Kirby , 244 Ark. 142 ( 1958 )

J. Fred Jones, Justice.

This cause is submitted here on certiorari from the Pulaski County Circuit Court, First Division.

The record before us is meager indeed, but the petitioner and the respondent agree in their briefs, that on December 5, 1967, the petitioner, Lynn A. Davis, while serving in the capacity of director of the Arkansas State Police, appeared before the Pulaski County grand jury, in response to a summons, and refused to answer a question propounded to him by, or on behalf of, the grand jury while it was in session.

The record does reveal that the foreman, the secretary, and the chairman of the Law Enforcement Committee of the grand jury, together with the prosecuting attorney, appeared with Davis before the trial judge in chambers, and upon inquiry as to the purpose of the appearance in chambers, the foreman of the grand jury stated:

“["W]e can’t get any place because of the Colonel here just refuses to give us any information whatsoever, and he makes a statement that he don’t intend to, and we feel like we have gone as far as we can go.”

The court then inquired as to the nature of the information sought by the grand jury, and the foreman of the grand jury continued,

“ [H]e says he has an informant but he is not willing to give us the informant or anything to go on at all. It’s all hearsay so far.”

The trial court inquired of the foreman of the grand jury whether the question propounded to Davis was in connection with the investigation the grand jury had under consideration at the present time, and the grand jury foreman answered in the affirmative. The prosecuting attorney stated to the court that it had been pointed out in the record that Davis had information to the effect that another person had personal knowledge and legal evidence presentable in court to the effect that a person —Kenneth Brown — was operating a gambling house, and that the only way the evidence could be obtained was through the disclosure of the person’s name which Davis refused to divulge. The prosecuting attorney then requested the court reporter to read the information from the notes taken before the grand jury, but this was not followed through.

At the close of these discussions in chambers, the pertinent parts of the record are as follows:

“THE COURT: Well now, as I understand it, and all of the Grand Jury has all agreed, and the Colonel here also agrees, that the question asked him, and that he refused to answer was: What was the name of his informant? And, now the Court wants to ask you. I have decided that it is material, and I think under Section 43-916 I can propound the same question to you, and of course, if you refuse to answer you will be in contempt of this Court, and be dealt with contempt. Now, what is the name of your informant ?

COL. DAVIS: I refuse to name the informant for fear of life or property.

* # *

THE COURT: * * * I am going, to have to hold you in contempt and send you to jail until you change your mind.”

Davis was then committed to the Pulaski County jail to he held until such time as he purged himself by answering the question propounded to him.

Grand juries have the “duty to inquire into all public offenses committed within the jurisdiction of the court in which they are impaneled, and to indict such persons as they find guilty thereof.” (Ark. Stat. Ann. § 43-908 Repl. 1964.) But, “the grand jury can receive none but legal evidence....” (Ark. Stat. Add § 43-918 [Repl. 1964].) (Emphasis supplied.) There is nothing in the récord before us that would reveal the nature of the investigation being conducted by the grand jury, or what information, if any, the grand jury desired, or hoped to obtain, from the individual whose identity Davis refused to reveal. The context in which the question was propounded to Mr. Davis is not in the record before us. The record does not reveal what the evidence of Davis’s informant would have been, and the record does, not reveal what, if anything, Davis had indicated it would be, if he did so indicate. Consequently, not knowing what Davis had testified that his unknown informant knew or could offer in the way of evidence, we have no way of determining whether it; would have been legal evidence which the grand jury could receive. In fact, the record here places us in the same position Davis’s testimony placed the grand jury as expressed by its foreman — it does not give us anything to go on at all.

Ark. Stat. Ann. § 43-916 (Repl. 1964) under which Davis was held in contempt and committed to jail, is as follows:

“When a witness, under examination, refuses to testify, or to answer a question put to him by the grand jury, the foreman shall proceed with the witness into the presence of the court, and there distinctly state the refusal of the witness, and if the court, upon hearing the witness shall decide that he is bound to testify or answer the questionypropound-ed, he shall inquire of the witness if he persists m his refusal, and if lie does, shall proceed with him as in cases of similar refusal in open court.” (Emphasis supplied.)

The statute does not set out to what extent the witness is to be heard before the court shall decide whether or not he is hound to testify or answer the question propounded, but surely the statute contemplates more than simply hearing the witness refuse again to answer the same question propounded to him in the grand jury room, without first ascertaining the nature of the information the question is designed to produce.

Our grand jury system is derived from the common law of England, and during the more than one-hundred years it has been in operation in Arkansas, this appears to be the first case before this court in which contempt proceeding's have been instituted against a police officer for failure to answer a question propounded by a grand jury. Indeed, we have found no cases indicating that a police officer has ever before refused to answer a question propounded to him by a grand jury.

As a usual procedure, the prosecuting attorney presents evidence to the grand jury based on information furnished him by investigating officers and the prosecuting attorney and police officers are usually on the sanie side in seeking indictments for criminal law violations and in presenting information or legal evidence to a grand jury for that purpose.

