Desmond v. The News & Observer Publ'g Co. , 263 N.C. App. 26 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-411
Filed: 18 December 2018
Wake County, No. 12 CVS 016656
BETH DESMOND, Plaintiff,
v.
THE NEWS AND OBSERVER PUBLISHING COMPANY, MCCLATCHY
NEWSPAPERS, INC. and MANDY LOCKE, Defendants.
Appeal by defendants The News and Observer Publishing Company and
Mandy Locke from order and judgment and order entered 18 November 2016 and
order entered 30 January 2017 by Judge A. Graham Shirley in Superior Court, Wake
County. Heard in the Court of Appeals 5 September 2018.
DeMent Askew, LLP, by James T. Johnson and Chynna T. Smith, for plaintiff-
appellee.
The Bussian Law Firm, PLLC, by John A. Bussian, for defendant-appellants
The News and Observer Publishing Company and Mandy Locke.
Essex Richards, P.A., by Jonathan E. Buchan, for amici curiae.
STROUD, Judge.
Plaintiff filed a complaint alleging that in 2010 defendants published a series
of defamatory articles entitled “Agent’s Secrets[;]” “[t]he purpose of the Series was to
report alleged problems with the SBI [, the State Bureau of Investigation], including
the SBI’s work, policies, and practices.” Plaintiff was a special agent in firearms
DESMOND V. THE NEWS & OBSERVER PUBL’G CO.
Opinion of the Court
examination employed by the SBI, and the articles criticized and questioned her work
in two murder cases. Plaintiff brought this action claiming defamation and
ultimately prevailed before the jury.
Defendants The News and Observer Publishing Company (“N&O”) and Mandy
Locke1 appeal the order and judgment entered upon the jury verdict determining they
had defamed plaintiff and awarding compensatory and punitive damages and a
subsequent order denying their motion for judgment notwithstanding the verdict
(“JNOV”) or in the alternative, motion for a new trial.2 Defendants argue the trial
court should have granted their motion for JNOV because plaintiff failed to prove the
defamatory statements were made with actual malice. Defendants also argue the
trial court erred by excluding evidence of a report issued after the articles were
published which they claim tends to prove the truth of the statements in the articles.
Defendants further challenge portions of the jury instructions. We affirm the orders.
I. Amici Curiae Brief
Several news organizations (“Amici”) submitted an amici curiae brief to
support defendants. Amici emphasize that “[t]his case presents an issue of critical
1 McClatchy Newspapers, Inc. is not a party to this appeal, and thus “defendants” refers only to
defendants N&O and Locke.
2 Defendants’ notice of appeal also appeals from “[t]he ‘Judicial Review of Punitive Damages Award
and Order Reducing Amount of Punitive Damages’” and other “rulings and orders[,]” but substantively
on appeal defendants’ arguments concern the order and judgment entered upon the jury verdict and
the order denying defendants’ JNOV.
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importance to all North Carolina journalists: the proper application of the
constitutional ‘actual malice’ standard to allegedly defamatory speech about a public
official.” We agree this case presents issues of critical importance not just to
journalists but to all citizens and residents of North Carolina and to our court system.
Amici are correct that “[t]he operation of the criminal justice system is a matter of
utmost public significance.” The United States Supreme Court has long recognized
“the ‘fundamental value determination of our society,’ given voice in Justice Harlan’s
concurrence in Winship, that ‘it is far worse to convict an innocent man than to let a
guilty man go free.’ 397 U.S. at 372[.]” Yates v. Aiken, 484 U.S. 211, 214, 98 L. Ed.
2d 546, 552 (1988).
Amici contend that if the jury’s verdict here stands, it will cause “intolerable
self-censorship” prohibited by the First Amendment and “[t]he verdict in this case is
particularly dangerous because its crippling size will weigh on the shoulders of all
North Carolina news organizations.” (Quotation marks omitted.) Amici argue that
speech critical of public officials should be almost entirely unrestrained, particularly
in areas such as this, of the utmost public concern, to aid in both public safety and
justice to the accused. Amici quote Justice Black in his concurrence in the seminal
case of New York Times Co. v. Sullivan, wherein he and Justice Douglas expressed
their belief that regardless of malice, under the Constitution “the Times and the
individual defendants had an absolute, unconditional constitutional right to publish
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in the Times advertisement their criticisms of the Montgomery agencies and
officials.” 376 U.S. 254, 293, 11 L. Ed. 2d 686, 716 (1964) (Black, J., concurring). But
the United States Supreme Court has consistently recognized that as important as
free debate regarding matters of public interest is, there is a countervailing interest
as well -- “the individual’s right to protection of his own good name”:
The need to avoid self-censorship by the news media
is, however, not the only societal value at issue. If it were,
this Court would have embraced long ago the view that
publishers and broadcasters enjoy an unconditional and
indefeasible immunity from liability for defamation. See
New York Times Co. v. Sullivan, supra, at 293, 84 S.Ct., at
733 (Black, J., concurring); Garrison v. Louisiana, 379
U.S., at 80, 85 S.Ct., at 218 (1964) (Douglas, J., concurring);
Curtis Publishing Co. v. Butts, 388 U.S., at 170, 87 S.Ct.,
at 1999 (opinion of Black, J.). Such a rule would, indeed,
obviate the fear that the prospect of civil liability for
injurious falsehood might dissuade a timorous press from
the effective exercise of First Amendment freedoms. Yet
absolute protection for the communications media requires
a total sacrifice of the competing value served by the law of
defamation.
The legitimate state interest underlying the law of
libel is the compensation of individuals for the harm
inflicted on them by defamatory falsehood. We would not
lightly require the State to abandon this purpose, for, as
Mr. Justice Stewart has reminded us, the individual’s right
to the protection of his own good name
“reflects no more than our basic concept of the
essential dignity and worth of every human
being—a concept at the root of any decent
system of ordered liberty. The protection of
private personality, like the protection of life
itself, is left primarily to the individual States
under the Ninth and Tenth Amendments.
But this does not mean that the right is
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entitled to any less recognition by this Court
as a basic of our constitutional system.”
Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct.
669, 679, 15 L.Ed.2d 597 (1966) (concurring
opinion).
Gertz v. Welch, 418 U.S. 323, 341, 41 L. Ed. 2d 789, 806 (1974).
Plaintiff is a public official, and the articles published by defendants addressed
issues of public concern, so she was required to prove her case to the very highest of
standards: she could
recover for injury to reputation only on clear and
convincing proof that the defamatory falsehood was made
with knowledge of its falsity or with reckless disregard for
the truth. This standard administers an extremely
powerful antidote to the inducement to media self-
censorship of the common-law rule of strict liability for libel
and slander. And it exacts a correspondingly high price
from the victims of defamatory falsehood. Plainly many
deserving plaintiffs, including some intentionally subjected
to injury, will be unable to surmount the barrier of the New
York Times test.
Id. at 342, 41 L. Ed. 2d at 807. Despite Amici’s contentions otherwise, after a careful
examination of the testimony, documentary evidence, and arguments presented by
the parties, we conclude that plaintiff’s evidence was sufficient to meet the high
standard of the New York Times test. See generally id.II. Background
This case arises from a defamation suit brought by plaintiff after defendants
published articles in The N&O about plaintiff’s work as a special agent for the SBI in
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examining firearms. As an employee of the SBI, plaintiff was a public official, and
she had testified at two murder trials -- both arising out of the death of Christopher
Foggs -- about the bullet fragments and casings found at the scene of the shooting.
See Desmond v. News & Observer Publ’g Co., 241 N.C. App. 10, 13–14, 772 S.E.2d
128, 133 (2015) (“Desmond I”). The articles were about plaintiff’s work and testimony
in the two cases. Id. at 14-15, 772 S.E.2d at 133. We described the factual background
of the two underlying criminal trials where plaintiff testified and the articles in the
prior appeal in this case:
I. Factual Background
The alleged defamation arose out of defendants’
newspaper articles regarding plaintiff’s testimony in two
criminal trials. Both of the criminal defendants in those
cases appealed their convictions to this Court, and we will
first review briefly the facts of those underlying cases, as
previously described by this Court.
A. Underlying Criminal Cases
In Pitt County, North Carolina, during
the afternoon of 19 April 2005, Loretta Strong
and several of her female cousins and friends
(collectively, the “Haddock girls”) were
socializing in a vacant lot across the street
from the home of Strong’s grandmother,
Lossie Haddock. Vonzeil Adams drove by the
lot with a group of her girlfriends. A verbal
altercation arose between the two groups of
women. Adams was angry with the Haddock
girls because Adams’s sister had complained
to Adams that the Haddock girls had
assaulted the sister in the presence of
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Adams’s children. During the exchange,
Adams said she would return and that she
had something for the Haddock girls.
Later that afternoon, some of the
Haddock girls drove by Adams’s house where
another verbal altercation occurred. The
Haddock girls returned to and congregated on
Lossie Haddock’s porch.
Around 6:00 p.m. or 7:00 p.m., Adams
traveled to Lossie Haddock’s house in a
reddish Chevrolet Caprice driven by her
boyfriend, Jemaul Green. Adams’s sister and
several girlfriends were in the car as well. A
car full of Adams’s girlfriends followed shortly
behind. Green parked the car across from
Lossie Haddock’s house. Adams exited the
vehicle and walked toward the house,
exchanging words with the women on the
porch. The other women exited the vehicle,
but stayed behind Adams. Strong stepped off
the porch and began to approach Adams, but
stopped before she reached the street.
Adams stopped in the middle of the
road. She then exclaimed that someone
should get a firearm and shoot the Haddock
girls. Green exited the vehicle and fired a gun
into the air. Green then pointed the gun in
the direction of Lossie Haddock’s house and
fired several shots. Jasmine Cox, who was on
the porch, began running into the house after
she saw Green point the gun in the air. She
was the first person to get into the house, and
testified that, after she got in, she heard more
gunfire following the first shots.
