Desmond v. News & Observer Publ'g Co.

Decision Date14 August 2020
Docket NumberNo. 132PA18-2,132PA18-2
Citation846 S.E.2d 647,375 N.C. 21
Parties Beth DESMOND v. The NEWS AND OBSERVER PUBLISHING COMPANY, McClatchy Newspapers, Inc., and Mandy Locke
CourtNorth Carolina Supreme Court

Dement Askew & Johnson, by James T. Johnson, Raleigh, and Chynna T. Smith, for plaintiff-appellee Beth Desmond.

The Bussian Law Firm, PLLC, Raleigh, by John A. Bussian, McGuire Woods, Charlotte, by Bradley R. Kutrow, and Brooks, Pierce, Mclendon, Humphrey & Leonard, L.L.P., Raleigh, by Mark J. Prak, Julia C. Ambrose, and Timothy G. Nelson, for defendant-appellant The News and Observer Publishing Company, Tharrington Smith L.L.P., Raleigh, by Wade M. Smith, for Mandy Locke.

Essex Richards, P.A., by Jonathan E. Buchan, for The Reporters Committee for Freedom of the Press, et al., amici curiae.

Wyche, PA, by William M. Wilson, III, Sanford, for Professor William Van Alstyne, amicus curiae.

EARLS, Justice.

Plaintiff, Beth Desmond, filed a complaint alleging defamation on the part of defendants, the News and Observer Publishing Company (the N&O) and reporter Mandy Locke, arising out of a series of articles published by defendants in 2010. Following a trial, in which the jury found defendants liable for defamation and awarded plaintiff compensatory and punitive damages, defendants appealed. On appeal, the Court of Appeals affirmed the trial court's order and judgment, concluding that plaintiff presented clear and convincing evidence of actual malice and that there was no error in the jury instructions. Desmond v. News & Observer Pub. Co. , 263 N.C. App. 26, 67, 823 S.E.2d 412, 438–39 (2018) ( Desmond II ). We affirm in part and reverse in part.


Plaintiff's defamation claim arises out of a series of articles published by defendants in 2010 entitled "Agents’ Secrets," which reported on alleged problems within the North Carolina State Bureau of Investigation (the SBI) that purportedly led to wrongful convictions. Plaintiff was at that time a Special Agent with the SBI serving as a forensic firearms examiner, which is a "discipline in forensic science" mainly concerned with "comparing cartridge cases and bullets and other ammunition components." In the final article of the four-part "Agents’ Secrets" series, defendants reported on and were critical of plaintiff's work in two related criminal cases in Pitt County. See generally State v. Green , 187 N.C. App. 510, 653 S.E.2d 256, 2007 WL 4234300 (2007) (unpublished); State v. Adams , 212 N.C. App. 235, 713 S.E.2d 251, 2011 WL 1938270 (2011) (unpublished).

Charges in both cases originated from a confrontation that occurred on 19 April 2005 in Pitt County. Two groups of women engaged in a series of verbal altercations over the course of an afternoon that ultimately culminated with multiple gun shots and one bullet striking a ten-year-old child, Christopher Foggs, in the chest. Foggs died from the gunshot wound at the hospital later that evening. Desmond II , 263 N.C. App. at 31–33, 823 S.E.2d at 418–19.

Jemaul Green, who drove his girlfriend, Vonzeil Adams, to the scene of the incident, was indicted for multiple offenses, including first-degree murder. His trial took place in 2006. In support of its case, the State presented testimony from twelve eyewitnesses to the shooting. Green testified on his own behalf and asserted that when he drove to the Haddock house he had in his possession a 9mm handgun that he had illegally purchased and that he took it with him that day out of concern for his own safety.1 Green testified that during the incident he saw an unknown black male in between the Haddock house and a neighboring house standing closely behind a car—a "black Neon"—and that this man fired a handgun in Green's direction, prompting Green to return fire in self-defense. According to Green, Adams then snatched the gun from him and fired additional shots at the Haddock house before they both got back in the car and left the scene. None of the State's twelve eyewitnesses observed anyone at the scene with a gun other than Green. Green's own witness Victoria Gardner testified that she was standing in between the houses, that she did not see anyone near the black Neon, that she did not hear any shots other than those coming from Green, and that she did not see anyone with a gun other than Green.

