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.
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.
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 at 2-4 (2011) (unpublished).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. Id., 713 S.E.2d 251.
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 at 1 (2007) (unpublished), appeal dismissed and disc.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. Id., 653 S.E.2d 256, slip op. at 1.
A grand jury also indicted Adams for first-degree murder, among other charges. Adams, 212 N.C. App. 235, 713 S.E.2d 251, slip op. at 1-2. During the spring 2010 trial, plaintiff gave the same opinion about the cartridge cases and bullets. Id., 713 S.E.2d 251, slip op. at 5. A jury found Adams guilty of voluntary manslaughter, under an aiding-and-abetting theory, among other offenses. Id., 713 S.E.2d 251, slip op. at 7.
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.
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
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.
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 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.
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, 223 N.C. App. 373, ___, 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:
Id. at ___, 736 S.E.2d at 517 (citations and quotation marks omitted).
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
Id. at 304-05, 725 S.E.2d at 602 (citation and quotation marks omitted). "[T]he court must view the words within their full context[.]" Boyce I, 153 N.C.App. at 31, 568 S.E.2d at 899.
Lewis, 220 N.C.App. at 302-03, 725 S.E.2d at 601 (citations, quotation marks, and brackets omitted). Plaintiff stipulates that she is a public official.
Plaintiff contends that the following 12 statements in the 14 August 2010 article are false, defamatory statements of or concerning her, which defendants published with actual malice. We number the statements for clarity:
Plaintiff further contends that the following 4 statements in the 31 December 2010 article are also false, defamatory statements of or concerning her, which defendants published with actual malice:
We will address these 16 statements in four groups: (1) statements about expert opinions; (2) statements about plaintiff's testimony in the Green and Adams cases; (3) statements about Whitehurst's photographs; and (4) any remaining statements. For each, before we consider the question of actual malice, we will address whether the statements as alleged are actually false, defamatory statements of or concerning plaintiff.
Statements 6, 7, 10, 11, 12, and 16 discuss the opinions of various experts that Locke consulted about plaintiff's analysis of the bullets:
We first note that defendants argue that "[m]any of the statements identified in [plaintiff's]
Id. at 18-19, 110 S.Ct. at 2705-06, 111 L.Ed.2d at 17-18 (brackets omitted). Thus, the Supreme Court held that "where a statement of `opinion' on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth." Id. at 20, 110 S.Ct. at 2706-07, 111 L.Ed.2d at 19.
In this case, which involves mostly Locke's reports 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, 110 S.Ct. at 2706, 111 L.Ed.2d at 18.
With regard to Statement 6, Locke stated in her deposition that her sources who questioned whether plaintiff "knows anything" about firearms analysis and who suspected that plaintiff "falsified the evidence" were Tobin, Hendrikse, and Bunch. Each of these experts denied making these comments to Locke. In their brief, defendants attribute the source of this statement to Locke's interview with Schwartz. But even assuming arguendo that Schwartz was Locke's source for this statement, defendants ignore the fact that the article clearly attributes this statement to multiple experts. Therefore, Schwartz's interview with Locke could not fully support this statement. In the light most favorable to plaintiff, this evidence creates a genuine issue of material fact as to whether Locke wrote Statement 6 "with knowledge that it was false or with reckless disregard of whether it was false or not." See Lewis, 220 N.C.App. at 302, 725 S.E.2d at 601; Cochran v. Piedmont Publishing Co., 62 N.C. App. 548, 550, 302 S.E.2d 903, 904-05 (holding that the publication of a statement attributed to a source, which that source denied making, created a genuine issue of material fact as to whether the statement was published with actual malice), appeal dismissed and disc. review denied, 309 N.C. 819, 310 S.E.2d 348 (1983), cert. denied, 469 U.S. 816, 105 S.Ct. 83, 83 L.Ed.2d 30 (1984).
Defendants respond that Tobin testified several times that he did not recall everything he told Locke, and that, based on Locke's notes, the statement attributed to Tobin was accurate. But Tobin's deposition testimony and Locke's notes, at best, create a contradiction in the evidence, which must be resolved by the jury, not the trial judge. See Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 395, 651 S.E.2d 261, 265 (2007) ("Contradictions or discrepancies in the evidence even when arising from plaintiff's evidence must be resolved by the jury rather than the trial judge.").