Ten-year-old Christopher Foggs, who
had been playing in the area, was found face
down next to the Haddock house. When he
was turned over, a gunshot wound to his chest
was discovered. He died from the wound at
the hospital later that evening.
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State v. Adams, 212 N.C. App. 235, 713 S.E.2d 251, slip op.
at 2–4 (2011) (unpublished). Police never recovered a gun.
On 25 April 2005, a grand jury indicted Green for
first-degree murder, among other charges. State v. Green,
187 N.C. App. 510, 653 S.E.2d 256, slip op. at 1 (2007)
(unpublished), appeal dismissed and disc. review denied,
362 N.C. 240, 660 S.E.2d 489 (2008). During the summer
2006 trial, plaintiff, a North Carolina State Bureau of
Investigation (“SBI”) forensic firearms examiner, opined to
a scientific certainty that eight cartridge cases, which were
found at the site of the shooting, were all fired from the
same gun, a High Point 9 millimeter semiautomatic pistol.
Plaintiff further opined that two bullets, which were found
at the site of shooting, were fired from the same type of gun,
a High Point 9 millimeter semiautomatic pistol, but that
she could not conclusively determine whether the bullets
were fired from the same gun. On voir dire, plaintiff
testified she was absolutely certain as to her findings. In a
lab report, plaintiff stated that the two bullets “exhibit
class characteristics that are consistent with ammunition
components that are fired by firearms that are
manufactured by or known as: Hi-point (Model C).”
At trial, Green testified that, during the
confrontation, a person shot a gun at him. He testified that
he shot back at the person but that the person ran away.
On 2 August 2006, a jury found Green guilty of second-
degree murder, among other offenses.
A grand jury also indicted Adams for first-degree
murder, among other charges. During the spring 2010
trial, plaintiff gave the same opinion about the cartridge
cases and bullets. A jury found Adams guilty of voluntary
manslaughter, under an aiding-and-abetting theory,
among other offenses.
During Adams’s trial, her lawyer, David Sutton,
arranged for Frederick Whitehurst, who had previously
worked as a forensic chemist in a Federal Bureau of
Investigation (“FBI”) crime laboratory, to take photographs
of the two bullets butt-to-butt with his microscope.
B. Newspaper Articles
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In March 2010, Locke, an investigative reporter for
N&O, became interested in the Green and Adams cases.
Locke interviewed plaintiff; Sutton; Whitehurst; Liam
Hendrikse, a firearms forensic scientist; Stephen Bunch, a
firearms forensic scientist and former FBI scientist;
William Tobin, a forensic material scientist and
metallurgist; Adina Schwartz, a professor at the John Jay
College of Criminal Justice; Clark Everett, the Pitt County
district attorney during the Green and Adams cases; and
Jerry Richardson, the SBI laboratory director.
On 14 August 2010, N&O published an article
written by Locke and Joseph Neff, which was entitled, “SBI
relies on bullet analysis critics deride as unreliable.” In the
14 August article, Locke and Neff are highly critical of
plaintiff's bullet analysis and testimony in the Green and
Adams cases and include one of Whitehurst’s photographs
of the two bullets. In September or October 2010, Everett
engaged Bunch to conduct an outside examination of the
eight cartridge cases and two bullets. Bunch agreed with
plaintiff that the eight cartridge cases were fired from the
same firearm. Bunch also concluded that it is likely, but
not certain, that the two bullets were fired from the same
type of gun, a High Point 9 millimeter semi-automatic
pistol. Bunch further concluded that the two bullets could
have been fired from the same gun. On 31 December 2010,
N&O published a follow-up article, written by Locke and
Neff, which was entitled “Report backs SBI ballistics.” In
the 31 December article, Locke and Neff discussed Bunch’s
results but emphasized that, unlike plaintiff, Bunch
refused to ascribe absolute certainty to his finding that the
two bullets were likely fired from the same type of gun.
II. Procedural Background
On 1 September 2011, plaintiff brought libel claims
against N&O, McClatchy, N&O’s parent company, Locke,
Neff, John Drescher, N&O’s executive editor, and Steve
Riley, N&O’s senior editor of investigations, among other
defendants who were later dismissed from this action. On
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27 June 2013, plaintiff filed her first amended complaint.
On or about 22 January 2014, plaintiff moved to amend her
first amended complaint. On 27 January 2014, N&O,
McClatchy, Locke, Neff, Drescher, and Riley moved for
summary judgment. On or about 5 March 2014, the trial
court allowed plaintiff's motion, and plaintiff filed her
second amended complaint. On 14 March 2014, the trial
court granted Neff, Drescher, and Riley’s motion for
summary judgment but denied N&O, McClatchy, and
Locke’s motion for summary judgment. On 4 April 2014,
defendants gave timely notice of appeal.
Id. at 12–15, 772 S.E.2d at 132–34 (citations, quotation marks, ellipses, and brackets
omitted).
In Desmond I, defendants argued “that the trial court erred by denying their
motion for summary judgment as to plaintiff's libel claims.” Id. at 16, 772 S.E.2d at
134. This Court then analyzed each of the sixteen statements plaintiff alleged as
defamatory from the defendants’ articles and ultimately determined the trial court
had properly granted summary judgment as to ten of the statements and should have
denied the summary judgment motion as to six of the statements; we remanded to
the trial court for the case to proceed with plaintiff’s claims based upon those six
statements. See id. at 18-31, 772 S.E.2d 135-43.
The jury trial began on 26 September 2016. Plaintiff called over a dozen
witnesses and presented over 100 exhibits; defendants called two witnesses, one of
whom was defendant Locke, and presented fewer than 20 exhibits. On 17 October
2016 the trial court instructed the jury, and on 18 October 2016 the jury reached a
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verdict. The verdict form included a separate determination for each of the six
statements. The six statements were:
1. “Independent firearms experts who have studied the photographs question
whether Desmond knows anything about the discipline. Worse, some suspect
she falsified the evidence to offer prosecutors the answers they wanted.”
2. “‘This is a big red flag for the whole unit,’ said William Tobin, former chief
metallurgist for the FBI who has testified about potential problems in firearms
analysis. ‘This is as bad as it can be. It raises the question of whether she did
an analysis at all.’”
3. “The independent analysts say the widths of the lands and the grooves on the
two bullets are starkly different, which would make it impossible to have the
same number.”
4. “‘You don’t even need to measure to see this doesn’t add up,’ said Hendrikse,
the firearms analyst from Toronto. ‘It’s so basic to our work. The only benefit
I can extend is that she accidentally measured the same bullet twice.’”
5. “Other firearms analysts say that even with the poor photo lighting and
deformed bullets, it’s obvious that the width of the lands and grooves are
different.”
6. “Ballistics experts who viewed the photographs, including a second FBI
scientist who wrote the report released Thursday, said the bullets could not
have been fired from the same firearm.”
The first five statements are from articles written by defendant Locke and plaintiff’s
claims are against both defendants; the sixth statement is from an article written by
Joseph Neff, defendants’ other witness, and plaintiff’s claim is only against defendant
N&O.
The jury found each of the six statements to be materially false and found for
each statement “by strong, clear and convincing evidence that at the time of
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publication, defendant Mandy Locke either knew [the statement] was materially false
or had serious doubts as to whether [the statement] was true.” The jury awarded
plaintiff $1.5 million in “presumed damages” from both defendants based upon
Statements 1 through 5; $11,500 in “actual damages” from defendant N&O only as
to statement 6; $75,000 in “punitive damages” from defendant Locke; and $7.5 million
in punitive damages from defendant N&O.3
Defendants moved for JNOV or, in the alternative, for a new trial. On 30
January 2017, the trial court entered an amended order denying the motion.
Defendants appeal the order and judgment entered upon the jury verdict and the
order denying their motion for JNOV.
III. Actual Malice
Defendants first contend that plaintiff “failed to prove constitutional actual
malice[,]” (original in all caps), and “this Court should direct the entry of judgment in
favor of The Newspaper Defendants notwithstanding the verdict.”
A. Standard of Review
The standard of review of the denial of a motion for
a directed verdict and of the denial of a motion for JNOV
are identical. We must determine whether, upon
examination of all the evidence in the light most favorable
to the non-moving party, and that party being given the
benefit of every reasonable inference drawn therefrom and
resolving all conflicts of any evidence in favor of the non-
3 Pursuant to North Carolina General Statute §1D-50, the trial court reduced the punitive damages
award against defendant N&O to approximately $4.5 million.
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movant, the evidence is sufficient to be submitted to the
jury.
Springs v. City of Charlotte, 209 N.C. App. 271, 274–75, 704 S.E.2d 319, 322–23
(2011) (citation and quotation marks omitted).
As explained in Desmond I,
In order to recover for defamation, a plaintiff generally
must show that the defendant caused injury to the plaintiff
by making false, defamatory statements of or concerning
the plaintiff, which were published to a third person. This
statement must be a statement of fact, not opinion, but “an
individual cannot preface an otherwise defamatory
statement with ‘in my opinion’ and claim immunity from
liability.”
Whether a statement constitutes fact or
opinion is a question of law for the trial court
to decide. Like all questions of law, it is
subject to de novo review on appeal. In
determining whether a statement can be
reasonably interpreted as stating actual facts
about an individual, courts look to the
circumstances in which the statement is
made. Specifically, we consider whether the
language used is loose, figurative, or
hyperbolic language, as well as the general
tenor of the article.
The court must view the words within their full context.
Moreover,
where the plaintiff is a public
official and the allegedly
defamatory statement concerns
his official conduct, he must
prove that the statement was
made with actual malice—that
is, with knowledge that it was
false or with reckless disregard
of whether it was false or not.
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The rule requiring public
officials to prove actual malice is
based on First Amendment
principles and reflects the
Court’s consideration of our
national commitment to robust
and wide-open debate of public
issues.
