              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
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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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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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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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