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State v. Clark

Court of Appeals of Tennessee, Knoxville

February 13, 2017

STATE OF TENNESSEE
v.
NORMAN EUGENE CLARK

          Session January 24, 2017

         Appeal from the Criminal Court for Knox County No. 103548 Steven W. Sword, Judge

         The State of Tennessee ("the State") attempted to divest Dateline NBC and NBCUniversal News Group of protection provided under Tenn. Code Ann. § 24-1-208, the press shield law. The Criminal Court for Knox County ("the Trial Court") found and held that the State had failed to meet its burden under Tenn. Code Ann. § 24-1-208 and denied the State's motion to divest. The State appeals. We find and hold that the State failed to prove by clear and convincing evidence both that "the information sought cannot reasonably be obtained by alternative means, " and that there is "a compelling and overriding public interest of the people of the state of Tennessee in the information." Tenn. Code Ann. §§ 24-1-208(c)(2)(B) and (c)(2)(C). We affirm the judgment of the Trial Court denying the State's motion to divest.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed Case Remanded

          Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Jennifer L. Smith, Associate Solicitor General; Sarah K. Campbell, Special Assistant to the Solicitor General and the Attorney General; and Sara Beth Myers, Assistant Attorney General for the appellant, the State of Tennessee.

          Richard L. Hollow, Knoxville, Tennessee; and Erik Christopher Bierbauer, New York, New York, for the appellees, Andrea Canning, Tim Beacham, and the Custodian of Records for Dateline NBC and NBCUniversal News Group.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G. CLEMENT, P.J.M.S. and JOHN W. MCCLARTY, J., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         The State sought to obtain an unedited copy of a videotaped interview of Norman Eugene Clark ("Clark") conducted by Andrea Canning ("Canning") and Tim Beacham ("Beacham"), employees of Dateline NBC ("Dateline") and NBCUniversal News Group.[1] This interview was conducted shortly after Clark had been tried for two counts of first degree murder and two counts of felony murder in connection with the murder of his girlfriend and their unborn child. The trial resulted in a mistrial. The Dateline interview was conducted prior to the State announcing its decision to retry Clark. To date, the interview has not been aired.

         After announcing its intent to retry Clark, the State filed a Petition for Certificate in Accordance with Uniform Law to Secure the Attendance of Witnesses From Within or Without a State in Criminal Proceedings seeking to have the State of New York issue summonses to Canning and Beacham and the Custodian of Records for Dateline NBC and NBCUniversal News Group, ordering them to testify and to produce the entire unedited video recording of the interview of Clark conducted by Dateline. The Trial Court issued a certificate to be presented to the Supreme Court of the State of New York: Criminal Term where Canning, Beacham, and the Custodian of Records were to be found. The parties appeared before the Supreme Court of New York. The Supreme Court of New York did not rule upon the issue, but instead directed the parties to appear in Tennessee and assert their rights under the Tennessee press shield law.

         Canning, Beacham, and the Custodian of Records then filed in Tennessee a Motion to Quash all subpoenas or summonses compelling their testimony and the production of the video recording of Dateline's interview of Clark. The State filed a motion to divest Canning, Beacham, and the Custodian of Records of the protection of the Tennessee and New York press shield laws.

         The Trial Court held a hearing and received evidence on the motion to quash and the motion to divest. Sean McDermott ("McDermott"), Assistant District Attorney and Public Information Officer for the Knox County District Attorney General's Office, testified at the hearing.[2] McDermott testified that the case against Clark was circumstantial only. He stated: "There was no direct physical evidence linking Mr. Clark to the scene but for fingerprints on the television that were retrieved by officers. But the circumstantial nature of the case was something that was discussed within the office and it was a large focus of the trial itself." McDermott explained that the first trial against Clark resulted in a mistrial due to a hung jury.

         McDermott testified that he received a telephone call from Beacham, who was a producer at Dateline, shortly after the trial asking for an interview. McDermott explained to Beacham that the case still was pending, the State had not yet made a decision about whether to retry Clark, and the State could not comment on pending litigation.