....
It is important to acknowledge that
evidence of personal hostility does not
constitute evidence of actual malice.
Additionally, reckless disregard is not
measured by whether a reasonably prudent
man would have published, or would have
investigated before publishing. There must be
sufficient evidence to permit the conclusion
that the defendant in fact entertained serious
doubts as to the truth of his publication.
Plaintiff stipulates that she is a public official.
Desmond I, 241 N.C. App. at 16–17, 772 S.E.2d at 135 (emphasis added) (citations,
quotation marks, ellipses, and brackets omitted).
In addition,
[t]he question whether the evidence in the record in
a defamation case is sufficient to support a finding of actual
malice is a question of law. This rule is not simply premised
on common-law tradition, but on the unique character of
the interest protected by the actual malice standard. Our
profound national commitment to the free exchange of
ideas, as enshrined in the First Amendment, demands that
the law of libel carve out an area of breathing space so that
protected speech is not discouraged. The meaning of terms
such as “actual malice”--and, more particularly, “reckless
disregard”--however, is not readily captured in one
infallible definition. Rather, only through the course of
case-by-case adjudication can we give content to these
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otherwise elusive constitutional standards. Moreover, such
elucidation is particularly important in the area of free
speech for precisely the same reason that the actual malice
standard is itself necessary. Uncertainty as to the scope of
the constitutional protection can only dissuade protected
speech--the more elusive the standard, the less protection
it affords. Most fundamentally, the rule is premised on the
recognition that judges, as expositors of the Constitution,
have a duty to independently decide whether the evidence
in the record is sufficient to cross the constitutional
threshold that bars the entry of any judgment that is not
supported by clear and convincing proof of ‘actual malice.’
There is little doubt that public discussion of the
qualifications of a candidate for elective office presents
what is probably the strongest possible case for application
of the New York Times rule, and the strongest possible case
for independent review. As Madison observed in 1800, just
nine years after ratification of the First Amendment:
Let it be recollected, lastly, that the
right of electing the members of the
government constitutes more particularly the
essence of a free and responsible government.
The value and efficacy of this right depends
on the knowledge of the comparative merits
and demerits of the candidates for public
trust, and on the equal freedom,
consequently, of examining and discussing
these merits and demerits of the candidates
respectively.
This value must be protected with special vigilance. When
a candidate enters the political arena, he or she must
expect that the debate will sometimes be rough and
personal, and cannot “cry Foul!” when an opponent or an
industrious reporter attempts to demonstrate that he or
she lacks the sterling integrity trumpeted in campaign
literature and speeches. Vigorous reportage of political
campaigns is necessary for the optimal functioning of
democratic institutions and central to our history of
individual liberty.
We have not gone so far, however, as to accord the
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press absolute immunity in its coverage of public figures or
elections. If a false and defamatory statement is published
with knowledge of falsity or a reckless disregard for the
truth, the public figure may prevail. A “reckless disregard”
for the truth, however, requires more than a departure
from reasonably prudent conduct. There must be sufficient
evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his
publication. The standard is a subjective one--there must
be sufficient evidence to permit the conclusion that the
defendant actually had a high degree of awareness of
probable falsity. As a result, failure to investigate before
publishing, even when a reasonably prudent person would
have done so, is not sufficient to establish reckless
disregard. In a case such as this involving the reporting of
a third party’s allegations, recklessness may be found
where there are obvious reasons to doubt the veracity of
the informant or the accuracy of his reports.
In determining whether the constitutional standard
has been satisfied, the reviewing court must consider the
factual record in full. Although credibility determinations
are reviewed under the clearly-erroneous standard because
the trier of fact has had the opportunity to observe the
demeanor of the witnesses, the reviewing court must
examine for itself the statements in issue and the
circumstances under which they were made to see whether
they are of a character which the principles of the First
Amendment protect.
Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685–89, 105 L. Ed.
2d 562, 587-89 (1989) (citations, quotation marks, and brackets omitted).
B. Analysis
The question before this Court is “whether, upon examination of all the
evidence in the light most favorable to . . . [plaintiff], and . . . [plaintiff] being given
the benefit of every reasonable inference drawn therefrom and resolving all conflicts
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of any evidence in favor of . . . [plaintiff],” Springs, 209 N.C. App. at 274–75, 704
S.E.2d at 323, there was “clear and convincing proof of ‘actual malice[;]’” Harte-
Hanks, 491 U.S. at 686, 105 L. Ed. 2d at 588, i.e., evidence that defendants published
the statements at issue “with knowledge that [they were] false or with reckless
disregard of whether [they were] false or not.” Desmond I, 241 N.C. App. at 17, 772
S.E.2d at 135.
Plaintiff presented many days of testimony and evidence regarding defendant
Locke’s investigation, her interviews with various people, drafting of the articles, and
communications between defendant Locke and other employees of defendant N&O.
Defendant N&O directs our attention to the testimony of defendant Locke, the
reporter who wrote most of the statements at issue. Defendants contend that because
defendant “Locke testified, without contradiction, that she believed the first Five
Statements to be substantially true when she wrote them” “[t]he record evidence fell
well short of establishing, with the requisite convincing clarity, that The Newspaper
Defendants published the Six Statements with actual knowledge that they were
materially false or despite having entertained serious doubts about their truth.” But
the jury determines the credibility and weight of the evidence, and the jury is not
required to accept the testimony of any witness. See Penley v. Penley, 314 N.C. 1, 18,
332 S.E.2d 51, 61 (1985) (“The resolution of conflicts in the evidence, the credibility
of witnesses, and the weight to be given any evidence is for the jury.”). The jury is
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not required to accept testimony of the author of the statements that she actually
believed the statements to be substantially true. See generally id. The United States
Supreme Court has determined that a defamation defendant cannot “automatically
insure a favorable verdict by testifying” that she believed the statements to be true:
The defendant in a defamation action brought by a
public official cannot, however, automatically insure a
favorable verdict by testifying that he published with a
belief that the statements were true. The finder of fact
must determine whether the publication was indeed made
in good faith. Professions of good faith will be unlikely to
prove persuasive, for example, where a story is fabricated
by the defendant, is the product of his imagination, or is
based wholly on an unverified anonymous telephone call.
Nor will they be likely to prevail when the publisher’s
allegations are so inherently improbable that only a
reckless man would have put them in circulation. Likewise,
recklessness may be found where there are obvious reasons
to doubt the veracity of the informant or the accuracy of his
reports.
St. Amant v. Thompson, 390 U.S. 727, 732, 20 L. Ed. 2d 262, 267-68 (1968).
Defendant relies heavily on the Fourth Circuit case of Ryan v. Brooks, where
the Court noted, “In two cases in which the evidence of malice was found to be
sufficient, by contrast, the facts indicated strongly that the challenged allegations
had been completely fabricated by the writer.” 634 F.2d 726, 734 (4th Cir. 1980).
Ultimately the Court in Ryan concluded there was not sufficient evidence of actual
malice:
[W]e think the evidence in this case was insufficient to
bring John Brooks’ actions within those outer limits of
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reckless conduct marked out in Supreme Court cases.
Assuming that the use of the words “extortion” and “false
vouchers” rendered the sentence false and defamatory,
there is clearly no evidence that Brooks knew they were
false. The only question is whether he actually doubted
their accuracy but left them unchanged, without further
investigation. There is nothing in the record to indicate
that Brooks had any such doubts. He relied on two
secondary sources which he had used in the past and which
have an excellent reputation. He had no reason to doubt
the accuracy of their accounts of Ryan’s Observer interview.
The reliability of the third source, the internal
Management Report of AT&T, is more questionable, but
Brooks used nothing from it that was not also found in his
other sources. It simply served to corroborate the existence
of the false vouchering system reported in Business Week.
Even if the three sources together should have tipped
Brooks to the existence of a dispute between Ryan and
Southern Bell executives, as Ryan argues they must have,
he would still have no reason to suspect that the Times and
Business Week had not reported Ryan’s statements
accurately.
Clearly it would have been better journalistic
practice to have verified the accuracy of these secondary
sources by reading the original account in the Charlotte
Observer. But we cannot say that the failure to do so
amounted to more than mere negligence. We recognize that
the book was not “hot news,” and a more thorough
investigation should be expected in these circumstances
than in the preparation of a news story under deadline
pressure. Nevertheless, the sentence was such a small part
of the whole work that the author might understandably
feel three sources to be sufficient. Certainly where there
was no reason to doubt the accuracy of the sources used,
the failure to investigate further, even if time was
available, cannot amount to reckless conduct.
Nor can the fact that Brooks changed the words of
his sources create a jury issue on the question of malice.
The historian’s job is not to copy statements exactly as
written in a secondary source, but to interpret and rework
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them into the whole. Though “extorted” was an
unfortunate choice of words because of its criminal
connotations, it does also mean simply “obtained by force.”
Since Ryan’s testimony indicated that the contributions to
the fund were not entirely voluntary, the word was not
really off the mark. In Time, Inc. v. Pape, 401 U.S. 279, 91
S.Ct. 633, 28 L. Ed. 2d 45 (1971), the Court considered a
defamation claim arising from a magazine writer’s
omission of the word “alleged” when citing a report of a
certain incident of police brutality. The Court reasoned
that omission of the word was perhaps due to a
misconception, but was nevertheless an interpretation
drawn from the report as a whole; to permit the malice
issue to go to the jury because of it would be to impose a
much stricter standard of liability on errors of
interpretation or judgment than on errors of historic fact.
We think this reasoning applies here, and would not find
proof of malice in Brooks’ use of slightly stronger language
than his source’s.
Id. at 732–33 (citations and quotation marks omitted).
