Turner v. Thomas

• Citation: 794 S.E.2d 439
• Decision Date: 21 December 2016
• Docket Number: No. 319PA14,319PA14
• Court: North Carolina Supreme Court
• Parties: Kirk Alan Turner v. Special Agent Gerald R. Thomas, in his individual capacity and, in the alternative, in his official capacity; Special Agent Duane Deaver, in his individual capacity and, in the alternative, in his official capacity; Robin Pendergraft, in her individual capacity and, in the alternative, in her official capacity; and John and Jane DOE SBI Supervisors, in their individual capacities and, in the alternative, in their official capacities

794 S.E.2d 439

Kirk Alan Turner

v.Special Agent Gerald R. Thomas, in his individual capacity and, in the alternative, in his official capacity; Special Agent Duane Deaver, in his individual capacity and, in the alternative, in his official capacity; Robin Pendergraft, in her individual capacity and, in the alternative, in her official capacity; and John and Jane DOE SBI Supervisors, in their individual capacities and, in the alternative, in their official capacities

No. 319PA14

Supreme Court of North Carolina.

Filed December 21, 2016

Morrow Porter Vermitsky Fowler & Taylor, PLLC, Winston-Salem, by John C. Vermitsky, for plaintiff-appellee.

Roy Cooper, Attorney General, by Tammera Hill and J. Joy Strickland, Assistant Attorneys General, for defendant-appellants Thomas and Deaver.

EDMUNDS, Justice.

In this case, we consider the tort liability of law enforcement agents when their criminal investigation went awry. Defendants Thomas and Deaver are or were at the time of the events in question agents of the State Bureau of Investigation (SBI) who participated in the investigation and prosecution of plaintiff for the murder of his wife. The remaining defendants are or were SBI policymakers responsible for supervising SBI agents, including Thomas and Deaver. After plaintiff was acquitted on grounds of self-defense, he filed a civil complaint against defendants alleging numerous claims, including malicious prosecution and intentional infliction of emotional distress. The trial court granted motions to dismiss filed by all defendants pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, but the Court of Appeals reversed as to these two claims against Thomas and Deaver, reinstating the claims. We conclude that, because probable cause existed for the State to indict plaintiff for first-degree murder, plaintiff's suit for malicious prosecution necessarily would have failed. Accordingly, we reverse the holding of the Court of Appeals as to this claim. However, we agree with the Court of Appeals that, taken in the light most favorable to plaintiff, the complaint alleges elements of intentional infliction of emotional distress sufficient to withstand a motion to dismiss. Consequently, we affirm the holding of the Court of Appeals as to this claim.

On 12 September 2007, Kirk Alan Turner (plaintiff) and his friend Gregory Adam Smithson (Smithson) met at plaintiff's marital residence so Smithson could retrieve some property stored there. While at the home, plaintiff discussed personal matters with his wife Jennifer. During the conversation, Jennifer attacked plaintiff with a large spear, stabbing him multiple times in the thigh and groin area. In reaction, plaintiff pulled a pocketknife from his right front pocket and cut Jennifer twice in the neck, inflicting fatal injuries.

Smithson called 911 and performed CPR on Jennifer until emergency personnel arrived. The Davie County Sheriff's Office responded to the call and requested the assistance of the SBI. SBI Special Agent E.R. Wall arrived and notified SBI Assistant Special Agent in Charge K.A. Cline that a blood spatter expert would be needed to analyze the scene. Several hours later, Agent Wall called Agent Cline again to suggest that a blood spatter expert might not be needed after all because closer examination indicated that the blood spatter most likely was caused by arterial spurting from Jennifer's throat wound

.

Two days later, Special Agent Gerald R. Thomas (defendant Thomas) arrived at plaintiff's home to conduct a blood spatter analysis of the scene. Later that day, he conducted a bloodstain analysis of various articles of clothing collected during the course of the investigation, including a gray T-shirt worn by plaintiff during the incident. Before beginning his examinations, defendant Thomas was informed by SBI Special Agent D.J. Smith that Jennifer apparently stabbed plaintiff with a spear and, in response, plaintiff cut her throat with a pocketknife. Defendant Thomas completed his examinations that same day and about two weeks later presented a written report documenting his findings. The report stated that a large bloodstain on plaintiff's gray T-shirt "was consistent with a transfer bloodstain pattern" resulting from a bloody hand being wiped on the shirt. The report further noted several smaller bloodstains that were consistent with blood dripping onto the shirt.

