State v. Sandstrom, s. 49268

• Decision Date: 21 July 1978
• Docket Number: 49660,Nos. 49268,s. 49268
• Parties: , 4 Media L. Rep. 1333 STATE of Kansas, Plaintiff-Appellee, v. Milda R. SANDSTROM, Defendant-Appellant. Application of Joe PENNINGTON. Application of Joe PENNINGTON for a Writ of Habeas Corpus, Petitioner-Appellant, v. F. T. (Jim) CHAFFEE, Sheriff of Shawnee County, Kansas, Respondent-Appellee.
• Court: Kansas Supreme Court

Page 812

581 P.2d 812

224 Kan. 573, 4 Media L. Rep. 1333

STATE of Kansas, Plaintiff-Appellee, v. Milda R. SANDSTROM, Defendant-Appellant.

Application of Joe PENNINGTON.

Application of Joe PENNINGTON for a Writ of Habeas Corpus,

Petitioner-Appellant, v. F. T. (Jim) CHAFFEE, Sheriff of Shawnee County, Kansas,

Respondent-Appellee.

Nos. 49268, 49660.

Supreme Court of Kansas.

July 21, 1978.

Syllabus by the Court

1. A newsperson has a limited privilege of confidentiality of information and identity of news sources. The existence of the privilege in a particular criminal case depends upon a balancing of the need of a defendant for a fair trial against the reporter's need for confidentiality.

2. The scope of discovery is to be liberally construed so as to provide the parties with information essential to litigation to insure defendant a fair trial; therefore, the scope of relevancy in a discovery proceeding is broader than the scope of relevancy at trial. Relevant evidence in discovery may include information which is not admissible at trial, but which appears to be reasonably calculated to lead to the discovery of admissible evidence.

3. To find the trial court abused its discretion an appellate court must determine that no reasonable person could take the view adopted by the trial court.

Robert Hall, of Adams, Jones, Robinson & Malone, Chartered, Wichita, and Carl C. Monk, of the New York bar, argued the cause, and were on the brief for appellant.

Frank Yeoman, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Gene M. Olander, Dist. Atty., were on the brief for appellee.

Carl C. Monk, Topeka, was on the brief of the American Civil Liberties Union of Kansas as amicus curiae.

Gerrit H. Wormhoudt, Wichita, was on the brief of the Wichita Eagle & Beacon Publishing Co., Inc., as amicus curiae.

Michael D. Gragert and Russell W. Davisson, Wichita, were on the brief of the Society of Professional Journalists, Sigma Delta Chi, as amicus curiae.

OWSLEY, Justice.

This is an appeal from the trial court's finding that petitioner Joe Pennington, a news reporter, was in direct criminal contempt for refusing to disclose the identity of a confidential news source. Petitioner filed a direct appeal and a petition for writ of habeas corpus in the court of appeals. The writ was denied. (In re Pennington, 1 Kan.App.2d 682, 573 P.2d 1099 (1977).) Petition for review was granted by this court and upon motion the petition and direct appeal were consolidated for decision.

The issue on review is whether a news reporter has a First and Fourteenth Amendment privilege to protect the identity of a confidential news source.

This controversy arises from a murder case. On May 3, 1977, Thad Sandstrom, a nationally recognized broadcast executive, was found shot to death in his Topeka home. Shortly thereafter, his wife, Milda, was charged with first degree murder. The case came to jury trial on November 14, 1977. At the beginning of trial her defense counsel filed a motion with the trial court to compel petitioner to reveal the identity of a confidential news source. On November 16, petitioner appeared in response to a subpoena. A motion to quash the subpoena was denied.

Under questioning, petitioner revealed that he came to Topeka from Wichita after the Sandstrom murder to investigate a possible story. While in Topeka he came in contact with his confidential news source, the informant, who told petitioner he had been at a party shortly before Sandstrom's death where a state's witness in the Sandstrom murder trial had threatened to kill Sandstrom. The informant, although present at the party, had not actually heard the threat but had been told of it by someone who had heard the threat. Although petitioner testified as to the approximate date, time, and place of the gathering, he refused to divulge the identity of his informant. Petitioner was found in direct criminal contempt of court and sentenced to sixty days in jail.