Ryan addressed actual malice based upon the plaintiff’s claim that the
defendant fabricated the story, but the evidence showed that the reporter had relied
upon sources with excellent reputations whom he had used in the past. See id. There
was no evidence that the reporter had any doubts or reason to believe the
information was inaccurate. See id. Even if he could have conducted a more
thorough investigation, under the circumstances, his failure to do so was not
reckless. See id. But here, plaintiff presented evidence that defendants, on multiple
occasions, took the statements of some sources out of context, and thus ultimately
published articles that were not in line with what the sources actually said.
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Again, there is no single definition of “actual malice” in defamation cases since
defamation cases depend heavily on the unique facts of each case: “only through the
course of case-by-case adjudication can we give content to these otherwise elusive
constitutional standards.” Harte-Hanks, 491 U.S. at 686, 105 L. Ed. 2d at 587-88.
We thus turn to the evidence and plaintiff’s theory of the case. Plaintiff contended
that defendants decided in advance what the story would be, and when defendant
Locke’s investigation failed to support the story as planned, they intentionally
proceeded with the story anyway. Defendants knew that an independent
examination of the bullets was pending but published the article on the planned
schedule without waiting for the results. Although all of the experts defendant
Locke consulted told her they could not give any opinion based only on pictures, and
some told her they were not even qualified to give an opinion on plaintiff’s work, still
defendants attributed the six statements criticizing plaintiff’s work to these experts.
And the results of Stephan Bunch’s independent examination of the bullets
ultimately supported plaintiff’s examination. Consistent with our obligation to
independently review the evidence to determine if there was “clear and convincing
proof of ‘actual malice[;]’” id. at 686, 105 L. Ed. 2d at 588, i.e., evidence that
defendants published the statements at issue “with knowledge that [they were] false
or with reckless disregard of whether [they were] false or not[,]” Desmond I, 241
N.C. App. at 17, 772 S.E.2d at 135, we will briefly summarize a small part of the
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extensive evidence supporting plaintiff’s claim.
During the time defendant N&O was developing the “Agent’s Secret” series
which would “[show] how practices by the State Bureau of Investigation have led to
wrongful convictions[,]” (quotation marks omitted), defendant Locke had learned
about attorney David Sutton’s “concerns about the firearms performance of Agent
Desmond[.]” Sutton represented the defendant, Vonzeil Adams, in her murder trial.
At Sutton’s request, Fred Whitehurst, a former FBI chemist, looked at two bullet
fragments from the scene of the crime under a microscope and photographed them.
Sutton filed a motion for mistrial based upon Whitehurst’s photographs.
Sutton alleged in his motion that the photographs “clearly show that the
‘lands and grooves’ in Q-9 and Q-10 [,the two bullet fragments,] are distinctly
dissimilar” and that the photographs “were sent to William Tobin, formerly of the
FBI laboratory for analysis.” Sutton went on to state that Tobin “says ‘preliminary’
based upon a photograph sent by Whitehurst there is ample reason to question
whether the class characteristics in Q-9 and Q-10 are the same.” Sutton alleged
“[u]pon information and belief” that “Q-10 does not have even the five lands and
grooves [plaintiff] testified were present.” Sutton requested a mistrial based upon
“denial of exculpatory evidence pursuant to United States v. Brady and what appears
to be factually incorrect testimony as well.” The motion for mistrial was denied.
Defendant Locke discussed the case with Sutton and began to put the story
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together, and in her first draft she used a quote from Sutton: “[Plaintiff] just made
it up. She made it up because she could, and prosecutors needed her to. It’s that
simple.” Plaintiff’s theory was that defendant Locke had decided at this point “That’s
what she wanted the story to be[;]” but what she wanted the story to be was simply
a contention from a defense attorney – not an impartial source and not an expert.
And this accusation—that plaintiff “just made it up” – was perhaps the worst
accusation possible against any witness, but particularly an agent of the SBI
laboratory whose credibility is paramount when testifying regarding evidence in a
murder trial. The accusation was that plaintiff fabricated the evidence in her report,
perjured herself in her testimony in a murder trial, and intentionally or recklessly
contributed to a possible wrongful conviction of an innocent person, with the logical
corollary that the actual murderer would remain free to commit more crimes. But
to produce the article defendant Locke needed experts in firearm analysis to
substantiate Sutton’s claim that plaintiff “just made it up.” Thus, defendant Locke
contacted various experts seeking opinions on plaintiff’s work in the Adams case.
As part of defendant Locke’s investigation she contacted Tobin, the expert
from Sutton’s motion for mistrial; Tobin was a “former chief metallurgist for the
FBI.” Statement 2 was attributed to Tobin. Plaintiff presented evidence that Locke
misrepresented information regarding the bullet fragments to Tobin to elicit
statements critical of her work for the article and to bring into question whether the
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class characteristics in the two bullet fragments were the same, but merely raising
a question was not what defendants Locke and N&O wanted for the series, they
wanted wrongdoing by the SBI which led to a wrongful conviction.
After discussions and a series of emails about the case with defendant Locke,
Tobin clarified in writing the limitations of his comments to defendant Locke. On 3
August 2010, prior to publication of the first article on 8 August 2010, Tobin sent an
email to defendant Locke stating, in part:
I don’t do F/TM examinations, and most particularly don’t
render opinions from photographs in an area in which I
don’t function. I only testify as a scientist objecting to the
lack of a scientific foundation for testimonies of
individualization (specific source attribution), and report
on the opinion of my [rather distinguished] colleagues who
also strenuously disagree with the conclusions rendered by
F/TM examiners. The science doesn’t support such
conclusions.
I never testify [(sic)] to the possible fact of a match, only as
to the lack of scientific (and statistical) foundation for
inferences of individualization.
(Emphasis added.) Despite Tobin’s specific notification he did not “render
opinions from photographs in an area in which I don’t function,” defendants
published the article including statements attributed to Tobin. Instead of presenting
Tobin’s opinions on the validity of individualization in general, the article
represented that Tobin had specifically analyzed plaintiff’s work. Statements 1 and
2 directly criticize plaintiff’s work in the Adams case, even suggesting complete
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incompetence (“experts who have studied the photographs question whether
Desmond knows anything about the discipline”) or intentional falsification of
evidence (“some suspect she falsified the evidence to offer prosecutors the answers
they wanted.”).
Plaintiff’s attorney accurately summarized the evidence regarding Tobin to
the jury,
With regards to Tobin, you know, they rely a lot on
Bill Tobin, but you recall his testimony that he may have
said this is bad as it can be. He may have said -- he may
have used those words, and those words appear in her
notes, Mandy Locke’s notes. Okay? He may have said it
raises a question about whether she did an analysis at all.
But he made it very clear that anything he would have said
with regards to that was in response to Locke asking him
how mistakes generally are made, or asking him to
hypothetically assume that an independent analysis in fact
determined Desmond was wrong.
He did not tell her that he questioned whether or not
Desmond had done analysis -- analysis at all. And when
asked if he ever stated to Locke that he questioned whether
Desmond knew anything about the discipline, you recall
his testimony. “First of all, I continued to advise Locke that
I have no basis to make any claims of this particular
examiner’s work, I have none. I have no. I didn't know who
she or he was. I had no experience with the work product,
so I have no basis to make any statements regarding a
specific examiner’s proficiency. It’s not even a field of which
I normally will deal anyway. This is such a foreign
statement. I would not be in a basis to claim that somebody
doesn’t know anything about an area in which I don’t even
deal, in which I don’t even perform, that I don’t even
operate. It’s like we’re on two different planets as far as
how that conversation went.”
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On 17 August 2010, Tobin contacted Jerry Richardson, SBI Assistant
Director4 “to apologize[.]” Richardson described Tobin’s comments in an email:
Bill Tobin, FBI Chief Metallurgist, who is quoted from
Saturday’s article contacted me earlier today, He wanted
to apologize to Beth Desmond, the SBI Firearms Section
and me for the manner in which his comments were
portrayed in Firearms article. He advises that he only
answered questions from the reporter in general terms and
actually was not aware of the circumstances of any of the
cases and has no knowledge of Desmond’s work. Tobin
advises that his quotes are from three different questions
and appears to have been combined from a series of “What
ifs.” He further wanted us to know that he is not one of the
independent experts that is mentioned in the article.
(Emphasis in original.)
Plaintiff presented evidence of many emails and conversations between Tobin
and defendant Locke, and Tobin testified in his deposition about the specific
statements attributed to him:
Q. If I understand your answer correctly, your
comment, This is as bad as it can be, or It doesn’t get any
worse than this, was assuming that it was determined that
a mistake or an error had been made; is that fair to say?
A. Yes, I would also remind, should remind somebody,
that that was out of context. In context I was also implying
that what I just said is true with regard to the practice of
firearms identification, but one needs to put that also in a
systemic context because what I believe we had already
discussed, if in fact an error had been made, how it crept
through the system through what should have been some
systemic peer reviews, supervisory reviews of the crime
4 Title as noted by Mr. Richardson on the signature line of his email.
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lab, itself, as well.
So in other words, even if an error existed, it should
have been detected somewhere along the normal system of
reviews before it’s admitted or before it’s released from the
agency. So that was in the context in which I said it doesn’t
get any worse than that, if in fact an error was made.
Again, that’s the subjunctive, the caveat or disclaimer,
then, comma, then this is it doesn’t get any worse than the
easiest of the three types of an error creeping all the way
through the system. That what I was meaning by it doesn’t
get any worse than this.
Again, I was not referring to a specific examiner or a
specific case. I was just discussing general errors as Type
1, Type 2, and Type 3 errors and the presumed system of
checks and balances and error quality control process that
should exist in the system. Does that make any sense?
Q. It does. So is it fair to say that your comment
of either, This is as bad as it could be or It doesn’t get any
worse than this, that you may have made to Mandy Locke
was not referring to Beth Desmond’s work in this case?
A. Correct.
Q. In any of your conversations with Ms. Locke,
did you state to Ms. Locke that you questioned whether
Beth Desmond knew anything at all about the discipline of
firearms examination?
