child's feelings of vulnerability and
guilt, and his or her unwillingness to come forward
are particularly acute when the abuser is a parent.
It therefore is essential that the child have a
state-designated person to whom he may turn, and to
do so with the assurance of confidentiality .
Relatives and neighbors who suspect abuse also will
be more willing to come forward if they know that
their identities will be protected. Recognizing
this, the Commonwealth--like all other States--has
made a commendable effort to assure victims and
witnesses that they mav speak to the CYS counselors
without fear of general disclosure. The
Commonwealth's purpose would be frustrated if this
confidential material had to be disclosed upon
demand to a defendant charged with criminal child
abuse, simply because a trial court may not
recognize exculpatory evidence. Neither precedent
nor common sense requires such a result.
Ritchie, 480 U.S. at 60-61, 107 S.Ct. at 1003-04.
At trial, the District Court twice examined in camera
the social worker's file. As does the highest court in the
land, so do we think that the appellant's rights were fully
protected by the District Court's in camera study of the
social worker's file. We affirm on this issue.
We affirm Thiel's conviction on Counts XXV and XXVI,
reverse the judgment on Counts I through XXIV, and remand for
proceedjngs in accordance with this opinion.
We Concur: /
Judge sittinq for Justice
trict Judge, stkg
ifb for
Justice R. C. McDonough -7-