The trial court ruled that in a criminal case the petitioner did not have a privilege to refuse to disclose the identity of an informant and, even if he had a limited privilege, the need for the information outweighed petitioner's privilege of confidentiality.

We believe a newsperson has a limited privilege of confidentiality of information and identity of news sources, although such does not exist by statute or common law. The United States Supreme Court recognized the privilege in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). That decision was a review of a trilogy of cases. In Branzburg v. Pound, 461 S.W.2d 345 (Ky.1970), a reporter wrote a story describing his observation of two persons making hashish. As a condition to observing the process the two demanded confidentiality. A grand jury investigating drug traffic subpoenaed the reporter and demanded the names of the two persons. The case of In re Pappas, 358 Mass. 604, 266 N.E.2d 297 (1971), involved a news reporter who had witnessed civil disturbances while investigating a news story inside a Black Panthers headquarters. When summoned to appear before the grand jury he refused to divulge what he had seen while inside the headquarters, including the identity of the persons he had observed. The last case, Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), arose from a grand jury investigation of numerous crimes, including threats against the President of the United States, mail fraud, and interstate travel to incite a riot. Again, the news reporter had been assigned to cover Black Panther activities and had witnessed the alleged violations.

The majority opinion in Branzburg was written by Mr. Justice White, who was joined by three other justices. In its holding the court recognized the importance of the free flow of information to insure the viability of the freedom of the press, but recognized that a grand jury may require a news reporter to give testimony on all relevant matters which the grand jury is investigating, just as any other citizen is required to do. In a concurring opinion, Mr. Justice Powell sought to explain the holding of the majority, stating:

". . . The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions." (408 U.S. p. 710, 92 S.Ct. p. 2671.)

Courts applying Branzburg to criminal cases have generally concluded that the proper test for determining the existence of a reporter's privilege in a particular criminal case depends upon a balancing of the need of a defendant for a fair trial against the reporter's need for confidentiality. (United States v. Pretzinger, 542 F.2d 517, 520 (9th Cir. 1976); United States v. Liddy, 155 U.S.App.D.C. 382, 383, 478 F.2d 586, 587 (1972); United States v. Orsini, 424 F.Supp. 229, 232 (E.D.N.Y.1976), aff'd 559 F.2d 1206 (2d Cir. 1977), cert. denied 434 U.S. 997, 98 S.Ct. 636, 54 L.Ed.2d 491; United States v. Liddy, 354 F.Supp. 208, 215 (D.D.C.1972); Rosato v. Superior Court of Fresno County, 51 Cal.App.3d 190, 124 Cal.Rptr. 427 (1975), cert. denied 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204 (1976); Farr v. Superior Court, County of Los Angeles, 22 Cal.App.3d 60, 99 Cal.Rptr. 342 (1971), cert. denied 409 U.S. 1011, 93 S.Ct. 430, 34 L.Ed.2d 305 (1972); Morgan v. State, 337 So.2d 951, 954 (Fla.1976); Morgan v. State, 325 So.2d 40, 43 (Fla.App.1975); People v. Marahan, 81 Misc.2d 637, 368 N.Y.S.2d 685 (1975).) Whether a defendant's need for the confidential information or the identity of its source outweighs the reporter's privilege depends on the facts of each case. As a general rule, disclosure has been required only in those criminal cases where it is shown the information in possession of the news reporter is material to prove an element of the offense, to prove a defense asserted by the defendant, to reduce the classification or gradation of the offense charged, or to mitigate or lessen the sentence imposed. When the information sought has a bearing in one of these areas, the newsperson's privilege must yield to the defendant's rights to due process and a fair trial. (See, State v. St. Peter, 132 Vt. 266, 315 A.2d 254 (1974); Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429 (1974), cert. denied 419...