A. First of all, I continue to advise Fred and
Mandy that I have no basis to make any claims of this
particular examiner’s work. I have none. I have no, I didn’t
know who she or he was. I had no experience with her work
product, so I have no basis to make any statements
regarding a specific examiner’s proficiency.
It’s not even a field in which I normally will
deal anyway. So on numerous levels I had no basis to make
any claim about someone’s proficiency. So I don’t recall
making any statement that she doesn’t’ know anything
about firearms or whatever you, firearms identification. I
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don’t recall making that statement.
If I did, it would have been included in the
universe or the entire same pool, it’s known as, entire
possible events leading up to an error if on occurred, if one
had occurred, but I don’t recall making that statement.
Q. So is it fair to summarize your answer by
saying you don’t recall making any statement like that, but
if you had made a statement like that, the only way you
could have possibly made a statement like that is if in
response to the assumption that a mistake had, in fact,
been made and you were laying that out as one possibility
along with a lot of other possibilities as the cause of the
mistake.
A. Yes, but that is such a foreign statement. I
would not be in a basis to claim that somebody doesn’t know
anything about an area in which I don’t even deal, in which
I don’t even perform, that I don’t even operate.
So again, I continually admonish – well, not, I
continually reminded Fred and Mandy that I can only
present generic assessments of errors, what types of errors
and systematic issues from my experiences, both as a
scientists and also as a[] forensic examiner inside, behind
the blue wall. I can only address these areas generically.
So I would not have any basis at all to make any
statement about someone’s proficiency in an area outside
of metallurgy material science and possibly legally, in the
legal community. But I would not make such a statement.
That’s not, I have no basis to make that statement.
Q. In any of your conversations with Ms. Locke,
did you ever tell Ms. Locke that you suspected that Beth
Desmond falsified evidence to offer prosecutors the answer
they wanted?
A. No. Again, I have no basis. There is not, that
is so inconsistent on numerous levels for me to make that
statement, so I did not make that statement.
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Q. In any of your conversations with Ms. Locke did you
ever tell Ms. Locke that you questioned whether Beth
Desmond had done an analysis at all?
A. I’ll say if you take out the two words Beth and
Desmond, yes. I do recall including that in the -- that’s
called drylabbing -- take the name out and I concluded that,
included that in the possible universe of explanations as to
what could have occurred if an error had, in fact, been
made.
But I did not specifically indicate that Beth
Desmond committed an error. Again, over and over I told
anyone with whom I was interacting, I have no basis to
judge her work product or her proficiency.
(Emphasis added.)
After Tobin’s initial response that he could not give an opinion on plaintiff’s
work, defendant Locke began seeking another expert who could support Sutton’s
claim of fabrication of evidence. Adina Schwartz, “a professor at the John Jay
College of Criminal Justice[,]” Desmond I, 241 N.C. App. at 14, 772 S.E.2d at 133,
was in contact with many involved with the questions regarding the bullets and at
one point she sent an email to numerous parties stating,
Dear All,
I apologize for any misleading impressions I created by the
e-mail I sent yesterday. First, the State has NOT conceded
that any error was committed. Second, a definitive
statement that the bullets came from two guns can’t be
made on the basis of Fred’s photographs or, indeed, any
photos. To reach a definite conclusion as to the class
characteristics on the two bullets, the bullets themselves
will need to be examined.
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Plaintiff also summarized the evidence regarding Schwartz to the jury,
“Question, would you have ever told Mandy Locke that you
suspected that Beth Desmond had falsified her reports?”
“Answer, no. That is not something I would have
said, chiefly because I don't have access to Ms. Desmond’s
mind. To say ‘falsified’ would have been that she did
something, deliberately lied. How could I know without
having access to her mind.”
Later on, “Question, did you ever -- would you have
ever told Mandy Locke that the widths of the lands and
grooves impressions on the bullets that Beth Desmond
examined were starkly different, and therefore it’s
impossible for the bullets to have the same number of land
and groove impressions?”
“Answer, I could only have said, I might have said
that Liam had that opinion, or that Fred had that opinion,
or possibly if Bill Tobin had got involved, that they had that
opinion. I’m not competent to have such an opinion. I
wasn’t then, and I am not now, I have never been
competent to have such an opinion.”
Liam, from the email, refers to Liam Hendrikse. Hendrikse is “a firearms forensic
scientist[.]” Id. As summarized by plaintiff’s attorney to the jury,
Here you have Hendrikse to Locke, ‘The fact remains
that unless I physically examine them, I won’t know if
NCSBI are correct or not.” Where was that in the article?
“Did they ever employ an independent examiner to get a
second opinion?” That was an e-mail. So obviously
Hendrikse at this point is saying, you know, what’s the
status with the second -- with the second exam. And almost
like, why are you still contacting me?
And the e-mail from Locke to Hendrikse. This is an
interesting one. This is the one that -- that – that was
obtained from Liam Hendrikse, and the News and
Observer never had a copy, didn't provide us a copy.
“Thanks for that” – “Liam, thanks for that. That’s what I
suspected.” And this was in response to Liam Hendrikse
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asking her have they hired somebody else.
"They hired a guy and run through a million hoops
to physically get the bullets sent. The DA has dragged his
feet per pressure from the SBI. They are avoiding
scrutiny.”
But defendant Locke failed to mention to Hendrikse that a second examination of
the bullets was going to be conducted, but it would not be complete before the
planned date for the series to run.
Statement 4 was specifically attributed to Hendrikse, and he asked defendant
Locke in an email for a retraction because his statements were misrepresented in
the series:
Hope all is well down in NC. Just had a quick question
after speaking with several professional colleagues. I’ve
been having trouble with the context of the quotes that are
attributed to me and I was wondering if a retraction was
possible.
The two quotes that I have real issues with are the
following:
1. “The chances of a gun not matching a bullet recovered
from the crime scene when it involves an American gun is
highly likely. Our days of speaking with such certainly
should be over.”
The first part of that was misinterpreted. We were
speaking on the phone about Class Characteristics, not
Individual Characteristics. We spoke about how Agent
Desmond arrived at determining that the bullet was fired
from a Hi-Point. I mentioned that it is usually very
difficult to narrow down the possible makes of gun, to just
one when analyzing the Class Characteristics of a bullet.
The quote makes it seem like I’m saying it’s unlikely that
you can link a bullet to the individual gun that fired it. This
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is wrong, and in a nutshell makes me appear to be a lunatic.
The existence of such a quote have longer-term
ramifications with respect to my career and credentials.
The latter part of that quote doesn’t really say anything
without that first part.
2. The only benefit I can extend is that she accidentally
measured the same bullet twice.
I feel that this is unfair to both agent Desmond and to
myself. Both verbally, and in writing, I stated that I
couldn’t tell you if she was right or wrong unless I examined
the items.
(Emphasis added.)
Among other experts defendant Locke consulted was Steven Bunch, “a
firearms forensic scientist and former SBI scientist[,]” id.; defendant Locke testified
Bunch was a source for Statement 1, along with Tobin and Hendrikse. Plaintiff’s
counsel accurately summarized his testimony to the jury:
He testified that he conditioned any comments made
on the Whitehurst photographs actually depicting the -- the
rifling -- he conditioned any comments he made regarding
the photographs on the photographs actually accurately
depicting the -- the characteristics on the bullets
themselves. And he never passed judgment on Desmond’s
work.
Plaintiff further contended that when the SBI became aware of the questions
regarding the bullets, Richardson sent Whitehurt an email regarding the
photographs, noting they were not accurate:
So this is the e-mail from Richardson, Jerry Richardson,
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head of the crime lab to Fred Whitehurst. And you'll see
down at the bottom here he’s talking about the issues. “We
have noted a number of issues associated with the photos.
These issues include photographs [sic] not properly
oriented, improper side lighting, unknown microscope
magnification, focus, and the use of what appears to be
tweezers or other metal objects to handle the evidence
during photography which could alter the evidence.” Well,
what does -- what does Mandy Locke say? In the e-mail she
turns that around and says that to her sources, “The
photographer had the fragments propped up on metal
tweezers but said he didn’t handle the bullets with them.
The SBI leadership is saying that the metal-to-metal
contact likely corrupted the evidence.”
Plaintiff contended that instead of informing the experts she was aware of the
potential deficiencies of the photographs, defendant Locke sought to use the
information to support her theory that the SBI was trying to hide the truth. Plaintiff
presented evidence of a series of emails between defendant Locke and the experts at
the end of July. In one email to Bunch, defendant Locke stated, “And not
surprisingly, instead of addressing a grave mistake, the SBI leadership is trying to
discredit the photos you and others saw of those bullet fragments[.]” But no one had
ever determined that any “grave mistake” had happened.
Finally, just before publication of the series, defendant Locke met with
plaintiff. The recorded conversation between the two was a trial exhibit. Plaintiff
explained her analysis and how she came to her conclusions. Plaintiff explained why
the pictures did not accurately show grooves on the bullets and noted that the
markings she relied upon were not even visible in the pictures. At the end of the
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interview, plaintiff asked defendant Locke if she understood and if she had clarified
everything; Locke said that she had.
After meeting with plaintiff, defendant Locke emailed Hendrikse stating, “I’m
trying to find a way to believe her. Her confidence was really surprising. She said
she has no interest in doing the analysis again because her work was so good she
didn’t make errors.” But the recorded exchange shows that, although she was
confident of her work, plaintiff actually wanted another examination of the bullets:
MS. LOCKE: Beth the[y]’re going to send these
bullets off . . . what if you’re wrong?
MS. DESMOND: This is what we’ve been asking
them to do. Mr. Whitehurst has, about a month and a half,
maybe two months ago, called and asked if we wanted them
back, if we wanted to reexamine them. And we said no
because we’re confident in our work.