With regard to Statements 10 and 12, defendants assert that these statements are factually accurate and thus cannot be defamatory. See Letter Carriers v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 2781, 41 L.Ed.2d 745, 761 (1974) ("Before the test of reckless or knowing falsity can be met, there must be a false statement of fact.").
There was much deposition testimony about the differences between an analysis based upon a physical examination of the actual bullets and an analysis of Whitehurst's photographs, particularly considering how the bullets were oriented in the photographs. Defendants correctly assert that even plaintiff acknowledges that, in Whitehurst's photographs, the bullets look different. In her deposition, plaintiff admitted this:
But the potentially defamatory, and allegedly false, portion of Statements 10 and 12 is the report of the opinions of various experts about the photographs of the bullets. Viewed in context, Statements 10 and 12 indicate that, after examining the photographs, independent analysts concluded that plaintiff's analysis was incorrect. See Lewis, 220 N.C.App. at 305, 725 S.E.2d at 602 ("[C]ourts look to the circumstances in which the statement is made."); Boyce I, 153 N.C.App. at 31, 568 S.E.2d at 899 ("[T]he court must view the words within their full context[.]"). But in their depositions, Tobin, Hendrikse, and Bunch stated that they told Locke that they could not give an opinion based on the photographs alone. Additionally, Bunch, the only one of the three to physically examine the actual bullets, concluded that it was likely that the two bullets were fired from the same type of gun, a High Point 9 millimeter semiautomatic pistol.
With regard to Statement 11, Hendrikse averred that his comments were "taken out of context." He admitted that he said, "You don't even need to measure to see this doesn't add up." But he averred that his full comment "was something to the effect that you don't even need to measure to see that a second opinion was warranted, again, making it clear to Ms. Locke that only by physically examining the evidence can you determine whether [plaintiff] was right or wrong." He also averred that he commented that plaintiff may have accidentally measured the same bullet twice only in response to a hypothetical question that assumed plaintiff had made an error. Thus, in the light most favorable to plaintiff, we hold that there is a genuine issue of material fact as to whether Locke acted with actual malice when she published Statement 11. See Cochran, 62 N.C.App. at 550, 302 S.E.2d at 904-05; Masson, 501 U.S. at 517, 111 S.Ct. at 2433, 115 L.Ed.2d at 473.
With regard to Statement 16, Bunch, the "second FBI scientist who wrote the report released Thursday," did not conclude that the two bullets could not have been fired from the same gun; on the contrary, he concluded that the two bullets could have been fired from the same gun. Additionally, he, Tobin, and Hendrikse stated that they could not give an opinion based on the photographs alone. We also note that plaintiff never testified that the bullets were fired from the same gun; rather, she testified that the bullets were fired from the same type of gun. Thus, in the light most favorable to plaintiff, we hold that there is a genuine issue of material fact as to whether Locke acted with actual malice when she published Statement 16. See Cochran, 62 N.C.App. at 550, 302 S.E.2d at 904-05; Masson, 501 U.S. at 517, 111 S.Ct. at 2433, 115 L.Ed.2d at 473.
In summary, we hold that the trial court properly denied defendants' motion for summary judgment as to the statements about expert opinions, specifically Statements 6, 7, 10, 11, 12, and 16.
Statements 1, 2, 3, 9, 13, and 14 discuss plaintiff's testimony in the Green and Adams cases:
Defendants contend that the fair report privilege protects them from a defamation
Id. at 513, 543 S.E.2d at 221 (citations, quotation marks, and brackets omitted). Under the fair report privilege, "[t]he law does not require absolute accuracy in reporting. It does impose the word `substantial' on the accuracy, fairness and completeness. It is sufficient if it conveys to the persons who read it a substantially correct account of the proceedings." Id. at 512, 543 S.E.2d at 220.
With respect to Statement 1, plaintiff contends that she did not testify that a High Point 9 millimeter gun was linked to the cartridge cases. But plaintiff testified that the cartridge cases were all fired from the same gun, a High Point 9 millimeter semiautomatic pistol. We thus hold that Statement 1 is substantially accurate. See id., 543 S.E.2d at 220.
