State v. Clark

Decision Date10 November 2014
Docket NumberNo. M2010–00570–SC–R11–CD.,M2010–00570–SC–R11–CD.
Citation452 S.W.3d 268
PartiesSTATE of Tennessee v. Fred Chad CLARK, II.
CourtTennessee Supreme Court

Peter J. Strianse, Nashville, Tennessee, for the appellant, Fred Chad Clark, II.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Brent C. Cherry, Assistant Attorney General; John H. Bledsoe, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., JANICE M. HOLDER, CORNELIA A. CLARK, and GARY R. WADE, JJ., joined.

WILLIAM C. KOCH, JR., J.

This case involves the prosecution of a father in the Criminal Court for Davidson County for the sexual abuse of his children. After a jury found him guilty of seven counts of rape of a child and two counts of aggravated sexual battery, the trial court imposed an effective thirty-four-year sentence. On appeal, the defendant took issue with (1) the admissibility of recordings of his confession to his wife, (2) the adequacy of the corroboration of his confession, (3) the admissibility of evidence of his predilection for adult pornography, and (4) the propriety of a jury instruction that the mental state of “recklessness” could support a conviction for both rape of a child and aggravated sexual battery. After upholding the admission of the defendant's confession to his wife and the jury instructions, the Court of Criminal Appeals decided that the admission of the evidence of the defendant's predilection for adult pornography, while erroneous, was harmless. The Court of Criminal Appeals also determined that the record contained sufficient evidence to uphold three counts of rape of a child and the two counts of aggravated sexual battery. State v. Clark, No. M2010–00570–CCA–R3–CD, 2012 WL 3861242 (Tenn.Crim.App. Sept. 6, 2012). We granted the defendant's Tenn. R.App. P. 11 application for permission to appeal and now affirm the judgment of the Court of Criminal Appeals.

I.

Chad Clark, his wife, and their two daughters, H.C. (age 6) and K.C. (age 4), were at home on the evening of January 12, 2007.1 Mr. Clark's mother was visiting. While his wife was watching television, Mr. Clark, his mother, and his two daughters were using the computer to look at pictures and videos of a recent family trip to Disney World.

In an effort to get attention, H.C. grabbed her father's hand and moved it between her legs. When Mr. Clark pulled his hand away, H.C. announced that she had put her daddy's hand on her “coo-coo.”2 Ms. Clark took H.C. upstairs and told her that her conduct was inappropriate. The rest of the evening continued without incident, but the Clarks' family life was about to change dramatically.

While bathing K.C. the following Sunday evening, Ms. Clark told her that she should never permit anyone to touch her private parts, and she asked K.C. whether anyone had ever touched her inappropriately. According to Ms. Clark, K.C. replied that her father had touched her. To demonstrate what her father had done, K.C. put her own hand near her groin and started moving it around. K.C. then told her mother that sometimes her father “goes like this, and sometimes he goes crazy.” She also told her mother that this happened at night when Ms. Clark was in bed.

Disturbed by this information, Ms. Clark gathered up H.C. and K.C. and left the house. She told Mr. Clark they were going shopping, but instead, Ms. Clark drove to the home of the school guidance counselor. After K.C. told the counselor that her father had touched her private parts and had instructed her not to tell her mother about it, Ms. Clark telephoned the Tennessee Department of Children's Services and the Metropolitan Nashville Police Department.

Ms. Clark and the children spent the next few nights in a hotel. She spoke with Mr. Clark several times by telephone. Ms. Clark did not divulge K.C.'s accusations during these conversations. Instead, she told Mr. Clark that she needed some time away to deal with the stress surrounding their plans to move into a new house.

Ms. Clark met with Detective David Zoccola on January 18, 2007, at the Criminal Justice Center in Nashville. She agreed to cooperate with the investigation of her daughters' statements by making a “controlled” police-recorded telephone call to Mr. Clark using a special police department telephone. During Ms. Clark's forty-five minute conversation with Mr. Clark, Detective Zoccola wrote notes to Ms. Clark suggesting things she could say to elicit a confession from Mr. Clark.