I know that I did my job and I testified as to my
findings regarding that. Of course, we would like for it to be
sent to any other qualified firearms examiner. We have been
asking for it. They said that they had done it a month ago,
a month and a half ago. And Jerry Richardson, Mr.
Richardson, has called and . . . inquired and they still
haven’t sent them anywhere. All right. I am -- I have -- I'm
wanting someone to look at them. That’s fine with me.
(Emphasis added.)
In addition to evidence regarding the plan for the series of articles and the
schedule for publication, plaintiff also presented evidence of internal email
communications about the article between defendant Locke and other employees of
defendant N&O. The emails tended to show defendants were more concerned with
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writing a highly critical and inflammatory article about the SBI and plaintiff than
the accuracy of the article. For example, defendant Locke emailed the photographer
working on the series team, Shawn Rocco, apologizing for the tight publication
deadline. Rocco replied,
hmmm, how to say this nicely . . . . shut up. We’re all in
this together.
concentrate on writing the best damn piece you’ve ever
done. I want you to compel our readers to gather pitchforks
and torches.
because shit like this has got to change.
i’m infuriated that robin [Pendergraff] still keeps a job.
t’aint nothing new in state gov, I know, but I'm pissed
nonetheless.5
Defendants argue their emails simply express their commitment to
investigative journalism, the need to report to the public, and their responsibility to
hold the SBI lab accountable for defective work in the investigation and prosecution
of a murder. Viewed in the light most favorable to defendants, the emails could be
interpreted as defendants contend. But we must view the emails in the light most
favorable to plaintiff and resolve all conflicts in her favor, see Springs, 209 N.C. App.
at 274–75, 704 S.E.2d at 323, and in this light, the internal emails, combined with
the evidence of misrepresentations regarding the pictures of the bullet fragments to
elicit certain opinions from the experts and the lack of information provided to those
experts regarding the fact that no mistake had ever been identified, tended to show
5 Robin Pendergraft was Director of the SBI.
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that the primary objective of defendants was sensationalism rather than truth.
The evidence we have noted is just a brief sampling of some of the evidence
supporting plaintiff’s theory; the record on appeal is twelve volumes and the
supplement to the record is over 8,500 pages. Overall, plaintiff presented evidence
that defendants decided that they would publish an article, in August, revealing that
plaintiff falsified evidence. In addition, defendants claimed the SBI had ignored
questions about whether the bullet analysis was correct and sought to cover up any
problems or investigation into any potential error. Defendant Locke’s research for
the series did not support the proposed premise but ultimately showed that none of
the experts defendant Locke consulted would give any opinion based upon the
photographs, and none of the experts had any personal knowledge of plaintiff’s work
and could give any opinion about it. Just before publication, defendant Locke knew
that the independent analysis would be done by Bunch – but it would not be done in
time for the article deadline -- and if she waited for the analysis, it was possible that
it may confirm that plaintiff’s work was correct, thus eliminating the premise of the
entire article. Instead of waiting for the independent analysis, defendants published
the series, including the Six Statements, knowing that the experts consulted had
actually not given any opinion of plaintiff’s work and had told her repeatedly that
they could not give any opinion based upon pictures.
The law gives defendants much leeway in reporting about public figures in
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matters of public concern, requiring a showing of actual malice which is knowledge
that the publication was false or a reckless disregard for the truth. Desmond I, 241
N.C. App. at 17, 772 S.E.2d at 135. Further protecting defendants from liability, the
law allows for reasonable interpretations by reporters, even if the interpretation is
wrong. See generally Ryan, 634 F.2d 732-33. But there is a limit, and here plaintiff
presented substantial and voluminous evidence that defendants exceeded that limit.
The jury could have believed defendants’ evidence and returned a verdict in their
favor, but they considered plaintiff’s evidence to be more convincing and credible.
Where plaintiff has met the high standards of proof required in a defamation case
regarding a public figure, this Court has no authority to second-guess the jury’s
credibility determinations or to weigh the evidence more favorably to defendants.
“[U]pon examination of all the evidence in the light most favorable to . . .
[plaintiff], and . . . [plaintiff] being given the benefit of every reasonable inference
drawn therefrom and resolving all conflicts of any evidence in favor of . . . [plaintiff],”
Springs, 209 N.C. App. at 274–75, 704 S.E.2d at 323, there was “clear and convincing
proof of ‘actual malice[;]’” Harte-Hanks, Inc., 491 U.S. at 686, 105 L. Ed. 2d at 588,
i.e., evidence that defendants published the statements at issue “with knowledge that
[they were] false or with reckless disregard of whether [they were] false or not.”
Desmond I, 241 N.C. App. at 17, 772 S.E.2d at 135. Upon our independent
examination of the entire record, we have determined that “the evidence in the record
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. . . is sufficient to support a finding of actual malice[.]” Harte-Hanks, Inc., 491 U.S.
657, 685, 105 L. Ed. 2d 562, 587. This argument is overruled.
IV. Exclusion of Evidence
Defendants next contend that the trial court erred in excluding a 7 December
2010 “INTERIM INSPECTION REPORT” from the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board (“ASCLD/LAB”). The report
addressed the “limited scope interim inspection for the North Carolina State Bureau
of Investigation (SBI) Crime Laboratory” conducted on October 26 through 28, 2010.
The inspection was done “because ASCLD/LAB became aware of information
suggesting serious negligence or misconduct substantially affecting the integrity of
forensic result, or noncompliance with accreditation standards by an accredited
laboratory.” The report addressed “three separate forensic disciplines[:]” serology,
controlled substances, and firearms. Serology and controlled substances are not
relevant to this case, but the firearms section addresses the ASCLD/LAB
investigation initiated based upon “State v. Green (2006)” and specifically references
that “[a] News and Observer article published August 27, 2010 called into question
the firearms work in this case.”
Plaintiff filed a motion in limine to exclude the report based on Rules of
Evidence 401, 402, and 403. Plaintiff argued the report was irrelevant because it
was published after the articles and failed to address plaintiff’s work which was the
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subject of the statements. Plaintiff also argued the report should be excluded because
the report “would unfairly prejudice . . . [plaintiff] and would needlessly confuse and
mislead the jury.” The trial court agreed with plaintiff and stated in an order:
The ASCLD-Lab report was prepared after the article in
question and was not relied upon by Ms. Locke or any of
the experts with whom she spoke. Moreover, as the report
does not go to the accuracy of Ms. Desmond’s conclusions,
the Court finds that, at best, the proposed evidence is of
very limited relevance and to the extent it has any
probative value, that probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury. Therefore, the Court, in
its discretion, will exclude said evidence.
But defendants argue that the ASCLD report is relevant because the substance
of the ASCLD report “contradict[ed plaintiff’s] laboratory conclusions and report.” In
other words, defendants contend the report was relevant because it showed the truth
of the articles’ statements about plaintiff’s work. Defendants contend that
[p]ost-publication evidence is no less probative on the
substantial truth question. The RESTATEMENT
articulates the black-letter rule: “[I]f the defamatory
matter is true, it is immaterial that the person who
publishes it believes it to be false; it is enough that it turns
out to be true.” RESTATEMENT (2D) OF TORTS § 581A
cmt. h, (emphasis added). Federal and state courts have
applied that rule. Writing for the Seventh Circuit, for
example, Judge Posner explained:
[I]t makes no difference that the true facts
were unknown until the trial. A person does
not have a legally protected right to a
reputation based on the concealment of the
truth. This is implicit in the rule that truth—
not just known truth . . .—is a complete
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defense to defamation.
In reviewing these evidentiary rulings under Rule 401, we give great deference
to the trial court’s determination, but our standard of review is more stringent than
abuse of discretion:
Evidence is relevant if it has “any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” N.C.G.S. § 8C–1,
Rule 401 (2003). . . . Although the trial court’s rulings on
relevancy technically are not discretionary and therefore
are not reviewed under the abuse of discretion standard
applicable to Rule 403, such rulings are given great
deference on appeal. Because the trial court is better
situated to evaluate whether a particular piece of evidence
tends to make the existence of a fact of consequence more
or less probable, the appropriate standard of review for a
trial court’s ruling on relevancy pursuant to Rule 401 is not
as deferential as the abuse of discretion standard which
applies to rulings made pursuant to Rule 403.
Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (citations and
quotation marks omitted). Furthermore,
Under Rule 403, “although relevant, evidence may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.” N.C.G.S. § 8C-1, Rule 403 (2013).
We review a trial court’s decision to exclude
evidence under Rule 403 for abuse of
discretion. An abuse of discretion results
when the court’s ruling is manifestly
unsupported by reason or is so arbitrary that
it could not have been the result of a reasoned
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decision. In our review, we consider not
whether we might disagree with the trial
court, but whether the trial court’s actions are
fairly supported by the record.
State v. Triplett, 368 N.C. 172, 178, 775 S.E.2d 805, 808-09 (2015) (citation and
quotation marks omitted).
Further, regarding the standard of review, defendants contend that the trial
court’s rulings excluding the report were not “run-of-the-mill evidentiary decisions[,
but rather t]hey undermined The Newspaper Defendants’ ability--guaranteed by the
First Amendment--to offer evidence relevant to the substantial truth of the Six
Statements.” But even if we assume defendants properly raised and preserved a
constitutional argument meriting de novo review, we still conclude defendants do not
prevail on this issue. See generally Hart v. State, 368 N.C. 122, 130, 774 S.E.2d 281,
287 (2015) (“[O]ur review of the constitutional questions presented is de novo.”).
Here, defendants mischaracterize the trial court’s rationale in excluding the
evidence. The trial court did not simply rule that because the report was published
after the articles it was irrelevant for any purpose; it actually ruled that the report
could not have been relevant to defendant Locke’s state of mind when preparing the
articles since it was not available then and it was not relevant to the truth of the
matter because the report does not address plaintiff’s work: “The ASCLD-Lab report
was prepared after the article in question and was not relied upon by Ms. Locke or
any of the experts with whom she spoke. Moreover, as the report does not go to the
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accuracy of Ms. Desmond’s conclusions, the Court finds that, at best, the proposed
evidence if of very limited relevance[.]”
