WBAL-TV Div., Hearst Corp. v. State, WBAL-TV

• Decision Date: 01 September 1984
• Docket Number: WBAL-TV,No. 8,8
• Citation: 477 A.2d 776,300 Md. 233
• Parties: , 10 Media L. Rep. 2121 DIVISION, THE HEARST CORPORATION v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 233

300 Md. 233

477 A.2d 776, 10 Media L. Rep. 2121

WBAL-TV DIVISION, THE HEARST CORPORATION v. STATE of Maryland.

No. 8, Sept. Term, 1984.

Court of Appeals of Maryland.

Per Curiam Order April 6, 1984.

Opinion July 12, 1984.

Theodore Sherbow, Baltimore (Peter A. Cotorceanu, Henry R. Abrams, Michael P. Smith and Weinberg & Green, Baltimore, on the brief), for appellant

Douglas D. Connah, Jr., Elizabeth C. Honeywell and Venable, Baetjer & Howard, Baltimore, on the brief, amicus curiae for Westinghouse Broadcasting and Cable, Inc.

Peter F. Axelrad, Robert B. Levin, David E. Beller, Thomas M. Wood, IV and Frank, Bernstein, Conaway & Goldman Kathleen Howard Meredith, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, Sandra O'Connor, State's Atty. for Baltimore County and Dana M. Levitz, Asst. State's Atty. for Baltimore County, Towson, on the brief), for appellee.

and William L. Reynolds, Baltimore, of counsel, on the brief, amicus curiae for WMAR, Inc.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

MURPHY, Chief Judge.

ORDER

PER CURIAM.

For reasons to be stated in an opinion later to be filed, it is this 6th day of April, 1984

ORDERED, by the Court of Appeals of Maryland, that the order of the Court of Special Appeals of Maryland granting the motion to stay the contempt order of the Circuit Court for Somerset County be, and it is hereby, vacated as of 4:00 p.m. Monday, April 9, 1984 and the judgment of the Circuit Court for Somerset County is hereby affirmed; and it is further

ORDERED that the mandate shall issue forthwith, costs to be paid by the appellant.

OPINION

MURPHY, Chief Judge.

At issue in this case is whether the trial court erred by refusing to quash a summons issued to a television station to produce the unbroadcast portions of a video taped interview with a criminal defendant for possible use at his trial. By per curiam order dated April 6, 1984, we affirmed the judgment below. We now give our reasons for that determination.

I.

On April 28, 1983, Scott Piechowicz and his sister-in-law, Susan Kennedy, were murdered at the Warren House Motel in Pikesville, Maryland. A federal indictment was subsequently returned against Anthony Grandison on May 27, 1983, charging inter alia that he solicited and procured another to kill Piechowicz and Piechowicz' wife Cheryl to prevent them from testifying against him at his pending federal trial on drug charges. On June 30, 1983, Grandison was indicted by a Baltimore County Grand Jury for first degree murder in connection with the murders of Scott Piechowicz and Susan Kennedy.

Grandison was convicted in the United States District Court for the District of Maryland on November 3, 1983 of conspiring to deprive Piechowicz and his wife of their constitutional rights--the conspiracy having resulted in the contract murder of Piechowicz, and mistakenly, Susan Kennedy. Dana Levitz, an Assistant State's Attorney for Baltimore County, acted as Special Assistant United States Attorney and actively participated in the federal trial.

On November 17, 1983, Grandison, in writing, granted "complete authorization to be interviewed by the news media." Thereafter, on November 30, 1983, Linda Mann, a reporter for WBAL-TV (WBAL), conducted a video taped interview with Grandison at his place of incarceration. The video tapes were subsequently edited for broadcast and short excerpts (approximately ten percent of the total interview) were broadcast that evening on the local TV news.

On December 9, 1983, the State's Attorney for Baltimore County, acting through Levitz, requested that a summons be issued to the custodian of records of WBAL to produce the video taped interview between Mann and Grandison, including the "outtakes," i.e., those unbroadcast segments of the interview. WBAL moved to quash the summons, contending that as a news organization it enjoyed a qualified first amendment and state constitutional privilege ¹ against being compelled to testify or to produce information about news gathering activities or the editorial process. The qualified privilege, according to WBAL, could be overcome only by a three-fold showing of need by the State: (1) that the information sought by the State was relevant and material to the trial and admissible in evidence; (2) that the information sought by the State was essential to a determination of guilt or innocence of the accused; and (3) that the information was not otherwise available to the State from alternative sources. It was WBAL's position that because Levitz had acted as Special Assistant United States Attorney in the federal case, and was participating in the state prosecution, all the facts necessary to a successful state prosecution were available to the State and, therefore, the requested outtakes were not essential to a determination of Grandison's guilt or innocence.

At the hearing on February 27, 1984, in the Circuit Court for Somerset County, to which the case had been removed, the State made clear that it sought only the video tapes of the verbatim statements made by Grandison to Mann. It argued that WBAl had no qualified first amendment or state constitutional privilege to refuse production of the video taped portions which it sought for use at Grandison's trial.

WBAL furnished the trial court with a verbatim transcript of the entire interview which the court reviewed in camera. It concluded that the interview related to four areas: (1) Grandison's past record, (2) his family background, (3) his federal prosecution, and (4) the state prosecution pending before the court. The court found that the interview was a voluntary one given without any promise of confidentiality. For purposes of ruling on the motion to quash, the court accepted WBAL's claim of qualified privilege. It determined, however, that the three-fold test proposed by WBAL had been satisfied and consequently it denied the motion to quash. WBAL refused to comply with the summons and was held in contempt. It appealed to the Court of Special Appeals. We granted certiorari prior to decision by the intermediate appellate court to consider the issue of public importance involved in the case.

II.

The only United States Supreme Court decision to discuss the news reporter's privilege is Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The issue in Branzburg, as stated by the Court, concerned "the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime." Id. at 682, 92 S.Ct. at 2657. The Court emphatically refused to create any special exceptions for news reporters summoned to give evidence in legal proceedings. It said:

"It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed. The Court has emphasized that '[t]he publisher of a newspaper has no special immunity from the application of general laws....' Associated Press v. NLRB, 301 U.S. 103, 132-133 [57 S.Ct. 650, 655-656, 81 L.Ed. 953] (1937)."

Id. at 682-83, 92 S.Ct. at 2657-58. The Court continued:

"We are asked to create another [privilege] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.... On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial."

Id. at 690-91, 92 S.Ct. at 2661-62 (footnote omitted). The Court rejected the argument that compelled disclosure of information obtained from confidential sources would deter informants from revealing vital information to the press in the future. It stated:

"[W]e cannot accept the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future."

Id. at 695, 92 S.Ct. at 2664. The reporters in Branzburg argued that the State must make a preliminary showing, similar to the one urged by WBAL in this case, before the reporters may be forced to turn over the evidence. They contended that

"the reporter should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure."

Id. at 680, 92 S.Ct. at 2656. The Court flatly rejected the notion that any such preliminary showing was necessary:

"predicting in advance when and in what circumstances [reporters] could be compelled to [give evidence] would be difficult. Such a rule would also have implications for the issuance of compulsory process to reporters at civil and criminal trials and at legislative hearings."

Id. at 702, 92 S.Ct. at 2667. The Court cautioned, however, that

"news gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly...