State of Tennessee v. Norman Eugene Clark

Citation: Not availableDocket: E2016-01629-COA-R3-CV

Court: Court of Appeals of Tennessee; February 12, 2017; Tennessee; State Appellate Court

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The State of Tennessee sought to compel Dateline NBC and NBCUniversal News Group to provide an unedited videotaped interview of Norman Eugene Clark, who had faced a mistrial for multiple murder charges. The interview, conducted by Dateline employees Andrea Canning and Tim Beacham, took place before the State decided to retry Clark and has not been aired. The State filed a petition for summonses to compel testimony and production of the video, but after the New York Supreme Court directed the parties to address the Tennessee press shield law, Canning, Beacham, and the Custodian of Records filed a motion to quash the subpoenas.

The Trial Court denied the State's motion to divest the protectors of the press shield law, concluding that the State did not meet the burden of proving that the information could not be obtained through alternative means or that there was a compelling public interest in accessing the information. Consequently, the Court of Appeals affirmed the Trial Court's judgment, maintaining the protections of the press shield law for the NBC employees and the Custodian of Records. The case was remanded for further proceedings.

The case's circumstantial nature was a significant point of discussion and focus during the trial. McDermott noted that the initial trial against Clark ended in a mistrial due to a hung jury. Following this, McDermott received a call from Beacham, a Dateline producer, requesting an interview. McDermott informed Beacham that the case was still pending and that the State could not comment on it. Later, Beacham contacted McDermott again, mentioning that Dateline had interviewed Clark and others but noted that the coverage was one-sided, expressing a desire to include the State's perspective. McDermott reiterated the State's inability to comment and discouraged law enforcement from making statements. 

McDermott requested a copy of Clark's interview, which Beacham refused. Beacham left a voicemail indicating that if the State chose not to retry Clark, Dateline would air the story, but if a retrial occurred, they would wait to broadcast until after the second trial. Following the announcement of the retrial, Dateline's producer, Scherer, approached McDermott for an interview with the State, which McDermott declined due to the pending case. Scherer clarified that the interviews were not confidential and that no confidentiality agreement existed for Clark's interview. McDermott again requested a copy of the interview but was told Scherer lacked the authority to release it.

Subsequently, McDermott contacted Dateline's Editor in Chief and Executive Producer David Corvo for the interview tape, but both requests were declined. He then searched Dateline's website and social media for information about the interview but found nothing. McDermott acknowledged not knowing the interview's content and confirmed that Clark had undergone two police interviews, with one being presented at trial. He admitted that he had no reason to believe Clark confessed during the Dateline interview. Following the hearing, the Trial Court issued an Order on July 7, 2016, denying motions to quash and divest, stating that applicable privilege claims could be raised in court after summonses had been issued.

No summonses have been issued by the State of New York, rendering Dateline's motion to quash premature since there is nothing to quash. Dateline's procedural stance is to request the court to rescind its prior certificate under the uniform law for witnesses, invoking journalistic privilege. As no process has been initiated by New York and Dateline is relying on Tennessee law, the court determines that only Tennessee law applies. Under Tennessee law (TCA 24-1-208), media organizations are generally protected from disclosing information gathered during their work. However, an exception exists where the State can seek an order to strip this protection, which requires clear and convincing evidence that meets a three-prong test: 

A) Probable cause to believe the person has information relevant to a specific probable violation of law.  
B) The information cannot be reasonably obtained through alternative means.  
C) There is a compelling public interest in the information.

The court will assess these prongs. The first prong necessitates probable cause regarding the relevance of the information. Dateline has indicated that Norman Clark, the defendant, provided a recorded interview after his first trial, which the State acknowledges it does not know the contents of. While the State argues that any statement by a defendant is admissible, the court clarifies that the admissibility of statements is not the immediate concern; rather, it is whether the information is relevant to a specific legal violation. Given that Clark has been indicted for murder, the court finds that the information is indeed relevant to the case, as evidence is considered relevant if it makes any consequential fact more or less probable. The State contends that the nature of Clark's interview, regardless of its content, holds relevance to the murder charge.

The court supports the State's theory that Mr. Clark had a motive to kill Ms. Eldridge and her unborn child due to perceived disruptions to his lifestyle from the birth. A critical piece of evidence is Mr. Clark's cell phone location during the crime, which contradicts his police statements, raising doubts about his credibility. His demeanor during any future statements will be relevant to this credibility assessment. The State must prove that the information sought cannot be obtained through alternative means, as required by the second prong of the applicable test. While Dateline claims the State has other statements from Mr. Clark regarding the murder, the State argues that each statement is unique and cannot be replicated. The interview with Dateline is particularly significant as it is the only one conducted after all evidence was presented. The court acknowledges that simply labeling a media statement as unique does not fulfill the requirement to show it cannot be obtained through other means. The court references Gerbitz v. Curriden, where the State failed to demonstrate this second prong, and contrasts it with State v. Shaffer, where an inmate’s confession to a reporter was deemed relevant for prosecution. The current case is seen as having more substantial information than Gerbitz, but the court remains cautious regarding the legislative intent behind the statute governing these proceedings.