Defendants proffered the report as evidence, and we have read it; despite
defendants’ insistence that the report demonstrated the truth of the articles, that is
simply not what the report does, as the trial court noted. For example, defendants
argue that “[t]he Report was particularly relevant as to Statement One: ‘Independent
firearms experts who have studied the photographs question whether Desmond
knows anything about the discipline. Worse, some suspect she falsified the evidence
to offer prosecutors the answers they wanted.’” But the report mentions no
“[i]ndependent firearms experts” who may have viewed the photographs, and there
was no suggestion that plaintiff “falsified” evidence.
The report did recommend that “[t]he laboratory should further investigate the
testimony of the firearms analyst” “to ensure that the testimony is consistent with
the examinations performed, training received and the examination documentation
present.”6 Even under the most generous consideration, the report does not
demonstrate the substantial truth of the six statements or the articles generally. The
report does not address whether plaintiff’s work was deficient -- the issue raised in
the articles -- nor does it come to any conclusions regarding the bullets themselves.
The most critical statement in the report is that plaintiff failed to include proper
6 Another report was done by ASCLD/LAB in August of 2011 and concluded the issues raised were
resolved.
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documentation of her work in the file, but the report does not address the accuracy of
the actual work. We agree with the trial court that the report did not “make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” N.C. Gen. Stat. §
8C-1, Rule 401 (2015).
Furthermore, we agree with the trial court even if the report arguably has
some relevance -- perhaps that sloppy record-keeping may indicate sloppy work as
well – “is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury.” The report was an interim report and recommended
further investigation; that investigation was done. On 5 November, 2010, an
independent firearms examiner, Bunch, examined the bullets and confirmed that
plaintiff’s analysis was accurate. The trial court’s exclusion of the report was “the
result of a reasoned decision.” Triplett, 368 N.C. at 178, 775 S.E.2d at 809.
Defendants also argue that in proving the truth of their statements they
offered the report, “among other things[.]” But defendants’ brief does not identify any
“other things” they offered to prove truth. Defendants have not demonstrated how
the trial court “undermined” defendants’ ability to present evidence of the truth of
the statements by excluding the report. The report addresses laboratory practices
and recommends further action, but made no conclusions about plaintiff’s work which
was the subject of the articles. Defendants have not noted any other evidence they
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sought to present regarding the truth of the statements which was excluded.
Defendants were not impeded in the presentation of their defense of truth. We
conclude the trial court did not err in excluding the evidence under Rule 401 or Rule
403 and did not prevent defendants from presenting evidence of truth of the
statements. This argument is overruled.
V. Jury Instructions
Last, defendants challenge “errors and omissions in the jury instructions in
both the liability and punitive damages phases” and argue that the improper jury
instructions “deprived The Newspaper Defendants of First Amendment protections.”
(Original in all caps.) Defendants contest three portions of the jury instructions.
A. Standard of Review
A trial court’s jury instructions are sufficient if they
present the law of the case in such a manner as to leave no
reasonable cause for believing that the jury was misled or
misinformed. A charge must be construed contextually,
and isolated portions of it will not be held prejudicial when
the charge as a whole is correct. When a defendant
requests an instruction which is supported by the evidence
and is a correct statement of the law, the trial court must
give the instruction, at least in substance. Arguments
challenging the trial court’s decisions regarding jury
instructions are reviewed de novo by this Court. A trial
court's failure to submit a requested instruction to the jury
is harmless unless defendant can show he was prejudiced
thereby.
State v. Pendergraft, 238 N.C. App. 516, 532, 767 S.E.2d 674, 685 (2014), aff’d per
curiam, 368 N.C. 314, 776 S.E.2d 679 (2015) (citations, quotation marks, and brackets
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omitted).
B. Attribution
Defendants contend “[t]he jury should have been instructed that falsity must
be measured by the truth of the underlying statement, not the truth of the
attribution.” Defendants argue that their proposed instruction
on material falsity that correctly focused on the truth of the
underlying statement, not solely on the accuracy of the
attribution to a particular source: “If you find that the
underlying facts reported by a challenged Statement
are substantially true, separate and apart from the
attribution to a cited or quoted source or sources, you
should find that Plaintiff has not carried her burden
of proving material falsity.” (R p 1824).
The Superior Court refused to give that instruction.
Instead, over The Newspaper Defendants’ objection (R pp
1826-29; T pp 1866-82), the Court instructed the jury:
The attribution of statements, opinions or
beliefs to a person or persons may constitute
libel if the attribution is materially false, or
put another way, if it is not substantially true.
The question is whether the statements,
opinions or beliefs of the individuals that were
reported as being held or expressed by the
individuals were actually expressed by those
individuals.”
In Desmond I, we addressed whether the statements regarding opinions of
experts, viewed in the light most favorable to plaintiff for purposes of summary
judgment, 241 N.C. App. at 16, 772 S.E.2d at 134, could be defamatory, and we
determined that they could:
In this case, which involves mostly Locke’s reports
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of opinions of experts regarding Desmond’s work, fact and
opinion are difficult to separate. Some of the allegedly
defamatory statements, though stated as expressions of
opinion from experts, may be factually false because Locke
reported that the experts expressed opinions regarding
Desmond’s work that they actually did not express. In some
instances, the evidence indicates that Locke asked the
experts a hypothetical question, and they answered on the
assumption that the facts of the hypothetical question were
true, while the facts were actually false and Locke either
knew the facts were false or she asked the question with
reckless disregard for the actual facts. The experts’
opinions were then stated in the article as opinions which
the experts gave about Desmond’s actual work, instead of
in response to a hypothetical question. Thus, the
statements, even as opinions, “imply a false assertion of
fact” and may be actionable under Milkovich. See id. at 19,
111 L. Ed. 2d at 18.
Id. at 21, 772 S.E.2d at 137. The description of the evidence in Desmond I was based
upon the forecast of evidence for summary judgment, but the evidence presented at
trial, some of which is noted in this opinion, was consistent with the description in
Desmond I. See generally id.
Defendants argue that the attribution of the statements to experts is not “the
‘sting’” of the defamatory meaning and contend that only the underlying statement
can be libelous, so the jury should have considered the evidence only as to the truth
or falsity of the underlying assertion of fact, not the truth or falsity of the attribution.
Certainly, the truth or falsity of the underlying statements is important, but in this
case, all of the evidence tends to show that the statements are in fact false.
Independent analysis of the bullets ultimately confirmed plaintiff’s conclusions.
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Thus, defendants focus on whether the evidence shows that they intentionally
misrepresented the opinions of the various experts.
Reporters use quotes from a source to “add authority to the statement and
credibility to the author’s work. Quotations allow the reader to form his or her own
conclusions and to assess the conclusions of the author, instead of relying entirely
upon the author’s characterization of her subject.” Masson v. New Yorker Magazine,
Inc., 501 U.S. 496, 511, 115 L. Ed. 2d 447, 469 (1991). The United States Supreme
Court explained how quotations, or attribution to a source, can be defamatory:
A fabricated quotation may injure reputation in at
least two senses, either giving rise to a conceivable claim of
defamation. First, the quotation might injure because it
attributes an untrue factual assertion to the speaker. An
example would be a fabricated quotation of a public official
admitting he had been convicted of a serious crime when in
fact he had not.
Second, regardless of the truth or falsity of the
factual matters asserted within the quoted statement, the
attribution may result in injury to reputation because the
manner of expression or even the fact that the statement
was made indicates a negative personal trait or an attitude
the speaker does not hold.
Id.7
Here, some of the statements are quotations, while others are attributed
generally to “[i]ndependent firearms experts” or “analysts[.]” Plaintiff claims
7 Though in Masson analysis focused on “whether the requisite falsity inheres in the
attribution of words to the petitioner which he did not speak[,]” the same analysis would apply to
attributions to a third-party source, as in this case. 501 U.S. 496, 513, 115 L. Ed. 2d 447, 470 (1991).
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defendant Locke intentionally misrepresented what the experts had said about her
work. The Supreme Court has held that “a deliberate alteration of the words uttered”
may be defamatory if it materially changes the meaning of the statement:
Minor inaccuracies do not amount to falsity so long as the
substance, the gist, the sting, of the libelous charge be
justified. Put another way, the statement is not considered
false unless it would have a different effect on the mind of
the reader from that which the pleaded truth would have
produced. Our definition of actual malice relies upon this
historical understanding.
We conclude that a deliberate alteration of the words
uttered by a plaintiff does not equate with knowledge of
falsity for purposes of New York Times Co. v. Sullivan, 376
U.S., at 279–280, 84 S.Ct., at 725–726 and Gertz v. Robert
Welch, Inc., supra, 418 U.S., at 342, 94 S.Ct., at 3008,
unless the alteration results in a material change in the
meaning conveyed by the statement. The use of quotations
to attribute words not in fact spoken bears in a most
important way on that inquiry, but it is not dispositive in
every case.
Id. at 517, 115 L. Ed. 2d at 470, 472-73 (citations and quotation marks).
Furthermore, defendants’ entire purpose in seeking review of plaintiff’s work
by experts was to provide an authoritative, and therefore damaging, criticism of
plaintiff’s work. Firearms analysis is a specialized technical field and most people do
have adequate knowledge of this type of work to understand plaintiff’s work or to
determine if her work was defective; the very reason defendants consulted experts as
part of the research for the articles was to give the articles credibility. If defendant
Locke had asked a person with no expertise or status in the field of firearms analysis
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to give an opinion about plaintiff’s work, that person’s opinion would not be
meaningful or useful to the readers of the article, and it may not even be defamatory
to plaintiff simply because of the lack of expertise and knowledge of the person giving
the opinion. For example, if we substitute random people with no knowledge or
expertise in firearm analysis into the statements in place of the references to experts,
it is obvious that without the attribution to experts in the field, the statements would
have little or no meaning. The statements are close to nonsense if they are attributed
to people with no expertise:
(1) “[Several people at Starbucks] who have studied the photographs question
whether Desmond knows anything about the discipline. Worse, some suspect she
falsified the evidence to offer prosecutors the answers they wanted.”