With respect to Statement 2, plaintiff contends that she never testified that Green was the only shooter. But neither party disputes that the State in the Green and Adams cases proffered plaintiff's testimony as evidence supporting the State's theory that Green was the only shooter, and that when considered along with the rest of the evidence, a jury might reasonably infer that Green was the only shooter. We thus hold that Statement 2 is substantially accurate. See id., 543 S.E.2d at 220.
With respect to Statement 3, plaintiff asserts that (1) she did not testify that the bullets were fired from the same gun; (2) her report did not eliminate doubt about another shooter; and (3) she did not testify with absolute certainty before a jury. First, we acknowledge that plaintiff did not testify that the bullets were fired from the same gun; rather, she testified that the bullets were fired from the same type of gun. Although Statement 3 is ambiguous about whether plaintiff testified that the bullets were fired from the same gun or same type of gun, we hold that this statement is substantially accurate given that plaintiff testified that both bullets were fired from the same type of gun, a High Point 9 millimeter semiautomatic pistol. Second, as noted above, neither party disputes that the State proffered plaintiff's testimony as evidence supporting the State's theory that Green was the only shooter, and that when considered along with the rest of the evidence, a jury might reasonably infer that Green was the only shooter. Finally, plaintiff admits that, on voir dire, outside the presence of the jury, she testified that she was absolutely certain as to her findings:
Sworn testimony presented in court, whether before the judge on voir dire or to the jury, is undoubtedly made "in the due course of a judicial proceeding." See id. at 513, 543 S.E.2d at 221. Plaintiff has not presented any authority for her seeming assertion that there is a difference between testimony presented on voir dire or testimony presented to a jury. As demonstrated by the quoted testimony above, plaintiff did testify with absolute certainty that the bullets came from the same type of gun. We thus
With regard to Statement 9, plaintiff asserts that she did not assure a jury of a match. But Locke did not make this claim. We must examine Statement 9 in context. See Lewis, 220 N.C.App. at 305, 725 S.E.2d at 602; Boyce I, 153 N.C.App. at 31, 568 S.E.2d at 899. The 14 August article states:
The article does not state that plaintiff "assur[ed]" a jury, as plaintiff suggests in her complaint. Accordingly, we hold that Statement 9 is not actionable.
With regard to Statement 13, plaintiff contends that she never testified that the bullets were fired from the same gun. Again, plaintiff is correct but plaintiff did testify that both bullets were fired from the same type of gun, a High Point 9 millimeter semiautomatic pistol. While Statement 13 is not absolutely accurate, we hold that, under the fair report privilege, this statement is substantially accurate and thus not actionable. See LaComb, 142 N.C.App. at 512, 543 S.E.2d at 220; Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805-06 (1974) ("Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship.").
With regard to Statement 14, plaintiff contends that she did not testify with absolute certainty before a jury and that her lab report did not undermine the certainty of her testimony. As noted above, the articles correctly state that plaintiff testified with absolute certainty that the bullets were fired from the same type of gun, a High Point 9 millimeter semiautomatic pistol. In contrast, in her lab report, plaintiff did not ascribe absolute certainty to her findings; rather, she 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)[.]" (Emphasis added.) She also noted: "Do not use this list to eliminate any suspect firearm of similar caliber and class characteristics." Accordingly, we hold that Statement 14 is substantially accurate. See LaComb, 142 N.C.App. at 512, 543 S.E.2d at 220.
With respect to Statements 1, 2, 3, 9, 13, and 14, defendants are protected by the fair report privilege. Accordingly, we hold that the trial court should have granted summary judgment in favor of defendants as to these statements.
Statements 5 and 15 discuss Whitehurst's photographs:
Defendants contend that these statements are factually accurate and thus not actionable. See Austin, 418 U.S. at 284, 94 S.Ct. at 2781, 41 L.Ed.2d at 761 ("Before the test of reckless or knowing falsity can be met, there must be a false statement of fact."). We agree.
