Brown v. Com.
| Decision Date | 22 April 1974 |
| Citation | 204 S.E.2d 429,214 Va. 755 |
| Parties | Charles Willie BROWN v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
John Kenneth Zwerling, Arlington (Alan J. Cilman, on brief), for plaintiff in error.
Burnett Miller, III, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.
Charles Willie Brown appeals a final judgment order entered February 12, 1973 confirming a jury verdict finding him guilty of murder in the second degree and fixing his punishment at ten years in the penitentiary.
The dispositive issue before us is whether the trial court erred in refusing to require a newspaper reporter to divulge the identity of a confidential source of a published account of the crime.
On the day after the killing, the Free Lance Star, an afternoon newspaper, reported that William Monroe Atchison, Jr., had been shot in the head 'last night' and 'died this morning'. Citing information supplied by 'a spokesman in the Stafford County Sheriff's Department', the article stated that
Curtis Correll, investigating detective, Stafford County Sheriff's Department, testified that about 9:30 a.m. on the morning after the crime, he talked by telephone with a woman reporter at the Free Lance Star; that he did not make the statements attributed in the article to a 'spokesman'; that he had talked with Kearns on the night of the killing but that 'he was very emotional and couldn't make any kind of statement'; and that on the afternoon the article was published he talked again with Kearns who then named Brown as the assailant.
About 9:30 p.m. on June 28, 1972 Kearns and Atchison were walking through the automobile junkyard when they observed two men. Kearns, who was previously acquainted with Brown, testified that he recognized Brown as one of the men; that Atchison said 'Hey' to Brown; that Brown fired a pistol shot between them; that he (Kearns) hollered 'Charles' and Brown responded, "Who is it,' two or three times, and I recognized his voice'; that Brown then fired again and killed Atchison; and that he was 'positive' that Brown was the man who fired the shots.
Kearns further testified that he had never made to anyone the statements as reported in the article but that 'I told them (the Sheriff's Department) I seen several people around the truck where parts are stuffed, you know, stored'; and that with respect to who said 'Hey', 'I think the newspaper got a little mixed up there.'
Attempting to ascertain the identity of the confidential source, Brown filed a motion for discovery and inspection and subpoenaed 'John Doe and Richard Roe, Spokesmen for Stafford County Sheriff's Department'. Failing in both attempts, he subpoenaed the author of the article, reporter Helaine Patterson. Patterson read her article to the jury and testified that it accurately reported the information furnished by her source on the morning after the crime. Asserting a First Amendment privilege, she refused to name her confidential source. The trial court ruled that a balance must be struck between freedom of the press and the right of the defendant to compel disclosure; that the case 'must be substantially dependent upon what the testimony of the source might be'; and that on the facts of this case, the reporter would not be required to divulge her source. We believe that, as a news-gathering mechanism, a newsman's privilege of confidentiality of information and identity of his source is an important catalyst to the free flow of information guaranteed by the freedom of press clause of the First Amendment. Unknown at common law, it is a Privilege related to the First Amendment and not a First Amendment Right, absolute, universal,...
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