         A few months later, McDermott received another telephone call from Beacham who stated that Dateline had interviewed Clark, Clark's attorney, and several other people, but that the "story at that point was one sided." Beacham again requested to interview the prosecution or law enforcement personnel about the case. McDermott stated: "He wanted to give the State an opportunity to present its side of the story." McDermott again told Beacham that they could not comment and also told him that they had a duty to discourage law enforcement personnel from making statements that the prosecutor could not make. McDermott testified that he asked Beacham for a copy of the interview with Clark, and Beacham declined to provide one. Later that same day, McDermott received a voice mail from Beacham stating that if the State decided not to retry Clark then Dateline would air what they had, and if the State did decide to retry Clark then Dateline would wait until after the second trial before airing any portion of the interview.

         Approximately one month later, the State announced its decision to retry Clark. Dateline sent a producer, Mason Scherer ("Scherer"), to cover the announcement. After the parties left court, Scherer approached McDermott and asked to interview someone from the State. McDermott again declined because the case was pending. He asked Scherer some questions about Dateline interviews, and Scherer told him that the interviews are not confidential and that the interview with Clark specifically was not confidential. Scherer told McDermott that no confidentiality agreement was signed when Clark was interviewed. Scherer also told McDermott that Clark was interviewed by Canning in the presence of producer Beacham. McDermott again asked for a copy of the interview of Clark, and Scherer told McDermott he did not have the authority to release the interview.

         McDermott then mailed a letter to the Editor in Chief of Dateline requesting a copy of the videotape of Clark's interview. This letter was returned as undeliverable. McDermott then mailed a letter to Executive Producer David Corvo requesting a copy of the video. In return, McDermott received a fax, and later a copy by mail, of a letter from Beth Lobel, Senior Vice President for NBCUniversal and counsel for Dateline NBC declining the request. McDermott testified that he then searched Dateline NBC's website, Canning's and Scherer's Twitter feeds, and the internet to see if he could find anything with regard to the Dateline interview of Clark, but was unable to locate anything.

         McDermott admitted that he does not know the contents of the Dateline interview of Clark. He also admitted that Clark was interviewed by police twice and that those interviews were recorded. The first recording was of the interview of Clark conducted in a police cruiser shortly after the murders, and it was introduced by the State at Clark's trial.[3] The second recording was a video of the police interview of Clark taken later at the Safety Building, and it was not introduced at the trial. When asked, McDermott agreed that the video[4] would have shown Clark's demeanor during the interview. McDermott also admitted that Clark attended and sat through the trial. McDermott admitted that he has no reason to believe that Clark admitted to guilt during the Dateline interview.

         After the hearing, the Trial Court entered its detailed Order Regarding Motion to Quash and Motion to Divest on July 7, 2016, denying both motions after finding and holding, inter alia:

The certificate issued by this court to the State of New York specifically stated in paragraph 11 that the requested parties may raise any applicable privilege claim in this court after the summonses had been issued. No such summonses have been issued by the State of New York. Thus, Dateline is premature on their motion to quash. There is nothing to quash. The actual procedural standing for Dateline is in the nature of a motion for this court to rescind its previous certificate under the uniform law for witnesses based on journalistic privilege. Since no process has been issued by the State of New York and Dateline is asserting their rights under Tennessee law, this court is of the opinion that only Tennessee law applies in this situation.

         STANDARD

Under Tennessee law, media organizations, such as Dateline, and their personnel are afforded protections of the information they gather during the course of their work. See TCA 24-1-208. The Tennessee Legislature determined that a court shall not require the media to disclose such information to any court, grand jury, or agency. The starting point is that the information is unobtainable. (This is the right that Dateline now asserts regarding the requested materials.) However, the legislature did provide an exception to this general prohibition. The State has applied to this court for an order divesting Dateline of the protection provided under the statute. Such an order may only be granted if the court determines by clear and convincing evidence that the State has passed a three prong (elsewhere referred to as prerequisites) test. Those three prongs are:
(A)There is probable cause to believe that the person from whom the information is sought has information which is clearly relevant to a specific probable violation of law;
(B)The person has demonstrated that the information sought cannot reasonably be obtained by alternative means; and
(C)The person has demonstrated a compelling and overriding public interest of the people of the state of Tennessee ...

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