State v. Davis

• Citation: 720 So.2d 220
• Decision Date: 22 October 1998
• Docket Number: No. 90457,90457
• Parties: 23 Fla. L. Weekly S557, 26 Media L. Rep. 2457 STATE of Florida, Petitioner, v. Merlan DAVIS, Respondent.
• Court: United States State Supreme Court of Florida

Page 220

720 So.2d 220

23 Fla. L. Weekly S557, 26 Media L. Rep. 2457

STATE of Florida, Petitioner, v. Merlan DAVIS, Respondent.

No. 90457.

Supreme Court of Florida.

Oct. 22, 1998.

Robert A. Butterworth, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Helene S. Parnes, Assistant Attorney General, Tampa, and Patricia R. Gleason, General Counsel, Office of the Attorney General, Tallahassee, for Petitioner.

James Marion Moorman, Public Defender and Allyn Giambalvo, Assistant Public Defender, Tenth Judicial Circuit, Clearwater, for Respondent.

Jonathan D. Kaney, Jr. and Jonathan D. Kaney III of Cobb, Cole & Bell, Daytona Beach, Florida, and Talbot D'Alemberte, Tallahassee, for News-Journal Corporation and First Amendment Foundation, Amici Curiae.

Patricia Fields Anderson of Rehdert, Anderson, McGowan & Steele, P.A., St. Petersburg, Florida, and Talbot D'Alemberte, Tallahassee, for Times Publishing Company and Diane Mason, Amicus Curaie.

Raymond Ehrlich, Sanford L. Bohrer, Gregg D. Thomas, and David S. Bralow of Holland & Knight LLP, Tampa, for Cape Publications, Inc., d/b/a Florida Today; Fernandina Beach News-Leader, Inc.; Florida Society of Newspaper Editors; Gainesville Sun Publishing Company; Jacksonville Television, Inc., d/b/a WJWB-TV Channel 17; Knight-Ridder, Inc., d/b/a The Miami Herald; Lake City Reporter, Inc.; Lakeland Ledger Publishing Corp.; Marco Island Eagle; News-Press Publishing Co.; Ocala Star-Banner Corp.; Pacific and Southern Co., Inc., d/b/a WTSP-TV; The Palatka Daily News, Inc.; Pensacola News-Journal, Inc.; Sarasota Herald-Tribune Co.; Sun-Sentinel Co.; Tampa Television, Inc., d/b/a WFLA-TV Channel 8; Television 12 of Jacksonville, Inc., d/b/a WTLV-TV; Tribune Co., d/b/a The Tampa Tribune; and WFTV,Inc., d/b/a WFTV and The Palm Beach Post, Amici Curiae.

OVERTON, Justice.

We have for review Davis v. State, 692 So.2d 924 (Fla. 2d DCA 1997), in which the Second District Court of Appeal held that the qualified reporter's privilege has no application in a criminal proceeding unless the privilege is based on the potential implication of a confidential source. In applying that holding to the instant case, the district court found that Merlan Davis, a defendant, was entitled to depose a reporter regarding evidence relevant and material to his case because the reporter had interviewed the victim and had published an article about the interview. The court vacated Davis's conviction and sentence and then certified the following question as being one of great public importance:

IN LIGHT OF THE DECISIONS IN CBS, INC. V. JACKSON, 578 So.2d 698 (Fla.1991), AND MIAMI HERALD [PUBLISHING] CO. V. MOREJON, 561 So.2d 577 (Fla.1990), DOES FLORIDA LAW PROVIDE A QUALIFIED REPORTER'S PRIVILEGE AGAINST THE DISCLOSURE OF NONCONFIDENTIAL INFORMATION RELEVANT TO A CRIMINAL PROCEEDING?

Id. at 925. For the reasons expressed, we answer the question in the affirmative, finding that the qualified reporter's privilege in Florida applies to factual situations involving both nonconfidential and confidential information. In reaching this conclusion, we stress that a defendant's constitutional rights to "compulsory process" and "due process" are significant factors that must be considered in determining whether the qualified reporter's privilege will act to preclude the disclosure of the information. Accordingly, under the balancing test set forth later in this opinion, we conclude that the privilege did not apply under the facts of this case but that any error in applying the privilege was harmless.

