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Desmond v. News & Observer Publishing Co.

Court of Appeals of North Carolina

May 19, 2015

BETH DESMOND, Plaintiff,

Heard in the Court of Appeals 18 November 2014.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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DeMent Askew, LLP, by James T. Johnson, for plaintiff-appellee.

Stevens Martin Vaughn & Tadych, PLLC, by C. Amanda Martin and Hugh Stevens, for defendants-appellants.

The John Bussian Law Firm, PLLC, by John A. Bussian, for amicus curiae the North Carolina Press Association, Inc.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Mark J. Prak and W. Michael Dowling, for amicus curiae the North Carolina Association of Broadcasters, Inc.

STROUD, Judge. Judges CALABRIA and McCULLOUGH concur.


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Appeal by defendants from order entered 14 March 2014 by Judge Donald W. Stephens in Superior Court, Wake County, No. 12 CVS 16656.

STROUD, Judge.

The News and Observer Publishing Company (" N& O" ), McClatchy Newspapers, Inc. (" McClatchy" ), and Mandy Locke (collectively " defendants" ) appeal from the trial court's order denying their motion for summary judgment as to libel claims brought by Beth Desmond (" plaintiff" ). We affirm in part, reverse in part, and remand the case to the trial court.

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 [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

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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.

State v. Adams, 212 N.C.App. 235, 713 S.E.2d 251 (2011) (unpublished). Police never recovered a gun. Id., 212 N.C.App. 235, 713 S.E.2d 251 (2011).

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 (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. Id., 187 N.C.App. 510, 653 S.E.2d 256.

A grand jury also indicted Adams for first-degree murder, among other charges. Adams, 212 N.C.App. 235, 713 S.E.2d 251. During the spring 2010 trial, plaintiff gave the same opinion about the cartridge cases and bullets. Id., 212 N.C.App. 235, 713 S.E.2d 251. A jury found Adams guilty of voluntary manslaughter, under an aiding-and-abetting theory, among other offenses. Id., 212 N.C.App. 235, 713 S.E.2d 251.

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

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 semiautomatic

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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 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.

III. Interlocutory Appeal

As an initial matter, we note that the trial court's order denying defendants' motion for summary judgment was interlocutory. " Generally, there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). But " immediate appeal DESMOND V. THE NEWS AND OBSERVER PUBLISHING COMPANY, ET AL. is available from an interlocutory order or judgment which affects a substantial right." Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (quotation marks omitted). Defendants contend that the trial court's order misapplied the actual malice standard, which adversely affected their rights to free speech and freedom of the press as guaranteed by the First Amendment to the U.S. Constitution and article I, section 14 of the North Carolina Constitution. See U.S. Const. amend. I; N.C. Const. art. 1, § 14. " Our Courts have recognized that because a misapplication of the actual malice standard when considering a motion for summary judgment would have a chilling effect on a defendant's right to free speech, a substantial right is implicated." Boyce & Isley, PLLC v. Cooper, 211 N.C.App. 469, 474, 710 S.E.2d 309, 314 (quotation marks omitted) (" Boyce II" ), disc. review denied, 365 N.C. 365, 718 S.E.2d 403 (2011), cert. denied, __ U.S. __, 132 S.Ct. 2378, 182 L.Ed.2d 1018 (2012). Accordingly, we hold that this appeal is properly before us.

IV. Standard of Review

We review a trial court's summary judgment order de novo and view the evidence in the light most favorable to the non-movant. Erthal v. May, __ N.C.App. __, __, 736 S.E.2d 514, 517 (2012), appeal dismissed and disc. review denied, 366 N.C. 421, 736 S.E.2d 761 (2013). We engage in a two-part analysis of whether:

(1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law.
Summary judgment is appropriate if: (1) the non-moving party does not have a factual basis for each essential element of its claim; (2) the facts are not disputed and only a question of law remains; or (3) if the non-moving party is unable to overcome an affirmative defense offered by the moving party.

Id. at __, 736 S.E.2d at 517 (citations and quotation marks omitted).

V. Libel

Defendants argue that the trial court erred by denying their motion for summary judgment as to plaintiff's libel claims. " In North Carolina, the term defamation applies to the two distinct torts of libel and slander." Boyce & Isley, PLLC v. Cooper, 153 N.C.App. 25, 29, 568 S.E.2d 893, 898 (2002) (" Boyce I" ), appeal dismissed and

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disc. review denied, 357 N.C. 163, 580 S.E.2d 361, cert. denied, 540 U.S. 965, 124 S.Ct. 431, 157 L.Ed.2d 310 (2003). 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. See id., 568 S.E.2d at 897. 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." Lewis v. Rapp, 220 N.C.App. 299, 306, 725 S.E.2d 597, 603 (2012) (quotation marks and brackets omitted).

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 ...

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