(2) “‘This is a big red flag for the whole unit,’ said . . . [another man on the street].
‘This is as bad as it can be. It raises the question of whether she did an analysis at
all.’”
(3) “[Several people who live in Virginia] say the widths of the lands and the
grooves on the two bullets are starkly different, which would make it impossible to
have the same number.”
(4) “‘You don’t even need to measure to see this doesn’t add up,’ said [another
random person who saw the photos]. ‘It’s so basic to our work. The only benefit I can
extend is that she accidentally measured the same bullet twice.’”
(5) “[Some other people at the grocery store] say that even with the poor photo
lighting and deformed bullets, it’s obvious that the width of the lands and grooves are
different.”
(6) “[Some other people] who viewed the photographs, including . . . [an
accountant], said the bullets could not have been fired from the same firearm.
Without attribution to experts in the relevant field, the statements have “a
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different effect on the mind of the reader.” Id. at 517, 115 L. Ed. 2d at 470, 472.
Reporters seek experts to provide analysis and opinions on topics beyond the
knowledge of those untrained in the discipline addressed in an article precisely
because only an expert’s opinion will be meaningful. Without information from the
experts to explain firearms analysis, the meaning and significance of “lands and the
grooves[,]” the proper methods of testing, the photographs of the bullet fragments
would be meaningless to the average reader of the articles. Therefore, the trial court
correctly instructed the jury regarding attribution of the statements. This argument
is overruled.
C. Standard of Proof of Material Falsity
Defendants next contend “[t]he jury should have been instructed that a public-
official defamation plaintiff must prove material falsity by clear and convincing
evidence” rather than the preponderance of the evidence standard the trial court
used. The jury answered two sub-issues as to each statement: (1) whether by the
greater weight of the evidence” the statement “was materially false” and (2) whether,
“by strong, clear and convincing evidence” the statement was made with actual
malice.
The United States Supreme Court has not required that material falsity be
shown by clear and convincing evidence: “There is some debate as to whether the
element of falsity must be established by clear and convincing evidence or by a
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preponderance of the evidence. We express no view on this issue.” Harte-Hanks, 491
U.S. at 661 n.2, 105 L. Ed. 2d 562, 572 n.2 (citations omitted). Plaintiff notes,
It should be emphasized that most jurisdictions have
not directly addressed the issue (arguably because they do
not see any reason to change existing law), so in those
jurisdictions, the longstanding law of instructing as to
preponderance of the evidence on the issue of falsity
remains. North Carolina falls into this category.
Regardless, it certainly is not error for the trial court to
have used the pattern jury instruction that is an
appropriate and accurate statement of the law.
North Carolina has never adopted a standard of “clear and convincing
evidence” and thus we do not conclude “the jury was misled or misinformed” when it
did not receive that instruction. Pendergraft, 238 N.C. App. at 532, 767 S.E.2d at
685. This argument is overruled.
D. Punitive Damages
Last, defendants contend the trial court erred in the jury instructions on
punitive damages because the instructions did not require the “jurors to find the
existence of one of the required statutory aggravating factors.” Defendants argue
that the jury should have been instructed that it must find at least one of the three
aggravating factors required by North Carolina General Statute § 1D-15.
North Carolina General Statute § 1D-15 provides:
(a) Punitive damages may be awarded only if the
claimant proves that the defendant is liable for
compensatory damages and that one of the following
aggravating factors was present and was related to the
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injury for which compensatory damages were awarded:
(1) Fraud.
(2) Malice.
(3) Willful or wanton conduct.
N.C. Gen. Stat. § 1D-15(a) (2015). Under North Carolina General Statute § 1D-15(b),
“[t]he claimant” also “must prove the existence of an aggravating factor by clear and
convincing evidence[;]” this is the same standard for proof of actual malice in the
liability phase of the trial. N.C. Gen. Stat. § 1D-15(b) (2015); see generally Harte-
Hanks, 491 U.S. at 686, 105 L. Ed. 2d at 588.
Chapter 1D of the General Statutes also specifically defines “[m]alice” and
“[w]illful or wanton conduct” for purposes of punitive damages:
(5) “Malice” means a sense of personal ill will toward
the claimant that activated or incited the defendant
to perform the act or undertake the conduct that
resulted in harm to the claimant.
....
(7) “Willful or wanton conduct” means the conscious and
intentional disregard of and indifference to the
rights and safety of others, which the defendant
knows or should know is reasonably likely to result
in injury, damage, or other harm. “Willful or wanton
conduct” means more than gross negligence.
N.C. Gen. Stat. § 1D-5 (2015).
On appeal, defendants attempt to distinguish the “malice” and “willful or
wanton” behavior as required by North Carolina General Statute § 1D-5 from the
standards required in the liability phase of the trial, which included that the jury
must find that defendants “either knew the statement[s were] materially false or
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acted with reckless disregard of whether the statement[s were] materially false.” But
on this issue, the trial court instructed in accord with the pattern jury instructions.
Both parties submitted numerous written requests for jury instructions in the
liability and punitive damages phases of the trial. The trial court used portions of
the special instructions requested by defendants, such as the instructions regarding
rational interpretation, but the instructions primarily followed the North Carolina
Pattern Jury Instructions, “the preferred method of jury instruction[.]” See In re Will
of Leonard, 71 N.C. App. 714, 717, 323 S.E.2d 377, 379 (1984) (“[T]he trial court
undertook to set out the two issues pursuant to our Pattern Jury Instructions,
N.C.P.I. -- Civil, 860.00, 860.25 (1975). We have previously observed that the
preferred method of jury instruction is the use of the approved guidelines of the North
Carolina Pattern Jury Instructions.”). The pattern jury instructions include an
extensive discussion of the variants of instructions needed in different types of
defamation cases – per se or per quod—and different types of plaintiffs – private
figure or public figure or official.8 See generally N.C.P.I. – Civil 806.40-806.85. The
8 “Under current U.S. Supreme Court jurisprudence, however, in the case of a public figure or public
official, the element of publication with actual malice must be proven, not only to establish liability,
but also to recover presumed and punitive damages. Thus, in a defamation case actionable per se, once
a public figure plaintiff proves liability under the actual malice standard, that plaintiff will be able to
seek presumed and punitive damages without proving an additional damages fault standard and, if
proof of actual damage in the form of pecuniary damages or actual harm damages is presented, may
seek such damages as well.” N.C.P.I. – Civil 806.40 (footnote omitted). “The trial judge must, as a
matter of law, determine the classification of a particular defamation claim for both common law and
constitutional purposes. Once such classification has been determined, differing fault levels for both
liability and damages apply.” Id. (footnote omitted).
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pattern instructions as used by the trial court were written in 2008, see generally id.,and thus were written after the definitions of “[m]alice” and “[w]illful or wanton
conduct” were added in North Carolina General Statute § 1D-5 in 1995. See generally
N.C. Gen. Stat. § 1D-5 (2015) History.
Yet, despite these statutory definitions, the pattern instructions direct that a
finding of actual malice in the liability phase of a defamation trial regarding a public
official or figure is sufficient to support an award for punitive damages.9 N.C.P.I. –
Civil 806.40 (“[O]nce a public figure plaintiff proves liability under the actual malice
standard, that plaintiff will be able to seek presumed and punitive damages without
proving an additional damages fault standard[.]”). Thus, under North Carolina’s
current law, punitive damages would be supported by the jury’s determination during
the liability phase. When we consider the instructions as a whole, we are satisfied
that the jury was not misled and considered punitive damages under the correct
standards. As part of the instructions in the liability phase of the trial, the jury had
to determine, “by clear, strong, and convincing evidence that” defendants “either
knew the statement was materially false or acted with reckless disregard of whether
the statement was materially false. Reckless disregard means that, at the time of the
9 In contrast, “Notwithstanding, with regard to punitive damages, a private figure/private matter
plaintiff seeking such damages currently must also satisfy the following statutory provisions: N.C.
Gen. Stat. § 1D-15.” N.C.P.I. – Civil 806.40.
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Opinion of the Court
publication, the Defendants had serious doubts as to whether the statement was
true.”
Even if the instructions on punitive damages could have been worded
differently, the instructions as a whole set forth the law correctly. Defendants have
not shown that the jury was misinformed or misled by the instructions as given. See
Floyd v. McGill, 156 N.C. App. 29, 40-41, 575 S.E.2d 789, 797 (2003) (“On appeal, this
Court considers a jury charge contextually and in its entirety. The charge will be
held to be sufficient if “it presents the law of the case in such manner as to leave no
reasonable cause to believe the jury was misled or misinformed. The party asserting
error bears the burden of showing that the jury was misled or that the verdict was
affected by an omitted instruction. Under such a standard of review, it is not enough
for the appealing party to show that error occurred in the jury instructions; rather, it
must be demonstrated that such error was likely, in light of the entire charge, to
mislead the jury.” (citation, quotation marks, and ellipses omitted)). We hold that
the trial court properly instructed the jury on punitive damages under North Carolina
General Statute § 1D-15.
VI. Conclusion
We conclude that plaintiff submitted clear and convincing evidence of actual
malice, and the trial court properly denied defendant’s motion for judgment
notwithstanding the verdict. The trial court did not abuse its discretion by excluding
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Opinion of the Court
defendants’ proffered report. The jury instructions, as a whole, properly instructed
the jury such that it was correctly informed of the law and not misled.
AFFIRMED.
Judges ZACHARY and MURPHY concur.
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