In answering this question and in clarifying the qualified reporter's privilege in Florida through today's opinion, we emphasize the strong responsibility of the courts to protect the rights of a free press under the principles evolving from the United States Supreme Court's decision in Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). That decision made clear that courts must protect the press from government intimidation and from laws that effectively constitute a prior restraint on the publication of information. Moreover, as the Court stated in Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), "[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated." However, the Court also noted in Branzburg that "the First Amendment does not invalidate every incidental burdening of the press," nor does a reporter have a special privilege to invade the rights and liberties of others. 408 U.S. at 682-83, 92 S.Ct. 2646.

FACTS

The district court summarized the incident that created the significant issue raised by this case as follows:

The events underlying Davis's conviction began with the January 1990 termination of his romantic relationship with Nicole Terry. In the months following, Davis's behavior towards Terry became increasingly hostile and in May of 1991 she successfully petitioned for an injunction proscribing future contact. The record indicates that Davis largely ignored the injunction. Specifically, on December 27, 1991, while in her car driving over the Skyway Bridge, Terry observed Davis following closely behind her. An erratic and reckless chase ensued. The chase abruptly finished when Davis's car collided with the rear of Terry's. Throughout the proceedings below, Davis has consistently seized upon Terry's admission that she stepped on her car brakes just before the accident--the implication being that she intended and, in fact, caused Davis to strike the rear of her car.

Davis, 692 So.2d at 925. The accident and related events were the focus of pretrial media attention addressing in part the problems of domestic violence. Diane Mason, a reporter for The St. Petersburg Times, interviewed the victim, Nicole Terry. Mason then authored a story entitled "No Way Out," which included pictures, set forth details of the collision, and quoted comments made directly to her by the victim.

Prior to trial, Davis attempted to depose Mason regarding statements made to her by the victim. By that time, however, Mason was no longer employed by The St. Petersburg Times, and the newspaper refused to provide information to Davis regarding her whereabouts, contending that any conferences Mason had with the victim were protected under the qualified reporter's privilege. This resulted in Davis's filing a motion for subpoena duces tecum. At the hearing on that motion, Davis's counsel stated:

And Diane Mason of the St. Pete Times did quite a lengthy article with large color photographs and so forth of this relationship and of this case.... And Diane Mason in her article, refers to the moment just before the collision actually occurred--clearly she spoke to the victim about how the collision occurred. I tried to contact Diane Mason and was advised by the St. Pete Times that she no longer works for them, that they would pass on correspondence. They wouldn't tell me where she was, but they would pass on correspondence. I sent correspondence to In response, counsel for The St. Petersburg Times and Mason argued that, under Tribune Co. v. Green, 440 So.2d 484 (Fla. 2d DCA 1983), the information was protected. In Green, the district court adopted a three-prong test for determining when a reporter is privileged from testifying. Under the test, the moving party must establish that (1) the reporter possesses relevant information; (2) the same information is not available from alternative sources; and (3) the movant has a compelling need for any information the reporter may have. Id. at 485. The district court in Green concluded that the three-prong test is applicable to any proceeding in which information is being sought from a reporter regardless of whether the proceeding is criminal or civil or whether the information sought was obtained from a confidential or nonconfidential source of information.

her through the St. Pete Times. The response came from counsel for the St. Pete Times in essence saying that anything, any conferences she had with Nicole Terry carry a qualified privilege, that they would not divulge the whereabouts of Diane Mason, that there would be no cooperation in any way in that regard.

The trial court in this case found that Green controlled. It then concluded that Davis had failed to meet the three-prong test because he had failed to establish that the same information was not available from an alternative source. This finding was based on Davis's concession that the victim had admitted to another witness that she purposely caused the collision. ¹

On appeal, the district court of appeal reversed, finding that its decision in Green was no longer viable in light of this Court's decisions in Miami Herald Publishing Co. v. Morejon, 561 So.2d 577 (Fla.1990), and CBS, Inc. v. Jackson, 578 So.2d 698 (Fla.1991), which, according to the district court, limited the application of a qualified reporter's privilege only to situations implicating a confidential source.

THE QUALIFIED REPORTER'S PRIVILEGE--BRANZBURG

The qualified reporter's privilege in Florida finds its origins in the United States Supreme Court plurality opinion in Branzburg. In Branzburg, the Supreme Court addressed the question of whether requiring a reporter to testify before a grand jury regarding information about criminal activity obtained from a confidential source violated the First Amendment guarantees of freedom of speech and freedom of the press. The criminal activity for which the reporters in Branzburg were to be questioned involved their personal observation of the making of hashish, conversations and observations concerning the use and sale of drugs, and interviews and observations concerning subversive activities of the Black Panther Party. In claiming protection under the First Amendment, the reporters argued that, if they were forced to reveal the identity of their sources of information and to...