Plaintiff contends that Whitehurst is not a qualified expert and that his photographs are misleading. But there is no genuine dispute as to the truth of Statements 5 and 15. First, Whitehurst was in fact a "former FBI crime lab analyst[,]" regardless of his qualifications to review plaintiff's analysis. Second, Sutton asked Whitehurst to photograph the bullets under a microscope, and he did. As noted above, even plaintiff admitted that the bullets look different in the photographs. Thus, there is no genuine issue as to the factual accuracy of Statements 5 and 15. Accordingly, we hold that the trial court
We finally address the remaining statements, Statements 4 and 8:
With regard to Statement 4, plaintiff contends that this statement is either libel per se or libel per quod. To be libelous per se, a statement "must be susceptible of but one meaning and of such nature that the court can presume as a matter of law that [it] tend[s] to disgrace and degrade the party or hold him up to public hatred, contempt, or ridicule, or cause him to be shunned and avoided." Skinner v. Reynolds, ___ N.C.App. ___, ___, 764 S.E.2d 652, 655 (2014). To be libelous per quod, a statement must be defamatory "when considered in conjunction with innuendo, colloquium, and explanatory circumstances[.]" Id. at ___, 764 S.E.2d at 657. Plaintiff essentially contends that she does not "scribble" her notes and the assertion that she did is defamatory. But even if the statement that plaintiff "scribbled" is false, we hold that it does not "tend to disgrace and degrade [plaintiff] or hold [her] up to public hatred, contempt, or ridicule, or cause [her] to be shunned and avoided." See id. at ___, 764 S.E.2d at 655. We further hold that Statement 4 does not become defamatory "when considered in conjunction with innuendo, colloquium, and explanatory circumstances[.]" See id. at ___, 764 S.E.2d at 657. Because Statement 4 is neither libelous per se nor libelous per quod, we hold that the trial court should have granted summary judgment in favor of defendants as to that statement.
With regard to Statement 8, plaintiff contends that this statement is false, because "[f]orensic firearms examiners have established and recognized error rates that stem from proficiency tests and validation studies." But defendants proffer academic literature from the National Academy of Sciences, which states: "[T]he decision of the toolmark examiner remains a subjective decision based on unarticulated standards and no statistical foundation for estimation of error rates." We must examine Statement 8 in context. See Lewis, 220 N.C.App. at 305, 725 S.E.2d at 602; Boyce I, 153 N.C.App. at 31, 568 S.E.2d at 899. The 14 August article states:
Viewed in context, Statement 8 represents an opinion that firearm and toolmark analysis lacks a statistical foundation for error rates similar to those used for DNA analysis. Unlike the opinions of experts whom Locke interviewed, discussed in section A above, Statement 8 refers to the reliability of firearm and toolmark analysis in general. Experts differ on the reliability of firearm and toolmark analysis, so Statement 8 is not incorrect. Plaintiff has failed to show how this statement makes a false assertion of objective fact. See Milkovich, 497 U.S. at 19, 110 S.Ct. at 2706, 111 L.Ed.2d at 18. In addition, the statement is not directly of or concerning plaintiff herself, but is more of a criticism of firearm and toolmark analysis generally. Accordingly, we hold that the trial court should have granted summary judgment in favor of defendants as to Statement 8.
In summary, we hold that there is a genuine issue of material fact as to whether Statements 6, 7, 10, 11, 12, and 16 are false and defamatory and whether Locke acted with actual malice when she attributed those statements to firearms experts, as they either denied making those statements or claim that those statements were made in a different context that materially changed their meaning. In the light most favorable to plaintiff, the evidence is "sufficient to allow a jury to find that actual malice [has] been shown with convincing clarity." See Lewis, 220 N.C.App. at 303, 725 S.E.2d at 601. But we hold that defendants were entitled to
Moreover, "[i]t is well settled that all who take part in the publication of a libel or who procure or command libelous matter to be published may be sued by the person defamed either jointly or severally." Taylor v. Press Co., 237 N.C. 551, 552, 75 S.E.2d 528, 529 (1953). Defendants do not argue otherwise, so plaintiff's surviving claims should proceed against all three defendants.
Taking the evidence presented in the light most favorable to plaintiff, there were genuine issues of material fact as to whether defendants published defamatory statements of or concerning plaintiff with actual malice. The trial court properly denied defendants' motion for summary judgment as to the statements identified above as
As to the remaining statements which were addressed above as "statements about plaintiff's testimony" or "statements about Whitehurst's photographs" or "the remaining statements," the trial court erred in failing to grant defendants' motion for summary judgment. Accordingly, we affirm the trial court's order in part, reverse it in part, and remand the case to the trial court for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Judges CALABRIA and McCULLOUGH concur.