At the outset of the conversation, Mr. Clark denied touching his daughters inappropriately and suggested that the family should seek counseling. Ms. Clark implored him to tell the truth and told him that if he did, the family could be reunited and return to normal. When Mr. Clark offered to “lie” and spin a contrived story about molesting the girls so that they could come home, Ms. Clark responded that she absolutely needed to hear “the truth.” She told Mr. Clark:

Just say you did it so I know you did it and then we can get on with our lives. Just be honest with me, Chad. I don't want to deal with this anymore. I want to move on. I want to start today being a family again. I want to come home tonight. I want to bring our girls. I want us to lay down in their bed and say their prayers like we do every night and be a family again.

Mr. Clark replied that he had “touched” his daughters but that he could not remember the details. Toward the end of the conversation, Mr. Clark became suspicious that the call was being monitored because he heard static on the line. He told Ms. Clark that he would call her back soon to make arrangements for the two of them to have a conversation face-to-face.

Mr. Clark called Ms. Clark on her cellular telephone before the police could install a recording device on it. The police recorded Ms. Clark's side of the conversation. During this call, Ms. Clark made arrangements with Mr. Clark to meet him that evening in the parking lot of the Opry Mills shopping center in Nashville.

The police installed a recording device and a transmitter in Ms. Clark's automobile. At the authorities' request, Ms. Clark signed a form consenting to having her conversation with her husband monitored and recorded by the police. This form also stated, “I understand that any recording made will become evidence in a criminal case being investigated by Det. David Zoccola.”

Mr. Clark was already waiting in his automobile when Ms. Clark arrived at the shopping center. Approximately eight police officers were nearby in unmarked vehicles ready to listen in on the Clarks' conversation. Mr. Clark got into his wife's automobile and immediately began divulging the details of occasions when he had touched his daughters inappropriately.

During this recorded conversation, Mr. Clark recalled the times when Ms. Clark had caught him looking at pornography at night on the Internet. Suggesting that the pornography was related to his conduct with his daughters, Mr. Clark explained that looking at pornography gave him “these thoughts ... just, you know, thinking about sex” and that these thoughts prompted him to start looking at his daughters' private parts when they were in the bathtub and then to touch their genitals and to stick his finger in their anuses. Mr. Clark eventually told Ms. Clark that he had touched H.C. inappropriately five to seven times and K.C. two to four times. He also admitted that he had instructed the children to keep his conduct a secret.

Ms. Clark received one telephone call from the police during the conversation to tell her that she should end the discussion because they had obtained sufficient evidence against Mr. Clark. The police arrested Mr. Clark when he got out of his wife's automobile. During a subsequent two-hour interrogation, Mr. Clark retracted the incriminating statements he had made to his wife and made no further incriminating statements. On August 7, 2007, a Davidson County grand jury indicted Mr. Clark for twelve counts of rape of a child in violation of Tenn.Code Ann. § 39–13–522(a) (Supp.2007) and two counts of aggravated sexual battery in violation of Tenn.Code Ann. § 39–13–504 (2006).

On June 6, 2008, Mr. Clark moved to suppress the conversations with his wife that had been recorded by Detective Zoccola and his team. He argued that his wife was acting as an agent of the police when he confessed and that she had coerced him into making involuntary confessions that were false. The trial court conducted a suppression hearing on July 17, 2008, at which Detective Zoccola testified.

The trial court denied Mr. Clark's motion to suppress on October 1, 2008. After noting the State's argument that Ms. Clark had been motivated to cooperate with the authorities “solely by her concern for the health, safety, and welfare of her daughters,” the court found that Ms. Clark “was equally, if not primarily, motivated by her desire to gather evidence for criminal prosecution.” Because the authorities had instigated and guided the recorded conversations, the court decided that Ms. Clark had been “an instrument of the State.” However, the trial court decided that Mr. Clark's recorded statements to his wife were admissible because they had not been coerced. The trial court also granted Mr. Clark permission to seek an interlocutory appeal of its decision, but the appellate courts declined to hear the appeal.

On August 31, 2009, Mr. Clark filed a motion to exclude the evidence related to his possession of adult pornography. The trial court granted the motion and ordered that the recordings of Mr. Clark's conversations with his wife be redacted to eliminate the references to his possession and enjoyment of pornography. The case proceeded to trial in September 2009, but the jury was unable to agree upon a verdict.

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