The State also presented evidence concerning eight fired cartridge casings and six bullet fragments recovered from the scene. The casings were found "in a fairly small circle" next to a tree where Green had been standing when he fired his 9mm handgun, and the bullet fragments were found "in a very tight pattern" leading from Green's location. The State also presented testimony from plaintiff, who had been assigned by the SBI to the case and who performed microscopic comparison analysis of the cartridge casings and bullet fragments. The prosecutors in the case originally sent only the cartridge casings to the SBI's crime lab for analysis, mistakenly assuming that the bullet fragments had no forensic value. When plaintiff arrived in Pitt County to testify and learned that bullet fragments had also been recovered from the scene, she discussed with the prosecutors whether they wanted the bullets examined as well. The prosecutors decided that they did want the bullets examined, and the trial judge rescheduled plaintiff's testimony for the following day so that plaintiff could perform an examination of the bullets. Accordingly, plaintiff returned to the crime lab that day, performed an examination of the six bullet fragments, and compiled a report of her examination. Plaintiff's work was reviewed by her senior supervisor, Neal Morin, who examined the bullets under a comparison microscope and arrived at the same conclusions as plaintiff.

On the following day, plaintiff returned to Pitt County to give her testimony. Plaintiff opined that the eight cartridge casings had been fired from the same gun and that the gun was a Hi-Point 9 millimeter semiautomatic pistol. Regarding the bullet fragments, plaintiff opined that while four of the bullets were too damaged to have any forensic value, two of the bullets were fired from the same type of gun , a Hi-Point 9 millimeter semiautomatic pistol, but she could not conclusively determine whether the bullets were fired from the same gun. Plaintiff's analysis involved examining the "class characteristics," or "rifling impressions," which are the "lands and grooves" (i.e. ridges and impressions) that are left on a bullet as it travels through the barrel of a gun.2 Plaintiff determined that the class characteristics of the two bullets were the same—"nine lands and grooves with a left hand direction of twist down the barrel." Because only one manufacturer makes their guns "9-left," plaintiff was able to determine that the type of gun was a Hi-Point Model C.

After plaintiff had testified regarding her forensic examination of the cartridge casings and the bullet fragments, the prosecutor sought to have plaintiff hold a semiautomatic handgun (unloaded) and explain to the jury where the "ejection port" is and how it operates to eject the cartridge casing each time the gun is fired. During a brief voir dire examination by defense counsel while the jury was in recess, plaintiff stated with "absolute certainty" that the two bullets came from a 9mm Hi-Point firearm. Following a court recess, the prosecutor had plaintiff hold a 9mm Hi-Point model C handgun to explain how the ejection port in a semiautomatic handgun works.

Green was ultimately convicted of second-degree murder, as well as multiple counts of discharging a weapon into occupied property and assault with a deadly weapon. Green appealed on grounds unrelated to the ballistics evidence, and on appeal the Court of Appeals upheld his convictions. Green , 2007 WL 4234300, at *2, *6–*7.

Vonzeil Adams was also indicted for first-degree murder and other offenses in connection with the shooting; her trial took place in 2010.3 Before trial, Adams's defense attorney, David Sutton, filed a motion seeking to preclude the State presenting plaintiff's expert testimony at trial. The motion was affixed with an extensive affidavit from Adina Schwartz, a professor at the John Jay College of Criminal Justice, in which Schwartz challenged the scientific reliability of firearms examination, as well as the SBI's firearms examination protocols and plaintiff's documentation. The trial court denied this motion and plaintiff again testified regarding her opinions concerning the cartridge casings and bullet fragments.

Near the end of the Adams trial, Sutton, with permission of the trial court, asked another local attorney, Fred Whitehurst, to take photographs of the two bullet fragments about which plaintiff had testified. Whitehurst, a former FBI chemist, had no training in firearms examination, but he owned a microscope with the capacity to take photographs. Whitehurst and Sutton emailed the resultant photographs (the Whitehurst Photographs) to other attorneys, including one attorney representing an as of-yet untried co-defendant of Vonzeil Adams, and other individuals interested in firearms examination, including Schwartz. The Whitehurst Photographs, including one photograph in particular (the Comparison Photograph) in which the bullets are posed back-to-back, or "base-to-base," raised questions among those circulating the photographs because they could not perceive any matching class characteristics in the two bullets. Based largely on these photographs, Sutton filed a motion for mistrial.

In the motion, Sutton alleged that the photographs "clearly show that the ‘lands and grooves’ in Q-9 and Q-10[, the two bullet fragments,] are distinctly dissimilar." Additionally, Sutton asserted that "[t]he photographs have been sent to William Tobin, formerly of the FBI laboratory for analysis," and that Tobin had stated that " ‘preliminary’ [sic] based upon a photograph sent by Dr. Whitehurst there is ample reason to question whether the class...

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