The trial court ruled that the defendant's statements were relevant, but ordered an in camera review of the entire interview, which was appealed by media personnel. The Court of Appeals set aside this order, agreeing with the trial court that the State did not demonstrate it could not obtain the information through alternative means. In both this case and the precedent case, Shaffer, the defendant was represented by counsel and unavailable for questioning, with only the victims and perpetrators aware of the details, as there were no eyewitnesses and the victims were deceased. The trial court noted the impossibility of establishing "clear and convincing" proof regarding alternative means of obtaining the information, as the contents of the interview outtakes were unknown. Additionally, evidence such as Mr. Clark's interviews with police and his mannerisms during the trial could be obtained from other sources. The court found the State did not meet the second prong of the divestiture test, characterizing the request for the interview as a prohibited fishing expedition. 

Regarding the third prong, the court briefly stated that since there was no evidence of confessions or material contradictions from the interview, the State could not demonstrate a compelling interest in the information. While the public has a strong interest in justice, the law does not permit speculation about potential incriminating statements. The court emphasized that Mr. Clark had no confidentiality claim over his statements to Dateline, and Dateline could voluntarily disclose the interview content. However, without evidence of a confession, the court would not compel such disclosure.

The State appeals the Trial Court's decision not to remove Dateline's privilege under Tenn. Code Ann. 24-1-208. This privilege protects individuals gathering information for publication or broadcast from being compelled to disclose sources or information. The Court expedited the review of the State's appeal, which arises from a retrial of Clark, initially set for February 27, 2017, and later rescheduled for September 2017. 

The central issue on appeal is whether the Trial Court erred in determining that the State did not meet its burden to divest Dateline of its protection. The statute allows for the divestment of this privilege only if the applicant can demonstrate, through clear and convincing evidence, that: (1) there is probable cause to believe the individual from whom the information is sought possesses information relevant to a specific law violation; (2) the information cannot be obtained by alternative means; and (3) there is a compelling public interest in the information.

The parties concur that the State satisfied the first requirement, but they dispute the second and third. The State claims it made multiple attempts to obtain a videotape of the Dateline interview, which were denied, asserting that Dateline's decision not to air the interview before the retrial precludes any other means of access. However, the Court noted that the inability to secure this specific videotape does not imply the information itself cannot be obtained through other means. The Trial Court recognized the State's predicament, as the lack of knowledge regarding the interview's content hindered its ability to demonstrate that alternative means were unavailable.

The State contends that video statements made by criminal defendants are unique and cannot be sourced through other means. The court disagrees, asserting that such reasoning would undermine the second prong of the statutory test concerning protected information in videos. If video content is deemed unique solely due to its format, it would negate the requirement for the State to present clear and convincing evidence that the information could not be obtained through other sources, thereby rendering part of the statute redundant. The State claims that Clark’s demeanor, as shown in a specific Dateline videotape, is critical and unobtainable by other means; however, there are existing videotaped police interviews and trial observations that provide sufficient information about Clark's demeanor. Consequently, the court finds the State failed to meet the burden of proof required to divest Dateline of its privilege under Tenn. Code Ann. 24-1-208. The standard for clear and convincing evidence, as defined by Tennessee Supreme Court precedent, was not met, particularly concerning the claim that information could not reasonably be obtained through alternative means. The court also notes that while the State cites cases from other jurisdictions to support its position, Tennessee law on this matter is clear and consistent, with no prior cases successfully divesting media protections under the relevant statute. The State's attempt to distinguish previous rulings that upheld these protections is deemed insufficient.

In State ex rel. Gerbitz v. Curriden, the Tennessee Supreme Court ruled that a radio announcer could not be compelled to testify due to the privilege under Tenn. Code Ann. 24-1-208. The court determined that the State Attorney General failed to prove that the information sought could not be obtained through other means, noting a lack of details about the information sought and insufficient investigation into other sources. The case was contrasted with State v. Shaffer, where a reporter’s interview with a confessing murderer was sought by the State. In Shaffer, although the trial court ordered an in-camera review of the interview, the appellate court reversed this decision, emphasizing that the State must provide clear and convincing evidence to override the privilege. The current case involved the State seeking a videotape of an interview with Norman Clark, who was under investigation for murder. The State admitted it was unaware of the content of the interview and could not demonstrate that the request was anything but a “fishing expedition.” The trial court agreed, stating that the State did not show a compelling public interest in the requested information, thus upholding the privilege.

The State claims a compelling interest in prosecuting Clark for multiple murders, arguing that this satisfies the third prong of the relevant statute regarding media privilege. However, both the Trial Court and the reviewing court disagreed, stating that the State did not prove a compelling public interest in accessing the information from a Dateline interview. The courts emphasized that while the State has an interest in prosecuting crimes, this does not automatically justify divesting the media of its privilege, as doing so could lead to arbitrary interpretations based on the severity of charges. The statute requires clear and convincing evidence to demonstrate a compelling public interest, which the State failed to provide. The court concluded that any changes to the statutory protections for the media must come from the General Assembly, not the courts. The Trial Court's decision to maintain Dateline's protection under the statute was affirmed, and costs were assessed against the State.