The petitioner, Davis, and the prosecuting attorney argue extreme views in opposite directions. The petitioner contends that as a police officer, he has an absolute privilege to refuse to reveal to a grand jury the source of any information he may have or obtain in connection with law violations. The prosecuting attorney contends that a police officer is bound to answer any and all questions propounded to him by a grand jury including the name of informers in all situations. We do not agree with either contention.

The privilege of a police officer in refusing to reveal the source of his information in criminal investigations (“informer privilege”) is recognized as .based on public policy under certain circumstances, the availability of which, depends upon the facts and circumstances of each particular case. Roviaro v. United States, 353 U. S. 53, 62 (1957); McCray v. Illinois, 386 U. S. 300 (1967); State v. Edwards, 317 S. W. 2d 441 (Mo. 1958); Application of Heller, 53 N. Y. S. 2d 86 (N. Y. 1945). Therefore, the privilege claimed by Davis in the case at bar is not an absolute privilege, but is qualified by the facts and circumstances of the particular case. In order, therefore, to determine whether Colonel Davis should have been required to answer the question, it is absolutely essential that we know something of the background, i. e., the nature of the inquiry which led up to this particular question. In other words, there are circumstances under which the question “What is the name of your informant?” should have been answered. To the contrary, under different facts and circumstances, the privilege could have been claimed.

The only background given this court is in the statement made in the judge’s chambers by the prosecuting attorney, in which he stated:

“Your Honor, it’s been pointed out in the record that this information which Col. Davis has is to the effect that a person has personal knowledge and legal evidence presentable in Court to the effect that a person under consideration by the Grand Jury at this time—

Kenneth Brown.

Was operating, a gambling house and Col. Davis has refused to divulge the name of the person who is possessed with this information, and it has been pointed out to Col. Davis that his statement regarding what the information that this person has is hearsay information and not presentable in Court, and the only way the evidence can be obtained is through the disclosure of a person’s name.” (Emphasis supplied.)

It will at once be seen that this statement contains several conclusions. The prosecutor states that the unidentified person has “legal evidence” and he twice uses the expression, “to the effect.” This, of course, is simply an interpretation of the alleged evidence by the prosecutor — and we are unable to tell from this record whether this interpretation was correct. We have no idea what Davis claimed the informant is supposed to have known. Did he go to Brown’s premises on an unrelated matter and observe gambling while there? Did he participate in gambling on Brown’s premises (which would make him an accomplice) or was he told by others that Brown was engaging in this illegal enterprise, and he then passed this information on to Davis? Was it Davis’s own testimony or the information Davis testified that the informant had, that the prosecuting attorney considered ‘'hearsay information”? These are examples of questions that have a direct bearing on the issue of whether the privilege could be rightfully claimed.

A statement could have been placed in the record by the foreman of the grand jury or the prosecuting attorney, with the assent of Davis (a stipulation), indicating the nature of the investigation that led to this particular question, or the foreman of the grand jury could have testified as to the facts which prompted the question propounded to Mr. Davis. He might have testified that Davis had stated that his informant saiu gambling in progress-, or he might have testified that Davis claimed that his informant heard that gambling was going on. In any event, the implications of the question “What is the name of your informant?” would be discernible in the setting the question was asked, and we would have some basis for determining whether the question would constitute or produce legal evidence which the grand jury could receive and which Davis was bound to give.

It may well be that tbe circuit judge bad other information not in the record before us, in making his determination that the question was material. This is somewhat indicated by the prosecuting attorney’s opening statement, “Your Honor, it’s been pointed out in the recordSubsequently, the prosecutor said to the court reporter, “Would you read the information.” [Apparently referring to the alleged information held by the informant.] The reporter replied. “It will take some time to read back in my notes.” And this was as far as the matter went. At any rate, no record is before us.

Even if the record was such that we could conclude that the question should have been answered, the answer should have been given in the secret confines of the grand jury room and, not in the judge’s chambers or in open court. Answers given to questions propounded by a grand jury are not public records and their secrecy is protected by statute. (Ark. Stat. Ann. § 43-928 [Repl. 1964]).

The statute § 43-916, supra, provides that upon hearing the witness, if the court should decide that he is bound to answer the question propounded by the grand jury, that the court ‘ ‘ shall inquire of the witness if he persists in his refusal.” That is as far as the statute goes pertaining to the question and answer, and that is as far as the court should go pertaining to the question and answer. The statute does not direct the court to propound the same question in semipublic court chambers or in completely public open court, calling for the same answer the grand jury sought, and which the witness refused to answer in the secret confines of the grand jury room, and the reason for this is obvious. The statute does not set out what the court shall do if the witness does not persist in his refusal, but certainly in that event, the witness should be returned to the grand jury room where the question is to be answered and the jury’s investigation continued.

From the record 'before us we are unable to say that Davis was guilty of criminal contempt in refusing to answer the question propounded to him, so the summary order of the trial court holding Davis in contempt is hereby set aside.

Byrd, J., dissents.