On 13 December 2007, plaintiff was indicted for the first-degree murder of Jennifer. He was initially denied bond and detained for one month before being released on a bond of one million dollars. Plaintiff had to borrow money from family and friends to post his bond and retain defense counsel.

The following allegations are taken from plaintiff's complaint. After plaintiff was indicted, defendant Thomas met on 15 January 2008 with SBI Special Agent Duane Deaver (defendant Deaver); Captain Jerry Hartman, lead investigator for the Davie County Sheriff's Office; a lawyer from the district attorney's office; and another individual identified in the pleadings only as "Mr. Marks" to discuss both the feasibility of plaintiff's version of the events and their own theory of the case. During this meeting, defendants Thomas and Deaver and their colleagues theorized that plaintiff killed Jennifer for the purpose of carrying out a scheme to avoid a divorce and subsequent equitable distribution proceeding. They additionally theorized that plaintiff stabbed himself with the spear and staged the scene to make the killing look like self-defense.

Plaintiff further alleged that, to prove their theory, defendants Thomas and Deaver needed to show that the bloodstain on plaintiff's T-shirt was not a mirror image stain from plaintiff's hand but was instead a transfer pattern consistent with plaintiff having wiped a knife on the shirt. With the alleged approval of defendant Pendergraft, their supervisor, defendants Thomas and Deaver conducted tests for the purpose of "shor[ing] up" this new theory. Defendant Thomas again took samples from various evidentiary items for a second examination but failed properly to label his work in such a way that someone reviewing the evidence would be able to determine the source of each sample. Defendant Thomas also failed to make any record of the new theory. Defendants Thomas and Deaver videotaped their numerous attempts to duplicate with a knife the blood smear on the plaintiff's T-shirt. After a success, defendant Deaver can be heard on the video saying: "Oh, even better! Holy cow, that was a good one!" and "Beautiful! That's a wrap, baby!"

Plaintiff further alleged that, following the knife smear test and a second review of the evidence, defendant Thomas created a second written report that altered his initial report by replacing the words "consistent with a bloody hand being wiped on the shirt" with "consistent with a pointed object being wiped on the shirt." This second report purported to convey results of the "examination of clothing for bloodstain patterns on Friday, September 14, 2007," even though the true date of the second examination was 15 January 2008. Defendant Thomas's second report failed to indicate either that it was based on a second review of the evidence or that it was not the original report. Plaintiff alleged that defendants Thomas and Deaver conducted these tests not only to prove their theory that plaintiff did not act in self-defense, but "to maintain the appearance of probable cause where none existed and to obtain a first-degree murder conviction of [plaintiff] despite evidence to the contrary."

In his report, defendant Thomas stated that Captain Hartman told him "he was present when emergency services cut the gray T-shirt from Mr. Turner's body and that the question [sic] blood stain was observed present in its current condition on the shirt." The report further stated that "Hartman said that he took the shirt from Emergency Medical Services and placed it in a secure area [an adjacent room], laying flat on the floor to dry."¹

At plaintiff's trial for Jennifer's murder, defendant Thomas gave testimony about plaintiff's T-shirt that was consistent with his report. However, Captain Hartman testified that he did not arrive at the crime scene until two hours after plaintiff was taken to the hospital and that he was not present when plaintiff's T-shirt was removed, contradicting defendant Thomas's account. In addition, crime scene photographs showed plaintiff's T-shirt "crumpled on the floor, inside out." Plaintiff's defense expert Stuart James disagreed with defendants' bloodstain analysis, giving opinion testimony that the bloodstain was most likely a "mirror stain" created either when the shirt was folded as emergency medical service technicians cut off the shirt or when they tossed it onto the floor. On 21 August 2009, the jury found plaintiff not guilty of the first-degree murder of his wife, by reason of self-defense.

On 14 November 2011, plaintiff filed his original complaint in Superior Court, Forsyth County. On 4 April 2012, plaintiff voluntarily dismissed that complaint and immediately refiled a complaint making the same substantive allegations against the same defendants. In addition to defendants Thomas and Deaver, plaintiff named former SBI Director Robin Pendergraft and SBI supervisors John and Jane Doe as defendants in their individual and official capacities. Plaintiff's complaint alleged four causes of action against defendants Thomas and Deaver in their individual capacities: (1) intentional infliction of emotional distress, (2) abuse of process, (3) malicious prosecution, and (4) false imprisonment. The complaint also alleged negligence claims against defendants Pendergraft and John and Jane Doe. Finally, plaintiff alleged federal constitutional claims under 42 U.S.C. § 1983 against all defendants in their individual and official capacities, and claims under the North Carolina Constitution against all defendants in their official...